Democracy Versus Judicial Review

...Social Security...

...The Constitution gives Congress the power to "regulate" the jurisdiction of the lower courts and "make exceptions" to the jurisdiction of the Supreme Court...

...There is a theory that states would thereby be required to enact restrictive abortion laws, but it is unrealistic to think that the Court would do this...

...The proposal needs to be fleshed out a little more before we take up the strategic advantages of advocating the elimination of judicial review...

...In fact, the Warren Court's accomplishments were due in large part to its collaboration with social movements that mobilized support both in the courts and in legislatures...

...Brown generated a backlash in the South, helped transform many Southern Democrats into Southern Republicans, and—when desegregation litigation moved north and led to busing programs— helped the Goldwater wing of the Republican Party to eliminate the Rockefeller wing...

...Liberals think that there are good arguments for judicial review...

...Without understating the social and political importance of decisions such as Browny...

...Judicial review might be a useful way of addressing some of those imperfections or of offsetting them...

...The fact that I had to address gay rights and abortion signals one difficulty for progressives...

...Courts could also interpret statutes to make them consistent with the courts' understandings of the Constitution...

...But, if we're right, we ought to be able to prevail in everyday politics and elections—maybe not immediately (in part because our reliance on the courts has weakened us politically), but eventually...

...I suspect that the fever will break if, as seems likely, the Arnold Schwarzenegger amendment allowing naturalized citizens to be president is ratified in the next few years...

...All the proposal really does is resolve a long-standing constitutional controversy over how much power Congress already has to eliminate judicial review...

...And, once again, reasons matter...

...This question diminishes some of the force of obvious objections to my proposal and its democratic logic...

...A democrat can hardly object if the people believe that they should restrain themselves by using the courts...

...As that example shows, it's not just courts that would still enforce the Constitution in some contexts...

...But why, then, all the fears about overruling Roe...

...A similar collaboration may be emerging between today's Supreme Court and the most mobilized elements in the Republican coalition, especially the religious right...

...Right now, African Americans who benefited from Brown get nothing at all from the Supreme Court, and judicial review simply puts legislated programs of affirmative action at risk...

...The "reign of witches," he wrote, would "pass over," and the people would restore the government to "its true principles...

...Judicial review stands in the way of selfgovernment...

...Let's call it the End Judicial Review Amendment (EJRA...

...The democratic belief in the people's judgment is confirmed by the important legislative achievements of modern democracy...

...Should the amendment authorize Congress to enforce its provisions...

...My proposal would force conservatives to put up or shut up...

...Clean Water...

...Of course, if a state enacted a statute saying, "It's just fine for prison guards to hitch prisoners to posts," the amendment would kick in...

...Congress could reinstate the statute in its full scope if it disagreed with the courts' constitutional interpretation...

...The standard examples of how much worse it can get include statutes with stringent requirements that pregnant young women notify their parents and bans on late-term abortions...

...Jefferson counseled "a little patience...

...If it's so terrible now, how much worse can it get with Roe overruled...

...Just look at the cases I've mentioned...

...Probably yes, but the answer isn't important for my purposes here...

...Freedom of Speech...

...counties are without an abortion provider, medical schools are removing from the curriculum training on performing abortions, twenty-six states have waiting periods, fortyfour have parental notification requirements...

...Contemporary liberals give answers centered on distrust of politics and of the people...

...This assumption led to arguments against amending the Constitution as a matter of principle, rather than on the grounds that particular amendments are ill-advised...

...And, again, we shouldn't be reluctant to take on a legislative fight over whether Congress should authorize torture or lifetime detention without trial...

...This basic democratic principle is supplemented by the basic facts about the U.S...

...Getting rid of the albatross of judicial review—indeed, even advocating its end—would help to change that image...

...Constitution...

...Under the EJRA, courts would enforce constitutional rights except when Congress authorized the president's actions...

...It takes time to amend the Constitution, and progressives would be putting forth candidates in the next series of elections who would be committed both to the EJRA and to the defense of constitutional rights in the legislature...

...Progressives should be able to enact statutes that embody our policies (and repeal those that don't) with popular support...

...The Supreme Court and judicial review are false gods, and liberals should return to their unbelief...

...My proposed EJRA is likewise premised on the idea that constitutional development is produced as much by mobilized social movements as by the Supreme Court...

...If that's a good argument in court, it ought to be a good one in politics as well...

...The amendment would give Congress another role: The national legislature can expressly authorize judicial review either in respect to a particular statute or to some or even all constitutional claims...

...Safe Food...

...Overruling Roe means that states can decide to regulate or prohibit abortions...

...that, when put to the choice, the American people will prefer a society in which gays and lesbians have the same right to express their love that straight people do...

...The reason is that constitutionalism can be implemented through politics as people listen to arguments about why some policies they might initially prefer are inconsistent with deeper values they hold, values that find expression in the Constitution...

...Voting Rights...

...Roe v. Wade (and the Warren Court's school prayer decisions) helped to mobilize Christian evangelicals...

