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Putting the Federal Judiciary Back on the Constitutional Track

by Edwin Meese III
Special Report to the Senate Committee on the Judiciary
Committee Brief No. 29
June 30, 1997


In the Federalist Papers, Alexander Hamilton referred to the federal
judiciary as the "least dangerous" branch of government. Today, however,
there is great public concern about what many citizens see as the
unchecked expansion of power exercised by the courts and the usurpation of
policymaking authority by unelected judges. Some have even described this
phenomenon as a looming constitutional crisis. The Weekly Standard for
December 16, 1996, describes as a crisis the "brazen interference of the
judicial branch of government in the decision-making authority of the
American electorate."

Paul Craig Roberts, writing in the January 9, 1997, Washington Times,
states that the "federal judiciary, especially the Supreme Court, has
removed the most important moral and political decisions from the
democratic process. In place of persuasion and the expression of the
people's will, the judiciary dictates."

The intensity of public feeling is exhibited in the introduction to a
symposium on "The End of Democracy? The Judicial Usurpation of Politics,"
in the November 1996 issue of First Things. There the proposition is
stated that

the government of the United States of America no longer governs by the
consent of the governed. With respect to the American people, the
judiciary has in effect declared that the most important questions about
how we ought to order our life together are outside the purview of
"things of their knowledge".... [J]udges...simply claim, and exercise,
the power to decide. The citizens of this democratic republic are deemed
to lack the competence for self government.

One reason for the heightened public concern has been the increasing
tendency of the courts to use their power to decide cases as a means of
nullifying laws passed by legislatures, and even the people themselves
through ballot initiatives, wherein judges impose their own policy
preferences on an unwilling society. Moreover, the kinds of laws and
policies typically at issue in many of these cases go not to minor
matters, but to fundamental issues which affect the moral and religious
basis of our society, and in which the courts seem determined to govern
without popular consent.

In many cases, the Supreme Court and other federal judicial bodies not
only have exceeded their constitutional limits, but have challenged the
principle of federalism that should protect the balance of power between
the national government and the governments of the states. The
Congressional Research Service has surveyed Supreme Court decisions and
noted that the Court has overturned more than 260 state and local laws
during the past 20 years. Other federal courts likewise have nullified the
actions of state legislators. In the past few years, some of the most
egregious federal judicial decisions have involved initiatives passed by
the people themselves. In some cases, this raw exercise of judicial power
has been accompanied by scant legal precedent, jurisprudential reasoning,
or constitutional foundation.

When judges exceed their constitutional prerogative to interpret law and
instead read their personal views and prejudices into the Constitution,
the least democratic branch of government becomes the most powerful.
America's Founding Fathers created a democratic republic in which elected
representatives were to decide the important issues of the day. In their
view, the role of the judiciary, although crucial, was to interpret and
clarify the law—not to make law. The Framers recognized the necessity of
judicial restraint and the dangers of judicial activism. James Madison
wrote in The Federalist Papers that to combine judicial power with
executive and legislative authority was the "very definition of tyranny,"
and Thomas Jefferson believed that allowing only the unelected judiciary
to interpret the Constitution would lead to judicial supremacy. "It is a
very dangerous doctrine to consider the judges as the ultimate arbiters of
all constitutional questions," said Jefferson. "It is one which would
place us under the despotism of an oligarchy."

Unfortunately, the federal judiciary has strayed far beyond its proper
functions, in many ways validating Jefferson's warnings about judicial
power. In no other democracy in the world do unelected judges decide as
many vital political issues as they do in the United States. We will never
return the federal government to its proper role in our society until we
return the federal judiciary to its proper role in our government.
Supreme Court decisions based on the Constitution cannot be reversed or
altered, except by a constitutional amendment. Such decisions are
virtually immune from presidential vetoes or congressional legislation.
Abraham Lincoln warned of this in his First Inaugural Address when he
said:

[T]he candid citizen must confess that if the policy of the government,
upon vital questions, affecting the whole people, is to be irrevocably
fixed by decisions of the Supreme Court...the people will have ceased to
be their own rulers, having, to that extent, practically resigned their
government into the hands of that eminent tribunal.

