Whether the Constitution is living or dead is a question that has perplexed legal minds since the ratification. Perpetuating this quandary is Ronald Dworkin, writer of “Taking Rights Seriously”. In his prose, he compares and contrasts the two schools of thought designated “judicial activism” and “judicial restraint”.
First, Dworkin notes that judicial activism must meet certain requirements. He writes, “Only if such moral rights exist in some sense can activism be justified as a program based on something beyond the judge’s personal preferences” (Dworkin 8). Complementing his reasoning are the ideas of the Warren Court. No other Court in the history of the United States was so progressive in terms of racial equality. Handing down the precedents set in cases such as Baker v. Carr and Brown v. Board of Education, the Warren Court established just what judicial activism is. It relied in a “living” interpretation of the Constitution. However, they were not without their critics, as is evident by the likes of Governor George Wallace and others asking for the impeachment of Chief Justice Warren. They dissented by stating those “moral rights” undoubtedly exist for African Americans as laid out in the 14th Amendment’s Due Process Clause. It states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property…” (Staff, LII).
Secondly, a key point of the judicial activism perspective is the belief that the Constitution is a living, breathing document. At its center, the dogma of a living Constitution is not a revolt against the integrity of the original document but instead keeping the document applicable to the modern-day struggles of the 21st Century in order to avoid curbing the rights of citizens. However, Dworkin warns that “Judicial activism runs the risks of tyranny.” He is not alone in this fear. It is a legitimate concern that nine people in the United States hold the power to manipulate the words of our most sanctified document to fit an agenda: whether it be a good or bad one.
This is where the argument of judicial restraint comes into play.
Dworkin poses that judicial restraint is somewhat irresponsible in a democracy. He references Learned Hand, who said, “It is wrong to suppose, that claims about moral rights express anything more than the speakers’ preferences” (9). In other words, it would be wrong, tyrannical in fact, to allow the minds of Justices to determine what morals are, as morals are defined explicitly by the mind of the beholder.
How can a person conclude what moral rights exist, let alone persist that another’s morals are, in fact, immoral?
Furthermore, proponents of judicial restraint propose that the judiciary is taking the place of the legislature when deciding cases via a living Constitution. Dworkin muses, “it [The Supreme Court] is usurping the place of the legislature, for the job of the legislature, representing the majority, is to decide whose preferences shall govern” (9). However, a fault in this argument occurs since the beliefs of the majority can become oppressive. If the “tyranny of the majority” determines that one race of people is, contrary to the rhetoric of the Constitution, subjugated below another, then does the Court not have the moral and legal duty to “usurp the place of the legislature”?
In the end, the argument between the two schools of Constitutional theory will continue to be fought between mysterious figures in black cloaks, wielding a pen in one hand and the Constitution in another. Arguably, the Constitution is both alive and dead. Without judicial activism, race relations in this union would still be stuck in 1860. On the other hand, without judicial restraint, the Supreme Court would violate the separation of powers laid out in the Constitution.
Either way, the Constitution will persist whether or not her interpreters reach a consensus.
References
Dworkin, Ronald. “Taking Rights Seriously.” (1977): n. pag. Pennsylvania State University.
Web. 25 January 2017.
Staff, LII. “14th Amendment.” LII / Legal Information Institute. N.p., 12 Nov. 2009. Web. 25
January 2017. <https://www.law.cornell.edu/constitution/amendmentxiv>.
You did a very good job of approaching this debate from both sides as well as highlighting some serious points for consideration. I like how you took the time in your blog to explain judicial activism and restraint, as many people may not be as educated on those two terms. I also really like how you drew the Supreme Court justices into the argument of the interpretation of the Constitution instead of just saying it was up to the courts or some broad term. I never realized that the nine justices really do hold incredible power when it comes to their interpretation of the Constitution. You did a really great job explaining both sides of viewing the Constitution and highlighting both the good and bad of judicial activism and restraint!
You really did a great job explaining and defining what Judicial activism and restraint are, as I had not heard of them. I found it really great that you included specific court cases that showed evidence of judicial activism and restraint. It makes sense that judicial activism has allowed progress with issues regarding race. I did not know that the judges held that much power. It is scary to think that they do. Both judicial activism and restraint seem to compliment each other in a strange way when it comes to the Constitution.
In Government class I was always most interested in the Supreme Court and its powers, the fact that it exists reminds me of the saying, “with great power comes great responsibility” which I think you addressed well in this post. As the people we expect the Constitution to change to fit our needs but often grow wary of judicial activism and fear that the Supreme Court could become too powerful; even today we still struggle to find this balance. I like how you referenced specific court cases and really looked at both sides of these issues!