Judicial Review in United States

In the United States, judicial review is the legal power of a court to determine if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution.

Power of Judicial Review:-

The Supreme Court is the most powerful judicial agency in the world. Alexis de Tocqueville, writing in 1848, observed:

If I were asked where I placed the American aristocracy, I should reply without hesitation………that it occupies the judicial bench and bar……scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.

Exactly a century later Professor Harold Laski wrote:

The respect in which the Federal Courts, and above all the Supreme Court are held is hardly surpassed by the influence they exert on the life of the United States.

What accounts for this great influence and prestige of the Supreme Court is its power to interpret the Constitution. Justice Frankfurter put it rather bluntly that the Supreme Court is the constitution. When Justices interpret the Constitution, they make policy decisions and thereby have the final say over the determination of the social and economic issues that confront the country. They uphold or declare null and void and, consequently, of no effect the acts of Congress or State Legislature or Executive orders which are in conflict with the Constitution. By doing so the Supreme Court becomes the guardian of the constitutional system of the United States.

Professor Henry J: Abraham defines the term Judicial review to mean the power of any court to hold unconstitutional and hence unenforceable any law, any official action based upon it, and any illegal action by a public official that it deems to be in conflict with the Basic Law, in the United States and its Constitution.

Theoretically, any court in the United States can declare a law or an executive action unconstitutional, but the Supreme Court is the final arbiter. Actually, however, the Supreme Court will not review every case in which questions of constitutionality are raised. It has established maxims or criteria and cases coming before the Court must fulfill the set criteria, numbering sixteen. This has been done to eliminate the very large number of appeals which otherwise would have come before the Court.

There is no direct authority in the Constitution which empowers the Supreme Court to declare the constitutionality or otherwise of State or Federal Acts. Some writers, however, hold that the framers of the Constitution did not intend to confer such a power, at least over Federal Acts, upon the courts of the United States and the exercise of authority of holding Federal Acts, or orders unconstitutional is the usurpation of power.

President Jefferson had unequivocally declared that the design of the Fathers was to establish three independent departments of Government and to give the Judiciary the right to review the acts of Congress and the President was not only the violation of the doctrines of the Separation of Powers and limited government, but it was also in violation of the intentions-of the makers of the Constitution.

There are others who consider that judicial review is inherent in the nature of a written Constitution. There are two important provisions of the Constitution, it is maintained, which are indicative of the intentions of its framers.

One is Article VI, Section 2, which reads, inter alia. This Constitution, and the laws of the United States which shall be made in pursuance thereof, ind all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.

The second provision is found in Article II, Section 2, which says, The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under this authority.

Both these provisions are sufficient to fill in the-gap which the Constitution failed to expressly provide for. The thread of the intention of the framers of the Constitution can be connected with what Hamilton wrote in the Federalist.

The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be irreconcilable variance between the two, that which has the superior obligation and validity ought, of course to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Professor Beard remarks that there is good reason for thinking that a majority of the prominent members of the Philadelphia Convention took a similar view of the federal judicial powers. In fact, judicial review was already in existence in the American States after their break with Britain in 1766. If it was not expressly provided in the Constitution, it was because the framers believed the power to be clearly enough implied in the language used in Articles III and VI.

Chief Justice Marshall made the issue clear. Whatever may have been the intention of the framers of the Constitution, the issue was finally decided by Chief Justice Marshall in the famous case of Marbury v. Madison and since then judicial review has become a part of the constitutional law, in fact,-its very cornerstone. The facts of the case, briefly stated, were that Congress had provided in the Judiciary Act of 1789, that requests for writs of mandamus could be made to and granted by the Supreme Court.

On the night of March 3,1801, Marbury was appointed Justice of Peace for the District of Columbia by President Adams, whose term of office expired before the commission of his appointment could be delivered to Marbury. The new President Jefferson and his Secretary of State, Madison, refused to deliver the commission to Marbury who petitioned to the Supreme Court for a writ of mandamus ordering Madison to deliver the commission.

Marshall, in writing the opinion of the Court, held that Marbury was entitled to his commission and that mandamus was a proper remedy in the situation, but the Supreme Court had no authority to issue the writ. The-issuance of such a writ, declared Marshall, was in violation of the constitutional provision of Article II as it clearly does not include such writs.

