Vol. 4 No. 3 (March, 1994) pp. 79-82
RETHINKING CONSTITUTIONAL LAW: ORIGINALISM, INTERVENTIONISM, AND
POLITICS OF JUDICIAL REVIEW by Earl M. Maltz. Lawrence, KS:
University Press of Kansas, 1994.
Reviewed by Frank Guliuzza III (Weber State University).
Earl Maltz, in his essay RETHINKING CONSTITUTIONAL LAW, fires a
scatter shot across the bow of the principal participants in the
debate over constitutional interpretation. Maltz, a Professor of
Law at Rutgers University, Camden, challenges those who advocate
an original intent based judicial philosophy, and who
simultaneously assume that originalism requires judicial non-
interventionism. Furthermore, he provides a substantial critique
of several "nonoriginalist" theories that assume
judicial interventionism is both legitimate and desirable and
unavailable if jurists embrace originalism. Although the book is
not without its imperfections, Maltz challenges some important
assumptions generally held by both constitutional
"conservatives" and "liberals."
What justifies another entry into the lengthy and extensive
conversation over constitutional theory? Maltz offers a couple of
observations. First, he notes that the participants in the debate
are divided into several groups:
Those participating in the larger political debate between
conservatives and liberals.
Those who either oppose or favor judicial
"intervention."
Those who repeatedly argue that the Court should interpret the
Constitution so as to reflect the original understanding of the
Framers, and those who reject an original intent based judicial
philosophy (p. vii).
Second, Maltz argues that the debate is generally muddled because
there is a tendency to group the conservatives, the
noninterventionists, and the originalists into one camp in
opposition to the liberals, interventionists, and the
nonoriginalists. This typical categorization is unsound. There is
no reason why one cannot be a liberal originalist or,
alternatively, a conservative interventionist. Our constitutional
history is replete with both. If any two concepts cannot fit
together, observes Maltz, it turns out to be a linkage between
noninterventionism and originalism. In his essay, he proposes to
start with a "constitutional state of nature" and
carefully consider the case for and against originalism, and the
arguments for and against interventionism (viii).
In his first chapter, Maltz observes the degree to which judicial
interventionism is associated with political liberalism, and just
how unimportant the concept of judicial deference has become in
discussions of constitutional law (p. 1). He notes that neither
of these observations was true in the not-so-recent past. At the
turn of the century, judicial interventionism was associated with
the efforts of conservative justices to safeguard business and
industry from excessive regulation, and political liberals and
progressives championed the cause of judicial deference.
Beginning in 1937, the dominant judicial philosophers preferred
judicial deference. However, Maltz notes, ideological forces
undermined the liberal commitment to deference. Judicial review
was accurately perceived as a source of power, and it was
irrational not to use this political clout, especially when it
came with relatively little political cost. Thus, the tables were
turned most dramatically during the fifteen years of the Warren
Court. Over time, the conservative justices were appointed during
the Nixon, Reagan, and Bush administrations to apply the brakes
to liberal judicial interventionism, but, argues Maltz, that did
not always happen. Although the case against judicial
interventionism hinged upon a strong argument for judicial
deference, conservative justices have, on occasion, engaged in
conservative judicial interventionism. Clearly, Maltz remarks,
interventionism is a weapon to be used by both the left and the
right.
In the next two chapters, Maltz considers the case for an
original intent based interpretive method. He notes that the
reports of the demise of originalists like Raoul Berger and
Robert Bork are greatly exaggerated. Originalists are still
Page 80 follows:
important players in the field of constitutional theory. One
problem with evaluating originalism, however, is that the theory
is erroneously linked with noninterventionism. There are
occasions when, if the Court is to be true to the Framers, it
must intervene against the policy making branches of government.
Although originalists need to take seriously the criticism
leveled by scholars like Paul Brest and Ronald Dworkin, the
theory offers something that is greatly desired by
nonoriginalist: a claim to "legitimacy" based upon the
ratification process and the idea that the Constitution is a
social compact between states who agreed to cede a portion of
their authority to the national government before ratifying the
document. Originalism sets forth a context by which one can know
what governmental policies would and would not be acceptable to
the Framers, and, therefore, when judicial intervention is most
warranted.