...The EJRA would make it clear that the Supreme Court couldn't step in and strike down progressive rights-protecting federal statutes...

...Again, for reasons of principle...

...In one important respect, however, the liberal community is about as faith-based as one can get...

...The more important was that the statute did not allow doctors to use a specific technique even if it was a much safer medical practice...

...The "answer" is that the U.S...

...Before Lawrence, anti-sodomy laws were enforced only sporadically when the sex was consensual...

...His political opponents had enacted the Alien and Sedition Acts and seemed to be in firm control of the national government...

...Democrats are committed not only to self-government as a matter of principle but also to the belief that, in the long run and in social DISSENT / Spring 2005 59 JUDICIAL REVIEW conditions approximated in the contemporary United States, the people will make the right choices when presented with arguments about fundamental values...

...Progressives and liberals should abandon courts as a principal resource, for reasons of democratic principle and political strategy...

...Where do we stand now...

...Norton, 2005) and is the editor of The Constitution in Wartime: Beyond Alarmism and Complacency (Duke University Press, 2005...

...Liberals believe in the courts as vehicles for progressive social change—a belief that remains unshaken by the Supreme Court's two-century history and the fact that it has been at best an inconstant defender of progressive values since the 1980s...

...Suppose that liberals offered a constitutional amendment along these lines: "Except as authorized by Congress, no court of the United States or of any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures...

...The question is, who is mobilized...

...There won't be a flood of new sodomy laws or prosecutions if states know that courts won't strike down the new laws...

...Objections Still, the EJRA must be defended on its merits...

...Who Chooses...

...Lawrence v. Texas elevated the issue of gay marriage on the public agenda, producing the anti-gay-marriage constitutional DISSENT / Spring 2005 61 JUDICIAL REVIEW amendments that seem to have played some role in Bush's victory...

...Consider the situation with Roe already in place...

...Again, that's a political fight progressives should be willing to take on...

...A fair number of "blue" states would impose few or no regulations beyond what they already have...

...The proposed amendment wouldn't stop courts from finding this to be a violation of the prisoner's constitutional right to be free from cruel and unusual punishment...

...As legal philosopher Jeremy Waldron asks (rightly), why, in cases of reasonable disagreement over interpretation, should the votes of a majority on a Court of nine justices prevail over the votes of a majority of one hundred senators and over four hundred representatives...

...Two years later, they did...

...Some liberals may worry that an EJRA would make authoritarian—or Stalinist or fascistic—excesses much easier...

...In other words, the ban endangers women while doing little to save fetuses...

...The amendment is modeled on a provision in the constitution of the Netherlands, a country not noted for widespread violations of civil liberties...

...If some state prohibited earlyterm abortions, Congress could pass a statute creating a federal right to choose in such situations...

...IN THE WINTER 2005 issue of this magazine, the editors printed an excerpt from a letter Thomas Jefferson wrote in 1798...

...Why should Congress have that power...

...But, the constitutional arguments against parental notification statutes and statutes restricting late-term abortions are actually policy arguments...

...The Canadian Supreme Court, in contrast, says they are not...

...Nonetheless, the image of an interest-group-dominated left has real, and bad, political effects...

...The model here is the decision by Israel's Supreme Court that its security services didn't have the authority to engage in "aggressive" interrogation techniques...

...I think the proposal to eliminate judicial review is cleaner...

...They could find that particularly troublesome applications of a statute weren't within the statute's terms...

...Some "red" states would undoubtedly go further and perhaps ban earlyterm abortions...

...It is a mistake to think only of what today's legislatures would do without the lid of judicial review...

...I offer this formulation in part simply to focus the discussion, but also as a serious proposal...

...As Larry Kramer, dean of Stanford Law School, argues in his recent book The People Themselves, the United States has a deep tradition of popular constitutionalism...

...40 Hour Work Week...

...These terms are hardly self-defining, and there is inevitable reasonable disagreement over what they mean when applied in particular controversies: are hate-speech regulations a violation of freedom of speech or not...

...It was the assumption that people could not be trusted and had to be under the tutelage of the (then-liberal) elites who controlled the Supreme Court...

...Jefferson was a smart man and, for his times, a real democrat...

...They would have to say whether they object to judicial activism, which the proposed amendment would prohibit, or whether they are just as opportunistic as they say progressives are and oppose judicial activism only when it reaches conclusions they don't like...

...That's a better place to put our faith than in the Supreme Court...

...Strategy Claims that liberals trust the people ring hollow today...

...The proposed amendment wouldn't insulate President Bush's decisions to detain socalled "enemy combatants" at Guantánamo Bay from judicial review, either...

...The issue was sent to the Knesset to consider, and it hasn't, and probably won't, enact a statute allowing the use of such techniques...

...This reveals a complex story...

...Clean Air...

...DEMOCRATIC FAITH in the people's judgment means that the arguments liberals deploy in court should be just as good in the political arena...

...For this is a game where principles are the stake...

...Liberal faith in the Supreme Court always had an underside...