The Judiciary Act of 1789, which empowered the Supreme Court to issue writs enlarged the original jurisdiction of the Supreme Court and Congress was devoid of authority to enlarge its original jurisdiction. Marshall argued that Justices were bound by oath to support the Constitution, and when they found that one of its provisions was in conflict with the law they must hold the latter repugnant and void.

The argument of Chief Justice Marshall, in brief, was that the Constitution is the supreme law of the land and the Justices are bound to give effect to it. When the Court is called upon to give effect to a statute passed by Congress which is clearly in conflict with supreme law of the Constitution, it must give preference to the latter, otherwise the declaration of the supremacy of the Constitution would have no meaning.

The implications in Chief Justice Marshall’s decision may be summarized as Under:-

  1. That the Constitution is a written document that clearly defines and limits the powers of government.
  2. That the Constitution is a fundamental law and is superior to the ordinary law passed by Congress.
  3. That the Act of Congress which is contrary to and in violation of the fundamental law is void and cannot bind the courts; and
  4. That the judicial power conferred by the Constitution together with the oath to uphold Constitution, which the Justices take on the assumption of office, require that the courts should declare, when they believe, that the Acts of Congress are in violation of the Constitution.

Since Marshall’s decision in 1803, the power of the Supreme Court to declare Acts of Congress invalid has been restricted, evaded, and attacked but never overthrown. The principle of judicial review is now firmly embedded in the American System of government and Marbury case forms the basis of the important authority exercised by the Supreme Court, During the first eighty years only in the key case of Marbury v. Madison and subsequently in the Dred Scot v. Sonford a federal law was disallowed. Since then more than eighty Acts of Congress, in whole or part, have been invalidated.

In the four years between 1933 and 1937, thirteen federal and fifty-three state Acts were declared null and void. Since 1937, no economic measure enacted by Congress has been held unconstitutional and the Supreme Court has displayed a tolerant attitude toward economic regulations enacted by the States. In this area the judicial neutralism advocated by Justice Holmes has become dominant. Statistically the incidence of judicial review on Congressional legislation has been extremely slight. State laws have been more frequently the subject of Supreme Court dis-allowance.

Since Marshall’s time, the Supreme Court has emphasized repeatedly that it is not concerned with the policy, wisdom or expediency of legislation but only with its constitutionality. In its own words, it neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and having done that, its duty ends. In another case the Court-ruled, Even should we consider the act unwise and nonprejudicial to both public and private interests, if it be fairly within delegated power, our obligation is to sustain it.

Although the final judgment in cases of this kind is made by the Supreme Court of the United States, judicial review is a prerogative of al! courts from the highest to the lowest. Even a Justice of the Peace may exercise this authority in proper cases, although his decision would certainly be appealed. When a court declares a legislative Act unconstitutional, it means that it cannot be enforced as its inconsistency with the Constitution deprives it of the character of law.

But the courts have no power at their, disposal to Carry out their decrees. It is for the Executive to enforce them and it may be possible for an executive officer to them and this has actually happened in a few cases as, for example, in a famous case in connection with which President Andrew Jackson wrathfully remarked that John Marshall has made his: decision, now let him enforce it.

Generally, however, the prestige of the doctrine is so great that a pronouncement of the Court is accepted as final even when the act declared unconstitutional is a popular one. As Bryce expressed it, the Supreme Court is the living voice of the Constitution, and, as such, the country obeys, both by inclination and habit.

Process of Judicial Review Examined:-

Those who have critically studied the power of judicial review contend that as a result of it the Supreme Court has expanded its authority to such an extent that it has become a non-elective sup¢r-legislature. The judges while giving their decisions, and in whatever legal dress such decisions are clothed, are political decisions. The judges do not confine themselves to such legal questions as he limits of Federal or State jurisdiction, or the carrying out of legal regulations which are essential to make due process of law, but they discuss the advisability of legislation, its essential justice, and its conformity to the law of reason.

The law of reason and essential justice, are what the temperaments, characteristic attitude, and views of the Justices are. The Justices have their own political, economic and social predilections and to which they very often owe their appointments. The appointments of the Judges are customarily, but not exclusively, partisan. And in interpreting and applying phrases, like regulate,commerce, and due process of law, they hardly can fail to be swayed consciously or unconsciously by their social philosophies and general outlook on affairs.

