The Enterprise of Con Law
emaltz at CRAB.RUTGERS.EDU
Mon Nov 11 19:00:31 PST 2002
First, if one believes that the right to use the political process to
obtain one's policy preferences is an individual right, then the whole
thing is a zero sum game. But, in any event, the right question in my mind
is not whether there has been an increase in the sum total of individual
rights, but rather whether society is better off if there is judicial
activism in favor of individual rights. (By the way, I don't think that the
distinction between federalism and individual rights cases makes any
sense--but that is a story for another thread).
In asking the question, one cannot just consider the post-Warren era, but
rather the entire course of American constitutional history. Thus, if one
believes in left-center politics, he would have to discount the positive
effects of the late twentieth century by the negative effects of the
Lochner era. It seems to me there is no clear answer, and there are
substantial transaction costs.
Moreover, there is no theoretical reason to believe that activist judicial
review will yield any better results. The only distinctive characteristic
of the judges of the Supreme Court is that they are lawyers; the last time
I looked, that did not qualify a person to be a policy wonk.
As to why other countries have adopted judicial review--American cultural
hegemony plus the fact that the vast majority of American policy-makers and
intellectuals are enamored with the idea of judicial review (even though
they disagree on the precise group of cases in which judicial review is
At 02:48 PM 11/11/2002 -0800, you wrote:
>I'm interested why you think the case has not been made in favor of the
>judicial protection of individual rights. And I'm not trying to paint you
>a corner, just genuinely interested in understanding this
>position. Related to
>this, are you saying that there would have been a net increase in individual
>liberty were it not for judicial intervention? And if you are correct in your
>assessment, why do you think so many countries are adopting some version
>model of judicial review?
>Earl Maltz wrote:
> > In order to make the argument for judicial protection of individual rights,
> > one first must decide what individual rights are a) important b) worthy of
> > protection and c) not counterproductive. To use an example that I think we
> > all can agree upon, Taney's protection of the individual right to own
> > slaves was not a good thing. To use more controversial examples, consider
> > the "right" of whites males not to have race considered in government
> > decisionmaking, and the "right" to have an abortiion. Finally, virtually
> > every claim of individual right contraventes the "right" to use the
> > political process to effectuate one's policy choices.
> > The point is that in order to make a nonformal argument for strong judicial
> > protection of individual rights, one has to prove that intervention by the
> > courts will, in the long run, improve the quality of governmental decisions
> > in this area--a demonstration that (at least to my mind) has not been
> > made. On the other hand, if one is relying on purely formal arguments,
> > they work at least as well in the context of federalism.
> > At 01:33 PM 11/11/2002 -0600, you wrote:
> > >Well, one can find plenty of examples where the political branches have
> > >stepped on civil liberties in the past, but one can find, I think, even
> > >more examples of where the courts have failed. It seems clear to me that
> > >the political safeguards have better protected individual rights than
> > >states rights.
> > >
> > >Compare the state of individual rights at the time of the founding or in
> > >the nineteenth century with those rights today. I think they have very
> > >clearly expanded and not primarily due to judicial action. Then compare
> > >the state of state rights at the time of the founding or in the nineteenth
> > >century with those rights today. I think they have clearly declined.
> > >
> > >This doesn't answer the question though -- the key issue on the "adequacy"
> > >of political safeguards (except for the most hidebound of formalists) is
> > >the value of the rights. While individual rights are plainly of great
> > >value, the case for the value of states rights is pretty dubious.
> > >Frank Cross
> > >Herbert D. Kelleher Centennial Professor of Business Law
> > >CBA 5.202
> > >University of Texas at Austin
> > >Austin, TX 78712
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