5 U.S. (1 Cranch) 137, 175
Segall, Eric J., Constitutional Commentary
What an assignment! Select one moment from constitutional history, extinguish it from memory, and then describe all the consequences, desirable and not, that flow from the destruction of that legal moment. Talk about legal indeterminacy. Of course, Dred Scott would be high on my list, but that's too easy. There is a constitutional evil, however, that if eliminated would probably have led to a different result in Dred Scott and in many other questionable cases as well. Although I can identify that evil, isolating its specific cause is a more difficult task. I will, therefore, work backwards, first describing the problem and then discussing the legal moment that made it possible.
For most of its history, the Supreme Court has exercised what I will call strong judicial review. The Court has invalidated actions of the political branches and the states even in the absence of clear textual or historical support. Whether one agrees or disagrees that the Constitution prohibits prayer in school, affirmative action, campaign finance reform, hate speech regulations, undue interference with a woman's right to have an abortion, political patronage, the legislative veto, and federal commandeering of state governments (to name just a few modern examples), it is virtually impossible to argue that these decisions were based on unambiguous constitutional text or generally accepted historical accounts. Rather, these cases, like most of the Court's constitutional law cases, are based primarily on prior Supreme Court doctrine and the personal judgments or values of the Justices.
This strong or active model of judicial review can be contrasted with a weak one, under which judges would refuse to strike down a political decision absent an "irreconcilable variance" between that action and clear constitutional text or tradition.(1) A good faith application of the "irreconcilable variance" standard by judges would result in a deferential system of judicial review similar to the "rational basis" model the Court has used for ordinary economic legislation for the last sixty years.
The justification for deferential judicial review in a constitutional democracy is easy to articulate. The people agree to fundamental principles limiting future governments and assign the enforcement of those principles to independent political officials such as judges. Under this system, the judges act as agents for the drafters of the fundamental principles. Although there may be "dead hand" objections to such a system, there are also easily identifiable benefits, such as the strong sense of national unity that emerges from intergenerational agreement over shared values and political procedures.
This agency theory of judicial review, however, does not even remotely describe our current system.(2) As already noted, for almost two hundred years the Court has consistently invalidated the political decisions of other governmental units, even where the relevant constitutional text was vague, the applicable history indeterminate, and therefore the agency theory of judicial review unavailable. The justification for this kind of political system is much more difficult to articulate, especially when judges have life tenure and cannot be removed from office when they fall out of step with the people they are supposed to serve.
Would anyone favor calling a new constitutional convention to identify fundamental norms and invite only lawyers and judges? Of course not. But when judges are free to create new constitutional principles and limitations out of hopelessly vague aspirations such as "due process," "equal protection," and "freedom of speech," don't we end up in a similar place? The ultimate resolution (except for the difficult constitutional amendment process) of many social, economic, and political issues, is in the hands of judges who do not operate under any clear burden of proof, who are working with indeterminate text and history, and who often approach these issues with a less than deferential perspective on other political institutions. …