Sacramento Bee (SB) - Sunday, December 22, 1991

By:             Paul N. Goldstene, Special to the Bee
Edition:        Metro Final
Section:        Forum
Page:           F-01
Word Count:     3,374


Paul  N.   Goldstene  teaches  at  California  State  University,
Sacramento, and  is the author of Democracy in America:  Sardonic
Speculations, from which this article is adapted.


       It  is a very dangerous doctrine to consider the judges as
the ultimate  arbiters of  all constitutional questions ....  The
Constitution has erected no such single tribunal, knowing that to
whatever hands  confided, with the corruptions of time and party,
its members would become despots.
                                                 Thomas Jefferson

      That those who wrote the United States Constitution did not
trust majorities  is plain.  That they did not trust anyone else,
including  themselves,   is  less   plain,  but  ultimately  more

       It  was out  of this  wariness that  they  formulated  the
elaborate checking apparatus for which the Constitution is known.
Its structure  represented an  attempt to  avert the tyranny they
discerned in  every previous  human government.    Instead,  they
would establish  a "dynamic  equilibrium"  --  a  condition  that
quivers but  does not  go anywhere,  that creaks  and groans  but
remains essentially  the same.   And the entirety of this complex
configuration would  be subsumed within the overriding constraint
that is  the very purpose of a constitution:  the notion that the
revocable authority  of a  state  is  limited  to  the  expressed
stipulations of the contract itself.

      James Madison was certain that the human inclination toward
faction would  eventually destroy  this Constitution.  John Adams
was sure  that the  passions of  man would  subvert its Newtonian
balance, so  carefully wrought  by the  most  advanced  of  human
reason.   Yet each  conceived that  the structure  they  inspired
would survive  a generation.   As  it happened,  neither of these
dour thinkers was dour enough.

       The  Constitution prevailed  for 14  years, exhausting its
noble effort  in 1803  with the implementation of judicial review
as the  official doctrine  of the  United States  Supreme  Court.
Through the  successful infusion  of this  doctrine into American
ideology and  politics, the  constitutional  experiment  must  be
perceived as an historic failure.

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       What  Chief Justice  John Marshall  propounded in  1803 in
Marbury v.  Madison was a new system, a system of "effective," as
opposed to  constitutional, government.   Still  the terms of the
debate established  at Philadelphia  had to  be respected.    The
Constitution needed to be abolished in the name of preserving it,
and in  the name of the will of the sovereign people that created

      The selection of an obscure argument over writs of mandamus
as  the   legal  vehicle  for  introducing  judicial  review  and
subverting  the  constitutional  separation  of  authority  is  a
tribute to  the political  genius of Marshall.  It is not exactly
an issue  that will catapult the forces of constitutionalism into
fervent and  frenzied resistance.   All  the opposition can do is
hope that  judicial review  will atrophy from disuse, but this is
not to  be.   Thomas Jefferson  -- a democrat who came to embrace
the liberal  Constitution as  the best  chance of  restraining  a
government that  must become  tyrannical, because the empire over
which it  has jurisdiction is so vast that the general government
must become  removed from  any semblance  of popular  control  --
notes, after  the decision  in Marbury  v.  Madison,  that  every
ruling of  the  Supreme  Court  now  comprises  a  constitutional
convention.   But this,  of course,  is precisely the point.  For
constitutionalists, the  will of  the sovereign  people has  been
stolen.   But for  Marshall, it  has simply  been placed  in  the
proper hands.

       As is well known, the authority for judicial review is not
found in  the Constitution,  but rather  in the  dicta with which
Marshall precedes  his opinion.    The  Supreme  Court,  Marshall
declares, is  the guardian  of  the  Constitution,  defending  it
against violations  by the  Congress,  however  inadvertent  such
violations may be.

