1 R. Berger, Government by Judiciary (1977) (“Berger, Government”).Google Scholar

2 See Gangi, , “Judicial Expansionism: An Evaluation of the Ongoing Debate,” 8 Ohio N.U.L. Rev. 1 (1981).Google Scholar

3 See Berger, Executive Privilege: A Constitutional Myth (1974). Berger has stated: “[They] were ready enough to embrace [the selfsame intention of the Framers] to topple Richard Nixon, but condemn it bitterly when it is used to test the … Court's espousal of causes dear to their hearts. Such a double standard is a reproach to scholarship.” As quoted in Gangi, 8 Ohio N.U.L. Rev. at 20 n.169.Google Scholar

4 Bridwell comments: “Berger, and his treatment in the legal journals is the modern scholarly equivalent of a trial for heresy.” As quoted in Gangi, 8 Ohio N.U.L Rev. at 32 n.272.Google Scholar

5 See 3 Benchmark 189 (1988), honoring Raoul Berger on the tenth anniversary of the publication of Government by Judiciary.Google Scholar

6 Bridwell, , “Scope of Judicial Review: A Dirge for the Theorists of Majority Rule? 31 S. Cal. L. Rev. 617, 631 (1980).Google Scholar

7 Berger, , “The Scope of Judicial Review: A Continuing Dialogue,” 31 S. Cal. L. Rev. 171, 173 n. 13 (1980). As Monaghan puts it: “For I would insist that any theory of constitutional interpretation which renders unimportant or irrelevant questions as to original intent, so far as that intent can be fairly discerned, is not, given our traditions, politically or inrellectually defensible.”Monaghan, , “The Constitution Goes to Harvard,” 13 Harv. C.R.-C.L.L. Rev. 117, 124 (1978).Google Scholar

8 Berger, , “The Scope of Judicial Review: An Ongoing Debate,” 6 Hastings Const. L.Q. 527, 538, quoting Oregon v. Mitchell, 400 U.S. 112, 202–3(1970) (Harlan, J., dissenting).Google Scholar

9 See Berger, 'Government, and id., Death Penalties (1982).Google Scholar

10 Gangi, 8 Ohio N.U.L. Rev. at 13. Professor Powell, a critic of the interpretivist position though not necessarily a noninterpretivist (see Powell, , “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885 (1985); but see Berger, , “‘Original Intention’ in Historical Perspective,” 54 Geo. Wash. L. Rev. 296 (1986), makes a valid point when he notes: “There is no disagreement over the proposition… that references to ‘intent’ were legion. The debate instead is over what ‘intent’ meant.”Powell, , “The Modern Misunderstanding of Original Intent: Federalism: The Founders' Design,” 5 U. Chi. L. Rev. 1513, 1538 (1987). Nevertheless, with respect to intent, Berger makes two points: the Framers' limited view of judicial power and what the people did were subsequently consistent with what Berger recounts they said.CrossRefGoogle Scholar

11 B. Schwartz, The Supreme Court: Constitutional Revolution in Retrospect (1957).CrossRefGoogle Scholar

12 Quoting W. Murphy, The Triumph of Nationalism: State Sovereignty, the Founding Fathers and the Making of the Constitution 147, 148 (1967).Google Scholar

13 “Hamilton, a proponent of a very strong central government, recognized that such a sweeping proposal would ‘shock the public opinion’” (at 50-51).Google Scholar

14 Powell, 5 U. Chi. L. Rev. at 1524-25. Powell notes that there were multiple views expressed by different Framers. Id. at 1525-31. Berger, however, demonstrates that what some Federalists conveyed during the course of the ratification debates parallel those made by Publius in the Federalist. See Madison, Hamilton, and Jay, The Federalist Papers, No. 34, 205 (Heirloom Ed.) (“Madison et al., Papers”). I also adopt here the suggestion made by George Carey and Willmore Kendall in the introduction to the Heirloom edition: “The Federalist is written in the first person singular, and signed “Publius” which is to say, it is nor only put forward as the product of a single pen, but in a very special sense, the critical sense, is the work of a single pen.” In sum, that Publius often represented nor the opinion of each author but a consensus.Google Scholar

