Objections to the Political Safeguards Argument

[Robert Justin Lipkin]

       With trepidation I raise this issue again. We have been over this ground several times before, but I still need counsel. My intention is to discover an obvious objection to my argument below, not to initiate a prolonged, new thread, and so I hope not to respond should anyone care to reply.

       Here is my concern: John Yoo writes the following in an article in Mark Kellenbeck's very useful book on the Tenth Amendment: "[A]vailable historical materials strongly indicate that the Framers believed judicial review was necessary because of the chance that members of the national government would subvert the Constitution for their personal ends." The problem I have with this type of argument, an argument which one hears often, is two-fold: (1) Historical evidence, in my mind, (almost) never is unambiguous or dispositive regarding subtle questions of constitutional interpretation, and (2) Federal judges are also "members of the national government." What prevents them from subverting the Constitution for their personal ends? I'll leave discussion of (1) for another day. My interest now is only with (2).

       Distinguish two kinds of "personal" ends.  The first consists of those egoistic--self-referring-- interests people have for material goods and notoriety or fame.  The second are those non-egoistic--other regarding--interests concerning the good of the nation.  Now federal judges have both kinds of personal ends, but I wish to focus only on the second kind. Hasn't American constitutional history shown us that federal judges can subvert the Constitution with their non-egoistic--but totally distorted--conceptions of what the Constitution means? We may disagree regarding which cases reveal such subversion.  But don't we all believe some cases reveal this? If so, why would anyone believe that judges will provide this function when in all probability no one can.

       One often hears that federal judges are more trustworthy protectors of the Constitution because they are insulated from public reproach.  That may be true.  But if true, it means that federal judges are less corrigible than other members of the national government.  In other words, the same mechanism that makes federal judges, in some people's eyes, the obvious branch of government to engage in constitutional review, renders federal judges, in other people's eyes, tyrannical. In short, the very insulation from any obvious structural pressures from other branches of government or from the people--which permits judges to deliberate over what the Constitution means in peace--also means that there is no effective check on the judiciary. For some, the very purpose of courts is to provide a check on the other branches of government (including the states). But without some readily available mechanism (I do not think Art. V. qualifies)  for the electorate to check the courts, who checks the checkers? The courts may provide a valuable function by milking the traditions of the nation and by engaging in some sort of middle level political theorizing about constitutional language and the kind of polity the Constitution creates. But in a democracy (or a republic) shouldn't there be some mechanism for directly and democratically rejecting even the thoughtful judgments of the courts?

       Don't the above considerations render the Framers' judgments about the courts, at least according to John Yoo, extremely problematic?  To those tired of this issue, I sincerely apologize.

Bobby Lipkin
Widener University School of Law
Delaware