sexta-feira, 9 de outubro de 2009

The Transformation of Judicial Review in America

Judicial review is not the limit power now that it was in 1789, it has been transformed into something new and completely different. It has really been there different sorts of power, during three distinct eras of American judicial history. The first or “traditional” period, from the birth of the Constitution until the end of the 19th century, embraced a notion of interpretation based on the “fair reading” of the document and a moderate form of judicial review. The second or “transitional” period, from the end of the 19th century until 1937, maintained the theory of the traditional era while in practice giving birth to a more activist form of judicial review. The third or “modern” period, from 1937 until the present, developed new activism theories of constitutional interpretation and judicial review.

- The Traditional Era

The chief features of the traditional era can be seen most clearly by examing its approach to constitutional interpretation and is manner of exercising judicial review.

Two of the most striking facts about rules of interpretation during the Founding were the relative paucity of discussions about them and the apparent assumption of widespread agreement on them. Interpretation began by looking at the words of the document in their ordinary popular usage and interpreting them in light of their context. That context included the words of the provision at issue and extended too much broader context of the document as a whole, especially its structure and subject matter and apparent purposes.

The document was assumed to be not a mere grab of disparate provision which could be inferred from and light of which it ought to be read. Extrinsic sources of intent, such as contemporary exposition of it by supporters, were very subordinate forms of evidence to explain the text, not modify it.

The Founder’s rules of constitutional interpretation emerge from a study of the whole range of constitutional issues in the first years of American government and not merely from judicial instances of it. The most fundamental shared assumption was that the Constitution did have an ascertainable meaning given to it by its authors and that meaning was the end or object of constitutional interpretation: It was authoritative. This does not mean that were no provisions of the Constitution whose meanings were unclear. Early constitutional interpreters would not have denied this possibility. The “meaning” of the Constitution in such cases was more a question of limiting the possible readings than of finding the one sole legitimate reading. “Interpretation” in those cases resulted in the conclusion that several reading was plausible, and it (and, therefore, the possibility of judicial review) ended at that point.

The classic statements of the case for judicial review were Federalist n.º 78 and Marbury v. Madison. The first, and more important, argument presented in both statements flows from reasoning about the nature of a written constitution. A written constitution that contains limits on government must be regarded as superior to ordinary law, for otherwise the limits are illusory. Laws contrary to the Constitution are therefore void.

This primary argument us supplemented by Chief Justice John Marshall in Marbury with some textual observations. For example, the federal judicial power is extended by Article III to “Cases, in Law and Equity, arising under this Constitution”, as well as under federal laws and treaties which suggests that judges must look into the Constitution rather than confining themselves to the laws. The supreme law of the land, according to the Constitution, includes not federal laws in general, but only those made “in pursuance of” the Constitution, suggesting that laws not made in pursuance thereof – laws incompatible with it in some way – are not really law, but rather null and void.

Today there is controversy about the scope or use of the power, but hardly anyone denies the power itself. In the Founding, on the other hand, there were some substantial theoretical criticisms of the judicial review and significant political action directed against it.

The most important argument in defense of judicial review against the charge that it was undemocratic was that the power did not imply the supremacy of judicial will over the legislature, but merely the supremacy of the fundamental popular will over both. Judicial review simple gave effect it the will of the people contained in the Constitution over the more transient popular will represented by legislature (and executive) at given moments. Early defenders of judicial review also pointed out the limits that flowed from the nature of judicial power. Besides the most important external check – the impeachment power of Congress – as grounds for assertion, he gave these factors: a) the general nature of the judicial power; b) the objects to which it relates; 3) the manner in which and incapacity it support usurpation by force.

The last point is obvious because judges ultimately depend on the executive for the execution of their discussions. The judicial review was not and explicit “independent” judicial prerogative, but an amplied power derived from its essential task of deciding cases according to law. Moderate judicial review also acknowledged the republican principle underlying the case for legislative supremacy in the form of a “rule of administration” knows as legislative difference. Only where there was a clear incompatibility between and law and the Constitution would the judges declarate the law voids. Of course, “clear” violation had occurred to give rise to plenty of sharp controversy over the role of the Court in American politics.

The only justification for judicial review in a republican government, in this traditional era, was the fact that the judiciary was enforcing the Constitution rather than its own will. Judicial review did not consist in giving meaning to provisions that were unclear, but rather in enforcing the meaning that could clearly be found in the Constitution. Moderate judicial review also acknowledged limitations derived from the principle of separation of powers, especially in its understanding of the limited authority of Supreme Court interpretations of the Constitution. But that authority is not rightly characterized as “judicial supremacy”.

