Wednesday, February 21, 2007

Old (Feb.1,2006): Why Justices' Constitutional Philosophies Matter

Why Justices’ Constitutional Philosophies Matter

By: Michael Anthony Lawrence

With Joseph Alito’s confirmation to the U.S. Supreme Court, it is appropriate to take a moment to reflect upon why all Americans - Republicans, Democrats, Libertarians, Socialists, Greens, Blues, and Reds alike - should care deeply about the constitutional philosophies of the men and women who sit on the Supreme Court.

Like Achilles of Greek myth, the U.S. Constitution is strong yet vulnerable. The Constitution’s vulnerability derives, ironically, from the source of its greatest strength -the power of the Supreme Court to strike down the unconstitutional actions of the legislative and executive branches.

The Constitution’s vulnerability is dangerously exposed when the Court fails to exercise this judicial power to rein-in the excesses of the executive and legislative branches, because there is simply no other institution left to protect individual and minority rights. Occasionally the Court has so failed, as it did during World War I when it upheld vast legislative prohibitions on speech; or during World War II when it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans, but our history would look quite different if the Court had not eventually come back around in these instances and others to the position that the Court needs to check the power of the democratically-elected executive and legislature.

Some jurists and scholars protest that judicial “activism” is undemocratic and inappropriate. These arguments ignore the fact that the broad judicial power to correct majoritarian excesses is precisely how the founders originally envisioned the Court’s role in the constitutional design. As James Madison said (as urged by his friend Thomas Jefferson) on June 8, 1789 in asking the First Congress to adopt the Bill of Rights, “one [needs] to control the majority from those acts to which they might be otherwise inclined… independent tribunals of justice will consider themselves in a peculiar manner … [to] be an impenetrable barrier against every assumption of power in the legislative or executive [branch]; they will be naturally led to resist every encroachment upon rights….”

So as we see increasing numbers of Supreme Court jurists whose constitutional philosophies provide for a very powerful “unitary” executive with little judicial interference, there is justifiable cause for concern. This concern is far from arcane – at the extreme, an unchecked executive can lead to excesses of the sort that occurred in Germany in the 1930s and 40s. Hitler himself came to power, after all, through popular acceptance of the ideas of German jurists like Carl Schmitt, who argued in the 1920s and 30s that Article 48 of the German Constitution “conferred an unlimited authority in the executive as ‘protector of the Constitution’ to suspend the Constitution during a state of emergency, as long as he restored the Constitution when the emergency ended.”

In short, the U.S. Supreme Court as newly-composed must not shrink from fulfilling its crucial - yes, active - historic role of critically reviewing the actions of the executive and striking them down where necessary.