THE ULTIMATE ELITE IN AMERICA
Sacramento Bee (SB) - Sunday, December 22, 1991
By: Paul N. Goldstene, Special to the Bee
Edition: Metro Final
Section: Forum
Page: F-01
Word Count: 3,374
MEMO:
Paul N. Goldstene teaches at California State University,
Sacramento, and is the author of Democracy in America: Sardonic
Speculations, from which this article is adapted.
TEXT:
It is a very dangerous doctrine to consider the judges as
the ultimate arbiters of all constitutional questions .... The
Constitution has erected no such single tribunal, knowing that to
whatever hands confided, with the corruptions of time and party,
its members would become despots.
Thomas Jefferson
That those who wrote the United States Constitution did not
trust majorities is plain. That they did not trust anyone else,
including themselves, is less plain, but ultimately more
important.
It was out of this wariness that they formulated the
elaborate checking apparatus for which the Constitution is known.
Its structure represented an attempt to avert the tyranny they
discerned in every previous human government. Instead, they
would establish a "dynamic equilibrium" -- a condition that
quivers but does not go anywhere, that creaks and groans but
remains essentially the same. And the entirety of this complex
configuration would be subsumed within the overriding constraint
that is the very purpose of a constitution: the notion that the
revocable authority of a state is limited to the expressed
stipulations of the contract itself.
James Madison was certain that the human inclination toward
faction would eventually destroy this Constitution. John Adams
was sure that the passions of man would subvert its Newtonian
balance, so carefully wrought by the most advanced of human
reason. Yet each conceived that the structure they inspired
would survive a generation. As it happened, neither of these
dour thinkers was dour enough.
The Constitution prevailed for 14 years, exhausting its
noble effort in 1803 with the implementation of judicial review
as the official doctrine of the United States Supreme Court.
Through the successful infusion of this doctrine into American
ideology and politics, the constitutional experiment must be
perceived as an historic failure.
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What Chief Justice John Marshall propounded in 1803 in
Marbury v. Madison was a new system, a system of "effective," as
opposed to constitutional, government. Still the terms of the
debate established at Philadelphia had to be respected. The
Constitution needed to be abolished in the name of preserving it,
and in the name of the will of the sovereign people that created
it.
The selection of an obscure argument over writs of mandamus
as the legal vehicle for introducing judicial review and
subverting the constitutional separation of authority is a
tribute to the political genius of Marshall. It is not exactly
an issue that will catapult the forces of constitutionalism into
fervent and frenzied resistance. All the opposition can do is
hope that judicial review will atrophy from disuse, but this is
not to be. Thomas Jefferson -- a democrat who came to embrace
the liberal Constitution as the best chance of restraining a
government that must become tyrannical, because the empire over
which it has jurisdiction is so vast that the general government
must become removed from any semblance of popular control --
notes, after the decision in Marbury v. Madison, that every
ruling of the Supreme Court now comprises a constitutional
convention. But this, of course, is precisely the point. For
constitutionalists, the will of the sovereign people has been
stolen. But for Marshall, it has simply been placed in the
proper hands.
As is well known, the authority for judicial review is not
found in the Constitution, but rather in the dicta with which
Marshall precedes his opinion. The Supreme Court, Marshall
declares, is the guardian of the Constitution, defending it
against violations by the Congress, however inadvertent such
violations may be.
Inferentially, the Court must equally protect the
Constitution against errors of the president, although this is
not mentioned by a politically shrewd Marshall, because it was
George Washington who signed the Judiciary Act, parts of which
Marshall has declared "unconstitutional," and the continued
popularity of Washington is a phenomenon not to be ignored.
The Court is reluctantly forced into this role of ultimate
reviewer, Marshall explains, because its members take a solemn
oath to support and defend the Constitution of the United States.
That Congress and the president take the same oath eludes
Marshall's consideration.
Every court hearing a case, Marshall propounds, must put a
construction on the law. "Therefore," the highest court must put
a construction on the higher law or, more plainly, on the
Constitution. Yet this assertion that the transition from
judicial construction to judicial review represents a difference
only in degree, and not in kind, employs analogy to move from
truth to falsehood. What the assertion denies is the glaring
fact that the Court is an agency of the state, and what Marshall
is really proposing, with great historical success, is that a
particular agency of government possesses the authority to
indisputably interpret the will of that which has created it, the
will of the sovereign people, of which the Constitution is an
essential expression.