When the most important social and moral issues are removed from the
democratic process, citizens lose the political experience and moral
education that come from resolving difficult issues and reaching a social
consensus. President Ronald Reagan explained how judicial activism is
incompatible with popular government:

The Founding Fathers were clear on this issue. For them, the question
involved in judicial restraint was not—as it is not—will we have liberal
courts or conservative courts? They knew that the courts, like the
Constitution itself, must not be liberal or conservative. The question
was and is, will we have government by the people? [Emphasis added.]

It is not only lack of constitutional authority that makes judicial
activism a serious problem. Courts are not designed to make broad public
policy. Necessarily, their decisions are bounded by the facts of
particular cases. Likewise, they do not have the opportunity to review a
broad array of witnesses' testimony concerning the possible ramifications
of their decisions. Thus, when federal judges exceed their proper
interpretive role, the result is not only infidelity to the Constitution,
but very often very poor public policy.

Numerous cases illustrate the consequences of judicial activism and the
harm it has caused our society. Activist court decisions have undermined
nearly every aspect of public policy. Among the most serious examples are
the following:

Allowing racial preferences and quotas. In United Steelworkers of America
v. Weber (1979), the Supreme Court held for the first time that the Civil
Rights Act of 1964 permits private employers to establish racial
preferences and quotas in employment, despite the clear language of the
statute: "It shall be an unlawful employment practice for any
employer...to discriminate against any individual because of his race,
color, religion, sex, or national origin." Had the Court decided Weber
differently, racial preferences would not exist in the private sector
today. The Weber decision is a classic example of how unelected government
regulators and federal judges have diverted our civil rights laws from a
color-blind ideal to a complex and unfair system of racial and ethnic
preferences and quotas that perpetuate bias and discrimination.
Creating a "right" to public welfare assistance. In Goldberg v. Kelly
(1970), the Supreme Court sanctioned the idea that welfare entitlements
are a form of "property" under the Fourteenth Amendment. The Court's
conclusion: Before a government can terminate benefits on the grounds that
the recipient is not eligible, the recipient is entitled to an extensive
and costly appeals process akin to a trial. Thanks to the Supreme Court,
welfare recipients now have a "right" to receive benefits fraudulently
throughout lengthy legal proceedings, and never have to reimburse the
government if their ineligibility is confirmed. The decision has tied up
thousands of welfare workers in judicial hearings and deprived the truly
needy of benefits. By 1974, for example, New York City alone needed a
staff of 3,000 to conduct Goldberg hearings.

Hampering criminal prosecution. In Mapp v. Ohio (1961), the Supreme Court
began a revolution in criminal procedure by requiring state courts to
exclude from criminal cases any evidence found during an "unreasonable"
search or seizure. In so holding, the Court overruled a previous case,
Wolf v. Colorado (1949), which had allowed each state to devise its own
methods for deterring unreasonable searches and seizures. The Supreme
Court in effect acted like a legislature rather than a judicial body. As a
dissenting justice noted, the Mapp decision unjustifiably infringes upon
the states' sovereign judicial systems and forces them to adopt a uniform,
federal procedural remedy ill-suited to serve states with "their own
peculiar problems in criminal law enforcement."

In fact, nothing in the Fourth Amendment or any other provision of the
Constitution mentions the exclusion of evidence, nor does the legislative
history of the Constitution indicate that the Framers intended to require
such exclusion. Instead, we ought to explore other means of deterring
police misconduct without acquitting criminals, such as permitting civil
lawsuits against reckless government officials and enforcing internal
police sanctions against offending officers with fines and demotions.
Since Mapp v. Ohio, the exclusionary rule has had a devastating impact on
law enforcement in the United States. One recent study estimated that
150,000 criminal cases, including 30,000 cases of violence, are dropped or
dismissed every year because the exclusionary rule excluded valid,
probative evidence needed for prosecution.