15 Quoting Madison et al., Papers, No. 32, at 194.Google Scholar

16 Citing Gibbon v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824). Berger quotes Hamilton's remark in the Federalist Papers that with respect to the states the Constitution “‘leaves in their possession certain exclusive and very important portions of sovereign power’” (at 59).Google Scholar

17 Berger states: Let us begin by distinguishing functions undoubtedly local–janitoring for a village school, transportation between points in a town–from transactions that undeniably cross State lines. We may not wash our hands of the task of tracing the boundary if only because Madison assured the Ratifiers that the federal “jurisdiction extends to certain objects only, and leaves to the States a residuary and inviolable sovereignty over all other objects.”“Invasions of the residuary authorities,” Hamilton wrote in Federalist No. 33, would “be merely acts of usurpation.” (At 63)Google Scholar

18 There is considerable merit in that assessment. See Carey, , “James Madison on Federalism: The Search for Abiding Principles,” 3 Benchmark 27 (1987).Google Scholar

19 As subsequently explained, I do not share Berger's view.Google Scholar

20 Quoting Frankfurter, The Commerce Clause 40 (1937).Google Scholar

21 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).Google Scholar

22 Berger also notes that those who proposed the Constitution specifically rejected the power to create a bank, and later Hamilton successfully circumvented that exclusion (at 108-10). My reading of the evidence he presents does not necessarily lead to that conclusion–only that the Framers saw fit not to specifically grant that power, as it may have appeared unnecessary, having granted the powers eventually cited in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824). Wolfe comments: “The intent of the framers is not to be used to restrict or change the meaning of the words of the Constitution but only to clarify them in case of doubt; and the doubt to be clarified concerns the meaning of the words rather than simply the intended effect of them.” Wolfe, The Rise of Modern Judicial Review 31 (1986).Google Scholar

23 Berger is not referring to “the general Welfare” language of the preamble, traditionally not considered part of the Constitution.Google Scholar

24 Berger notes that both Justice H. Jackson and Zechariah Chafee expressed misgivings about considering people, commerce (at 125). “Personal freedom to go from one State to another had been guaranteed by Article IV of the Articles of Confederation [and] [t]hat was picked up by the privileges and immunities of Article IV of the Constitution” (at 124-25).Google Scholar

25 Upon these assumptions Berger reexamines and criticizes Supreme Court interstate commerce decisions and long-admired scholars, such as Edward Corwin (at 137-50). See Berger's accumulation of authorities at 67–68, 140–144.Google Scholar

26 Berger, Government (cited in note 1).Google Scholar

27 Id. at 21, 2-36 passim.Google Scholar

28 Id. at 169–76, 201–14 passim.Google Scholar

29 Id. at 197. Berger comments elsewhere: “Summing up 400 years of history, Hamilton said, “The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.'”Berger, , “The Fourteenth Amendment: Light from the Fifteenth,” 74 Nw. U.L Rev. 311, 334 (1979).Google Scholar

30 Berger, , “The Fourteenth Amendment: Facts vs. Generalities,” 32 Ark. L. Rev. 280, 286 (1978).Google Scholar

31 Berger, Government 166–69.Google Scholar

32 Id. at 29.Google Scholar

33 Quoting Barbier v. Connolly, 113 U.S. 27, 31 (1885).Google Scholar

34 Garcia v. San Antonio Metro. Transit Aurh., 105 S. Ct. 1005 (1985).Google Scholar

35 “Economic integration does not confer constitutional power” (at 166). Berger's reasoning is too complex to recount here. For the present at least I do not find it compelling, primarily because I judge that he does not accord countervailing arguments, particularly the mischiefs addressed by the Framers, sufficient weight. For reasons stated later in this review I find the position, if not the reasoning, taken by Justice Powell in Usery (National League of Cities v. Usery, 426 U.S. 833 (1976), rejected by Berger (at 165–74)), more persuasive. Namely, the extent of commerce power is largely a political question because, as Berger also notes, “‘in the last resort a remedy must be obtained from the people’”(at 174, quoting Madison et al., Papers, No. 62, at 401).Google Scholar

36 I dissent from the view because in my opinion there is nothing distinctly judicial about such decisions. In such matters judges are not conveying or protecting the Founders‘ intent; they are using constitutional language to mask public policy making. And while from time to time that may be necessary and tolerated, it is not the judicial power but the legislative one. To put those decisions in the hands of those who can be held electorally accountable is far more consistent with the Framers’ design than to leave such affairs of state to judges.Google Scholar

