Vol. 4 No. 3 (March, 1994) pp. 79-82

RETHINKING CONSTITUTIONAL LAW: ORIGINALISM, INTERVENTIONISM, AND POLITICS OF JUDICIAL REVIEW by Earl M. Maltz. Lawrence, KS: University Press of Kansas, 1994.

Reviewed by Frank Guliuzza III (Weber State University).

Earl Maltz, in his essay RETHINKING CONSTITUTIONAL LAW, fires a scatter shot across the bow of the principal participants in the debate over constitutional interpretation. Maltz, a Professor of Law at Rutgers University, Camden, challenges those who advocate an original intent based judicial philosophy, and who simultaneously assume that originalism requires judicial non- interventionism. Furthermore, he provides a substantial critique of several "nonoriginalist" theories that assume judicial interventionism is both legitimate and desirable and unavailable if jurists embrace originalism. Although the book is not without its imperfections, Maltz challenges some important assumptions generally held by both constitutional "conservatives" and "liberals."

What justifies another entry into the lengthy and extensive conversation over constitutional theory? Maltz offers a couple of observations. First, he notes that the participants in the debate are divided into several groups:

Those participating in the larger political debate between conservatives and liberals.

Those who either oppose or favor judicial "intervention."

Those who repeatedly argue that the Court should interpret the Constitution so as to reflect the original understanding of the Framers, and those who reject an original intent based judicial philosophy (p. vii).

Second, Maltz argues that the debate is generally muddled because there is a tendency to group the conservatives, the noninterventionists, and the originalists into one camp in opposition to the liberals, interventionists, and the nonoriginalists. This typical categorization is unsound. There is no reason why one cannot be a liberal originalist or, alternatively, a conservative interventionist. Our constitutional history is replete with both. If any two concepts cannot fit together, observes Maltz, it turns out to be a linkage between noninterventionism and originalism. In his essay, he proposes to start with a "constitutional state of nature" and carefully consider the case for and against originalism, and the arguments for and against interventionism (viii).

In his first chapter, Maltz observes the degree to which judicial interventionism is associated with political liberalism, and just how unimportant the concept of judicial deference has become in discussions of constitutional law (p. 1). He notes that neither of these observations was true in the not-so-recent past. At the turn of the century, judicial interventionism was associated with the efforts of conservative justices to safeguard business and industry from excessive regulation, and political liberals and progressives championed the cause of judicial deference. Beginning in 1937, the dominant judicial philosophers preferred judicial deference. However, Maltz notes, ideological forces undermined the liberal commitment to deference. Judicial review was accurately perceived as a source of power, and it was irrational not to use this political clout, especially when it came with relatively little political cost. Thus, the tables were turned most dramatically during the fifteen years of the Warren Court. Over time, the conservative justices were appointed during the Nixon, Reagan, and Bush administrations to apply the brakes to liberal judicial interventionism, but, argues Maltz, that did not always happen. Although the case against judicial interventionism hinged upon a strong argument for judicial deference, conservative justices have, on occasion, engaged in conservative judicial interventionism. Clearly, Maltz remarks, interventionism is a weapon to be used by both the left and the right.

In the next two chapters, Maltz considers the case for an original intent based interpretive method. He notes that the reports of the demise of originalists like Raoul Berger and Robert Bork are greatly exaggerated. Originalists are still

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important players in the field of constitutional theory. One problem with evaluating originalism, however, is that the theory is erroneously linked with noninterventionism. There are occasions when, if the Court is to be true to the Framers, it must intervene against the policy making branches of government. Although originalists need to take seriously the criticism leveled by scholars like Paul Brest and Ronald Dworkin, the theory offers something that is greatly desired by nonoriginalist: a claim to "legitimacy" based upon the ratification process and the idea that the Constitution is a social compact between states who agreed to cede a portion of their authority to the national government before ratifying the document. Originalism sets forth a context by which one can know what governmental policies would and would not be acceptable to the Framers, and, therefore, when judicial intervention is most warranted.