...MARK TUSHNET, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center, is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law (WW...

...He ended, "If the game runs sometimes against us at home, we must have patience until luck turns, and then we shall have an opportunity of winning back the principles we have lost...

...With judicial review in place, there's actually some question about whether the Supreme Court would allow Congress to enact such a statute...

...But if their reasons are really good, then they should be able to persuade people to put the courts back into the constitutional picture...

...There is a widespread feeling that we don't have fundamental commitments, but only obligations to interest groups...

...That leaves abortion...

...This should give liberals some pause when they consider their immediate goals and, more important here, how they understand the role of the Supreme Court in our political system...

...Maybe there's a lesson in that for today's progressives...

...But, as Judge Robert Bork once suggested, such an amendment could enable Congress to override a court decision holding a federal statute unconstitutional by a two-thirds (or even a majority) vote in both houses (with a parallel provision for state legislatures and state laws...

...Pro-choice advocates point out how limited access to abortions is today: 87 percent of all U.S...

...The EJRA is directed at statutes, not at the actions of, say, individual guards, police officers, or mayors...

...Voters—even in those red states—are then going to have second thoughts about whom they have elected...

...The Warren Court's accomplishments obscured the importance of legislation in providing the foundation for fundamental guarantees of liberty and security...

...One Tshirt sold after the 2004 election listed what the Democratic Party has accomplished: "Equal Pay...

...Medicare...

...If progressives won enough elections to get the Constitution amended, the legislatures would also be very different from the ones we now have...

...The EJRA addresses judicial review of statutes, but courts would still have an important role in enforcing the Constitution...

...These should not be attractive to democrats...

...Principle: The basic principle, of course, is that people ought to be able to govern themselves...

...We democrats think that we are right about fundamental values— that, when put to the choice, the American people will prefer a society in which women have the right to choose to bear or not bear a child...

...Bush claims the 60 DISSENT / Spring 2005 JUDICIAL REVIEW constitutional power to do so without authorization from Congress...

...Supreme Court says they are...

...It protects fundamental values that it identifies in general terms: "due process of law," "equal protection of the laws," "freedom of speech...

...All but the last two were achieved primarily through legislation, and some—the social welfare achievements of the modern state—had little connection to the Supreme Court, except when it obstructed them...

...Board of Education, Roe v. Wade, and Lawrence v. Texas, we should also pay attention to the underside of those landmarks...

...and so on through the list of progressive policies...

...Equal Rights...

...However, progressives ought to be quite happy to fight that statute in any legislature in the country...

...Supporting a constitutional amendment to eliminate judicial review would show that we liberals and progressives really do think that our arguments can ultimately prevail in politics...

...The game he thought he and his allies could win was the game of electoral politics...

...Our positions on choice and gay rights flow from the same commitment to human dignity and freedom that under girds our desire to enact health care legislation...

...The list goes on...

...He suggests it should be retrieved today, and he is right...

...He did not place his hopes in the Supreme Court...

...Reasonable disagreement about the proper interpretation of the Constitution is usually what informs a Court decision that a statute is unconstitutional...

...The amendment would let Congress step in when it thought states weren't protecting rights...

...Those are the principled reasons for being suspicious of judicial review on democratic grounds...

...My proposal will have to overcome this anti-amendmentitis, to adapt a label from law professor Kathleen Sullivan...

...Liberals say they don't want to impose their values but then run to the courts when they can't get what they want from legislatures...

...Reasonably decent democratic societies can avoid illiberal abuses without having to call on the courts...

...Of course, the current political system in the United States is imperfectly democratic...

...Liberals can repeat until they are blue in the face that they want gay marriage to be up to state legislatures, but conservative opponents counter—effectively—that liberals hope in their hearts that the courts will go their way if legislatures don't...

...But whatever might have been true during the Warren Court era, the prospect of a return to liberalism is slight—not nonexistent, but small enough to make it worthwhile to give up faith in the Supreme Court...

...Constitutionalism— the imposition on the people of restrictions on their own power—does not...

...One obstacle to doing so is liberal nostalgia for the Warren Court...

...Liberals were unbelievers for the first half of the twentieth century and then got religion during the short period when liberals dominated the Court...

...Some scholars believe that these provisions allow Congress to eliminate judicial review by statute...

...In 2000, the Supreme Court struck down a ban on late-term abortions for two reasons...

...If there, why not here...

...Think of the notorious "hitching post" case in which Alabama prison guards allegedly tied a prisoner to a post in the hot sun and gave him no water for most of a day...

...DISSENT / Spring 2005 63...

...Liberals took to wearing the label, offered as a criticism, as a badge of honor...

...The proposal would do so directly, and then allow Congress to create judicial review when it wanted to...

...The aim—decreasing progressives' reliance on the courts to do what we can't persuade the people to do—can be carried out in many ways...

...Details The precise form of the EJRA doesn't really matter, and I don't want to worry here about drafting details...

...That's not 62 DISSENT / Spring 2005 JUDICIAL REVIEW true...