          Inferentially,  the  Court  must  equally  protect  the
Constitution against  errors of  the president,  although this is
not mentioned  by a  politically shrewd  Marshall, because it was
George Washington  who signed  the Judiciary  Act, parts of which
Marshall  has  declared  "unconstitutional,"  and  the  continued
popularity of Washington is a phenomenon not to be ignored.

       The Court is reluctantly forced into this role of ultimate
reviewer, Marshall  explains, because  its members  take a solemn
oath to support and defend the Constitution of the United States.
That Congress  and  the  president  take  the  same  oath  eludes
Marshall's consideration.

       Every court hearing a case, Marshall propounds, must put a
construction on the law.  "Therefore," the highest court must put
a construction  on the  higher  law  or,  more  plainly,  on  the
Constitution.   Yet  this  assertion  that  the  transition  from
judicial construction  to judicial review represents a difference
only in  degree, and  not in  kind, employs  analogy to move from
truth to  falsehood.   What the  assertion denies  is the glaring
fact that  the Court is an agency of the state, and what Marshall
is really  proposing, with  great historical  success, is  that a
particular  agency  of  government  possesses  the  authority  to
indisputably interpret the will of that which has created it, the
will of  the sovereign  people, of  which the  Constitution is an
essential expression.

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       There  is no  evidence that Marshall finds any audacity in
this remarkable  claim.   For him  it is  self-evident that there
exist elites  which, by virtue of an inborn superiority of reason
and the  proper development  of this  natural capacity,  are most
capable of  comprehending the rational, the true and the moral --
that is,  the laws  of nature.   It  is equally self-evident that
beyond these  elites there  exists a  supreme elite, those who --
combining innate  talent with  judicial temperament and training,
and apparently  not subject  to the  influence of the emotions --
are the  most qualified  among the  qualified to  determine  such
matters.  Because a progressive understanding of natural law must
be incorporated  into the  constitutions of man, and because this
is the  desire of  the  sovereign  people,  those  best  able  to
perceive the laws of nature are those best able to rule.

     So begins the nation's historic love affair with the Supreme
Court, the  guardians sitting high on the mountain, plucking down
the natural  truths of the universe and translating them into the
binding proclamations  of constitutional  law.   There is,  to be
sure, a  cloud cover  between those  on the Court and the rest of
the human  species who,  unable to penetrate the concealing mist,
cannot exactly  perceive what  it is the Court does.  Yet, as the
Wizard of  Oz well  understood, incomprehensibility is necessary,
and duly  admired as  long as  Toto does not pull on the curtain.
Apparently, in  America, Toto does not.  At least since the Civil
War, the  institution of  judicial review is not even questioned.
Objections do  develop to  particular justices,  but these simply
reveal the  suspicion that a wrong priest has attained the bench,
and it  is the  pretender,  not  the  priesthood,  which  demands
remedy.   Even the  assault on the Court in the 1950s was against
Earl Warren, never against judicial review.

       There  is a crucial distinction between the constitutional
supremacy of  Madison and  Adams and  the judicial  supremacy  of
Marshall, although,  in the  American tradition, the supremacy of
the  judiciary   is  characteristically   defended  in  terms  of
protecting  the   supremacy  of   the  Constitution.    Within  a
constitutional order,  any agency of any government is subject to
the control  of the  contract that  establishes  the  state,  and
ultimately to the control of the political sovereign that created
that contract -- the control, that is, of the people.

       With the advent of judicial review, however, one agency of
one of  the several  governments established  by the Constitution
becomes  unrestrained  and  unlimited,  except,  in  the  dubious
language of  Justice Felix  Frankfurter, through  "judicial self-
restraint," a tacit admission that, constitutionally, there is no

       Gone  is the  elaboration of  separation and  checks  that
renders the  Constitution a  tribute to  the liberal imagination.
Also gone  is the  division of  authority,  the  federalism  that
eventuates in  two  autonomous  and  balanced  systems  of  legal
sovereigns, since  a Court  that  guards  against  constitutional
violations by  the   general government  must also  guard against
possible incursions  by governments  of states, as Marshall makes
clear 16 years later in McCulloch v. Maryland.

