A COMMON LAW THEORY OF JUDICIAL REVIEW

Vol. 17 No.5 (May, 2007) pp.408-412

A COMMON LAW THEORY OF JUDICIAL REVIEW: THE LIVING TREE, by W.J. Waluchow. New York: Cambridge University Press, 2007. 296pp. Hardback. $80.00. ISBN: 9780521864763. e-Book format. $64.00. ISBN: 9780511271649.

Reviewed by Howard C. Ellis, Department of Business Administration, Millersville University of Pennsylvania. Email: howard.ellis [at] millersville.edu.

Abortion, eminent domain, affirmative action, homosexual relations, school vouchers, and the death penalty are contentious issues that have been addressed by the Supreme Court in recent years. Though the court has spoken, these issues are far from settled. In fact, some would argue that these issues are more contentious because the court has constitutionalized them, instead of allowing them to be resolved by the democratic process.

Equally polarizing is the higher order question of the court’s power to resolve issues of such moment, rather than leaving their resolution to the political branches. This is especially problematic when the resolution reached by the courts contravenes majority opinion on the moral and political issues in question.

The debate regarding the proper role of the courts in its exercise of judicial review generates much heat. In American jurisprudence, judicial review is of such lengthy pedigree that it is not challenged much in and of itself. Rather, the debate rages over the approach: whether courts should be restrained or activist. A restrained court’s decisions tend to be controlled by the written text of the constitution itself (textualism); the original understanding of the constitution (originalism); the moral and political values of the community as expressed in the legislative enactment (popular will). To the extent that a court deviates from such (self-imposed) restraint it would be considered activist. In recent years activist decisions have favored the political left: severely limiting governmental interference with abortion rights, protecting homosexual rights, limiting the state’s ability to impose the death penalty, approving of affirmative action. It is not surprising that commentary from the political right tends to favor the restrained theory of judicial review, while commentary from the left tends to favor activism.

Activism’s defenders argue that it is contrary to democratic self-governance for the modern polity to be bound by the dead hand of the past. Advocates of restraint argue that it is contrary to democratic self-governance for unelected judges, “our robed masters” as the critics would have it, to override the will of the majority. Activism posits that the Framers could have foreseen neither the circumstances of our modern condition nor the development of our moral knowledge and sensibilities. Restraint answers that political organs of government can respond to such changes. Both sides of the debate believe that they are the defenders of the democratic ideal. [*409]

In A COMMON LAW THEORY OF JUDICIAL REVIEW: THE LIVING TREE, W.J. Waluchow attempts to develop a conception of constitutions (the author uses the terms “charter” and “constitution” interchangeably) and judicial review, which justifies both by striking a balance between excessive entrenchment and elitism. His conception of the proper role of the courts ultimately rejects all three elements of judicial restraint (originalism, textualism, and popular will) in favor of a common law approach to judicial review. He posits that the common law approach is itself limiting enough on the power of judges to avoid the danger that the court will overstep its bounds. In this way, he hopes to show that it is possible to avoid both the pitfalls of excessive restraint (the dead hand of the past) and of excessive activism (the substitution of the judges’ values for society’s).

This is a book written by a philosophy professor for an audience of professional philosophers, and yet it is reasonably accessible to the non-professional reader. It is virtually jargon-free and is written in an engaging and clear style. Waluchow mostly steers clear of the modern controversies mentioned above, with passing reference made to abortion and same-sex marriage. In the latter instance he takes a position in support of same-sex marriage but only as an example of how his theory of judicial review might work in practice and how that theory could be justified. The book will be of most value to the student of jurisprudence who wants to look behind the political issues to more fundamental questions of democratic self-governance. It may also be of greater value to a non-American audience, such as that of Canada, the United Kingdom, or other democratic nations who have not quite settled the more fundamental issues of constitutionalism that Waluchow addresses in great detail. It is telling that the author is Canadian, and the critic whose work he most centrally addresses, Jeremy Waldron, is a native New Zealander.

The book’s greatest virtue is Waluchow’s willingness to lay out with great clarity and fairness arguments on both sides of each issue, and then to do his best to respond to those arguments.

The task he sets for himself is to answer the following questions:

• Does a nation need a charter?

• If it is going to have a charter, who should interpret it?

• If judges are going to interpret the charter, what, if anything, should constrain them in their interpretations?

Waluchow’s plan of attack in answering these question is as follows:

• To set out the standard case for charters – that is, the defense of charters as conceived by such advocates as Ronald Dworkin and John Hart Ely.

• To explicate the case of charter critics, most notably Jeremy Waldron.

