According to Harvard Professor Laurence Tribe, a renowned American attorney and constitutional law scholar, “The whole point of an independent judiciary is to be ‘antidemocratic,’ to preserve from transient majorities those human rights and other principles to which our legal and political system is committed”23 (emphasis in original). Tribe went on to state that “[w]ithout this role there would be nothing to stop a bare majority of our citizens from deciding tomorrow that the minority should be enslaved or required to give up its belongings for the greater good of the greater number.”24 Tribe reminds us that without an independent judiciary with the power of judicial review, persons in our republic would have no recourse against popular government policies that infringe upon their natural rights.
It is important to note, though, that Chief Justice Marshall did not argue that the judiciary was in any way superior to Congress. Rather, his opinion echoed Hamilton’s statement in The Federalist, No. 78, which he did write (but could not have sincerely intended): “The Constitution is superior to all; the judiciary is just acting to preserve its legitimacy.”
Judicial Passivity
There have been many Supreme Court opinions throughout history in which the Court should have acted in a more activist way, but failed to stand up to government abuse.
A great example of judicial inaction was the Supreme Court’s decision in Plessy v. Ferguson.25 The conflict in Plessy resulted from government-mandated racism, not from private behavior. In 1890, the State of Louisiana enacted a law that required racial segregation in public accommodations, including on railroads. African-Americans despised this law because its goal was to maintain white supremacy. The railroad companies also vehemently opposed it because it forced them to add more railroad cars and more employees, and thus incur more costs, so as effectively to segregate blacks and whites.
On June 7th 1892, Homer Plessy, who was seven-eighths white, and only one-eighth African-American, boarded a railroad car that was designated for whites only, with the purpose of violating the law. After refusing to move to the “colored” car, Plessy was arrested and jailed for violating the Louisiana statute. Before the Supreme Court of the United States, Plessy argued that the Louisiana law violated his rights under the Fourteenth Amendment’s “privileges and immunities” and “equal protection” clauses. According to the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.”
Today, about a half-century since the Civil Rights Movement, the decision in this case seems like an easy one. Racial segregation commanded by the government, by definition, treated whites differently from blacks, and therefore deprived blacks of equal protection. Under today’s notion of equality, therefore, the Louisiana law would be struck down as blatantly unconstitutional.
In 1896, however, the United States was not too far removed from the Civil War and the institution of slavery. The Thirteenth, Fourteenth, and Fifteenth Amendments were the so-called “Reconstruction” Amendments, geared toward promoting racial equality. However, these amendments, while abolishing slavery, did not explicitly abolish legally enforced segregation.
Nevertheless, the Supreme Court should have engaged in “constitutional activism” and struck down the Louisiana law. First, it is obvious that in a society where blacks had been considered inferior for so long, a law compelling the segregation of the majority white race and the numerically inferior black race cannot under any circumstances be considered equitable. These laws were passed with the sole purpose of maintaining African-American cultural inferiority.
Second, the Supreme Court had already laid the groundwork for overturning these race-based laws. In 1883, in the case of Strauder v. West Virginia,26 the Supreme Court struck down a West Virginia law prohibiting African-Americans from serving on juries. According to the Court in Strauder, the Fourteenth Amendment’s Equal Protection Clause protected African-Americans “from unfriendly legislation against them distinctively as colored” and shielded them from “legal discriminations, implying inferiority in a civil society.”27
Plessy was a bit different in that blacks were not excluded from riding the railroad, as they were excluded from serving on juries in Strauder.
There is no way to get around the clear fact, however, that the Louisiana law, while slightly more friendly than the West Virginia law in Strauder, was enacted to promote African-American inferiority. It was the government using its power to make decisions based on race. It was the government preventing the free choice of railroad owners and customers. It was the government interfering with freedom of contract and freedom of travel. It was the government, by forcing the railroads to spend their money on equipment they did not want or need, taking property from the railroad owners.
The Supreme Court made a huge mistake in Plessy, creating the “separate but equal” doctrine, and thus providing shelter to segregationists that lasted until Brown v. Board of Education was decided, fifty-eight years later. This was a Supreme Court that probably feared being labeled “activist,” or worse, that agreed with the ramifications of its decision.
The case of Korematsu v. United States is another case in which the Supreme Court dropped the ball and deferred to a federal government that was openly persecuting people of Japanese descent, including many Japanese-Americans. I will not go too far into the details of this case, as it is discussed in later chapters, but basically, after the Japanese attack on Pearl Harbor, the federal government freaked out and started setting curfews for Japanese-Americans living in this country, displacing them from their homes, and placing them in internment camps. The government claimed that since some Japanese-Americans were “disloyal” to the United States and could not be trusted, we might as well round up all of them to play it safe. The first problem with this twisted notion is that in America, you cannot be convicted of a crime only because you have the same heritage as others who commit crimes. In the United States, only individuals are guilty of crimes. The second problem with the government’s program was that it was blatantly racist.