Lowering hiring standards for the U.S. workforce. In Griggs v. Duke Power
Co. (1971), a plaintiff challenged a company's requirement that job
applicants possess a high school diploma and pass a general aptitude test
as a condition of employment. The lawsuit argued that because the diploma
and test requirements disqualified a disproportionate number of
minorities, those requirements were unlawful under the Civil Rights Act of
1964 unless shown to be related to the job in question.

The Supreme Court ruled that, under the Act, employment requirements that
disproportionately exclude minorities must be shown to be related to job
performance, and it rejected the employer's argument that the diploma and
testing requirements were implemented to improve the overall quality of
its workforce. Moreover, the Court held that "Congress has placed on the
employer the burden of showing that any given requirement must have a
manifest relationship to the employment in question."

In fact, the Act explicitly authorizes an employer to use aptitude tests
like the one challenged in Griggs. This insidious court decision has
lowered the quality of the U.S. workforce by making it difficult for
employers to require high school diplomas and other neutral job
requirements. It also forced employers to adopt racial quotas in order to
avoid the expense of defending hiring practices that happen to produce
disparate outcomes for different ethnic groups.

"Discovering" a right to abortion. In Roe v. Wade (1973), the Supreme
Court considered the constitutionality of a Texas statute that prohibited
abortion except to save the life of the mother. Although the Court
acknowledged that the Constitution does not explicitly mention a right of
privacy, it held that the Constitution protects rights "implicit in the
concept of ordered liberty." The Court ruled that the "right of personal
privacy includes the abortion decision," and it struck down the Texas
statute under the Due Process Clause of the Fourteenth Amendment. The
Court then went on, in a blatantly legislative fashion, to proclaim a
precise framework limiting the ability of states to regulate abortion
procedures.

The dissenting opinion in Roe pointed out that, in order to justify its
ruling, the majority somehow had to "find" within the Fourteenth Amendment
a right that was unknown to the drafters of the Amendment. When the
Fourteenth Amendment was adopted in 1868, there were at least 36 state or
territorial laws limiting abortion, and the passage of the Amendment
raised no questions at the time about the validity of those laws. "The
only conclusion possible from this history," wrote the dissenting
justices, "is that the Drafters did not intend to have the Fourteenth
Amendment withdraw from the States the power to legislate with respect to
this matter."

One of the most pernicious aspects of the Roe decision is that it removed
one of the most profound social and moral issues from the democratic
process without any constitutional authority. For the first two centuries
of America's existence, the abortion issue had been decided by state
legislatures, with substantially less violence and conflict than has
attended the issue since the Roe decision.

Overturning state referenda. In Romer v. Evans (1996), the Supreme Court
actually negated a direct vote of the people. This case concerned an
amendment to the Colorado constitution enacted in 1992 by a statewide
referendum. "Amendment 2" prohibited the state or any political
subdivisions therein from adopting any policy that grants homosexuals "any
minority status, quota preference, protected status, or claim of
discrimination." The Court ruled that the amendment was unconstitutional
because it did not bear a "rational relationship" to a legitimate
government purpose and thus violated the Equal Protection Clause of the
Fourteenth Amendment.

The state of Colorado contended that this amendment protected freedom of
association, particularly for landlords and employers who have religious
objections to homosexuality, and that it only prohibited preferential
treatment for homosexuals. But the Court rejected these arguments and
offered its own interpretation of what motivated the citizens of Colorado,
claiming that "laws of the kind now before us raise the inevitable
inference that the disadvantage imposed is born of animosity toward the
class of persons affected."

The dissenting opinion argued that Amendment 2 denies equal treatment only
in the sense that homosexuals may not obtain "preferential treatment
without amending the state constitution." Noting that, under Bowers v.
Hardwick (1986), states are permitted to outlaw homosexual sodomy, the
dissent reasoned that if it is constitutionally permissible for a state to
criminalize homosexual conduct, it is surely constitutionally permissible
for a state to deny special favor and protection to homosexuals. The
Court's decision, the dissent charged, "is an act not of judicial
judgment, but of political will."