37 See Ely, , “On Discovering Fundamental Values,” 92 Harv. L. Rev. 5 (1978). With respect to my own assessments, seeGangi, , “O What a Tangled Web We Weave…,” 19 Prosecutor 15 (1986) (“A Critique of the Role of Judicial Activism in Our Criminal Justice System”), and id., “The Exclusionary Rule: A Case Study in Judicial Usurpation,” 34 Drake L. Rev. 33 (1984).Google Scholar

38 See Gangi, 8 Ohio N.U.L Rev. 1 (cited in note 2), and id., ‘The Supreme Court: An Intentionist's Critique of Noninterpretive Review,’ 28 Cath Law, (1983).Google Scholar

39 Madison et al., Papers (cited in note 14), Nos. 1-22, include such matters as dangers from foreign force and influence (Nos. 1-5); war between the states (Nos. 6-7); the effects of internal war (No. 8); the Union as a safeguard against domestic faction and insurrection (Nos. 9-10); the utility of the Union in respect to commerce (No. 11), revenue (No. 12), and economy (No. 13); and weaknesses of the Articles (Nos. 15-22).Google Scholar

40 Gangi, 28 Cath. Law, at 306-7.Google Scholar

41 Madison et al., Papers, No. 1, at 1.Google Scholar

42 Id., No. 1, at 35 (despotism more frequently caused by excess liberty than by a strong government), or consider these remarks by Publius: A weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power called for, or pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional aurhorities. Id. No. 20, at 136–37.Google Scholar

43 Id., No. 51, at 322.Google Scholar

44 Id., No. 23, at 153.Google Scholar

45 Id. at 155. Where power crossed the issue of self-preservation (the powers of self- defense), Publius was even more candid: These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. Id. at 153.Google Scholar

46 Id., No. 41, at 256. Publius notes that those opposing the powers granted the federal government “very little considered how far these powers were necessary means of attaining a necessary end.” Instead, they chose “to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust of which a beneficial use can be made.” He thus rejects opposition arguments as lacking in “good sense.” He concludes: [T]he choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, chat in all cases where power is to be conferred, the point first to be decided is whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to public detriment. Id., No. 41, at 255–56.Google Scholar

47 Id., No. 44, at 288. Publius's remarks should be noted in their entirety: We have now reviewed… all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved. Id. at 288.Google Scholar

48 Id., No. 72, at 439.Google Scholar

49 Id., No. 41, at 257. Given the Framers' understanding, it forced to sketch our constitutional history with the broadest of brushes and, simultaneously, to isolate the single cause for its contemporary disarray, it would be well-intentioned Supreme Court attempts to place illegitimate restrictions on legislative power. Not only have such attempts usually failed in their intended purpose (Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857); Lochner v. New York, 198 U.S. 45 (1905); Miranda v. Arizona, 384 U.S. 436 (1966)) but in inevitable subsequent attempts to discard them (see, respectively, Ferguson v. Skrupa, 372 U.S. 726 (1963); Harris v. New York, 401 U.S. 222 (1971)). Further inconsistencies are created and, before long, a new faith and restrictions have been imposed, e.g., Furman v. Georgia, 408 U.S. 238 (1972) (death penalty); Roe v. Wade, 410 U.S. 113 (1973) (abortion).Google Scholar

50 U.S. Const. art. III § 1.Google Scholar

51 See Berger, Congress v. rh Supreme Court 355–67 (1969) (“Berger, Congress”), which I have not yet systematically examined. One might add that no explicit constitutional text provision exists for the separation of powers. See Carey, “The Separation of Powers Revisited,”Currents in Modem Thought, Nov. 1986, at 573 (many contemporary misconceptions surround the Founders' understanding of that principle).Google Scholar

52 Madison et al., Papers, No. 78, at 466. See also Berger, Congress 357-59.Google Scholar

53 Madison et al., Papers No. 51, at 322. See also id., No. 73, at 442. “The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”Id., No. 48, at 309.Google Scholar

