“The very definition of a republic is ‘an empire of laws, and not of men.’” John Adams

Over the last few decades Americans have gotten used to the idea that Supreme Court Justices can and should create new “Constitutional” principles, as grounds for overturning laws that they, the justices, do not like. In an off-the-record conversation with Supreme Court clerks, Justice Thurgood Marshall once described this judicial philosophy quite candidly: “You do what you think is right, and let the law catch up.” (Justice Marshall had the good sense to abstain from statements like that in public.) A close look at American history will show that the kind of judicial activism Justice Marshall was talking about was not seen as either normal or proper when our nation was founded. But, ironically, the very scholars we trust to teach American history to the next generation of voters have been hiding the historical context of the issue.

Having judges create new government policies based on what they “think is right” violates in both letter and spirit the Separation of Powers principle that the Founding Fathers labored so hard to build into the US Constitution, and it was extremely rare until the late twentieth century; but don’t expect to hear that in a typical college history class.

“Creating” New Rights

Commonly used history textbooks don’t mention a word about how concerned the Founders were about restricting the role of the judiciary. But when it comes to more recent history, the textbooks portray judicial activism with a candor that the judges themselves would never dare use in public. Take the famous Roe v. Wade decision, for example. The justice who wrote the decision tortured both logic and the English language to frame his decision as an application of the Fourteenth Amendment; an application, in other words, of existing law. The three authors¹ of the freshman history textbook America’s Promise were more direct. “In Roe,” says the textbook, “Justice Harry Blackmun wrote the majority opinion that made abortion within the first three months of pregnancy a constitutional right.” (Italics added.) It’s very true that the court decision Justice Blackmun wrote is the thing that made abortion a legal right in America. The word “constitutional” might be a stretch, but Justice Blackmun and the six justices who agreed with him did make abortion a recognized right.

In the textbook Give Me Liberty, author Eric Foner is even more candid than the authors of America’s Promise. In describing the activities of the US Supreme Court under Chief Justice Earl Warren, Foner tells his readers that “The Warren Court not only expanded existing liberties but it also outlined entirely new rights in response to the rapidly changing contours of American Society. (Italics added.) In describing the Roe decision, Foner states “This was Roe v. Wade, which created a constitutional right to terminate a pregnancy. (Italics added.) The word “created” in that sentence is absolutely correct, even if the word “constitutional” is debatable. And Foner says not a word about activism of this type being a departure from tradition.

A Political Issue

As with so many other classroom issues, the question of how to portray judicial activism boils down to a simple conservative/liberal dichotomy. Conservatives tend to believe that the job of a judge is to simply apply the written Law, regardless of any personal feelings; and that writing or changing laws is the job of legislatures. Having that point of view, conservatives are fond of pointing out that our Founding Fathers felt the same way.

Liberals, including most college history professors and textbook writers, would rather not talk about the historical context of this issue. Better to point out the benefits of this or that Court decision, without any discussion of the Court’s historical role in American politics.

 Liberals tend to applaud judicial activism in principle because it almost always promotes a leftist agenda in actual practice. The association of judicial activism with leftist causes is so strong that the term “conservative” is pretty much universally used to describe judges like Clarence Thomas who allow themselves to be bound by the written law.

Thomas made his judicial philosophy clear in a very brief opinion he published on the 2003 Lawrence v. Texas case, and it couldn’t be more different from Justice Marshall’s. The Court had been asked to rule on a Texas law against sodomy. Thomas voted to uphold the Texas law even though he described it as an “uncommonly silly” law, and said “If I were a member of the Texas legislature, I would vote to repeal it.”

Similarly Justice Oliver Wendell Holmes, who served on the Supreme Court from 1902 to 1932, made no secret of his dedication to upholding the written law, even when his own personal feelings would have led him to do otherwise. In describing  his career as a judge he once said “I loathed most of the things in favor of which I decided.” His job, he said, was “to see that the game is played according to the rules whether I like them or not.”

What the Founders Thought

What most history textbooks fail to mention is that the discipline and integrity of justices like Thomas and Holmes is what the Founding Fathers had in mind when they wrote up Article III of the Constitution. The idea John Adams described as “an empire of laws” was largely borrowed from Greek and Roman philosophies. Plato, for example, said “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”  

In 1787, when the legislatures of the thirteen states were debating whether to ratify the Constitution, opponents of ratification worried that the proposed US Supreme Court could become too powerful. Alexander Hamilton tried to put such fears to rest in Federalist Paper 78. The Constitution, he pointed out, allows justices to remain on the court only “during good Behavior” (Article III Section I) meaning that they can be impeached by the Senate for bad behavior. “The standard of good behavior for the continuance in office of the judicial magistracy,” said Hamilton, “is certainly one of the most valuable of the modern improvements in the practice of government.”  This is true, he wrote, because “it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”  

Seventeen years later the Senate would prove Hamilton’s point, by impeaching Justice Samuel Chase for letting his partisan bias influence his decisions on the bench.

The first Chief Justice of the Supreme Court certainly had no quarrel with the limited role the Constitution laid out for him. In 1795, in a move that would be unthinkable today, John Jay resigned from his lifetime appointment as Chief Justice after successfully running for governor of New York. Today a US Supreme Court justice wields far more power than a mere state governor, but things were different when the men who wrote the Constitution were still alive.

Jay, like Alexander Hamilton, was one of the authors of the Federalist Papers. And, like Hamilton, he was a passionate abolitionist. As State Governor he would have the pleasure, in 1799, of signing a bill that banned slavery in the State of New York. At the end of the eighteenth century no one would have suggested any non-democratic method for accomplishing something as important as banning slavery.  

Conclusion

Today liberals and conservatives argue back and forth about whether it is a good idea to let judges create new legal principles for a whole nation based on what they “think is right.” History professors have every right to take the liberal side of politically controversial issues, but they are letting their politics interfere with their teaching when they talk in the classroom about major changes in the structure of our nation without putting them in the proper historical context.

¹Rorabaugh, Critchlow, and Baker