It is difficult not to regard the Romer decision as the pinnacle of
judicial arrogance: Six appointed justices struck down a law passed by 54
percent of a state's voters in a direct election, the most democratic of
all procedures. In one of the most egregious usurpations of power in
constitutional history, the Supreme Court not only desecrated the
principle of self-government, but appointed itself the moral arbiter of
the nation's values.

It is important to recognize that the legislative and executive branches
have co-equal power with the judicial branch in regard to the
Constitution. The executive has a sworn duty to uphold and protect the
Constitution. Congress has the power to apply the Constitution to
unfolding generations through its ability to enact statutory law. The
judiciary's power is limited to interpreting the Constitution.
The Founding Fathers wisely provided three separate branches under the
Constitution because they anticipated the possibility that each of the
branches might go wrong from time to time and that, when that happened,
the other two branches—individually or together—could use their powers to
get the offending branch back on the constitutional track.

There are a number of cases throughout our more than two centuries of
history in which actions of the Supreme Court have been modified or
corrected by the Congress or by the President:

When the Supreme Court, in Dred Scott v. Sandford in 1857, ruled that
the Missouri Compromise was unconstitutional, claiming that Congress had
no power to ban chattel slavery in U.S. territories, Abraham Lincoln
called on Congress to pass a new statute to extend the ban on slavery to
all the territories, and Congress passed such a law in 1862, long before
the Thirteenth Amendment.

In the landmark case of Marbury v. Madison, which established the
Supreme Court's claim to judicial review of federal acts, President
Jefferson simply disregarded Chief Justice Marshall's opinion for the
Court that the President was constitutionally required to give Mr.
Marbury his commission.

The constitutionality of the Second Bank of the United States was
affirmed by the Supreme Court in the 1819 case of McCulloch v. Maryland;
nevertheless, President Andrew Jackson disputed the Court's decision,
withdrew the federal treasury from that institution, deposited it in
state banks instead, and vetoed Congress's bill renewing its charter.

In recent years, the passage by Congress of the Religious Freedom
Restoration Act and the Prison Litigation Reform Act are direct examples
of Congress's changing policies and practices that had resulted from
judicial decisions.

As the late constitutional scholar Alexander Bickel pointed out, the
Constitution was intended to set up a kind of colloquy among the three
branches of the federal government and with the self-governing citizens of
the United States, rather than to make one branch final and "infallible"
(in the word of former Justice William Brennan). Thus, Congress has the
authority to participate in that colloquy within its lawmaking function,
as well as to initiate amendments to the Constitution to provide an
opportunity for the people to change Supreme Court decisions, which is the
ultimate check on a Court that has gone out of control.

In carrying out its role of upholding the Constitution, Congress has a
number of strategies it can use to confine the judiciary to its proper
constitutional role:

The Senate should use its confirmation authority to block the appointment
of activist federal judges. The Senate Judiciary Committee, by holding
hearings on every judicial nomination, provides an excellent opportunity
to discern a judicial candidate's understanding of a constitutionally
limited judiciary. It also provides a public opportunity for judicial
watchdog organizations to testify in support of or against a particular
nominee. In addition to the hearing, the careful review of the nominee's
background, experience, writings and other information, along with the
testimony of judges and other attorneys who have had ample opportunities
to view a candidate's work, can provide a check on potentially activist
judges. Likewise, the full Senate should vote individually on each
judicial nominee. There is no more important duty for the Senate than
ensuring the qualification and constitutional commitment of judges who
are, in essence, appointed for life.

Congress should exercise its power to limit the jurisdiction of the
federal courts. Congress has great control over the jurisdiction of the
lower federal courts. Article III, Section 1 of the Constitution provides
that the "judicial power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time
to time ordain and establish." [Emphasis added.] It is well-established
that, because Congress has total discretion over whether to create the
lower federal courts, it also has great discretion over the jurisdiction
of those courts it chooses to create. In fact, Congress has withdrawn
jurisdiction in the past from the lower federal courts when it became
dissatisfied with their performance or concluded that state courts were
the better forum for certain types of cases. The Supreme Court has
repeatedly upheld Congress's power to do so.