Between the Civil War and the New Deal, Republicans were in White House for all but sixteen years. Regardless of party affiliations, most of the Presidents and Senators believed in the policy of complete laissez faire and looked with suspicion any proposal which restricted the right to economic freedom regarding it dangerous, socialistic, populist and anarchic.

And these were the men who appointed most of the Justices of the Supreme Court. With the appointment of Melville Fuller as Chief Justice in 1888, a new period began in the history of the Supreme Court. Between 1888 and 1937, it became an aristocracy of the robe and twisted the due process clause into a moat around all forms of private property.

It censured and invalidated all kinds of legislation which, in the opinion of the Justices, unreasonably interfered with the use of private property. The Court gave a narrow meaning to the inter-State commerce and, thus, in many ways clipped the powers of Congress. It did not even hesitate to veto all attempts by Congress to forbid child labor.

In 1895 the Supreme Court reversed an-old and well-accepted and hitherto practiced precedent and made it impossible for the Federal Government to levy income-tax. It was a decision of five to four Justices and Justice Field made manifest the feelings of the majority opinion about such experiments, He regarded income-tax as a sheer assault on capital and contended that it will be but the stepping stone to others, large and more sweeping, till our political contests will become a war of the poor against the rich, a war constantly growing in intensity and bitterness, When the Supreme Court retarded the manifestation of public opinion by imposing upon the nation its own construction what the social and economic order ought to be, it really assumed the power of super legislature but not in its representative Capacity.

The popular opinion took a political revenge by adopting the Sixteenth Amendment in order to reverse this decision. In the notorious Atkins case Justice Sutherland, speaking for the majority, defined the role of the court, as Brogan says, in a way that a radical critic could hardly have bettered. And referring to this case Boudin remarked the announcement that the court has constituted itself in a super-legislature is perhaps plainer than in any other case.

Justice Sutherland had unequivocally asserted that there are limits to power and when these have been passed, it becomes the plain duty of the Courts in the proper exercise of their authority to so declare. Such decisions are, indeed, political in nature, and are not impressive, impartial and worthy of any special respect as the decision of a court should generally command.

It may also be noted that all such decisions had come forth with five to four majority and if Justice Sutherland is to be relied upon that it was the plain duty of the courts, in proper exercise of their authority, to declare invalid any exercise of authority which passed beyond the limit, it follows that the four dissenting Justices had always been oblivious of their plain duty. In the Atkins case particularly the minority included the very conservative Chief Justice Taft.

The Supreme Court’s assumption of power as a super-legislature has always been contested by a minority of the Justices. Justice Oliver Wendell Holmes (1902-32), who spent well over thirty years on the Court, consistently and ceaselessly protested against his colleagues habit of writing their own economic predilections into the Constitution. Holmes was a conservative with a little faith in social reform in legislation, but he never allowed his personal views to become the measure of the constitutionality of legislation and he was, accordingly, in dissent.

Louis D. Brandies too, appointed in 1914, by President Wilson, joined with Holmes in protesting against the major direction of the Supreme Court’s opinions and exposing the reasons behind the Court majority. With the coming in of Harlan Fisk stone, in 1923, Holmes, Brandies, and Stone dissenting became a familiar phrase in the law review.

There is yet another aspect of the problem, While interpreting and applying the spirit and language of the Constitution the Justice’s also decide questions of public policy. When an Act of Congress comes before the Supreme Court, the Justice are either accepting or rejecting: a policy embodied therein. The policy once rejected by them has no chance of enforcement until a differently constituted court at some later time takes a different attitude.

The Supreme Court is the least responsive to public opinion, If the Constitution is supreme because it is an expression of the people’s ideas then those agents who most directly represent those ideas have the best right to interpret the Constitution.

It is, therefore, pertinently asked why should five men, who constitute a majority of the Court, holding office for life and brought to their posts for their strong political, social and economic predilections, have power to tell Congress and the President, elected by the people, what they may not do. The undue partiality and excessive dependence on legal formula shown by the Supreme Court has seriously retarded progress in the United States.

The claim of Chief Justice Hughes that we are under a Constitution but the Constitution is what the judges say it is or to express the same what Justice Frankfurter tersely said, The Supreme Court is the Constitution is difficult to accept so long as some, at least, of the Justices are keen politicians by training and are taken enough to yearn for the Presidency even after they have becomes Justices of the Supreme Court.