In the remainder of the book, Maltz examines the nonoriginalist
defense for judicial interventionism. He notes that the charges
generally levelled at nonoriginalism are precisely that it is
undemocratic and lacks legitimacy. Maltz largely dismisses the
first charge, but asserts that even the leading nonoriginalists
are troubled by the latter. Nonoriginalists, therefore, offer two
lines of defense: a neo- originalist case and a functional case
for judicial interventionism. Neo-orignalists are those scholars
who attempt to tie their theory to an original understanding of
the text in order to maximize its legitimacy. Some rely upon
specific clauses of the Constitution, particularly the Ninth or
Fourteenth Amendments. Others, like Cass Sunstein, David
Richards, or Dworkin, argue that the Framers generated a general
political theory that justifies interventionism. The functional
defense for nonoriginalist interventionism presumes, first, that
originalism is not the only legitimate justification for judicial
interventionism, and, therefore, that an interventionist
judiciary is both legitimate and positive because it enhances the
performance of government by improving decision making. Again, he
reviews several "functional" defenses: Leonard Levy's
argument that an expansion of rights by the judiciary is a
benefit to society (pp. 80-83), Owen Fiss's and Dworkin's claim
that the Court is uniquely positioned to bring moral awareness to
"questions of basic values" (pp. 84-93), Alexander
Bickel's and Michael Perry's contention that judicial
interventionism can enhance the quality of political dialogue
(pp. 93-100), and John Hart Ely's representative-reinforcement
theory (pp. 100-107). Maltz critiques both sets of arguments, and
contends that neither defense provides a compelling justification
for judicial intervention.
Maltz concludes his essay with three observations. First,
nonoriginalists should stop making it priority to justify their
legitimacy. Rather, given the costs associated with judicial
interventionism, they must provide sound reasons to justify their
arguments for a broad based interventionist Court. Second,
although originalism carries with it an air of legitimacy,
originalists, too, must recognize the potential costs of judicial
intervention even if wielded legitimately by the judiciary.
Finally, judicial intervention does not necessarily favor a
particular political or moral ideology. It does not bolster the
goals of a particular political party. Because of changes in the
personnel on the Court, and the political climate over time, both
conservatives and liberals have "benefitted" from an
interventionist Court . There are a number of observations one
might make about the book. First, on several occasions Maltz
"takes out" a prominent theoretical positions by
offering a single counter-argument with but one or two case
illustrations. The relationship between judicial review and
democratic theory, the claim that a general theory of rights
emanates from the first eight amendments, "flexibility"
based arguments in favor of interventionism, and the like, are
very complex. It is not that Maltz's arguments will not be
persuasive -- particularly to those who already have a quarrel
with nonoriginalism. However, if one looks, for example, at the
volume of literature generated by Raoul Berger's GOVERNMENT BY
JUDICIARY, the articles and counter-articles often contending
over very particular historical points, it seems unlikely that
Maltz will have, conclusively, quashed Sunstein, Levy, Dworkin,
and the like. Rather, he
Page 81 follows:
has contributed to an on-going conversation.
Second, toward the end of the book, Professor Maltz seems to move
beyond the question of interventionism versus noninterventionism
-- a well-travelled path-- and talks about the finality of
Supreme Court decisions which is perhaps a more important
pathway. And yet he makes no mention of those scholars who have
preceded him in this inquiry (and who do maintain that the
Court's claim to supremacy and finality is more important than
the activism-restraint debate). See, for instance, Susan R.
Burgess, CONTEST FOR CONSTITUTIONAL AUTHORITY (1992) also
published by University Press of Kansas.
Third, there are a number of places in the book, particularly
when Professor Maltz alludes to the arguments of a particular
group of thinkers, or when he makes historical references (e.g.
pp. 58-60), that he fails to include necessary references.
Observations about prospects that most theorists would find most
odious (p. 36), or claims that many interventionist theorists
have found that Americans would consider some values more
important than preserving democracy (p. 48), or assertions about
the impact of the discussions of abortion and capital punishment
by the noninterventionist justices (p. 98), require evidentiary
support.
Fourth, Maltz speaks from the outset of
"interventionism." What is it? It appears as if he is
defining it broadly enough to include any authoritative response
by the Court to the popularly elected branches of government
including judicial review. If so, then he is beating a straw man.
Who, among the important proponents of originalism,
interpretivism or intentionalism, would not agree that the Court
is empowered to strike down unconstitutional legislation? Rather,
their concern is with an activist judiciary that seeks, without
constitutional legitimacy, to substitute its will for that of the
popularly elected branches. I am not convinced that the examples
he offers to suggest that the Court's conservatives have used
"liberal interventionist doctrine as a device to support the
conservative political agenda" are entirely correct (pp.
12-14). In R.A.V. V. CITY OF ST. PAUL (1992), Justice Scalia
prioritized the first amendment over St. Paul's hate speech code.