In the remainder of the book, Maltz examines the nonoriginalist defense for judicial interventionism. He notes that the charges generally levelled at nonoriginalism are precisely that it is undemocratic and lacks legitimacy. Maltz largely dismisses the first charge, but asserts that even the leading nonoriginalists are troubled by the latter. Nonoriginalists, therefore, offer two lines of defense: a neo- originalist case and a functional case for judicial interventionism. Neo-orignalists are those scholars who attempt to tie their theory to an original understanding of the text in order to maximize its legitimacy. Some rely upon specific clauses of the Constitution, particularly the Ninth or Fourteenth Amendments. Others, like Cass Sunstein, David Richards, or Dworkin, argue that the Framers generated a general political theory that justifies interventionism. The functional defense for nonoriginalist interventionism presumes, first, that originalism is not the only legitimate justification for judicial interventionism, and, therefore, that an interventionist judiciary is both legitimate and positive because it enhances the performance of government by improving decision making. Again, he reviews several "functional" defenses: Leonard Levy's argument that an expansion of rights by the judiciary is a benefit to society (pp. 80-83), Owen Fiss's and Dworkin's claim that the Court is uniquely positioned to bring moral awareness to "questions of basic values" (pp. 84-93), Alexander Bickel's and Michael Perry's contention that judicial interventionism can enhance the quality of political dialogue (pp. 93-100), and John Hart Ely's representative-reinforcement theory (pp. 100-107). Maltz critiques both sets of arguments, and contends that neither defense provides a compelling justification for judicial intervention.

Maltz concludes his essay with three observations. First, nonoriginalists should stop making it priority to justify their legitimacy. Rather, given the costs associated with judicial interventionism, they must provide sound reasons to justify their arguments for a broad based interventionist Court. Second, although originalism carries with it an air of legitimacy, originalists, too, must recognize the potential costs of judicial intervention even if wielded legitimately by the judiciary. Finally, judicial intervention does not necessarily favor a particular political or moral ideology. It does not bolster the goals of a particular political party. Because of changes in the personnel on the Court, and the political climate over time, both conservatives and liberals have "benefitted" from an interventionist Court . There are a number of observations one might make about the book. First, on several occasions Maltz "takes out" a prominent theoretical positions by offering a single counter-argument with but one or two case illustrations. The relationship between judicial review and democratic theory, the claim that a general theory of rights emanates from the first eight amendments, "flexibility" based arguments in favor of interventionism, and the like, are very complex. It is not that Maltz's arguments will not be persuasive -- particularly to those who already have a quarrel with nonoriginalism. However, if one looks, for example, at the volume of literature generated by Raoul Berger's GOVERNMENT BY JUDICIARY, the articles and counter-articles often contending over very particular historical points, it seems unlikely that Maltz will have, conclusively, quashed Sunstein, Levy, Dworkin, and the like. Rather, he

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has contributed to an on-going conversation.

Second, toward the end of the book, Professor Maltz seems to move beyond the question of interventionism versus noninterventionism -- a well-travelled path-- and talks about the finality of Supreme Court decisions which is perhaps a more important pathway. And yet he makes no mention of those scholars who have preceded him in this inquiry (and who do maintain that the Court's claim to supremacy and finality is more important than the activism-restraint debate). See, for instance, Susan R. Burgess, CONTEST FOR CONSTITUTIONAL AUTHORITY (1992) also published by University Press of Kansas.

Third, there are a number of places in the book, particularly when Professor Maltz alludes to the arguments of a particular group of thinkers, or when he makes historical references (e.g. pp. 58-60), that he fails to include necessary references. Observations about prospects that most theorists would find most odious (p. 36), or claims that many interventionist theorists have found that Americans would consider some values more important than preserving democracy (p. 48), or assertions about the impact of the discussions of abortion and capital punishment by the noninterventionist justices (p. 98), require evidentiary support.