The Supreme Court in Korematsu, in truly amazing fashion, acknowledged that the United States was infringing on the fundamental rights of Americans based on race. Nevertheless, during World War II, the impression of safety was more important to the Court than the reality of individual liberties. Instead of reversing the government during a time of war, the Court was silent, passive, and weak, and allowed the persecution to continue.
In the case of Kelo v. New London, decided in 2005 (also discussed in Chapter 2), the Supreme Court stood idly by (or at least five of its members did) as the City of New London violated the Constitution. In an effort to rehabilitate the New London economy, the City developed a plan to create jobs and refurbish the downtown and waterfront areas. The City intended to build a waterfront hotel, a park and river walk, restaurants and retail stores, new residences, marinas, and office and research facilities on ninety acres of land in the Fort Trumbull area. Some of this land was already privately owned. Some of the private landowners voluntarily sold their land to the government, and others were informed that the City would use its eminent domain power to take their land. This threat prompted private landowners to sue the City, arguing that the development plan was an abuse of the power of eminent domain.
State and local governments have the power to seize private property, but that property, according to the Fifth Amendment’s Takings Clause, must be “taken for public use” and the private owners must be provided “just compensation.” The plaintiffs in Kelo argued that their land was not taken for “public use” because the City’s plan was to be carried out by a private developer, much of the developed land would not be open to the general public, and under the plan, some of the benefits the City sought to reap were economic benefits such as increased tax revenue.
This case was a relatively difficult one because the Fifth Amendmen
t does not define “public use.” The Framers could have meant that the land taken must be exclusively open to the general public. But they could not have meant that the government could essentially evict people from their homes so that the city in which they live will benefit economically. It seems clear that the City of New London’s plan worked to evict its private landowners, and allowed the government to benefit much more than the “public.” Unfortunately, in a 5 to 4 decision, the Supreme Court upheld the plan when it should have invalidated it.
The fact is that the Supreme Court has been tweaking the “public use” requirement for some time, and allowing the government to violate the Constitution as a result. In the eighteenth and nineteenth centuries, the phrase “public use” simply meant “a use by the public.” Over the last century, though, the government and the courts have turned the Takings Clause on its head. Today, “public use” has morphed into “public benefit,” a softer requirement whereby the government can steal our land, give it to their corporate cronies, and claim that the developer’s use “benefits” the public. This is exactly what happened in Kelo.
Justice Sandra Day O’Connor realized this atrocity and wrote an inspired dissenting opinion in Kelo. O’Connor conceded that the Court defers to legislative judgments about what government actions will help the public. However, O’Connor feared that by allowing the political branches to be “the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff.” O’Connor, like Chief Justice Marshall in Marbury v. Madison, stressed that some form of judicial review is necessary for the Takings Clause to have any meaning at all. According to O’Connor, “An external, judicial check on how the public use requirement is interpreted . . . is necessary if this constraint on government power is to retain any meaning.”
Constitutional Activism
The Supreme Court of the United States has often addressed constitutional issues head-on, standing up to government actions, and making policy that reflects the sentiment of the Constitution and the Natural Law.
In Brandenburg v. Ohio, for example, the Supreme Court struck down the Ohio Criminal Syndicalism statute, which made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and to “voluntarily assemble with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Clarence Brandenburg, an Ohio Ku Klux Klan leader, was convicted under the Act after a rally he held in Hamilton County, Ohio. At the rally, Brandenburg alluded to the idea that “there might have to be some revengence [sic] taken” against the federal government. One participant expressed his bitter hatred for African-Americans and Jews, stating, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.”
After many years of yielding to onerous government restrictions of the freedom of expression, the Supreme Court finally decided “to say what the law is.” In unanimously overturning the oppressive Ohio law, the Supreme Court created a rule that is still very much alive today. According to the Court, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphases added). It essentially held that all innocuous speech is absolutely protected; and all speech is innocuous when there is time for more speech to challenge it. This was an example of constitutional activism by a rarely unanimous Court determined to uphold the natural right to speech, even offensive speech.
In the case of Shapiro v. Thompson (1969), the Supreme Court decided a matter concerning the right to travel. Vivian Marie Thompson was nineteen years old and had just moved from Massachusetts to Connecticut. She had a child and applied for government assistance under the Aid to Families with Dependent Children (AFDC) program in Connecticut. Connecticut denied Thompson’s request, citing its one-year residency requirement.
