Government by Judiciary. Raoul Berger
target="_blank" rel="nofollow" href="#ulink_63b504ca-c132-5c4a-a642-a39fa8888e8d">11. Jefferson pledged in his Inaugural Address to administer the Constitution “according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated it.” 4 Elliot, supra note 4 at 466. Madison wrote, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.” 3 Letters and Other Writings of James Madison 441, 442 (1865).
12. John Marshall’s Defense of McCulloch v. Maryland 167 (Gerald Gunther ed. 1969).
13. William Cullen Bryant asked, are we “to admit that the Constitution was never before rightly understood, even by those who framed it?” 1 Allan Nevins, The Emergence of Lincoln 95 (1950).
14. Table Talk: Being the Discourses of John Selden, Esq. 10 (1696). See Supplementary Note on Original Intention.
15. Hobbes wrote that the judge is to be guided by “the final causes, for which the law was made; the knowledge of which final causes is in the legislator.” Thomas Hobbes, Leviathan pt. 2, chap. 26, §21, p. 191 (1991). Locke stated, “when a man speaks to another, it is . . . [to] make known his ideas to the hearer. That then which words are the marks of are the ideas of the speaker . . . this is certain, their signification, in his use of them, is limited to his ideas, and they can be signs of nothing else.” John Locke, An Essay Concerning Human Understanding 204–206 (Raymond Wilburn ed. 1947).
16. Louis Lusky, himself an activist, observed that the Court has “a new and grander conception of its own place in the governmental scheme,” resting on “two basic shifts in its approach to constitutional adjudication”: “assertion of the power to revise the Constitution, bypassing the cumbersome amendment procedure prescribed by Article V,” and “repudiation of the limits on judicial review that are implicit in the doctrine of Marbury v. Madison.” Louis Lusky, “Government by Judiciary: What Price Legitimacy?” 6 Hastings Const. L.Q. 403, 406, 408 (1979). In holding that Congress could not “alter” the Constitution, Marbury made the “implicit” “explicit.”
17. By “activists” I mean those who claim that judges are empowered to revise the Constitution and to look for authority outside its text and history. Thus, Paul Brest challenges the assumption that judges are “bound by the text or original understanding of the Constitution.” Paul Brest, “The Misconceived Quest for the Original Understanding,” 60 B.U. L. Rev. 204, 234 (1980). And the late Robert Cover thrust aside the “self-evident meaning of the Constitution,” let alone “the intention of the framers,” in favor of an “ideology” framed by judges. Robert Cover, “Book Review,” New Republic, Jan. 14, 1978, at 26, 27.
Perry urged activists “to get on with the task of elaborating a defensible non-originalist conception of constitutional text, interpretation and judicial role.” Michael Perry, “The Authority of Text, Tradition, and Reason: A Theory of Constitutional Interpretation,” 58 S. Cal. L. Rev. 551, 602 (1985). For Brest’s disappointment with seven activist attempts to frame such a theory, see Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale L.J. 1063, 1067–1089 (1981). He considers that “no defensible criteria exist” whereby to assess “value-oriented constitutional adjudication.” Id. 1065.
18. Brest, supra note 17 at 1109. Anthony Lewis exulted because in the fifteen years since Earl Warren became Chief Justice, the Court “has brought about more social change than most Congresses and most presidents” — “years of legal revolution.” Anthony Lewis, “A Man Born to Act, Not to Muse,” New York Times Magazine, June 30, 1968, reprinted in The Supreme Court Under Earl Warren 151 (Leonard Levy ed. 1972); cf. Calabresi, supra note 7.
19. “The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete responsibility of government to the governed.” Charles H. McIlwain, Constitutionalism: Ancient and Modern 146 (rev. ed. 1947). “The fabric of American empire,” said Hamilton, “ought to rest on the solid basis of THE CONSENT OF THE PEOPLE,” Federalist No. 22 at 141 (Mod. Lib. ed. 1937). James Wilson and others considered that “the binding power of the law flowed from the continuous assent of the subjects of law.” Bernard Bailyn, The Ideological Origins of the American Constitution 174 (1967).
20. 2 G. J. McRee, Life and Correspondence of James Iredell 146 (1858).
21. Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921).
22. Chief Justice Marshall asked, “To what purpose are powers limited, and to what purpose is that limitation committed to writing; if those limits may, at any time, be passed by those intended to be restrained?” If, he continued, the Constitution is “alterable when the legislature shall please to alter it . . . then written constitutions are absurd attempts, on the part of the people, to limit a power in its nature illimitable.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–177 (1803).
23. Sidney Hook observed that “whoever places greater emphasis upon the product rather than the process, upon an all-sanctifying end rather than upon the means for achieving it, is opening the doors of anarchy.” Sidney Hook, Philosophy and Public Policy 36 (1980).
24. “ ‘Criticism,’ wrote Johnson in the 60th Idler, ‘is a study by which men grow important and formidable at a very small expense.’ ” Augustine Birrell, Obiter Dicta 110 (2d series 1905). Daniel Boorstin observes that most men “hate the necessity of revising their convictions.” Daniel J. Boorstin, The Discoverers 476 (1983).
Referring to the desegregation and reapportionment decisions, Richard Kay wrote, “These doctrines have now become almost second nature to a generation of lawyers and scholars. Thus it is hardly surprising that the casting of a fundamental doubt on such basic assumptions should produce shock, dismay, and sometimes anger.” Kay, supra note 10 at 801.
Aviam Soifer charged me with “the worst type of law-office history,” “emphasiz[ing] how badly Berger misuses historical materials.” Quoted in Raoul Berger, “Soifer to the Rescue of History,” 32 S.Car. L. Rev. 427, 428 (1981). Judge John G. Gibbons (3d Cir.) fired off a papal bull: Berger “is neither talented enough as an advocate nor knowledgeable enough as an historian to be taken seriously in either discipline.” Quoted in Raoul Berger, “ ‘Government by Judiciary’: Judge Gibbons’ Argument Ad Hominem,” 59 B.U. L. Rev. 783 (1979). Hans Baade entitled his critique “ ‘Original Intention’: Raoul Berger’s Fake Antique” and declared that his conclusion is summarized by the title of an article, “Misrepresentation in North Carolina,” quoted in Raoul Berger, “Original Intent: The Rage of Hans Baade,” 71 N.C. L. Rev. 1151, 1152 (1993). William Wiecek dismisses my views as “empty bombast.” William H. Wiecek, “The Constitutional Snipe Hunt,” 23 Rutgers L.J. 253, 254 (1992).