In early American history, judicial review was a different much and more limited kind of power that what it has become and no discussion of the appropriate extent of judicial (especially the Supreme Court’s) can proceed well without a recognition of this fact.

The history of judicial review, from the legal realist perspective, is the history of courts confronting the central political problems of their day and working out their own syntheses between the Constitution, precedent, and a significant measure of their own political views.

There is no doubt truth in the proposition that all judges are eminently human and that they fall short in some cases of the ideal enunciated by Chief Justice Marshall: that they are to apply the will of the law rather than own wills. The problem is quite similar to a perennial issue of philosophy: If man is defined as a rational animal, then there are no men, for no man is perfectly rational. The classic resolution of that difficulty was that the definition focuses on the “nature” of a thing, what it is when it this fully developed, even though many, or most, or even all of the particular individuals in the category may not ever be perfectly developed.

The crucial linchpin of most legal realist arguments is that the Constitution is a thing of wax, not jus because of what judges do to it, but because of what it is. If the Constitution has no clear meaning, then any interpreter necessarily proceeds by reading something into it. The crucial assumption behind the traditional position, to the contrary, was the Constitution is a substantive, intelligible document: It has a meaning, and that meaning can be known with some reasonable certainty.

- The Transitional Era

The first fundamental shift in the nature of judicial review came toward the end of the 19th century. The most salient feature of this new era was the use of “substantive due process” – an expansive version of due process that regulated the substance of law as well as legal procedure – to protect property rights and economic liberty. Between 1890 and 1937, the Court used substantive due process to strike e down a great deal of economic regulation at both the federal and state levels.

During this same period of time, the Court, under the influence of the laissez-faire economic philosophy, stuck down laws passed under the authority of Congress to regulate interstate commerce. Marshall, after all, had maintained that commerce “among the several states” was “that commerce more states than one”, and modern economic conditions have made that a broad category indeed. The transitional era reached a climax in the 1930s, when the Supreme Court struck down many parts of Franklin Delano Roosevelt’s popular New Deal.

One the first distinctive features of this first era of judicial activism were the justices’ apparent conviction that they were merely carrying out their tradition task of enforcing the Constitution: according to the terms of Federalist n.º 78, exercising “judgment” rather than “will”. The irony is that the critics of the laissez-faire Court were the ones who, despite their apparently deferential stance toward legislative power, had adopted views which ultimately lead to a more self-conscious theory of judicial activism.

- The Modern Era

One of the reasons that laissez-faire Court had been able to maintain a traditional theory of judicial review while departing from its practice was its understanding of the Farmers, property rights, and the Constitution. Late 19th century admirers of the Farmers often played up the idea that the judiciary had been intended to be a bastion of property rights against attempts of the democratic mob to plunder the propertied.

Late 19th century thought was profoundly influenced by the impact of evolutionary thought. Charles Darwin was a major intellectual force to the age. The Constitution was made in light of a more Newtonian view of the world, but late 19th century thinkers were more likely to see it in Darwinian terms.

This emphasis on evolution was also a major factor in the developing view of judicial power. A crucial turning point in American thought was the publication in 1881 of The Common Law by Oliver Wendell Holmes Jr. The most crucial factor in the development of the law was considerations of social policy, what was best for society. Judging was not distinct from legislation, but a different form of it, in the “interstices” or gaps of the law. The common law judge did not act in a vacuum, but rather employed principles from earlier cases that were more or less applied the current case. Those precedents were then applied to the case hand, taking into consideration appropriate differences.

The initial impact of these new ideas about the Constitution – which obscured their long-term implications – was a tendency to be much more deferential to legislative judgments in matters such as economic regulation. The switch of the Court in 1937, then, together with Roosevelt’s subsequent appointment of justices committed to such judicial reform, was widely perceived as a blow against judicial activism. Holmes’s approach to free speech, in which justices effectively balance a heavy presumption in favor of free speech against countervailing state interests and decide where to draw line between protected and unprotected speech, was the harbinger of the modern approach to constitutional interpretation and judicial review.

