The Founding Principle of the Judiciary
Late last year, University of Chicago law professor Geoffrey R. Stone examined how the Supreme Court decides hard cases, what it means to be a conservative or liberal judge and what he views as the proper mode of constitutional analysis in his six part blog series on “constitutionalism.”
In a recent article, Professor Stone explained the Framers’ understanding of the role of the courts. He started with a discussion of the greatest danger to liberty:
A fundamental challenge facing the Framers of our Constitution was how to restrain intolerant, self-interested, and prejudiced majorities in order to ensure that they would not run roughshod over the rights and liberties of minorities. As James Madison observed, "the greatest danger" to liberty was to be found "in the body of the people, operating by the majority against the minority."
Stone explained how the Founders resolved the issue:
[Madison,] contending that if [the Bill of Rights] are "incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner 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 "solution" to the seemingly insoluble dilemma of how to enforce the guarantees of the Bill of Rights against the "overbearing majorities" that would inevitably control the legislative and executive branches was thus, in part, the third branch - the judiciary, which could serve as "an impenetrable bulwark" against majoritarian encroachments on the fundamental liberties of political, social, religious, economic, and other minorities.
He added:
The "independence of the judges," [Alexander Hamilton] reasoned, is "requisite to guard the Constitution and the rights of individuals from the effects of those ill humours which the arts of designing men . . . sometimes disseminate among the people themselves." Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."
Stone concluded:
The truest aspirations of American constitutionalism are embodied in the decisions of the Supreme in cases like Brown v. Board of Education (declaring racial segregation unconstitutional), Gideon v. Wainwright (guaranteeing a person accused of crime the right to counsel), Reynolds v. Sims (insisting on one person/one vote), Harper v. Virginia Board of Elections (prohibiting the poll tax), and Frontiero v. Richardson (protecting women against unconstitutional discrimination). The framers understood that our nation needs judges and justices who protect the rights of the minorities, the oppressed, and the downtrodden, not judges and justices who abuse the Constitution in order to protect the interests of commercial advertisers and corporate political contributors.