hie of Chapter Four Constitutionalism as Judicial Review: Historical Lessons from the U.S. Case Lae eidinan Goldstein ‘Constitutional as World Trend “The sharp recent sc in “the power of judge the word over as trace ‘onskertble otic, Tits sch a The Glabal Expansion of Jia Pe! tnd erm sch a "jurtocray” and "courtoray” proliferate bene {his pomer hae spread around the lobe, i+ deslopment tht seri beg ony after Word Warland hat tok om eel momentum inthe pt ‘hie fe yar ‘Before Work War, and again of, ony the United Sates at [Norray ha court with peer to throw ut vs adopted bythe and lepslture* Today more than eighty counties do? This rapidity ofthe transormason of conituion around the globe i nothing short of arable Toth the United States (3) and Nowy (1866 this power came ot expliily fom the writen constitution, ut Gren court precede! ‘The Weimae Republic, AUS, Span, aé—in Ale Stone Sees phase “ome rites ia Eastern Europe] had posssedconsttions cours a ‘varing effectiveness in the inter yar” whch were ended bythe wa time eonsitions” In 193 Teeland joined this tny iil review cs makings threewome? Daring thei9josand:93s,the postwar wave ofa Ran Hct) “esonatution”consatons hit naie jodi review inluded As ‘ia, aly, Getmany, rane, and Japan? The decslosiation of fic nd [Asininthe sosand tox nought jd evew seer “ndependers” ‘onstitaions of Afi ard As." A wave of demaratizatin in southes| Europe brought jadi eview to Span, Portugal, and Grece inthe 75 Consisonain asada Review 79 nen inthe ate 19805 an ear 9s to new consititins in the Re si South Afi and in sever! Latin Amerce counties Yt another Suck in the go the Sov, Soviet ble nd Yogosvin ep "doped eal democratic contitations that ined juiialevew Fern specially casa rend everl additional cout in fed betwen 179 and 3994 adopted new consitions one consi= th Pe gurantee of ondarentalrightst be enforce viajiia eview aaa gr, oko Canada 98: Belgium, 98; New Zealand, 1990; ‘fesse ac 992-9. (By 99 the asl Supreme Cour announced ‘atthe Bs Lae ould Be applic by courts tostike down ordinary = (ibn, giving the courts of trad the power of accel review)" ‘Complicating the rend toward anding to fudge ia judicial eviews pley making power that had once banged excasvdy to ears (i. ‘pepe tdstermine the constitutional reschof the yan power) wat Petdional rend enhancing adil power, one tat extended fro the ‘pcos through the os, Transnational courts in Europe in partial (he Poopeas Court of asic an the European Court of Huma Right), sad to ker degree other supranational tribunal ook on the power under "avo ltr reais oda cont between atonal laws and ‘Cstiona tet wit lg that indented tt sich ering ws ‘Souk e elise Is the home cout. nee, these assational ours were bbsving a though te tcty were higher iw coatttion, ‘ndinry member stat courts hatha enjoyed no previous exercise of {il review power coopers in thistrasfnmatin, sd begun delanng {oi hiro county aes, “Tse develops make cr that tthe dee dha he word as cen undergoing we of democratization for the pst ik decade the ‘slide raving for" democracy appears to be a ving or ot ty ‘ary ofthe gente, bu specially for constaional democracy. Ad fot ‘eter or rs constatonslie the world over increasingly seen as con stttinaism guarded or enforced the practice of jail eview under ‘eitenconstiton, While ros ofthese ne jd review stems adopt esha arrangements more skint that of Germany than ofthe United ‘Sate inthat they havea specialize conttatonl cour for jul view tther than using thir ordinary ght appellate cout forthe practic) hee canbe no ressonabl doubt tht Amer lengthy history judi revewegustd erty ply a inspirational olen his welwie tend ‘oma juicialy guarded cnstttionalism.fo Historica Penpecives “The First Laboratory of Modern Constitutionaism: The United Stay “Thusitie worth clas lookthow the practic ofc review has played cout within the