TOPIC #15 — THE EXERCISE OF JUDICIAL REVIEW:

FEDERALISM AND ECONOMIC REGULATION


 

Q1.     In the decades following the establishment of the new federal government, what problems of constitutional interpretation do you think arose most frequently?



 

Q2.     How has the focus of judicial review by the Supreme Court varied by subject matter over historical periods?





Three phases of Supreme Court activity

 

1800 – CW:    Focus:        The scope of national power, i.e., the boundary between    delegated (federal) and reserved (state) powers

                       Decisions:    The court generally interpreted the Constitution in ways favorable to the federal government 

 

1875 – 1935   Focus:        The power of government at any level to regulate economic life

                       Decisions:    The Court generally restricted the economic powers of both the federal and state governments, in effect incorporating the economic doctrine of "laissez-faire" into the Constitution

 

1940-today Focus:         Civil rights and liberties, i.e., the status of racial minorities (in particular African-Americans in the “Jim Crow”South) and     the non-economic rights of individuals versus the authority

                                                     of government at any level

Decisions: Mixed, but generally more favorable to minorities and individual rights than in earlier periods


McCulloch v. Maryland (1819)

          the "necessary and proper" clause (last clause of Art. I, Sec 8)

          the “supremacy” clause (Art. VI)

Gibbons v. Ogden (1824)

          "interstate commerce" clause (part of third clause of Art. I, Sec 8)

Hammer v. Dagenhart (1918): “interstate commerce” again

14th Amendment and “substantive due process” [Topic #19]

FDR’s New Deal: "court packing" and the "switch in time”

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From the Bulletin Board (Q&A) at the Course Website



Question: [Note: this question was asked and the answer written on March 30, 2001.]  In Federalist 78, what is Hamilton talking about when he says the following?

    This independence of the judges is equally requisite to guard the constitution and the rights of individuals, from the effects of those ill-humors which the arts of designing men, or the influence of particular conjuctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppression of the minor party in the community....


Answer: Suppose there were a number of terrorist bombings in the U.S., and that various members of Congress, talk-show hosts, columnists, etc., blamed the bombings on (for example) Muslims in the U.S.  In the short run, this could stir up public passions and produce demands that Muslims should rounded up and put into prison camps, deported from the U.S., etc. But in the longer run, people would (probably) realize that the bombings should not be blamed on Muslims generally (even if it turned out that the bombers were Muslims), that the immediate public reaction was unjust and, if carried into effect, would have deprived many Muslims of basic rights, etc.

So here is what Hamilton is saying about such a situation:

Judges, whose tenure in office (“independence”) means they can make decisions independent of public opinion (and also independent of Congress and the Executive), can help preserve basic rights when “the influence of particular conjunctures” (events, e.g., bombings, coming together), reinforced by “the arts of designing men” (the members of Congress, talk-show hosts, columnists, etc.) trying to stir up trouble, produce “ill humours” that “disseminate among the people themselves” (intemperate demands to “lock them up,” etc.). With “better information” and “more deliberate reflection,” public opinion will quickly calm down [maybe Hamilton is a bit over-optimistic here] but “in the meantime” (and in the absence of independent judges) there might be “dangerous innovations in the government” (e.g., violations of due process by putting people in prison without trial) and “serious oppression of the minor party in the community” (minority groups, e.g., Muslims).