Government by Judiciary - Raoul Berger

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were faithful to the captain in the hold or put them in irons.” Id. 835.

      56. “Comment on C. V. Woodward’s Paper,” in Hyman, supra note 16 at 148, 151.

      57. The governing rule was laid down by Chief Justice Marshall: “an opinion which is . . . to establish a principle never before recognized, should be expressed in plain and explicit terms.” United States v. Burr, 25 F. Cas. (No. 14,693) 55, 165 (C.C. Va. 1807). Long before it was stated, “statutes are not presumed to make any alteration in the com mon law, farther or otherwise than the act expressly declares: therefore in all generalmatters the law presumes the act did not intend to make any alteration; for if the parliament had had that design they would have expressed it in the act.” Bacon’s Abridgment, supra note 24, “Statutes” I (4). An analogous rule was applied to the Constitution in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78 (1872).

      Such views were given striking reaffirmation in Pierson v. Ray, 386 U.S. 547, 554–555 (1967). After adverting to the common law immunity of judges from suits for acts performed in their official capacity, the Court stated, “We do not believe that this settled principle was abolished by §1983, which makes liable ‘every person’ who under color of law deprives another person of his civil rights . . . The immunity of judges [is] well established and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” Thus the all-inclusive “every person” was curtailed because of an existing common law immunity; the express reservation of power to the States by the Tenth Amendment demands an even more exacting standard.

      58. The Legitimacy of the Business Corporation in the Law of the United States 140 (1970).

      59. Baldwin v. Missouri, 281 U.S. 586, 595 (1930), dissenting opinion.

      60. The Supreme Court: Law and Discretion 16 (1967).

      61. Globe 675.

      1. This principle lies at the heart of the separation of powers, as Chief Justice Marshall perceived: “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825). Marshall was anticipated by Justice Samuel Chase in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 223 (1796): “The people delegated power to a Legislature, an Executive, and a Judiciary; the first to make; the second to execute; and the last to declare or expound the laws” (emphasis added). Of the three branches, Hamilton assured the ratifiers, the judiciary is “next to nothing.” Federalist No. 78 at 504 (Mod. Lib. ed. 1937).

      2. 1 Selected Writings of Francis Bacon 138 (Mod. Lib. ed. 1937). Blackstone stated, “Though in many other countries everything is left in the breast of the Judge to determine, yet with us he is only to declare and pronounce, not to make or new-model the law.” 3 William Blackstone, Commentaries on the Laws of England 335 (1769). James Wilson, second only to Madison as an architect of the Constitution, instructed the judge to “remember, that his duty and his business is, not to make the law but to interpret and apply it.” 2 James Wilson, Works 502 (Robert McCloskey ed. 1967).

      3. Griswold v. Connecticut, 381 U.S. 479, 522 (1965), dissenting opinion. In McPherson v. Blacker, 146 U.S. 1, 36 (1892), the Court rejected the notion that the Constitution may be “amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.” See also Hawke v. Smith, 253 U.S. 221, 239 (1920).

      4. In the Virginia Ratification Convention, for instance, John Marshall stated that if Congress were “to go beyond the delegated powers . . . if they were to make a law not warranted by the powers enumerated, it would be considered by the judges as an infringement of the Constitution . . . They would declare it void.” 3 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 551, 553 (1836).

      5. See infra Chapter 16, note 26.

      6. Referring to constitutional limitations on legislative power, Justice Iredell declared, “Beyond these limitations . . . their acts are void, because they are not warranted by the authority given. But within them . . . the Legislatures only exercise a discretion expressly confided to them by the constitution . . . It is a discretion no more controllable . . . by a Court . . . than a judicial determination is by them.” Ware v. Hylton, 3 U.S. (3 Dall.) 199, 266 (1726). South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 190–191 (1938), per Stone, J. Champion v. Ames, 188 U.S. 321, 363 (1902): “if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden,” i.e., look to the people at elections.

      7. It was not ever thus. Stanley Kutler, a perfervid activist, noted that “From the early twentieth century throughout the later 1930s, academic and liberal commentators . . . criticized vigorously the abusive powers of the federal judiciary. They accused . . . the Supreme Court of consistently frustrating desirable social policies.” He noted that “the judges had arrogated a policy-making function not conferred upon them by the Constitution,” which “negated the basic principles of representative government.” “After 1937,” he observed, “most of the judiciary’s long time critics suddenly found a new faith and promoted it with all the zealousness of new converts.” Now the courts “matched a new libertarianism . . . with an activist judiciary to protect those values.” Stanley I. Kutler, “Raoul Berger’s Fourteenth Amendment: A History or Ahistorical,” 6 Hastings Const. L.Q. 511, 512, 513 (1978).

      Contemporary academicians, Robert Bork noted, “encourage the courts to yet more daring adventures in constitution-making.” Robert Bork, Foreword to Gary L. McDowell, The Constitution and Contemporary Constitutional Theory viii (1985). However, the new judicial role was extolled only so long as it satisfied activist aspirations. A putative departure from the judicial path of the last forty years (which is no more sacrosanct than the dumped precedents of the prior 150 years) led Dean Guido Calabresi of Yale to declare, “I despise the current Supreme Court and find its aggressive, wilful behavior disgusting.” N.Y. Times, July 28, 1991, Op. Ed. Calabresi’s complaint is clarified by Anthony Lewis: “we now have a Court dominated by conservative activists, construing laws so as to reach results that they desire.” Anthony Lewis, “Winners and Losers,” N.Y. Times, Oct. 18, 1989, at A17. But Lewis lauded that very practice when the Warren Court reached results that Lewis desired. See infra note 17.

      8. Gordon Wood, The Creation of the American Republic, 1776–1787 298 (1969).

      9. H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885, 891 (1985).

      10. Richard Kay, “Book Review,” 10 Conn. L. Rev. 800, 805–806 (1978): “To implement real limits on government the judges must have reference to standards which are external to, and prior to the matter to be decided . . . The contents of those standards are set at their creation. Recourse to ‘the intention of the framers’ in judicial review, therefore can be understood

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