By GEOFFREY R. STONE
Constitutional law is not a mechanical exercise of just “applying the law.”
AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system.
So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.
The power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers andupheld the right to due process, even at Guantánamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.