Judicial ReEngineering

REGENT UNIVERSITY LAW REVIEW
[Vol. 14:141
Dedicated pursuit of an ideal is a legitimating reality, even though the
reach exceeds the grasp, provided that the people know that the effort
is undertaken. And the value of the ideal is not diminished by
acknowledging that its conscientious pursuit serves the utilitarian
function of giving legitimacy to constitutional decisions. 20 4
Criticism of the viewpoint espoused in this article could conceivably
also come from the right side of the political spectrum, because of its
traditionally staunch support of judicial restraint, as we have seen with
President Reagan, Judge Bork, and Professor Graglia. Perhaps the
strongest criticism of judicial activism came in a 1996 symposium
entitled: "The End of Democracy? The Judicial Usurpation of Politics," 20 5
by First Things, a conservative religious journal. It is an appeal that
serves as a valuable wake-up call concerning the dangers inherent in
judicial review. However, it goes overboard in establishing its case. For
instance, the editors of First Things write that the "government of the
United States of America no longer governs by the consent of the
governed. With respect to the American people, the judiciary has in
effect declared that the most important questions about how we ought to
order our life together are outside the purview of 'things of their
knowledge. ' "' 2 6 This article does not contend for a moment that
substantive judicial activism has been good for this country. 2 7 But to say
that the People no longer govern on any issues of importance borders on
hyperbole. "The courts have not, and perhaps cannot, restrain
themselves, and it may be that in the present regime no other effective
restraints are available. If so, we are witnessing the end of
democracy." 208
Problems abound with that statement. In the first place, as this
article reiterates, we do not have a democracy; we have a system of
constitutionalism: the People rule within bounds designed to inhibit
their darker passions. Secondly, the restraints on the courts are
available and exist within the system. To declare the system a dismal
failure after over two hundred years simply because the Supreme Court
has taken on the role of "knight errant" 20 9 on some occasions throws the
204 Cox, supra note 15, at 138.
205 Robert H. Bork et. al, Symposium, The End of Democracy? The Judicial
Usurpation of Politics, FIRST THINGS 18, Nov. 1996, reprinted in THE END OF DEMOCRACY?
THE JUDICIAL USURPATION OF POLITICS (1997).
206 Id. at 5.
207 Professor Graglia puts it rather humorously when he asks, "[Wihat part of the
Constitution do you think Justice Harry Blackmun was interpreting in Roe v. Wade, when
he held that state restrictions on abortion violate the Due Process Clause of the Fourteenth
Amendment-was it the word 'due' or the word 'process?'" Graglia, supra note 14, at 297.
208 Bork, Our Judicial Oligarchy, supra note 205, at 6.
209 United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 218
(1979) (quoting Justice Cardozo).
HeinOnline -- 14 Regent U. L. Rev. 176 2001-2002