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There is no evidence that Marshall finds any audacity in
this remarkable claim. For him it is self-evident that there
exist elites which, by virtue of an inborn superiority of reason
and the proper development of this natural capacity, are most
capable of comprehending the rational, the true and the moral --
that is, the laws of nature. It is equally self-evident that
beyond these elites there exists a supreme elite, those who --
combining innate talent with judicial temperament and training,
and apparently not subject to the influence of the emotions --
are the most qualified among the qualified to determine such
matters. Because a progressive understanding of natural law must
be incorporated into the constitutions of man, and because this
is the desire of the sovereign people, those best able to
perceive the laws of nature are those best able to rule.
So begins the nation's historic love affair with the Supreme
Court, the guardians sitting high on the mountain, plucking down
the natural truths of the universe and translating them into the
binding proclamations of constitutional law. There is, to be
sure, a cloud cover between those on the Court and the rest of
the human species who, unable to penetrate the concealing mist,
cannot exactly perceive what it is the Court does. Yet, as the
Wizard of Oz well understood, incomprehensibility is necessary,
and duly admired as long as Toto does not pull on the curtain.
Apparently, in America, Toto does not. At least since the Civil
War, the institution of judicial review is not even questioned.
Objections do develop to particular justices, but these simply
reveal the suspicion that a wrong priest has attained the bench,
and it is the pretender, not the priesthood, which demands
remedy. Even the assault on the Court in the 1950s was against
Earl Warren, never against judicial review.
There is a crucial distinction between the constitutional
supremacy of Madison and Adams and the judicial supremacy of
Marshall, although, in the American tradition, the supremacy of
the judiciary is characteristically defended in terms of
protecting the supremacy of the Constitution. Within a
constitutional order, any agency of any government is subject to
the control of the contract that establishes the state, and
ultimately to the control of the political sovereign that created
that contract -- the control, that is, of the people.
With the advent of judicial review, however, one agency of
one of the several governments established by the Constitution
becomes unrestrained and unlimited, except, in the dubious
language of Justice Felix Frankfurter, through "judicial self-
restraint," a tacit admission that, constitutionally, there is no
restraint.
Gone is the elaboration of separation and checks that
renders the Constitution a tribute to the liberal imagination.
Also gone is the division of authority, the federalism that
eventuates in two autonomous and balanced systems of legal
sovereigns, since a Court that guards against constitutional
violations by the general government must also guard against
possible incursions by governments of states, as Marshall makes
clear 16 years later in McCulloch v. Maryland.
The Constitution's enunciated delegations of authority are
supposed to be beyond the ability of any governmental agency to
change or regulate. But with the imposition of judicial review,
the authority of every public office in the United States comes
under the suzerainty of the United States Supreme Court which,
accordingly, defines its own authority as well. There is no
longer a Constitution. There is, however, a Court.
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The conservatives at the Constitutional Convention in
Philadelphia did attempt to write a review agency into the
Constitution, a Court of Revision to be made up of the Supreme
Court and the president. But to preserve constitutional
supremacy, Madison argued at that time, no agency of government
could be allowed to officially interpret the Constitution. That
agency which interprets, he contended, becomes supreme, and where
an agency of the state is supreme the Constitution is not. The
only permissible final interpreter of the Constitution is the
sovereign people of the several states.
Despite the much vaunted "flexibility" of the document, it
was designed, in fact, to be highly inflexible. The only method
provided to change it was the cumbersome amendment apparatus of
Article V, and even this was constrained in several regards. The
real flexibility of the Constitution was achieved only when all
this was discarded through judicial review, a fact that raises
serious questions about the alleged sovereignty of the people.
Some years ago Dick Tracy confronted his new nemesis, a
character known as "Mumbles." Surrounded by his mob, Mumbles
would periodically issue orders that were patently binding on
those he led. But Mumbles could not be understood. All he could
do was mumble. When he did, one of those around him would
inevitably ask, "What did Mumbles say?" With equal
inevitability, someone else would inform the others what it was
that Mumbles had said, an authorized command that, with great
dispatch, was carried out.
