Academic journal article Constitutional Commentary

How American Judges Interpret the Bill of Rights

Academic journal article Constitutional Commentary

How American Judges Interpret the Bill of Rights

Article excerpt


American courts have considerable power to affect government by exercising the power to invalidate, and thus render inoperative, federal and state statutes or the executive acts of federal and state officials (including the President himself) which they consider to be in conflict with a provision of the United States Constitution. All federal and state judges have the authority in appropriate cases to wield this power of judicial review, but the stakes are highest in the United States Supreme Court.

Americans take the subject of judicial review very seriously. The recent Senate hearings into the confirmation of President Clinton's nominee to the Supreme Court, Judge Ruth Bader Ginsburg, were tranquil by comparison to those that preceded them. From 1987 to 1991 Robert Bork, Anthony Kennedy, David Souter, and Clarence Thomas each underwent exhaustive and exhausting public grilling on their philosophies of law, their philosophies of life, and indeed their lives themselves. All but Bork eventually were confirmed by the Senate, but Thomas barely made it, by a vote of 52-48. The reason for the intense hearings was, of course, the recognition that the stakes are enormous when each of the nine Supreme Court Justices represents one-fifth of the votes needed to determine the direction of the country on all sorts of basic matters.

Judicial review in the United States is not a paper tiger. To take some early examples, the Supreme Court in 1857 held that African-American slaves had no rights under the Constitution, and never could have such rights.(1) It thereby thwarted a congressional attempt to fashion a compromise on the slavery issue and avert a bloody Civil War. In the 1870's, following the war, the Supreme Court voided congressional efforts to legislate full citizenship for former slaves.(2)

In the early twentieth century the Supreme Court regularly struck down federal and state social legislation that provided for minimum wages, maximum hours, the protection of labor unions, and the outlawing of child labor.(3) In mid-century, the Court operated with a more liberal philosophy but no less vigorously. For example, from 1954 to 1973 it declared unconstitutional the American version of racial apartheid, organized prayer in state schools, and laws prohibiting or restricting abortion.(4) And it told President Harry Truman that he could not lawfully take over and run privately-owned steel mills when a labor dispute threatened the production of steel for the armed services during the Korean War.(5)

How does one justify, or even explain, the Supreme Court's pattern of decision in constitutional cases so as to explain and perhaps justify judicial review, probably the greatest contribution that the United States has made to political theory and civil liberty? In order to address this question, I shall begin by identifying six pairs of Supreme Court rulings, in each of which the later decision was a radical change of direction from the earlier one. I shall then discuss five key factors which I believe affect judges when they are interpreting the Constitution, especially the Bill of Rights. I shall conclude by venturing some explanations, based on these five factors, for the changes in direction in each of the pairs of decisions that I have identified.

Three of the six pairs concern equality issues under the constitutional provision that prohibits government from "denying to any person ... the equal protection of the laws." The other three deal with free expression under the constitutional provision that prohibits government from "abridging the freedom of speech or of the press."

Turning first to the three equality pairs, what explains the change from 1896, when the Supreme Court upheld the forced segregation of black people into "separate but equal" schools and other public accommodations,(6) to 1954, when in Brown v. Board of Education it declared "separate but equal" facilities to be unconstitutional? …

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