This was yet another hard case for the Court because the right to travel, or the right to move between states, is listed nowhere in the Constitution. Yet, the Supreme Court held that the “right of interstate movement” is a fundamental right. Notice how the Court described the right as “fundamental” and not “natural.” This is because natural rights are rights that are God-given rights, those received by virtue of our humanity. The Supreme Court is a secular body, however, causing some justices to conclude that it is inappropriate for the Court to refer to a right as “natural.” Nevertheless, the “right of interstate movement” is in fact a natural right, also known as a fundamental right, and is therefore a constitutionally protected right.
Due to the significance of the right, regardless of the way in which the Court described it, the Court stated that for a regulation restricting the right to travel to be acceptable under the Fourteenth Amendment, it must serve a compelling state interest. That is, it must pass the Court’s “strict scrutiny” test. According to Justice William J. Brennan, Jr., writing for the Court, Connecticut’s goal of preventing indigents from moving into states did not serve a compelling state interest.
True Judicial Activism
Judges have exercised true judicial activism in many cases throughout history. A classic example of judicial activism is the United States Supreme Court’s decision in Roe v. Wade (1973), arguably the most controversial Supreme Court decision in modern times. In this case, Jane Roe challenged a Texas law making it a crime to “procure an abortion,” except under circumstances in which the life of the mother is at stake. On January 22nd 1973, the Supreme Court, in a 7 to 2 decision, held that the right to an abortion falls under the “right of privacy . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. . . .”28
The Court also characterized the abortion right as “fundamental,” and thus stated that a state could only restrict it if it had a “compelling state interest” that outweighed the right. The Court outlined three state interests that could potentially justify restrictions on abortion: the interests in (1) discouraging illicit sexual behavior, (2) protecting pregnant women from the risks of the abortion procedure, and (3) protecting prenatal life. The Court reasoned that since the Texas statute outlawed abortion at all times during the pregnancy, except when the health of the mother was at stake, the Texas law could not outweigh a pregnant woman’s right to privacy.
Regardless of one’s opinion on abortion, the seven-justice majority in Roe blatantly legislated from the bench. The Court created a new right, and was not ashamed to admit it. Justice Harry A. Blackmun, writing for the majority, conceded that “[t]he Constitution does not explicitly mention any right [to an abortion].” Furthermore, it is highly unlikely that the drafters of the Fourteenth Amendment recognized, or even were aware of an abortion right.
According to then-Justice William H. Rehnquist, who dissented in Roe, the first state law limiting abortion was enacted by the Connecticut Legislature in 1821, forty-seven years prior to the passage of the Fourteenth Amendment. Texas passed the statute in question in Roe in 1857, and by the time the Fourteenth Amendment was ratified in 1868, there were at least thirty-six laws in states or territories limiting abortion. Rehnquist went on to state that when the Fourteenth Amendment was ratified, no one publicly questioned the validity of any abortion law. Moreover, Rehnquist believed that the nationwide debate on abortion at the time Roe was decided was evidence that the right was not by any stretch fundamental and protected by the Constitution. (After all, how often do we debate the validity of the freedom of speech, or the freedom of religion?) Therefore, the Court in Roe clearly created a new right.
In addition, the Court, trying to play the role of “Supreme Legislature,” announced rules governing a state’s ability to restrict the right to abortion. The Court declared that a state’s
interests in restricting abortion only become “compelling,” and thus, able to outweigh a pregnant woman’s right to privacy, after certain checkpoints during the course of the pregnancy. A state’s interest in the health of the mother is “compelling,” according to the Court, at approximately the end of the first trimester. A state’s interest in protecting prenatal life is “compelling” only at the point of viability (the time when the baby can survive outside the mother’s womb). These rules are arbitrary. What expertise did the Supreme Court have in this field, and since when did the justices acquire the power to make these types of judgments?
The Supreme Court’s decision in Roe also had a profound effect on the rest of the country. It not only invalidated the Texas statute, but also forced twenty-one states to amend their abortion statutes. Roe v. Wade is a prime example of how a little judicial activism can certainly go a long way. Due to the tremendous impact of the Supreme Court’s opinions, it is important to prevent this utter disregard for the Constitution.
A less popular, yet exceedingly ridiculous example of judicial activism occurred in the case of Missouri v. Jenkins, a case that dragged on for eighteen years. In this case, beginning in 1977, United States District Judge Russell G. Clark, sitting in the Western District of Missouri, acted as a legislator and school superintendent in handling the case before him. Judge Clark held the Kansas City School District liable for segregating its schools, and created a plan for the District to revamp its schools, through which he greatly overstepped his judicial power.
The District spent $61 million to respond to the desegregation order, but Clark was not satisfied.29 Clark developed a scheme to improve the school system at a cost of $1.6 billion!30 To pay for the improvements, Judge Clark ordered the city to increase property taxes on its citizens by 91 percent!31 He also ordered the State of Missouri to increase income taxes by 25 percent!32 A court of appeals panel struck down the income-tax increase, but unfortunately did not find anything troubling about the property-tax hike.33
Lies the government told you Page 6