       The Constitution's enunciated delegations of authority are
supposed to  be beyond  the ability of any governmental agency to
change or  regulate.  But with the imposition of judicial review,
the authority  of every  public office in the United States comes
under the  suzerainty of  the United  States Supreme Court which,
accordingly, defines  its own  authority as  well.   There is  no
longer a Constitution.  There is, however, a Court.

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       The  conservatives at  the  Constitutional  Convention  in
Philadelphia did  attempt to  write  a  review  agency  into  the
Constitution, a  Court of  Revision to  be made up of the Supreme
Court  and   the  president.    But  to  preserve  constitutional
supremacy, Madison  argued at  that time, no agency of government
could be  allowed to officially interpret the Constitution.  That
agency which interprets, he contended, becomes supreme, and where
an agency  of the  state is supreme the Constitution is not.  The
only permissible  final interpreter  of the  Constitution is  the
sovereign people of the several states.

       Despite the much vaunted "flexibility" of the document, it
was designed,  in fact, to be highly inflexible.  The only method
provided to  change it  was the cumbersome amendment apparatus of
Article V, and even this was constrained in several regards.  The
real flexibility  of the  Constitution was achieved only when all
this was  discarded through  judicial review,  a fact that raises
serious questions about the alleged sovereignty of the people.

       Some  years ago  Dick Tracy  confronted his new nemesis, a
character known  as "Mumbles."   Surrounded  by his  mob, Mumbles
would periodically  issue orders  that were  patently binding  on
those he led.  But Mumbles could not be understood.  All he could
do was  mumble.   When he  did, one  of those  around  him  would
inevitably  ask,   "What  did   Mumbles   say?"      With   equal
inevitability, someone  else would  inform the others what it was
that Mumbles  had said,  an authorized  command that,  with great
dispatch, was carried out.

       What  Mumbles actually  did say  can, of  course, never be
known.   All that  is  ascertainable  is  what  his  interpreter,
however inexplicably  selected, says  he said.  Who is sovereign,
Mumbles or  the interpreter?   The  people mumble  and the Court,
possessing  the  last  word  on  the  subject  about  which  they
presumably mumbled,  tells them not only what they said, but also
what they  intended and,  indeed, if they actually mumbled in the
first place.   An  interesting system.   But  not one that can be
categorized as  constitutional, because  the ultimate interpreter
is an  agency of the state and, in terms of that agency, there is
no constitutional restraint.

       If Dick Tracy is too prosaic, there is always Hitler.  The
controlling will of the Reich was supposed to be the blood genius
of the  Aryan race, which resides most perfectly in the person of
the Fuhrer,  whose vocalization  of it  accords  it  purpose  and
direction.     Without  this  articulation  by  the  Fuhrer,  the
sovereign will  remains horde-like  and historically aimless.  In
the  unlikely   event  that  disagreement  develops  between  the
paramount leader  and das  Volk as to what the presiding will is,
the Fuhrer, through his elite genius for intuitive understanding,
is always correct.

     The rampant elitism of the Nazi position is blatant.  To the
American mind, the rampant elitism of judicial review is less so.
Strangely, those  who are  egalitarian in  other matters, seem to
lose their political bearings when it comes to the Court.  Yet, a
system wherein  the Fuhrer  expresses the will of the Aryan race,
and a  system wherein the Supreme Court expresses the will of the
sovereign people  are,  in  this  respect  at  least,  identical.
Within each  there exist  gradations of elites, with the elite of
elites performing the crucial function of ultimately interpreting
the ruling  dictates of  the sovereign will.  If the analogy with
Nazism is disturbing, it is nonetheless sound.