It is not, Indeed, an exaggeration to say that, at any given time, one or two of the Justices are potential candidates for Presidency. It would not also be out of place and unimportant to mention here that Chief Justice Taft did not think it compatible with his high office to act as a personal adviser to Mr. Coolidge throughout his Presidential terms.

Chief Justice Hughes and some of his associates, it is alleged, played a considerable, part in the defeat of President Roosevelt’s Court plan in Congress. When Judges are politicians and become active politicians, the prestige of judiciary does not carry with it the esteem which it should carry as an impartial custodian of the Constitution.

Judicial review assumed a new aspect after the appointment of Earl Warren as Chief Justice in 1954, It is known as judicial activism. Prior to Warren’s appointment judicial review had only been used to invalidate legislation on the ground that it was in conflict with the Constitution; negative concept indeed.

During the tenure of Chief Justice Earl Warren’s office, judicial review had been used positively to create legislation. The Court accepted a modem liberal style of judicial review the discussion of economics, the references to political history, the use of the sociological treaties, the absence of appeals to precedents as wholly controlling.

The rules of the Constitution were applied in a reflective and broad-gauged manner consistent with the intention of the Framers and the needs of public policy. It was claimed that the judicial process during the two decades following Warren’s appointment was being brought to bear in favor of a progressive, democratic, libertarian society.

Apart from its leadership in the black revolution, the most significant piece of egalitarian reformist activism in which the Warren Court engaged was its imposition of the one man one vote principle upon representation in State. Legislatures and Congress.

The Court threw precedents and the political questions doctrine overboard and held by a six to two majority in Baker v. Car ( 1962) that State legislative apportionment properly was subjected to judicial Scrutiny under the equal protection clause.

There was an avalanche of criticism directed at the Court. The gist of the criticism was that the Court had unwisely fashioned itself into kind of permanent libertarian constitutional convention which sat from day to day intent on Solving all of the political and social ills of the county through a continuous process of judicial intervention.

The Justices, it was argued, disregarded precedents and long-standing rules of law ed on occasion even resorted to spurious law office history in order to endow their decisions with a superficial constitutional plausibility. All this seriously violated the democratic process in that it Imposed reform without regard to majority will or the normal legislative organs for effecting social change.

Dissatisfaction with such experiments in Venturesome constitutionalism, as one of the critics described the Supreme Court decisions, was widespread in the entire country and by the end of 1969, the legislatures of thirty-three States petitioned Congress to call a constitutional convention. Earlier in 1958 the conference of the Chief Justices (of the Supreme Courts of the 50 States) had adopted a resolution calling on the United States Supreme Court to depart from politics and return to the law.

Warren Burger who succeeded Earl Warren, had never been accused of being a flaming liberal. But the appointment of William H. Rehnquist, in succession to Chief Justice Burger, evoked widespread criticism. He was criticized, at a grueling Senate hearing to confirm his nomination by President Ronald Reagan, for his extreme views on race, the poor, rights for women and freedom of speech.

Senator Edward Kennedy described Rehnquist as too extreme to be Chief Justice. When Richard Nixon nominated him on the Supreme Court in 1971, the minority report, filed by members of the Senate Judicial Committee, declared that Rehnquist had failed to show a demonstrated commitment to fundamental human rights, that he was outside the mainstream of American thought and, therefore, should not be confirmed.

Political historians generally agree that the most permanent legacy that a United States President Leaves to the nation is the appointments he makes to the Supreme Court. This is because the nine Supreme Court Justices enjoy life-time tenure and their interpretation of the Constitution is the final word in the United States.

There is no final appeal. Reagau’s appointment of Chief Justice William Rehnquist was the President’s phenomenal success in changing the ideological face of America’s Judiciary. The ideological tilt was expected to be advanced by Justice Rehnquist’s accession. He was fully conservative as President Reagan’s most conservative instincts.

The President’s ultimate aim was to pull  the nine number Supreme Court away from its slight liberal inclination. Only a conservative could expect to reach the Supreme Court Bench, It was a calculated move of President Reagan that by the end of his term of office in 1988, at least half of the Justices should be his nominees.

