A Relativistic Constitution
WILLIAM WAYNE JUSTICE Judge, United States District Court, Eastern District of Texas
After a debate of nearly 200 years, a debate which has never lacked for participants, it may well be that all that can be said about judicial review and its legitimacy has already been said.
But it would be a mistake to assume that modern debate on the subject, however intense, has brought us any closer to a resolution of the problems that a federal judiciary and the institution of judicial review have posed for our contemporary society.
A relatively recent contribution to this debate concerning judicial review was an address by Mr. Justice Rehnquist, entitled "The Notion of a Living Constitution."1 Justice Rehnquist focused upon a passage from a brief filed in a federal district court on behalf of state prisoners which complained of the conditions of their confinement. The brief writer urged relief from the district court, as "the voice and conscience of contemporary society," 2 on the ground that the other branches of government had failed to act. Justice Rehnquist criticized this formulation by pointing out that the American form of government is a democratic one, founded on the principle of government by the consent of the governed. Within this framework, the only legitimate justification for judicial review is the one so eloquently propounded by Chief Justice Marshall in Marbury v. Madison3: that courts, when they strike down an act of a legislative body, do so by the command of the people as embodied in the Constitution. It is therefore not within the constitutional power of a federal judge to remedy every condition which he views as a social evil. Rather, values in a democratic society are best identified through the democratic branches of government.
At first glance, there seems little to disagree with in this formulation. On closer reading, however, I discerned three areas which may warrant a response: first, Justice Rehnquist's view of the place of judicial review in a de-