Scalia, first, explained the importance of the free speech
clause, second, conceded that the "fighting words
doctrine" renders some kinds of "speech"
unprotected by the first amendment, but, third, that the doctrine
cannot be codified in such a way that only particular kinds of
targeted vilification are unprotected. Agree or disagree with the
results of the case, or Scalia's reasoning -- which differed from
the most "liberal" justices on a unanimous Court -- a
robust defense of the free speech clause, predicated upon
existing case law, seems not to be the kind of judicial activism
that worries proponents of judicial deference. It is found in
some of the other cases that Professor Maltz cites like LOCHNER
V. NEW YORK (1905), GRISWOLD V. CONNECTICUT (1965), and ROE V.
WADE (1973). If one looks, for example, at some of the opinions
offered by Justice Brennan, it should become quite clear why
there are scholars and jurists who want to limit the adventures
of the Court. In ROBERTS V. U.S JAYCEES (1984), a Minnesota case
involving freedom of association versus equal protection, Brennan
creates his own hierarchy of associations that affords maximum
protection for those groups that provide choices to enter and
maintain certain intimate human relationships. Other, less
intimate, private associations are subject to government
intrusion. In ALLEGHENY COUNTY V. ACLU (1989), Brennan shoulders
a heavy theological responsibility. In his concurring opinion, he
evaluates the importance of religious holidays on behalf of
particular religious groups -- symbol X is of critical importance
to denomination Y during season Z. Alternatively, symbol A is not
as important to denomination B during season C. In ABINGTON
TOWNSHIP V. SCHEMPP (1963), he anticipates that prayer and Bible
reading might, easily no less, lead to a new, public school sect
that takes its place along with existing faiths. In the family
rights decision, MICHAEL H. V. GERALD D. (1989), Brennan says
that there are certain institutions that have traditionally been
protected such as the family. It is because they have been
cherished as a matter of tradition and that they
Page 82 follows:
deserve special protection. In fact, he notes, we can agree that
they are a part of the good life. The problem, for Brennan, comes
when we try to identify or define what they are. So, while it is
important to protect the traditionally recognized institution of
family, policy makers cannot protect what is traditionally
defined to be, or even some evolving notion of,
"family." Legislators and jurists, with very real cases
like we have seen recently in the news, are simultaneously
expected to protect the family, and yet they cannot effectively
define it.
When originalists, interpretivists, or intentionalists react to
"unbridled judicial activism" or "social
engineering from the bench" they are not necessarily talking
about a broad interpretation of "speech" or "due
process" or "equal protection." I think they are
referring to the kind of decision making fashioned by Justice
Brennan. By broadly defining judicial interventionism, Maltz
sidesteps this debate over the legitimacy and desirability of the
kind of judicial activism I have just discussed. Further, his
approach encourages, despite his protestations about the cost of
judicial intervention (p. 75), both political liberals and
conservatives to use judicial interventionism as a weapon as long
as it is grounded in an original understanding of the text (pp.
8-10). Although Maltz is likely to receive his harshest criticism
from so-called nonoriginalist proponents of judicial
interventionism, those who view each attempt by the Court to use
judicial review as a mandate to engage in social engineering as
lamentable -- whether it comes from the political left or
political right -- are also unlikely to be completely comfortable
with Maltz.
Despite these critical observations, this is a good book. It is
worthy of more attention than I suspect it will receive
especially from proponents of a nonoriginalist defense for
judicial interventionism. It is also an ambitious little book (as
one might expect from a title like RETHINKING CONSTITUTIONAL
LAW). In just 108 pages Maltz endeavors to debunk the linkage
between originalism and noninterventionism, and sink the several
nonoriginalist arguments in favor of an active judiciary. In the
end, Maltz maintains that originalism, properly defined, provides
THE legitimate defense for judicial interventionism. I am
confident his argument will, if taken seriously, stimulate and
elevate the interpretive debate.
REFERENCES
Books:
Berger, Raoul. 1977. GOVERNMENT BY JUDICIARY. Cambridge, Mass:
Harvard University Press. Burgess, Susan. 1992. CONTEST FOR
CONSTITUTIONAL AUTHORITY. Lawrence, Kansas: University Press of
Kansas.
Cases:
ABINGTON TOWNSHIP SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203 (1963)
ALLEGHENY COUNTY V. ACLU, 492 U.S. 573 (1989) GRISWOLD V.
CONNECTICUT, 381 U.S. 479 (1965) LOCHNER V. NEW YORK, 198 U.S. 45
(1905) MICHAEL H. V. GERALD D., 491 U.S. 110 (1989) R.A.V. V. ST.
PAUL, 112 S.Ct. 2538 (1992) ROBERTS V. U.S. JAYCEES, 468 U.S. 605
(1984) ROE V. WADE, 410 U.S.113 (1973)
Copyright 1994