11/01/2007 06:42 pm ET Updated May 25, 2011

Supreme Imbalance: Why Judicial Passivism is Wrong

In three prior "Supreme Imbalance" posts, I identified four distinct approaches to constitutional interpretation -- judicial passivism, originalism, conservative activism, and liberalism. I will next assess the relative wisdom of each of these approaches, beginning in this post with judicial passivism.

Judicial passivism: the approach that says courts should uphold all laws unless they are unconstitutional beyond a reasonable doubt -- has the virtue of insulating courts from difficult constitutional issues and giving great deference to the decisions of the democratically-elected branches of government. Unfortunately, these are also its vices. Most fundamentally, this approach misapprehends the essential nature of our constitutional system and abdicates a central responsibility of the judiciary.

To understand why this is so, it is helpful to return to the original debate over the adoption of a Bill of Rights. Those who opposed a Bill of Rights argued, among other things, that a list of enumerated rights in the Constitution would serve little, if any, purpose, for in a self-governing society the majority could simply run roughshod over whatever rights are guaranteed in the Constitution. How would listing our rights restrain the people from violating them? Moreover, as skeptics about human nature, the Framers had little doubt that for reasons of self-interest, prejudice, panic, passion, and intolerance, the majority of the people would pay little attention to the rights of minorities.

James Madison, the most influential of the Framers, understood that the protection of rights in a self-governing society posed a novel question. Where traditional theory had focused on rights as necessary to protect the people against the King, Madison recognized that in a republic rights are necessary to protect one segment of the community - particularly minorities - against the self-interested demands and interests of the majority.

As Madison wrote at the time, the real source of the problem "lies in the people themselves," because they see democracy as a means to enforce their own private interests over and against both the public good and the rights of their fellow citizens. This led Madison to pose the following question: "In a republican Government the majority . . . ultimately give the law. Wherever therefore an apparent interest or common passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority. . . .?" "What use," he asked Thomas Jefferson, "can a bill of rights serve in popular Governments?" Jefferson wrote back to Madison, "Your thoughts on the subject" of a Bill of Rights fail to address one consideration "which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent . . . merits great confidence for their learning and integrity."

On June 8, 1789, Madison proposed a Bill of Rights to the House of Representatives. He acknowledged that some might think that such "paper barriers against the power of the community, are too weak to be worthy of attention," but then, echoing Jefferson's argument to him, Madison insisted that if these rights are "incorporated into the constitution, independent tribunals of justice will consider themselves . . . the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

The Framers' "solution" to the seemingly insoluble dilemma of how to enforce individual liberties in a self-governing society against the "overbearing majorities" that control the legislative and executive branches of government was the third branch of government - the courts, which could serve as "an impenetrable bulwark" against majoritarian encroachments on the liberties of political, social, religious, and other minorities.

Alexander Hamilton penned an eloquent statement to this effect in Federalist 78. Hamilton argued that constitutional limits could "be preserved in practice no other way than through the medium of the courts of justice." The courts, he maintained, are "designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." The "independence of the judges," Hamilton added, is intended to enable them "to guard the constitution and the rights of individuals from the effects of those ill humours which . . . sometimes disseminate among the people themselves." Judges, he insisted, have the right and the responsibility to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."

The problem with "judicial passivism," in other words, is that it abdicates judicial responsibility and subverts a fundamental part of the genius of the American constitutional system. By evading their duty to enforce the Constitution in a meaningful manner, judicial passivists betray a central feature of our constitutional system.

In my next post in this series, I will evaluate originalism and conservative activism.

This is the fourth in a series of six posts on the make-up and direction of the Supreme Court.