What Mumbles actually did say can, of course, never be
known. All that is ascertainable is what his interpreter,
however inexplicably selected, says he said. Who is sovereign,
Mumbles or the interpreter? The people mumble and the Court,
possessing the last word on the subject about which they
presumably mumbled, tells them not only what they said, but also
what they intended and, indeed, if they actually mumbled in the
first place. An interesting system. But not one that can be
categorized as constitutional, because the ultimate interpreter
is an agency of the state and, in terms of that agency, there is
no constitutional restraint.
If Dick Tracy is too prosaic, there is always Hitler. The
controlling will of the Reich was supposed to be the blood genius
of the Aryan race, which resides most perfectly in the person of
the Fuhrer, whose vocalization of it accords it purpose and
direction. Without this articulation by the Fuhrer, the
sovereign will remains horde-like and historically aimless. In
the unlikely event that disagreement develops between the
paramount leader and das Volk as to what the presiding will is,
the Fuhrer, through his elite genius for intuitive understanding,
is always correct.
The rampant elitism of the Nazi position is blatant. To the
American mind, the rampant elitism of judicial review is less so.
Strangely, those who are egalitarian in other matters, seem to
lose their political bearings when it comes to the Court. Yet, a
system wherein the Fuhrer expresses the will of the Aryan race,
and a system wherein the Supreme Court expresses the will of the
sovereign people are, in this respect at least, identical.
Within each there exist gradations of elites, with the elite of
elites performing the crucial function of ultimately interpreting
the ruling dictates of the sovereign will. If the analogy with
Nazism is disturbing, it is nonetheless sound.
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Indeed, it was out of fear of such potentialities that
Madison argued for constitutional supremacy: In the event
disagreement occurs about what the will of the sovereign people
is, let every jurisdiction proceed according to the views of
those who currently hold the various offices of government, each
of whom has taken an oath to uphold the Constitution of the
United States. In short, let there be politics. When and if
confusion must be resolved, the people can always do so through
the amending process. While confusion is not always desirable, a
fair amount is certainly preferable to tyranny. Herein is the
price -- if it is a price -- of constitutional government.
This was a price Marshall was unwilling to pay. Yet logic
notwithstanding, it remains a prevailing American conviction that
the United States is a constitutional system, and that the review
function of the Supreme Court works to keep it so. "If no one is
above the law, then the law itself is supreme." Within this
archetypical expression of the accepted ideology lurks the notion
that America is a nation of laws, not of men, a notion
reassuringly reiterated in introductory textbooks and, with
sophisticated fervor, by pundits learned in the subject. It
implies that the law is pursuant to the Constitution. But as
Chief Justice Charles Evans Hughes noted, in a moment of
unguarded honesty, the Constitution is what the court says it is.
Among the influential, it is increasingly popular to blame
the vast problems of American public policy on the "fact" that
"democracy" has gone too far, that people in general do not
possess the political capacity necessary to deal with the
enormous difficulties of the 20th century. This is not exactly a
new idea. But few notice that this is precisely what does not
exist -- that people in general have nothing to do with policy;
that, in terms of constitutional law, the sovereign people has
been dissolved.
This, of course, may be beneficial, and those closest to the
judicial vocation are reassuring on the point. Legal scholars
approximate near universality in pointing out that judicial
review is a pivotal safeguard against the tyrannical dispositions
of the majority. The very idea of a constitution, to quote a
modern constitutional scholar, "turns on the concept that
governmental action may be unjust even if willed by most of the
people." In the United States, "... our thought is devoted to
devising mechanisms of government -- presently our Supreme Court
-- which can defer the effectiveness of hasty, intemperate and
arbitrary acts of rule until they are replaced by more settled
and more just policy."
This is a view that is accorded great and automatic respect.
Certainly Marshall would applaud its assumption that most people
are intemperate and not to be trusted, and that only a wisdom
that emanates from judges can yield a reasoned result. It is a
notion, popular in America, deriving from the proposition that,
in one way or another, the majority literally governs or
threatens to, a proposition that is empirical nonsense. However,
and more to the point, it is also a notion that denies the value
of factional conflict and, accordingly, of the configuration of
competing elites that the Constitution intricately mandates.