Modern constitutional interpretation requires a reading of certain key constitutional phrases as vague general presumption or guiding principles instead of reading terms as “absolutes” to be construed “literally”. The difference between traditional and modern interpretation, then, starts out with differences over the meaning of certain key phrases. Were they intended to have, or do they in fact have, some relatively determinate content that interpreters are to discern and enforce; or were they intended to be, or are they in fact, open-ended provisions, whose content must be determined by courts over time? Modern judges have wrongly opted for the latter approach.

The most important phrases have been the Due Process Clauses of the Fifth an Fourteenth Amendments, the Fourteenth Amendment’s Equal Protection Clause, the guarantees of freedom of speech and religion in the First Amendment, and occasionally the Ninth Amendment. Modern interpreters have given the Due Process Clauses a very board meaning: It is a guarantee of fundamental rights against arbitrary deprivation.

Thus, the main job interpretation in the modern era is not so much ascertaining the meaning of the words the Constitution – the general presumptions are relatively easy establish – as giving those general presumptions more specific content in the process of applying them to particular cases. The method for accomplishing this application is “balancing”. In each case, judges must evaluate (1) the importance of the asserted right, especially in the form in which it is presented in the case; (2) the importance of the state interests said do justify impinging on the right; and (3) whether the state interests justify such impingement upon the right the case involves.

The modern approach to constitutional interpretation and judicial review is a fundamental transformation of older notions; it, in fact, essentially a different power. Some of the implications of that transformation can be seen by comparing some of the corollaries of modern or “expansive” judicial review with the features of traditional “moderate” judicial review.

Traditional judicial review tried to maintain its “democratic credentials” by arguing that judges were not enforcing their own wills, but simply the will of the people contained in the Constitution. With the emergence of a new form of judicial review more self-consciously legislative in character, that older defense was no longer available.

Most modern theories of judicial review dispense with the traditional principle of legislative deference. In the traditional era, there were frequent complaints that courts had exceeded their legitimate powers but there was general agreement on the principle that laws should be struck down only when their clearly violated the Constitution. Twentieth century jurisprudence is different because it is base on a theory of judicial review that by its very nature, cuts heavily in to traditional presumptions of constitutionality. Modern judicial review is precisely the process of giving meaning to the allegedly “open-ended” generalities of the Constitution. Resolving the ambiguity of unspecified constitutional content is the rasion d’être of modern judicial review.

Traditional limits of the authority of the Supreme Court’s interpretations of the Constitution have also been supplanted. Marbury vs. Madison actually said nothing specific about the general authority of the Court’s constitutional interpretation – Marbury’s intent was to show that the courts can refuse to give effect to unconstitutional laws in the process of performing their duties. Nonetheless, the reasoning does suggest a certain preeminence of judicial construction of laws, with the Constitution being treated as one form of law: It is, after all, “emphatically the province and duty of the judicial department to say what the law is”. Thus, Abraham Lincoln gave an accurate statement of the traditional approach to judicial review when he said that, normally, the Court’s interpretation of the only for given cases, but as precedent for the future “general policy of the country” as well. Lincoln limited that power, however, in the name of the principle of republicanism: Other branches could be justified by certain circumstances in not considering themselves bound by Court’s interpretation.

Chief Justice Marshall was so successful in establishing judicial review that, over time, Americans began habitually to identify the task of constitutional interpretation with the judiciary and to lose sight of distinction between moderate judicial review and judicial supremacy.


This thumbnail sketch of the history of judicial review provides is with a necessary framework for understanding the contemporary debates regarding the judiciary.

The battles over judicial nominations are simply a reflection of this fundamental division. These fights generally pit liberal defenders of judicial activism against conservative opponents who generally appeal to traditional principles that judges limit themselves to enforcing the Constitution. The former, who generally admire Warren Court jurisprudence that gave very short shrift to precedent, have become staunch defenders of precedent, at least as long as it serves their purposes. What makes this battle so tense is the possibility – inconceivable until recent years – that the center of gravity of the Supreme Court might actually in the near future to justices committed to a more traditional approach.

Whether an actual “traditional” Court majority will emerge is impossible to say, since it is largely dependent on the electoral fortunes of the two parties and the outcomes of future nominations, both of which are dependent on many chance circumstances. In the part, it might have been plausibly assumed that the traditional approach to constitutional jurisprudence was a matter of primarily historical interest. It is now clearly an intensely practical issue as well.

Source: From Constitutional Interpretation to Judicial Activism. 2006. by Christopher Wolfe Available in Accessed in 10/02/2009.

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