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       Indeed,  it was  out of  fear of  such potentialities that
Madison argued  for  constitutional  supremacy:    In  the  event
disagreement occurs  about what  the will of the sovereign people
is, let  every jurisdiction  proceed according  to the  views  of
those who  currently hold the various offices of government, each
of whom  has taken  an oath  to uphold  the Constitution  of  the
United States.   In  short, let  there be  politics.  When and if
confusion must  be resolved,  the people can always do so through
the amending process.  While confusion is not always desirable, a
fair amount  is certainly  preferable to  tyranny.  Herein is the
price -- if it is a price -- of constitutional government.

       This was a price Marshall was unwilling to pay.  Yet logic
notwithstanding, it remains a prevailing American conviction that
the United States is a constitutional system, and that the review
function of the Supreme Court works to keep it so.  "If no one is
above the  law, then  the law  itself is  supreme."   Within this
archetypical expression of the accepted ideology lurks the notion
that  America  is  a  nation  of  laws,  not  of  men,  a  notion
reassuringly  reiterated  in  introductory  textbooks  and,  with
sophisticated fervor,  by pundits  learned in  the subject.    It
implies that  the law  is pursuant  to the  Constitution.  But as
Chief  Justice  Charles  Evans  Hughes  noted,  in  a  moment  of
unguarded honesty, the Constitution is what the court says it is.

       Among the influential, it is increasingly popular to blame
the vast  problems of  American public  policy on the "fact" that
"democracy" has  gone too  far, that  people in  general  do  not
possess  the  political  capacity  necessary  to  deal  with  the
enormous difficulties of the 20th century.  This is not exactly a
new idea.   But  few notice  that this is precisely what does not
exist --  that people  in general have nothing to do with policy;
that, in  terms of  constitutional law,  the sovereign people has
been dissolved.

     This, of course, may be beneficial, and those closest to the
judicial vocation  are reassuring  on the  point.  Legal scholars
approximate near  universality  in  pointing  out  that  judicial
review is a pivotal safeguard against the tyrannical dispositions
of the  majority.   The very  idea of  a constitution, to quote a
modern  constitutional   scholar,  "turns  on  the  concept  that
governmental action  may be  unjust even if willed by most of the
people."   In the  United States,  "... our thought is devoted to
devising mechanisms  of government -- presently our Supreme Court
-- which  can defer  the effectiveness  of hasty, intemperate and
arbitrary acts  of rule  until they  are replaced by more settled
and more just policy."

     This is a view that is accorded great and automatic respect.
Certainly Marshall  would applaud its assumption that most people
are intemperate  and not  to be  trusted, and  that only a wisdom
that emanates  from judges  can yield a reasoned result.  It is a
notion, popular  in America,  deriving from the proposition that,
in  one  way  or  another,  the  majority  literally  governs  or
threatens to, a proposition that is empirical nonsense.  However,
and more  to the point, it is also a notion that denies the value
of factional  conflict and,  accordingly, of the configuration of
competing elites that the Constitution intricately mandates.

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       In  America, any  acclaim for  conservative rule  is  most
effectively  formulated   in  classical   liberal  terms:    that
pluralism is required for the protection and improvement of human
rights.   But, aside from the unique episode of the Warren Court,
this is  not the achievement of American judicial history, except
in reference  to the  judicially protected  rights of  those  who
enjoy the  appropriate relationships  to productive property.  As
Edmund Burke  would have it, all are equal in their possession of
rights, but what they have a right to is not the same.  Those who
struggle to  extend the  reach of  liberty, and  to equalize  the
conception of  who is  entitled  to  it,  typically  emerge  from
elsewhere in  the American  order.  There are judges -- usually a
minority on  the Supreme Court -- who have championed an equality
of rights,  but history is far more generous in offering examples
of judges  who have been as caught up in the reactionary hysteria
of the moment as the supposedly more impressionable "masses."