Fourth, Maltz speaks from the outset of "interventionism." What is it? It appears as if he is defining it broadly enough to include any authoritative response by the Court to the popularly elected branches of government including judicial review. If so, then he is beating a straw man. Who, among the important proponents of originalism, interpretivism or intentionalism, would not agree that the Court is empowered to strike down unconstitutional legislation? Rather, their concern is with an activist judiciary that seeks, without constitutional legitimacy, to substitute its will for that of the popularly elected branches. I am not convinced that the examples he offers to suggest that the Court's conservatives have used "liberal interventionist doctrine as a device to support the conservative political agenda" are entirely correct (pp. 12-14). In R.A.V. V. CITY OF ST. PAUL (1992), Justice Scalia prioritized the first amendment over St. Paul's hate speech code. Scalia, first, explained the importance of the free speech clause, second, conceded that the "fighting words doctrine" renders some kinds of "speech" unprotected by the first amendment, but, third, that the doctrine cannot be codified in such a way that only particular kinds of targeted vilification are unprotected. Agree or disagree with the results of the case, or Scalia's reasoning -- which differed from the most "liberal" justices on a unanimous Court -- a robust defense of the free speech clause, predicated upon existing case law, seems not to be the kind of judicial activism that worries proponents of judicial deference. It is found in some of the other cases that Professor Maltz cites like LOCHNER V. NEW YORK (1905), GRISWOLD V. CONNECTICUT (1965), and ROE V. WADE (1973). If one looks, for example, at some of the opinions offered by Justice Brennan, it should become quite clear why there are scholars and jurists who want to limit the adventures of the Court. In ROBERTS V. U.S JAYCEES (1984), a Minnesota case involving freedom of association versus equal protection, Brennan creates his own hierarchy of associations that affords maximum protection for those groups that provide choices to enter and maintain certain intimate human relationships. Other, less intimate, private associations are subject to government intrusion. In ALLEGHENY COUNTY V. ACLU (1989), Brennan shoulders a heavy theological responsibility. In his concurring opinion, he evaluates the importance of religious holidays on behalf of particular religious groups -- symbol X is of critical importance to denomination Y during season Z. Alternatively, symbol A is not as important to denomination B during season C. In ABINGTON TOWNSHIP V. SCHEMPP (1963), he anticipates that prayer and Bible reading might, easily no less, lead to a new, public school sect that takes its place along with existing faiths. In the family rights decision, MICHAEL H. V. GERALD D. (1989), Brennan says that there are certain institutions that have traditionally been protected such as the family. It is because they have been cherished as a matter of tradition and that they

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deserve special protection. In fact, he notes, we can agree that they are a part of the good life. The problem, for Brennan, comes when we try to identify or define what they are. So, while it is important to protect the traditionally recognized institution of family, policy makers cannot protect what is traditionally defined to be, or even some evolving notion of, "family." Legislators and jurists, with very real cases like we have seen recently in the news, are simultaneously expected to protect the family, and yet they cannot effectively define it.

When originalists, interpretivists, or intentionalists react to "unbridled judicial activism" or "social engineering from the bench" they are not necessarily talking about a broad interpretation of "speech" or "due process" or "equal protection." I think they are referring to the kind of decision making fashioned by Justice Brennan. By broadly defining judicial interventionism, Maltz sidesteps this debate over the legitimacy and desirability of the kind of judicial activism I have just discussed. Further, his approach encourages, despite his protestations about the cost of judicial intervention (p. 75), both political liberals and conservatives to use judicial interventionism as a weapon as long as it is grounded in an original understanding of the text (pp. 8-10). Although Maltz is likely to receive his harshest criticism from so-called nonoriginalist proponents of judicial interventionism, those who view each attempt by the Court to use judicial review as a mandate to engage in social engineering as lamentable -- whether it comes from the political left or political right -- are also unlikely to be completely comfortable with Maltz.

Despite these critical observations, this is a good book. It is worthy of more attention than I suspect it will receive especially from proponents of a nonoriginalist defense for judicial interventionism. It is also an ambitious little book (as one might expect from a title like RETHINKING CONSTITUTIONAL LAW). In just 108 pages Maltz endeavors to debunk the linkage between originalism and noninterventionism, and sink the several nonoriginalist arguments in favor of an active judiciary. In the end, Maltz maintains that originalism, properly defined, provides THE legitimate defense for judicial interventionism. I am confident his argument will, if taken seriously, stimulate and elevate the interpretive debate.

REFERENCES

Books:

Berger, Raoul. 1977. GOVERNMENT BY JUDICIARY. Cambridge, Mass: Harvard University Press. Burgess, Susan. 1992. CONTEST FOR CONSTITUTIONAL AUTHORITY. Lawrence, Kansas: University Press of Kansas.

Cases:

ABINGTON TOWNSHIP SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203 (1963) ALLEGHENY COUNTY V. ACLU, 492 U.S. 573 (1989) GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965) LOCHNER V. NEW YORK, 198 U.S. 45 (1905) MICHAEL H. V. GERALD D., 491 U.S. 110 (1989) R.A.V. V. ST. PAUL, 112 S.Ct. 2538 (1992) ROBERTS V. U.S. JAYCEES, 468 U.S. 605 (1984) ROE V. WADE, 410 U.S.113 (1973)