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In America, any acclaim for conservative rule is most
effectively formulated in classical liberal terms: that
pluralism is required for the protection and improvement of human
rights. But, aside from the unique episode of the Warren Court,
this is not the achievement of American judicial history, except
in reference to the judicially protected rights of those who
enjoy the appropriate relationships to productive property. As
Edmund Burke would have it, all are equal in their possession of
rights, but what they have a right to is not the same. Those who
struggle to extend the reach of liberty, and to equalize the
conception of who is entitled to it, typically emerge from
elsewhere in the American order. There are judges -- usually a
minority on the Supreme Court -- who have championed an equality
of rights, but history is far more generous in offering examples
of judges who have been as caught up in the reactionary hysteria
of the moment as the supposedly more impressionable "masses."
There is, in fact, no evidence that a democracy, were it as
unchecked and authoritarian as judicial supremacy, would be less
amenable to individual liberty than the current system. The same
is true of an actual constitutional government. As another
modern expert has said, "If one defines 'constitutional justice'
as that condition in which citizens may trust their government to
uphold certain rights considered inviolable, it is clear that
judicial review of statutes is only one way of attaining this
happy state. In fact, in a given country political factors may
perhaps provide a better check than the courts on attempts to
establish majoritarian tyranny."
Separate of the inference that courts are not "political,"
Madison would have agreed. Liberty for Madison is only possible
where the tyrannical disposition of each faction is countervailed
by the similar disposition of opposing factions. The essential
protection and promotion of liberty is found not in courts, but
in the proper organization of power and authority. If, for
practical reasons, a final interpreter of the Constitution is
required -- a consideration Madison never really allowed -- let
it be the most popular department of government, that in which
the diversity of factional contention is best reflected, not the
agency most removed from the competition of interests.
This, of course, is a proposal highly unacceptable to the
American People, who are deeply enamored of the absolute
necessity of judicial review. What is remarkable is that those
who pride themselves on their democratic commitments, and who, as
liberals, deeply distrust not only majority authority, but
authority of any kind, have thoroughly digested the conservative
logic of Marbury v. Madison, transforming it into a central
ingredient of their ideology and political self-conception.
In reality, the consistent purpose of judicial review may
have less to do with competence, liberty and justice than with
the financial and technological considerations of corporate
promotionalism. It could be, as Marshall strongly felt, that
judicial review is required because the Constitution is too
cumbersome and constraining to advance the manifest destiny of
the American economic empire. If this is the abiding purpose of
the nation, then power and authority must be concentrated, not
pluralized. The atomization of authority and the checking
apparatus that characterize the Constitution devised in
Philadelphia must be abolished.
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The significance of this change for policy is profound.
Only consider the successful interference of the Court with the
New Deal -- and the reflexive acceptance of the propriety of
judicial review, without which the economic programs of the
Roosevelt administration might have worked and the subsequent
dependence of American business on war and war preparations might
have been avoided. Nonetheless, throughout the 1930s, while
people starved, they applauded the Court as it employed its self-
proclaimed authority to discover the true principles of
economics, much as the Court had done in the late 19th and early
20th centuries in reaction against earlier efforts by state
governments to render wealth distribution more equal. Attempts
to influence the Court's real power, even within the parameters
of judicial review, were labeled as "court packing" and dismissed
as a "political" attempt to sabotage the "fundamental" demands of
the Constitution itself.
In an immediate sense, other forces have clear policy
importance in America. Yet over any substantial period of time,
the Court prevails. It picks its cases and establishes the
public agenda, and those privy to its conceptions and language,
those trained in the law, come to define the style and substance
of the national experience. As judicial review has become
entrenched and unquestioned, the formulation and implementation
of policy has moved insistently into the courts at all levels,
and merely to understand this state of affairs requires an
increasingly elaborate expertise.
Americans despise lawyers and love judicial review. But
they cannot have it both ways. They cannot insist that a complex
apparatus of graduated political, legal and judicial elites
represents a "democracy" that, somehow, has fallen into the
clutches of the legal profession.
The reality of the American system has long been otherwise
-- a concentration of authority to match the centralization of
power that has attended an emerging corporate order. Perhaps
here is the central clue to the dominance of judicial review, and
to the forces behind its successful subversion of what, for a
short time, was a constitutional republic.
Caption:
1 Drawing
Special to The Bee / Paul Kolsti
Descriptors: court; law
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