Congress also has some authority to limit the jurisdiction of the Supreme
Court and to regulate its activities. Article III of the Constitution
states that the Supreme Court "shall have appellate jurisdiction, both as
to law and fact, with such Exceptions, and under such Regulations as the
Congress shall make." [Emphasis added.] Although we recognize that the
scope of Congress's power to regulate and restrict the Supreme Court's
jurisdiction over particular types of cases is under debate, there is a
constitutional basis for this authority.

In the only case that directly addressed this issue, the Supreme Court
upheld Congress's power to restrict the Court's appellate jurisdiction. In
Ex Parte McCardle (1869), the Court unanimously upheld Congress's power to
limit its jurisdiction, stating:

We are not at liberty to inquire into the motives of the legislature. We
can only examine into its power under the Constitution; and the power to
make exceptions to the appellate jurisdiction of this court is given by
express words. What, then, is the effect of the repealing act upon the
case before us? We cannot doubt as to this. Without jurisdiction, the
court cannot proceed at all in any case. [Emphasis added.]

Although some respected constitutional scholars argue that Congress cannot
restrict the Supreme Court's jurisdiction to the extent that it intrudes
upon the Court's "core functions," there is no question that Congress has
more authority under the Constitution to act than it has recently
exercised.

The 104th Congress displayed an encouraging willingness to assert its
authority over the jurisdiction of the lower federal courts. For example,
the Prison Litigation Reform Act of 1995 reduced the discretion of the
federal courts to micromanage state prisons and to force the early release
of prisoners. The Act also makes it more difficult for prisoners to file
frivolous lawsuits. (An incredible 63,550 prisoner lawsuits were filed in
federal court in 1995 alone.) Congress also passed the Effective Death
Penalty Act of 1995. This Act limits the power of the federal courts to
entertain endless habeas corpus appeals filed by prisoners on death row,
significantly expediting the death penalty process.

Congress can limit the ability of courts to engage in judicial activism by
restraining the legislative federalization of crime and the expansion of
litigation in federal court. Whenever Congress enacts a new federal
criminal statute or a statute creating a cause of action in federal court,
it enlarges the power and authority of the federal courts and provides
more opportunities for judicial activism. At the same time, the
federalization of crimes that traditionally have concerned state and local
governments upsets the balance between the national government and the
states. The following steps can help reduce the federalization of the law
and once again restore balance to the federal-state relationship:

Recodify the U.S. Code. In the present federal criminal code, important
offenses like treason are commingled with insignificant offenses like
the unauthorized interstate transport of water hyacinths. The Federal
Courts Study Committee found that the current federal code is "hard to
find, hard to understand, redundant, and conflicting." Ideally, Congress
would start with a blank slate, recodifying only those offenses that
truly belong under federal jurisdiction. Due to the highly political
nature of crime, such an undertaking might require the creation of an
independent commission modeled after the recent commission for closing
unneeded military bases.

Require a "federalism assessment" for legislation. This idea would
require that all federal legislation offer a justification for a
national solution to the issue in question, acknowledge any efforts the
states have taken to address the problem, explain the legislation's
effect on state experimentation, and cite Congress's constitutional
authority to enact the proposed legislation.

Create a federalism subcommittee within the Judiciary Committees of the
House and Senate. First proposed by President Reagan's Working Group on
Federalism, federalism subcommittees would attempt to ensure compliance
with federalism principles in all proposed legislation.

In this testimony, I have addressed the public concern about judicial
activism, the assault upon the Constitution that it entails, the practical
detriments that result from judicial legislation, and the ways in which
Congress can curtail improper judicial usurpation of the policymaking
function. The latter suggestions have been modest in their scope, but
could mark a good-faith effort by the legislative branch of our federal
government to restore the constitutional protections for individual
liberty and self-government that were designed so carefully to protect and
empower the American people.

1 Substantial portions of this discussion were given in testimony before
the Senate Committee on the Judiciary, Subcommittee on the Constitution,
Federalism, and Property Rights, on June 11, 1997.

Edwin Meese III is Ronald Reagan Distinguished Fellow in Public Policy at
The Heritage Foundation.

 

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