      There is, in fact, no evidence that a democracy, were it as
unchecked and  authoritarian as judicial supremacy, would be less
amenable to individual liberty than the current system.  The same
is true  of an  actual constitutional  government.    As  another
modern expert  has said, "If one defines 'constitutional justice'
as that condition in which citizens may trust their government to
uphold certain  rights considered  inviolable, it  is clear  that
judicial review  of statutes  is only  one way  of attaining this
happy state.   In  fact, in a given country political factors may
perhaps provide  a better  check than  the courts  on attempts to
establish majoritarian tyranny."

       Separate of the inference that courts are not "political,"
Madison would  have agreed.  Liberty for Madison is only possible
where the tyrannical disposition of each faction is countervailed
by the  similar disposition  of opposing factions.  The essential
protection and  promotion of  liberty is found not in courts, but
in the  proper organization  of power  and authority.    If,  for
practical reasons,  a final  interpreter of  the Constitution  is
required --  a consideration  Madison never really allowed -- let
it be  the most  popular department  of government, that in which
the diversity  of factional contention is best reflected, not the
agency most removed from the competition of interests.

       This,  of course, is a proposal highly unacceptable to the
American  People,   who  are  deeply  enamored  of  the  absolute
necessity of  judicial review.   What is remarkable is that those
who pride themselves on their democratic commitments, and who, as
liberals,  deeply  distrust  not  only  majority  authority,  but
authority of  any kind, have thoroughly digested the conservative
logic of  Marbury v.  Madison, transforming  it  into  a  central
ingredient of their ideology and political self-conception.

       In  reality, the consistent purpose of judicial review may
have less  to do  with competence,  liberty and justice than with
the  financial  and  technological  considerations  of  corporate
promotionalism.   It could  be, as  Marshall strongly  felt, that
judicial review  is required  because  the  Constitution  is  too
cumbersome and  constraining to  advance the  manifest destiny of
the American  economic empire.  If this is the abiding purpose of
the nation,  then power  and authority  must be concentrated, not
pluralized.   The  atomization  of  authority  and  the  checking
apparatus  that   characterize  the   Constitution   devised   in
Philadelphia must be abolished.

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       The  significance of  this change  for policy is profound.
Only consider  the successful  interference of the Court with the
New Deal  -- and  the reflexive  acceptance of  the propriety  of
judicial review,  without which  the  economic  programs  of  the
Roosevelt administration  might have  worked and  the  subsequent
dependence of American business on war and war preparations might
have been  avoided.   Nonetheless, throughout  the  1930s,  while
people starved, they applauded the Court as it employed its self-
proclaimed  authority   to  discover   the  true   principles  of
economics, much  as the Court had done in the late 19th and early
20th centuries  in reaction  against  earlier  efforts  by  state
governments to  render wealth  distribution more equal.  Attempts
to influence  the Court's  real power, even within the parameters
of judicial review, were labeled as "court packing" and dismissed
as a "political" attempt to sabotage the "fundamental" demands of
the Constitution itself.

       In  an immediate  sense, other  forces have  clear  policy
importance in  America.  Yet over any substantial period of time,
the Court  prevails.   It picks  its cases  and  establishes  the
public agenda,  and those  privy to its conceptions and language,
those trained  in the law, come to define the style and substance
of the  national experience.    As  judicial  review  has  become
entrenched and  unquestioned, the  formulation and implementation
of policy  has moved  insistently into  the courts at all levels,
and merely  to understand  this  state  of  affairs  requires  an
increasingly elaborate expertise.

       Americans  despise lawyers  and love judicial review.  But
they cannot have it both ways.  They cannot insist that a complex
apparatus of  graduated  political,  legal  and  judicial  elites
represents a  "democracy" that,  somehow,  has  fallen  into  the
clutches of the legal profession.

       The reality of the American system has long been otherwise
-- a  concentration of  authority to  match the centralization of
power that  has attended  an emerging  corporate order.   Perhaps
here is the central clue to the dominance of judicial review, and
to the  forces behind  its successful  subversion of  what, for a
short time, was a constitutional republic.

1 Drawing

Special to The Bee / Paul Kolsti

Descriptors:  court; law

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Paul N. Goldstene