54 Id., No. 78, at 467–68.Google Scholar

55 Id. at 465. Publius, in my opinion, is quite clear that restrictions on the legislature, except those constitutionalized, are inconsistent with the republican principle of rule by the people and, furthermore, can inhibit the people's ability to cope with changing circumstances. For example: “The idea of restraining the legislative authority in the means of providing for the national defense is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.” He then addresses the problem of standing armies and the danger they present if solely under the control of the executive. Publius puts those considerations in the context of the “revolution in 1688” and the English “Bill of Rights.” He concludes: “The patriots who effected that memorable revolution were too temperate, too well-informed, to think of any restraint on the legislative discretion.” Publius then recounts the distaste of the American people for standing armies and the restrictions placed on them in some state constitutions. “The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies.”Id., No. 26, at 169–70. After examining relevant state constitutional provisions, he concludes that in some states the prohibition is unwise, in others, superfluous. He contends the republican principle provides adequate protection. Id.“The natural cure for an ill administration in a popular or representative constitution is a change of men.”Id., No. 37, at 140. Elsewhere he notes that “[t]he genius of republican liberty seems to demand on one side not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Id., No. 37, at 227.Google Scholar

56 See text accompanying note 55 supra. See also Madison et al., Papers, No. 39, at 240 (“no other form [but the republican one] would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution”).Google Scholar

57 Neither Berger nor I question the legitimacy of judicial review, only its proper scope: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Madison et al., Papers, No. 78, at 469.Google Scholar

58 Madison et al., Papers, No. 16, at 117 (judges “would pronounce the resolutions of such a majority contrary to the supreme law of the land; unconstitutional and void”); No. 22, at 150 (“To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL”); No. 37, at 229 (adjudication serves to clarify meaning); No. 39, at 245–56 (disputes between states and federal government are to be settled by national tribunal “according to the rules of the Constitution”); No. 73, at 446–47 (inappropriate for judges to participate in Council of Revision); No. 78, at 466 (duty of courts “to declare all acts contrary to the manifest tenor of the Constitution void”); No. 80, at 476 (“manifest contravention”).Google Scholar

59 Id., No. 78, at 467. The passage is consistent with remarks in the text. See text and comment accompanying notes 53-56. Notice, coo, Publius's distinction between “rep resentatives of the people” and “the people themselves.”Google Scholar

60 Id., No. 33, at 203. Examine Publius's assessment: “[I]t may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers.”Id. at 202. But Publius specifically notes that these comments, directed at the taxing power, were applicable in other instances as well. He concludes: “If there be anything exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.”Id. at 203. While these remarks support Berger's assertion that the necessary and proper clause does not constitute a separate and distinct power (at 88–89), they also bear on the issue of the extent of the commerce power.Google Scholar

61 U.S. Const. art. I § 8 cl. 18.Google Scholar

62 Publius states: “Everything beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped will always take care to preserve the constitutional equilibrium between the general and State government.” Madison et al., Papers, No. 31, at 197.Google Scholar

63 Id., No. 78, at 466.Google Scholar

64 Id., No. 81, at 482. Hamilton alludes to the Anti-Federalist charge that under the proposed Constitution, judges could ignore the fact that the federal government only had been given enumerated powers and, instead, could base their judgment on the “spirit.” But is it not equally abusive to base similar judgments on the “spirit” of state control over “internal” matters, though the power be an enumerated one?Google Scholar

65 Id. Google Scholar

66 When speaking of the powers granted the national legislature, Publius noted: “This specification of particulars evidently excludes all pretensions to the general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” Madison et al., Papers, No. 83, at 497. Speculation (assertions require at least some evidence) that the Framers intended to grant the judiciary a general power to use the Constitution to address societal inequities appears totally unfounded. It would require us to interpret Publius's above statement to mean that the “special power” granted the judiciary, the judicial power (U.S. Const. art. III § 1) was really a “general legislative authority.” Such an interpretation would be ridiculous since such a power was even denied the national legislature. Besides, John Marshall advised that “ 'to establish a principle never before recognized [it] should be expressed in plain and explicit terms.” Berger, Death Penalties 21 (1982) (citations omitted).Google Scholar

67 By which, I believe, he meant the manifest meaning of the instrument. The passage bears repeating: Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. Madison et al., Papers, No. 78, at 470.Google Scholar

