Knowledge And Decisions

The issues involved in controversies over constitutional interpretation reach beyond the American legal system to questions about social processes and human freedom in general. The extent to which it is possible for central decision makers to wisely foresee and control the consequences of their decisions in a complex social process is seen very differently by those who want the court to act boldly from the way it is seen by those who want the court to construe the Constitution as a set of specific rules, interpreted as closely as possible to the sense in which they were written.²⁹⁹ The extent to which either of these modes is desirable depends also on the value assigned to the freedom of the many as against the presumed wisdom of the few — though the latter presumption has itself been seriously challenged,³⁰⁰ and the earlier discussion in this chapter may at least raise some questions in that regard. Finally, the substantive content of Supreme Court decisions has obviously influenced positions taken by observers or critics. Some Warren Court partisans have sweepingly dismissed its critics as “segregationists and security-mongers,”³⁰¹ “military fanatics,”³⁰² “reactionary interests,”³⁰³ “bigots,”³⁰⁴ or “crackers.”³⁰⁵ But historically, opponents of sweeping judicial interpretation have varied across the political spectrum, and in the wake of the Dred Scott decision, its opponents were among the strongest advocates of the cause of blacks, notably Thaddeus Stevens.³⁰⁶ Even in our own time, severe critics of the Warren Court have included men who opposed racial segregation years before Brown v. Board.³⁰⁷ Indeed, as the court pushed further and further into judicial activism, some of its own early partisans, such as Alexander Bickel, began to question its basic philosophy, and found themselves being heaped with the kind of scorn³⁰⁸ which they had once poured onto others.³⁰⁹ Even a dedicated civil rights lawyer who had braved the dangers of Mississippi violence³¹⁰ was denigrated as a sellout when he later questioned busing.³¹¹ Legal insurgency has exhibited the same kind of pattern found in other forms of insurgency.

The constitutional provisions which provided the point of departure for the legal revolution of the Warren Court were the “due process” clauses of the Fifth and Fourteenth Amendments, and the “equal protection” clause of the latter. Those who favor “strict construction” of the Constitution find these technical legal phrases to have limited and highly specific meanings,³¹² while those who favor “judicial activism” find them to be phrases which “were designed to have the chameleon’s capacity to change their color with changing moods and circumstances.”³¹³

JUDICIAL ACTIVISM

The case for judicial latitude or activism in interpreting the Constitution rests on several assertions: (1) the specific application of constitutional generalities inherently requires judgments, including value judgments,³¹⁴ (2) the original meaning or intent of constitutional clauses are often lost in the mists of time, or were never intended to be very specific in the first place,³¹⁵ (3) even when the original, historical meaning is discernible, it need not be blindly accepted as against later insights and experience, (4) courts are in a better position than are legislative or executive institutions to judge the morality or the consequences of broad social principles,³¹⁶ (5) courts are “the least dangerous branch” of government because they lack the power of arms or money,³¹⁷ and (6) courts are a last resort for achieving social goals not achievable in other institutions.³¹⁸ These claims will be considered in order.