Suggestions for Reform:-

The system of judicial review has, from time to time, been violently assailed and many remedies have been suggested. One reform suggested is not to permit invalidation of statutes by mere majorities of the Court or even by the votes. The spectacle of important Congressional legislation being overthrown by votes of five to four does not add to the prestige of the Supreme Count. In fact, it adds to the scepticism of judicial infallibility. It has, therefore; been proposed that an exercise of the power of judicial review should require the concurrence of seven of the nine Justices of the Supreme Court.

Such a kind of reform, it is contended, can be accomplished by an Act of Congress. But it is doubtful if the Supreme Court would declare this kind of Act valid. Two other proposals have been suggested. One is to abolish the power of judicial review by constitutional amendment. But this is an impossible task.

There has actually been little or no demand: for abolishing judicial review; its continuance being assumed even by various schemes for altering the personnel and jurisdiction of the Courts. The second is that Congress may repass a law set aside by the Court as it may override a Presidential veto. But this, too, would require a constitutional amendment.

The remedies which require a constitutional amendment are not deemed sufficiently efficacious, because of the difficulties of uncertain results and circuitous methods involved therein. It took nearly twenty years for the Sixteenth Amendment to come into effect and, thus to undo the work of the Supreme Court. One of the most drastic proposals suggests that the Constitution be amended to establish a Court of the Union composed of the Chief Justices of the Supreme Courts of 50 States, with power to review and reverse decisions of the United States Supreme Court when States rights are involved.

But critics of this proposal rightly ask would this not lower the prestige of the Supreme Court and impair its effectiveness? Is it practicable to have a court composed of fifty members? Would the Chief Justices of the Supreme Courts of the States most of whom are popularly elected, be of high quality and capable of taking a detached view?

During more recent times there have been serious proposals afoot to curb the powers of the Supreme Court. When the Court struck down. State anti-subversion laws in the 1950s or, in the Miranda case of 1966, defining the rights of prisoners undergoing interrogation, dozens of Bills came before Congress to restrain it.

Most of them were intended to keep the so-called moral or social issues principally abortion, school prayer, and school desegregation outside the scope of unifying federal decision, such as, the Supreme Court would provide. The conservatives, who dominated the Senate argued that the role of the federal judiciary had been unjustifiably enlarged and that the Supreme Court was not the sole interpreter of the Constitution.

The legislative authority towards curbing the Supreme Court was chosen because it Is relatively quick and easy. None was passed. But will the Supreme Court Stand it if Congress passed any of such measures? It still Has the power to review legislation passed by Congress. The Court may not, therefore, be so much vulnerable to attack by a legislative measure as conservatives propose and suppose.

None of the proposals; referred to above, has evoked popular enthusiasm, and most Americans continue to hold the system of judicial review a desirable feature of the governmental system as obtainable in the United States. Generally speaking, as Burns and Peltason put it, Americans have never been willing to put full trust in.the majority.

An independent judiciary with the power to judicial review has been the major institutional sign of this fear of unchecked legislative and popular majorities. But how far independent are judges? Enough has been said about it, but one more illustration will be relevant in this connection. Chief Justice Taft feared to resign lest the radical Hoover be allowed to appoint someone in his place.

In 1929 he wrote, I am older and slower and less acute and more confused. However, as long as things continue as they are, and I am able to answer in my place, I must stay on the Court in order to prevent the Bulsheviki from getting control.

But a serious problem that faces the Supreme Court is the number of cases before the Court which have increased manifold during recent years. Chief Justice Warren E. Burger, in 1983 gave the quantum of the case-load that already was. In 1953, Chief Justice Earl Warren’s first year, there were 1,463 filings and in 1981, there were 5,311 cases on the docket and if the increase continued at the current rate, the Chief Justice said, that during his tenure on the Court there would be 7,000 to 9,000 cases a year on the docket. No nine people in the world can handle that many cases and handle them properly.

To maintain the quality of justice, he suggested, fundamental changes in the United States Judicial System, such as creating a Second Court of last resort. In his annual report to the American Bar Association, the Chief Justice called on Congress to create a commission to look into the whole problem. So far Congress has done nothing in this respect, though the Chief Justice had viewed the problem of massive and mounting case-load as very serious.

