Judicial Review vs. Constitutional Government

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One overlooked effect of judicial review — the power of American judges to declare laws unconstitutional — is that it gives judges power to adopt amendments the people, through their representatives, have rejected. "Constitutional law," the body of decisions of American judges implementing the Constitution, not only does not reflect the people's wishes in adopting constitutional language, but often flatly contradicts it.

The first, and perhaps most significant, instance of the courts' use of judicial review as an amendment power came in 1819, with the Supreme Court's decision in the case of McCulloch v. Maryland. That case concerned the constitutionality of the 1816 bill chartering the second Bank of the United States.

Counsel for Maryland in McCulloch, State Attorney General Luther Martin, was one of the Framers of the Constitution. He argued that since the list of Congress's powers in Article I, Section 8 of the Constitution did not include power to charter a bank, the bank chartering legislation was unconstitutional.

Martin knew that in the Philadelphia Convention of 1787, delegates such as James Madison had endeavored to have their fellow delegates give Congress a general legislative power, and that they had been defeated. A careful list of the types of laws Congress could adopt had been included in the Constitution instead.

Martin's reasoning was that the states had created the federal government and, in doing so, given it only certain specified powers. All the other governmental powers, he said, remained in the states, where they had been before the federal government was created. This, he might well have added, was exactly the explanation of the Constitution that had been offered by Framers Charles Cotesworth Pinckney in South Carolina, Edmund Randolph in Virginia, William Cushing in Massachusetts, Alexander Hamilton in New York, and James Wilson in Pennsylvanian when ratification of the Constitution was being considered by the states in 1787–88. It also underlay the Tenth Amendment, which was added to the Constitution to make explicit a principle the Federalists had insisted was already implicit. ( It says, "The powers not delegates to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.")

No, Marshall said for the unanimous Supreme Court, Martin was wrong. According to Marshall (who was not a Framer of the Constitution), Martin (who was a Framer of the Constitution) did not understand what the Philadelphia Convention that drafted the Constitution had done. Far from the product of thirteen states, Marshall said, the Constitution was the act of one American people. It gave Congress not only the powers expressly granted in Article I, Section 8, but also boundless powers implicitly granted. (Federalist spokesman Governor Edmund Randolph had assured the Virginia Ratification Convention, of which Marshall actually had been a member, that Congress would have only the powers it was "expressly delegated" by the Constitution. But no matter.) And so matters stand today: the people ratified a Constitution giving the federal government limited powers in 1787–88, but the Supreme Court amended the Constitution to give Congress virtually boundless powers in 1819. The nationalist vision defeated in the Philadelphia Convention thus became the law of the land.

The next most egregious example of the Supreme Court's use of its de facto amending power came in 1976, with the Court's decision in Craig v. Boren. In 1976, the states were considering — and, as it turned out, rejecting — Congress's proposed Equal Rights Amendment. The Equal Rights Amendment would have banned sex discrimination, making it illegal for Congress to bar women from combat roles in the military, say, or for states to allow only women to marry men and only men to marry women.

Oklahoma had a statute establishing the minimum legal drinking age at 18 for women and 21 for men. In support of this discrimination, the counsel for Oklahoma noted that while only 0.18% of women aged 18–20 were arrested for driving while under the influence of alcohol, 2% of men that age were. In other words, the state's statistics showed that men 18–20 were 11.11 times (1,111%) as likely to be arrested for DWI as women the same age. The state's policy was intended, then, to prevent men in that age group from drinking and driving.

Justice William Brennan, who once explained that he operated according to the "Rule of Five" — that with five votes, he could do anything — led the Court majority in striking down the Oklahoma discrimination. In doing so, he established that the Court would apply an intermediate level of scrutiny — between the higher one applied to race discriminations and the lower one applied to common statutory classifications — to legislation discriminating on the basis of sex. This decision had no relationship whatsoever to either the language of the Constitution or the people's intention in ratifying the relevant provisions. On the contrary, the people ultimately rejected the ERA. But the Court had effectively adopted it anyway. Just as in the case of the Marshall Court's McCulloch decision, a Court majority foisted off on the people a version of the Constitution that the people had not ratified — that their representatives had thoughtfully rejected.

A third area in which the Court has given us an amendment we rejected is in that of the relationship between government and religion (or, to use the popular shorthand, "church and state"). The First Amendment's religion clauses — the Establishment Clause and the Free Exercise Clause — were not originally understood as applicable against the states. How could they be, indeed, when they begin by saying, "Congress shall make no law"? If they had been intended to affect state religion policy, in fact, they never would have been ratified, not least because several of the states (New Hampshire, Massachusetts, and Connecticut) had state religions at the time that the Bill of Rights was ratified. In fact, James Madison proposed an amendment affecting state religion policies when he put the first draft of the Bill of Rights before the Congress, and it was defeated in Congress.

In the mid-19th century, however, a huge wave of Irish immigration followed the onset of Ireland's devastating Potato Famine. Nativists, atheists, and Protestants responded to the novel influx of large numbers of Catholics by developing an ideology of "American rights," rights appertaining not to state citizens as state citizens but to Americans in general as … Protestants, men, natives, or some combination thereof. Catholicism at the time endorsed government involvement in religion, and these people intended to head that off with a separation ("Americanism") amendment.

These people pushed repeatedly in the 19th century for an Americanism amendment putting the idea of separation of church and state in the Constitution. They conceded that it was not in the Constitution yet, and that that was why the amendment was needed. Their attempts at amending the Constitution for this purpose failed.

Among the groups most significant in developing this ideology was the Ku Klux Klan. When the Klan was reborn in the 1920s, it pushed especially hard for a "wall of separation between church and state." Practically, this meant that government should deny support to Catholic schools, which were seen as un-American.

Perhaps the people could not be persuaded to amend the Constitution the constitutional way, but the Supreme Court still could accomplish the same goal. How surprising is it, then, that the Supreme Court justice who wrote the idea of "a wall of separation between church and state" into American constitutional law — that is, into the body of Supreme Court precedents implementing the Constitution — was a devoted Klansman, Justice Hugo Black of Alabama, and that that Klansman long had expressed support for the anti-Catholic ideology of the Klan?

Black wrote the majority's opinions in Everson v. Board of Education (1947), which first made "a wall of separation" the guiding metaphor in this area of "constitutional law," and in Engel v. Vitale (1962), which banned voluntary non-denominational prayer from public school. Black said that the Fourteenth Amendment's Due Process Clause, which guarantees that no one will be fined, imprisoned, or executed by a state without a hearing, bans such prayer. (Yes, that is what he said.)

As in the case of the broad congressional powers favored by Marshall and the ERA favored by Brennan, the wall of separation favored by the Klan was first rejected through the normal process of constitution-writing, then effectively added to the Constitution via a court decision, and has been a part of "constitutional law" ever since. All of this goes to show that there is virtually no relationship between "constitutional law" and the Constitution adopted and formally amended by the people through their representatives. In other words, it illustrates the woeful difference between republican self-government and the system under which we now live.

June 15, 2007