• To develop a new conception of charters and judicial review that avoids the problems identified by the critics as fatal to the standard case. [*410]

Does a nation need a charter? Though this is not an open question in the United States, it is still debated elsewhere. Canada, for example, adopted its own charter (Constitution Act) in 1982. Thus, for the first time Canada entrenched certain fundamental rights including the right of life, liberty, security of the person, equality under the law, and freedom of thought, belief, opinion, expression and association. But this development has not been accepted with universal acclaim.

The standard case for charters and judicial review begins with the proposition that democratic procedures will often shortchange minorities. Waluchow quotes Justice Robert Jackson approvingly: “‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials . . . . [F]undamental rights may not be submitted to vote: they depend on the outcomes of no elections’” (p.116). Life-tenured judges, however, are immune from such political pressures, and are therefore more likely to safeguard minority interests, hence the importance of judicial review.

Moreover, a national charter helps to forge a national moral identity, avoiding the sort of moral regionalism exemplified by the Jim Crow south.

Importantly, charters provide a pre-commitment of the community to observe fundamental rights, regardless of the exigencies of the day. This pre-commitment to rights such as the vote, freedom of the press, and equality before the law, impresses upon the community and the organs of government that these rights are not subject to the whims of the majority. The community has “tied itself to the mast” insofar as fundamental moral principles are concerned.

The critics’ case against charters and judicial review has two central themes. First, entrenchment thwarts the will of the people and denies the people the ability, necessary to self-government, to “reevaluate and alter their commitments in light of changing circumstances and increased knowledge” (p.138). Additionally, the existence of a charter binds us to the particular words in the charter, and thus the courts find themselves forced to debate endlessly the meaning of those words. So, for example, first amendment cases about flag burning or topless dancing might hinge on whether these activities can properly be called “speech,” rather than on whether they are activities deserving of protection. Moreover, “rights talk” often leads to an acrimonious public debate. Abortion is the best example. It is not easy to reconcile conflicting rights, such as the right to life and the right to choose.

Second, a charter inevitably leads to judicial review of legislation vis-à-vis the charter’s provisions. The critics object to the power of judicial elites to make decisions of political morality. The people do not have a democracy if they themselves cannot determine what freedoms they have and what those freedoms mean. Courts, say the critics, have historically been as likely to protect majority or property interests as to [*411] protect minority or individual rights. PLESSY and the LOCHNER era cases are cited as examples. One could also cite the recent KELO decision on eminent domain.

Waluchow attempts to answer the critics with what he describes as a Copernican revolution in thinking about charters and judicial review: his common law conception. Based on the principle of precedent, the common law strives to strike a balance between the certainty and stability provided by fixed rules and the need for adaptability to unanticipated circumstances. The common law has proven successful at striking this balance, for example, in the law of negligence.

Why not take the same approach to constitutional jurisprudence? “It is time to do away with the notion that a Charter can, in the circumstances of politics and the equally crucial circumstances of rule making, establish pigeonholes serving as fixed points of agreement and pre-commitment to moral limits on government power. It is well past time to recognize that in this area too, ‘The categories . . . are never closed.’ They demand the case-by-case, incremental changes and improvements that common law methodology makes possible” (p.208). The common law conception rejects originalism, because

rules that are fixed by ancient meanings might lead to decisions that violate modern (improved) norms of morality or lead to irrational or undesirable consequences. It rejects textualism because almost by definition principles expressed in a charter are purposefully general and the words are chosen in order to give judges flexibility to adapt those principles to cases the circumstances of which could not have been foreseen. It rejects popular will on the belief that judges are in a better position than politicians to identify the community’s authentic moral commitments, and to enforce them even against the prevailing popular sentiment. Waluchow cites the popular opposition to same-sex marriage as an example of a widely held sentiment which is (he believes) contrary to the community’s more authentic and deeply held belief in equality and against irrational prejudice. At the same time he presents a solution to the problem of judicial supremacy by insisting that it is not mandatory, offering the examples of New Zealand, where the Supreme Court has the authority to opine about the constitutionality of a legislative act but not to overturn it, and Canada, where the legislature has the authority to override the constitutional decisions of the Supreme Court.

Ultimately Waluchow’s project meets with moderate success. His conceptualization does answer the critics of charters as such, demonstrating that a charter need not lead to entrenchment and subservience to the dead hand of the past. He does a good job of establishing the validity of the institution of judicial review, based on the propensity of democratic majorities to be swayed by the exigencies of the moment to the derogation of fundamental principles. However, he appears to have fallen short when it comes to the activism-restraint controversy. It is not clear to this reader that the common law conception of judicial review would add any additional [*412] luster of legitimacy to the Supreme Court’s decisions in controversial cases when the Court departs significantly from the text, original meaning, or popular will. His case ultimately depends on our willingness to trust the good faith and good sense of judges as more capable arbiters of societal values than the political organs of government. That is a hard case to make.

CASE REFERENCES:

KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

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