Roosevelt Proposals:-

President Franklin Roosevelt’s battle with the Supreme Court is a more recent and more dramatic attempt by a political leader to influence the course of judicial decisions. President Hoover left office in March 1933, in the midst of the great economic depression. On the same date, President Roosevelt entered upon his duties promising a New Deal and steer the country out of the economic chaos. Under his leadership Congress passed in quick succession laws of far reaching importance in record breaking time. Haste was justified by the emergency.

By 1935, these measures began to come before the Supreme Court. The Supreme Court declared five of the New Deal Statutes unconstitutional during the Court term beginning in October 1935. In all it invalidated, within three years of its battle with the President, twelve New Deal statutes or its provisions thereof. It is instructive to note something about the composition of the Supreme Court at that stage. Between 1933 to 1937, the Supreme Court consisted of nine judges, all of whom had been appointed before 1933, and except two, McReynolds and Brandies, the rest were appointed by Republican Presidents.

Their average age was seventy-two (in 1937), the highest in the Supreme Court history, and it so happened that four (McReynolds Suthertand, Butler and Van Devanter) of the six, who were over seventy, were conservatives while the fifth (Hughes) was a middle of the roader and only the sixth (Brandies) a liberal, On most of the measures which came before the Supreme Court the Justices were divided into two definite blocs conservative and liberal.

Early in 1937, when the conflict between the President and the Supreme Court was moving towards its climax, Roosevelt presented to Congress his own programme to reorganize the federal judiciary. The President and the Democratic Party had given no indication of such a reorganization during the Presidential election campaign. His message to Congress on February 4, 1937, embodying his reorganization proposals had,. therefore, a dramatic effect.

The most significant proposal was to give the President the power to appoint an additional Justice for each member of the Court who had served for ten years and who remained on the Bench after reaching the age of seventy, provided the maximum number should never exceed fifteen. The object of the proposal was to rejuvenate the Supreme Court and to make it more efficient so that it could keep up with its work.

The proposal was defeated in its entirety, The only redeeming feature which emerged out of it was that Congress permitted Supreme Court Justices with ten years of service to retire at seventy with full pay. Although it was a political defeat for Roosevelt, yet, as it has been observed the President lost his battle but won his war, In 1938, Justice Roberts wrote another majority opinion, this time holding that the Agricultural Adjustment Act of 1938, which also aimed to regulate agriculture, was constitutional.

It is true that by the fall of 1937, the liberals were clearly in majority in the Supreme Court and by September 1942, only Justices Roberts and Stone remained out of the old lot, But even before any changes could be made in the personnel of the Supreme Court, the Court manifested a change of mind by reversing its previous attitude towards State Minimum Wage Law for women, by redefining the Commerce clause as to include manufacturing, by upholding the Social Security Act and the Labour Railway Act.

The Switching on of Chief Justice Hughes and Justice Roberts, who had up to that time voted with conservative Justices, indicated the truthfulness of the newly coined political terminology. A switch in time saved the Nine. Within four years most of that which President Roosevelt had sought to achieve by his proposal to liberalise the court had been achieved without changing its structure. Since 1936, only two minor sections of two Federal Laws had been declared unconstitutional. The Court now interprets the Constitutions in the light of the social and economic condition prevailing in the country. It treats the Constitution as a body of living principles and consequently has validated a large expansion-in the authority of the Center under the commerce clause and in a new interpretation of the welfare clause. The result is the emerging legislation in the context of a Welfare State.

Another significant feature of the Supreme Court’s modernization is a substantial change in its regard to precedents. Justices of the old school had adhered to precedents to the point of religious devotion which robbed the Constitution of its adaptability to changing conditions. The new Court attitude freed constitutional interpretation from the restrictions of stare decisis. In 1941 and 1957 the Court reversed its previous decisions in child labor and women’s minimum wages respectively. The new Court attitude was best expressed by Justice Reed. He declared in Eire Railroad Company v. Tompkins (1938), In this court stare decisis, in statutory construction, is a useful rule, not an inexorable command.

But all this was feared to be reversed by the Rehnquist Court. Central to Rehnquist’s view was his obligation to the political activism encompassed by the phrase. The living Constitution. Fidelity to the original intent of the framers is the comer stone of Rehnquist’s constitutional interpretation. The constitutional language, for him, is not infinitely elastic, to be shaped to perceived needs of succeeding generations. His belief in the centrality of original intent as a search for what the words they (the framers) used meant to them runs consistently in his public pronouncements, particularly in his judicial decisions already on record.

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