68 Id., No. 81, at 484.Google Scholar

69 Thus, Professor Berger's reference to John Adam on the Massachusetts Constitution is more appropriate than 1 first appreciated. “John Adams‘ 1780 Massachusetts Constitution made the separation of power explicit, forbade each branch to exercise the power of another, and particularized that the ”’[judiciary shall] never exercise the legislative… powers…[so that this] may be a government of laws, and not of men.'”Berger, , 6 Hastings Const. L.Q. 540 (cited in note 8).Google Scholar

70 Madison et al., Papers, No. 81, at 484.Google Scholar

71 Id. at 484-85. I cannot here explore the passage in detail, but suggest only that judicial review is best viewed as a veto power, akin to that enjoyed by the executive.Google Scholar

72 Gangi, 8 Ohio N.U.L. Rev. at 1–2 (cited in note 2).Google Scholar

73 See text accompanying notes 39–40 supra.Google Scholar

74 U.S. Const. art. 1 § 8 cl. 3. See also Madison et al., Papers, No. 11, at 89 (“An unrestrained intercourse… will advance the trade of each by an exchange of their respective productions”); No. 12, at 91 (“prosperity of commerce is…the most productive source of national wealth”); No. 23, at 156 (“The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS”); No. 34, at 211 (“The convention thought the concurrent jurisdiction [speaking here of the taxing power but equally applicable to commerce] preferable to that of subordination”).Google Scholar

75 See Gangi, 8 Ohio N.U.L. Rev. at 16 (cited in note 2) (Berger's opponents suggest Fourteenth Amendment language was chosen to be purposely vague–“capable of growth”). This premise is associated with noninterpretivism and ultimately inconsistent with constitutionalism, as traditionally understood. Note also, if anything, my dissent from Berger's position increases legislative power and responsibility, not judicial power–the subject of noninterpretive theorizing. Furthermore, it considers unacceptable the “vacuum” theory. Since the legislature has not provided remedies for felt societal ills, its courts may do so legitimately. Id. at 22–26.Google Scholar

76 Madison et al., Papers, No. 45, at 293 (“The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose and from which no apprehensions are entertained”).Google Scholar

77 “Summing up 400 years of history, Hamilton said, ‘The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.’”Berger, , 74 Nw. U.L. Rev. 311, 334 (1979).Google Scholar

78 Madison et al., Papers, No. 42, at 267.Google Scholar

79 U.S. Const., Preamble. See also Madison et al., Papers, No. 1, at 35, and citations collected at note 74 supra.Google Scholar

80 Cf. text accompanying notes 46 and 60-63 supra.Google Scholar

81 Madison et al., No. 31, at 196.Google Scholar

82 J. Story, Commentaries on the Constitution of the Unired States 134-62 (1833). Both Berger and I may satisfy those conditions and still disagree about the appropriate emphases in particular instances.Google Scholar

83 I share Berger's view: “The law is replete with imprecise boundaries. Difficulty in drawing the line at twilight between day and night will not prevent a court from distinguishing between bright day and blackest night” (at 63).Google Scholar

84 Carter v. Carter Coal, 298 U.S. 238 (1936).Google Scholar

85 Moynihan, , “What Do You Do When the Supreme Court Is Wrong? 57 Public Interest 3 (1979).Google Scholar

86 See, e.g., Madison et al., Papers, No. 17, at 118 (“the supervision of agriculture… can never be desirable cares of general jurisdiction”); No. 60, at 369–70 (commerce is in general interest of all classes).Google Scholar

87 W. Hurst, Dealing with Statutes 3 (1982).Google Scholar

88 Berger, Death Penalties 153–72 (1982).Google Scholar

89 Gangi, , Review, 8 N.E.L. Rev. 129 (1972).Google Scholar

90 See NLRB v. Jones Laughlin Steel Corp., 301 U.S. 1 (1937). See also Schwartz, The Supeme Court 16-23 (cited in note 11).Google Scholar

91 Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).Google Scholar

92 The full quoted passage supports Berger's views on the merits, regarding the Framers' expectations. They should be addressed to elected officials. Publius suggests “a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general polirical interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.” Madison et al., Papers, No. 84, at 513.Google Scholar

93 See Sandalow, , “Judicial Protection of Minorities,” 75 Mich. L. Rev. 1162, 1189 (1977).CrossRefGoogle Scholar