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Examining Our History to Guide the Future

By Hon. Grant Dorfman, Houston, Texas

2/5/2008

Is the federal judiciary still the “least dangerous branch” that Alexander Hamilton advertised in Federalist No. 78? Or have we been living through an era marked by judicial activism and an “imperial judiciary?" In recent years, the role in our national life of the federal courts in general, and the United States Supreme Court in particular, has become a subject of intense political debate – as partisans of both the left and right side of the political spectrum alternatively applauding and condemning various Court rulings.

Few today would argue with the result in perhaps the most famous Supreme Court case, Brown v. Board of Education. But the ruling unquestionably inaugurated a greater involvement by the Court in all aspects of American life. Putting particular rulings aside, the centrality of the Court itself has generated almost constant controversy in the more than 50 years since Earl Warren read his nine page opinion from the bench.

Two relatively recent examples may serve to illustrate the point. In Bush v. Gore, the Supreme Court intervened in a state’s presidential electoral process and cut short the Florida Supreme Court’s efforts to resolve an election challenge brought under Florida statutes. Republicans predictably hailed the Court’s decision; and Democrats, just as predictably, condemned it. But less predictably, the case revealed broad American agreement on two points: (1) the courts were the natural and proper venue for resolving the election; and (2) the Supreme Court may have been the only institution that could have definitively ended the dispute – by no means to everyone’s liking, but at least without continued opposition and, possibly, riots or worse. This clearly reflects a profound evolution in the Court’s relative stature vis-à-vis the political branches – at least since the last time that Florida (among other states) held up a presidential succession, in the 1876 Hayes-Tilden contest.

A second example is the Terri Schiavo case which, in contrast to Bush v. Gore, few expected to erupt into a national debate. To be sure, that case presented complicated legal and moral issues. But the national spotlight that was brought to bear on it also raised important, secondary questions about the authority and propriety of congressional and presidential intervention in ongoing court cases, and the extent to which politicians should comment on or criticize legal rulings about which they may have only limited information.

Arguably, the importance of the Court in our national life flows more or less directly from the centrality of the United States Constitution, our federal system of government, and the recognition of the power of judicial review in Marbury v. Madison. For, like the great monotheistic faiths, each of which claims identity as “the people of the Book,” Americans too are a people essentially constituted and governed by a written text, the Constitution. In this sense, the American experiment is unique in the realm of politics and nationhood.

But while the words of the Constitution, excepting amendments, have remained unchanged for more than two centuries, their application to questions of law and governance has clearly evolved beyond what the founding fathers intended or foresaw. There are two primary schools of thought regarding this basic fact. The “Originalist” school of interpretation – championed by jurists such as Robert Bork, Antonin Scalia, and Clarence Thomas who viewed these apparent departures from the Constitution’s meaning as aberrations resulting from faulty legal reasoning and/or historical misunderstandings, and holds that the founders’ plan must control our present-day constitutional questions, except when constitutional amendments provide otherwise. The contrasting approach is perhaps best epitomized by the legacies of Chief Justice Earl Warren and Justice William J. Brennan, who viewed the Constitution as a “living, breathing” document that must occasionally be updated to fit the needs of an advanced, egalitarian democracy.

Many, if not most, of our contemporary constitutional conflicts can best be defined by the tension between these two, usually opposed, conceptions of judicial interpretation. Some interesting questions arise. Was the Fourteenth Amendment intended to authorize or prohibit the adoption of race-based remedies that seek to foster greater diversity and equality? Is judicial review a necessary adjunct to a written constitution, or an anti-democratic imposition by an unelected elite? Does the Constitution include a “right to privacy” and, if so, does that right encompass the right to engage in homosexual relationships or to enshrine such a relationship in marriage? Can foreign statutory and case law serve as a reliable guide to American constitutional interpretation? And does the Commerce Clause meaningfully limit Congress’ power to regulate, and who rightfully should decide the Clause’s scope?

In this course, the instructors (federal district judge, Hon. Andre Davis, and Texas state court judge, Hon. Grant Dorfman) seek to impart a longer-term historical perspective while also fostering extended discussion of contemporary constitutional issues. The course offerings feature presentations concerning historical and philosophically-based topics: the Founding Period and what the latest historical scholarship tells us about the Constitution’s meaning; the Marshall Court and the origins of judicial review; the Civil War and the crisis of American race relations; the Lochner era, the influences of Pragmatist philosophy and the Legal Realist movement; the Civil Rights movement and the Warren Court, and the explosion of modern-day constitutional scholarship following Brown v. Board. Interspersed with these subjects are case-specific analyses of famous Supreme Court decisions (Marbury v. Madison, Dred Scott v. Sandford, Brown v. Board of Education, Lawrence v. Texas, Bush v. Gore, among others), with ample opportunity for class discussion and participation. The course concludes with an open-ended exploration of what the future may hold for constitutional law and interpretation.

The Judicial Philosophy and American Law course is offered April 13-17, 2008, in Sedona, Ariz. Please call (800) 25-JUDGE for more information or to enroll.