Protecting Individual Rights: A Broad Public Dialogue LOUIS FISHER Books and articles on constitutional law generally focus on Supreme Court decisions as though actions by elected officials and pressures from the general public are of little importance. Yet a broader look highlights how nonjudicial forces often identify indi vidual rights and provide protection through the regular political process. Lord Radcliffe advised that “we cannot learn law by learning law.” Instead, law must be “a part of history, a part of economics and sociology, a part of ethics and a philosophy oflife. It is not strong enough in itselfto be a philosophy in itself.”’ In a recent study, David Cole explains that when we look behind any significant litiga tion on constitutional law, we “will nearly always find sustained advocacy by multiple groups of citizens, usually over many years and in a wide array of venues.”2 By examining more deeply the shap ing of constitutional law, one discovers that disputes are generally settled by all three branches and the general public. Even after the Supreme Court issues a constitutional decision, the elected branches and the general public are at liberty to consider policies con trary to what the Court has decided. Although it may take decades, nonjudicial forces can prevail. There is a general belief that courts are reliable guardians of individual rights, but history does not support that claim. The record demonstrates that Congress and state legislatures often protect minority rights and civil liberties with much greater care. The subjects in this article cover the Bank of the United States, the rights of Blacks and women, regulating commerce, privacy rights, religious liberty, and the Japanese-American cases. All three branches make mistakes. Time allows for corrections. Alexander Bickel noted in 1962 that the process of develop ing constitutional principles in a democratic society “is evolved conversationally not per fected unilaterally.”3 When appearing before the Senate Judiciary Committee on July 20, 1993, as nominee to be Supreme Court Jus tice, Ruth Bader Ginsburg explained, “Jus tices do not guard constitutional rights alone. Courts share that profound responsibility PROTECTING INDIVIDUAL RIGHTS 67 with Congress, the president, the states, and the people.”4 Early Precedents In a 1989 study, Robert Lowry Clinton analyzed two widespread beliefs about Mar bury v. Madison'. (1) it established the insti tution ofjudicial review in the United States and (2) that power enabled the Supreme Court “to issue final interpretations on con stitutional questions generally.”5 He regarded both propositions as “flatly false” and treated them as “the Marbury myth.”6 Ronald Ro tunda stated that John Marshall “created ju dicial review in Marbury v. Madison.”'! How ever, judicial review had been established before Marshall joined the Supreme Court as Chief Justice. In a study published in 2005, William Michael Treanor identified thirtyone cases before Marbury where American courts invalidated a statute.8 Marbury is at times described as a de cision by which Chief Justice Marshall de clared the Court “the final arbiter of the Con stitution’s meaning.”9 In fact, the decision had many political complications. William Marbury and those who joined him in the lawsuit insisted on their right to positions as justices of the peace. They had been nomi nated for that post and the Senate confirmed their selections. However, in the remaining weeks of the John Adams administration, their commissions were never delivered to them. The person who failed to do that was John Marshall, at that time Secretary ofState. Given his involvement in the dispute, how could he later not only participate in the case but issue the ruling? It would be difficult to select a case more political than Marbury. Marshall understood that he lacked the power to order Presi dent Thomas Jefferson or Secretary of State James Madison to deliver the commissions to Marbury and the other plaintiffs. Marshall realized that any order he issued to that effect would be ignored by Jefferson and Madison. Chief Justice Warren Burger remarked in 1985, “The Court could stand hard blows, but not ridicule, and the ale houses would rock with hilarious laughter” had Marshall issued a mandamus that the Jefferson administration ignored.10 Marshall ruled that the statutory author...
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Aug 3, 2020
Ahmadreza Shirvani Dastgerdi + 1
Open Access