- The Washington Times - Thursday, October 5, 2000

With the national elections in the background, the new round of constitutional decision-making on which the Rehnquist court has embarked should command the attention of voters as fully as the pulling and tugging going on between candidates for public office or between Congress and the Clinton administration. Lost in the squabbles over abortion, school prayers, affirmative action and Congress' reach under the commerce clause, is the real lesson that voters should take from the Rehnquist court, that is, that even reputably "conservative" justices are reluctant to relinquish the court's control over areas of life that were constitutionalized and judicialized by the Warren Court.

The fact that a court overseen by William Rehnquist, a Nixon appointee, and dominated by justices appointed by Republican presidents has done little to check the judicialization of American life (witness the decision in 1999 to federalize schoolyard bullying or the refusal last term to weaken the judicially created Miranda Rule) speaks volumes about the place and role of the court in modern America. Conservative jurists, no less than their liberal colleagues, seem to have embraced the doctrine out of the 1960s that the Constitution intends that all rights be protected and all injuries re- dressed, and that the judiciary is responsible for plugging any gaps.

Felix Frankfurter understood where the "comprehensive Constitution" doctrine would take the court, but his warnings could not compete with the beneficent results associated with cases like Brown vs. Board of Education. Justice John Marshall Harlan, Frankfurter's compatriot in dissent in the 1962 Tennessee case that represents the touchstone for modern jurisprudence in the electoral districting field, understood precisely what was going on: the court was making itself the "last refuge for the correction of all inequality and injustice, no matter what its nature or source."

For Frankfurter and Harlan, such a posture not only collides with the intention of the Framers of the Constitution but is bad for democracy. In short, if a healthy democracy requires a civic-minded and engaged citizenry, then having a judiciary that sees itself as the analogue to a MacDonald's drive-through cannot be desirable.

If school violence, workplace harassment, prayers at football games, and partial-birth abortions have been forever judicialized, then candidates and voters have every reason to be talking about the court during this election season. Justice Antonin Scalia acknowledged as much in his dissent in an important 1992 Pennsylvania abortion case. Declaring that the "imperial judiciary" lives, he added that the time perhaps had come for a "plebiscitory" selection process for justices. His suggestion may have been half-serious, but his warning that a judiciary willing to be guided by its own "value judgments" would be a threat to democratic government was quite serious.

What the history of the Rehnquist court confirms is that the judiciary is likely to remain a major player in the most important "political" game in town: the competition for influence over the way of the life of the American people. There is no reason to assume that the judicialization of American life will soon be reversed. Voters need to keep this in mind as they decide what candidates to support in the November elections.

Indeed, responsible electoral behavior now demands that voters "think" about the judiciary as they consider their choices. It would be irresponsible to do anything else. It is sobering to note, however, that James Madison ("father" of the American Constitution) never intended this to be the case.

Significantly, the flip side of the belief that freedom is enhanced by disconnecting cultural issues from the Constitution is the conviction that the leading Founders were preoccupied only with political institutions and the procedures of governance. In point of fact, the attention given by George Washington or Madison to institutions and procedures emanated from a deeper concern for the culture of the country. They recognized that separation of powers, a bicameral legislature and an independent judiciary are not desirable in themselves it was their expected effects on human activity and the character of the society that made them attractive to leading founders.

Despite the ease with which defenders of the judicialization of society claim support from Madison and, more importantly, Chief Justice John Marshall, there is good evidence that both men endorsed a much more restrictive view of judicial power than the Rehnquist court, never mind the Warren court. Madison spoke of a court whose reach was limited to "matters of a judicial nature" and Marshall, in a well-known 1824 interstate commerce case, declared that the principal check on government in "many" areas is not to be found in the judiciary but in the "the wisdom and the discretion" of political officials buttressed by the electoral process.

If too much "activist" water has gone over the proverbial dam since Marshall's time to expect a immediate reversal of course, then at least the American citizenry can adjust its political calculations accordingly. A "responsible" electorate will assign appropriate weight to the judiciary's role in shaping the country's culture when deciding what to do at the ballot box. By extension, candidates for national office have an obligation to publicize their judicial strategies, that is, how they plan to take advantage of a federal court system that is a self-conscious participant in the political work of shaping a way of life for the American people.

David E. Marion is Elliott Professor of Political Science and Director of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College in Virginia.

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