Toward a Revisionist History of the Supreme Court (original) (raw)
Related papers
Justice System Journal, 2014
The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden.
American Constitutional Law and History
2012
Preface xv Articles of Confederation xvii The Constitution of the United States xxiii Timeline of Events in American Legal and Political History xxxvii Biographies of Selected Justices of the Supreme Court li Chapter One • The Constitution and Judicial Power 3 A. Background to the Creation of the Constitution 3 B. Judicial Review 6 1. Review of Federal Action 6 A Timeline of Events Leading to Marbury v. Madison 7 Marbury v. Madison 9 2. Judicial Review of State Actions Martin v. Hunter's Lessee C. Modes of Constitutional Interpretation 1. Historical Background Cohens v. Virginia Calder v. Bull 2. Sources of Constitutional Interpretation a. Text b. History c. Structure d. Precedent e. Consensus f. Purposes 3. The Modern Court and Constitutional Interpretation District of Columbia v. Heller D. The Limits of the Judicial Power 1. Justiciability a. Standing
Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court
2013
It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability nor primarily a resource-centric problem. Rather, it is the product of conscious choices made over a period of time by judges of the Court, choices which were shaped and constrained in significant ways by other important factors, but which nonetheless remained conscious choices. This trend is deeply troubling for many reasons, and calls for an urgent exploration of possible models for reform.
American constitutional politics reached a crisis point during the Progressive Era. At the center of the crisis was the question as to what the Constitution meant and who had the final word in interpreting it: The Supreme Court or the People of the United States. That fundamental question came to a head in the presidential election of 1912. The result of that contest was the confirmation of judicial supremacy in constitutional interpretation and a mortal blow the nation's traditional popular constitutional politics. The ensuring consensus of judicial supremacy has defined the nation's constitutional politics since, which has resulted in the meaning of the Constitution being determined by battles over judicial appointments and the individual wills of the nation's judges. This study examines the causes that led to the crisis in constitutional politics, the chief players and their views on American constitutionalism at the height of the Progressive Era, and the dawn of the era of judicial supremacy that is still regnant. The result is a history that pits the advocates of a popular Constitution, men like Theodore Roosevelt and William Jennings Bryan, against the advocates of a judge-defined Constitution, men as diverse in temperament as William Howard Taft and Woodrow Wilson. Special attention is paid to the traditionalist advocates of an independent judiciary who prevailed in the short term by securing judicial supremacy but whose success was ultimately doomed by the Wilsonian-progressive vision of an active and supreme high court. In short, this study offers a revision of the traditional narrative of Progressive Era politics and presents the unexpected discovery of "The Strange Death of American Democracy." 2 What had happened? Never had the state of constitutional government itself met such frustration. In fact, one of the few things that remained above reproach throughout the tumultuous nineteenth century was the Constitution itself. Citizens and their elected representatives had always debated what the document really meant, but, barring a few radicals, the public man ever sought to identify himself and his beliefs as faithful to the framers' legacy. 6 Given this fundamental agreement, the politically suitable disposition was conservative. The proper statesman was "sane," "safe," and "conservative," and sought to maintain and safeguard traditional rights, whatever those happened to be. 7 Cultural elites thought in conservative terms. Prudent conservatism was preached in the leading newspapers and journals, from the Times to Harper's or The Nation. This broad conservatism contained many separate traditions, which varied by geography and party, but there was general agreement on the virtue of government under the Constitution. Law and order were sacred. Anarchy was the bugbear. But this agreement depended upon ambiguity. By century's end large cracks emerged in this conservative consensus. People were asking questions. First populists in the West and South, labor in the cities, and then progressives across the nation, asserted that the old forms and strictures of government were no longer adequate to meet the needs of an industrialized economy. The law and Constitution established to make the American people free now seemed to imprison them. 8