US. context inode to understand how this phenemenon of jail quate consitionals kl to payout over the Lng an trie” By this examination [donot mean to ives detailed history ‘pec US. Sipe Court cate over as years What mean todo bee to understand what ji view guarded constitutional es ean inthe US content by examining it high pointe apd low plats his nd misses oto speak a judged by lng erm epatation, “Thre san nortan sens in which informed sol opion, ant the public opinion that gues, themsler ove tie constitute US. on ‘onan, Over he lng nn the ct ha certain Sopeere Cou ‘on sein widely admined or wily condemned shapes the decison that are to come, Whether thi fc shouldbe called seca construction of scholsly construction, or kind of Barkan traiinalis it does const {ate our plty—perhaps even as mich asthe writen text of oor Const {ution orth troctate of governmental ations des. In oter words, the lagu ception ofthe product of judicial review self sone ofthe ‘contr of onsttiona, “Ths chapter then, examines thee Formative points of US consi tloalsn wo that ae widely reared speaks af excelenc inthe history ‘of acl review and one tat widely eared sone ofits nas. The ‘wo that Lam cling peas of excelent ca be thought of as concn US. Jurspreace i the Sense tht they reso widely aie tat eos tional thors make a point to dig tei theores oben ne wy ‘or anor broad enough to encompss them do otherwise in fe ‘brands onl as ouside the aintream, Tess two cone of US. constitt- tional te () he jurisprudence of Jon Marshall and (2) the decision in ‘Bown Board of uation 347 S895) “Te ini ata cf Kin Mash jraprodence i atested 0 by he frequency with which consttutional tenis defend tei oe there by claims hat they sco tha flan Marshall Thus in the 980s Surans Sheny defended exratextualist bythe li tht Joba Marshal ‘nil hy, followed an extesecual approach 1 constitutions theory hile Gary Iacobvobi claimed Marbles exon ay part ois defen {OF his own aspirational version of textual. Ip the 990, Raber Bork feended his own onginal- understanding extulism wit, among thers tents the elim that tah Marshal's aropradence (with te sole Comitinalin as adil Review 81 aceon of the Hltcer» Peck US. 9 [0] decision)" Christopher ‘ate makes the sacl” Andi the ame decade, SottosBacbe de Tadd his moral plsophy Based jurispradene, by aiming the ante ‘Fj Mahal fo i" This eet goes om ino the twenty fret entry. ab {he 2007 volimeby i Fleming and Sotiris Barber otesthat ther defense fa jurtpradence flowing Rona Doria is stengtened by inter alt the fact hatte jurisprudence that Marshall se” ‘As forthe oni ste of Bro Board, sich a widely adie cin a8 ots ding its esoning that even those theorist eho fou teva wan wiongy died find way sy we bold nonethelene ‘initandhoaor tase precedent. Two originals, Rapa Berger and Chi taper Wolf, right be viewed asthe exceptions that prove this ule. Bot Iatily develop theories ofinterpetation tat condems own» Baar aout Berger lis it was wrongy decided beau it id wa allow the spevifcoigna intent ofthe Famers ofthe Fourteenth Amendoen. and Goistoper Wess thatthe role proclaimed by 2nd ts immedi se ‘gus ofthe ate 0r—the rl tt government nay wt dsciminate on the bss of aceboy the et ofthe FourtecnthArmendent which Amicited (and permite) sich discrimination a othe Fanci.” But Them but theorist oneteles maintain tht n contest cera other longstanding precedents, it sbould be eetaice. They do this not onthe round of what might be ale inal interpretive theory baton the bss ‘tatheory aboot how judges shoul eat precedent Sil he ter teary omesto modish inital iteryetve tory, so oe mighty that he eto complete interpreive shear ends up endows Brown ¥ Board ‘tthe other endo the ele hat, the near-unresaly condemned wocedent one might fer up an important section ofthe Seugirhowe {Ges 4 US.) this econ the spec holdngivasing ste Ici resrictons on the practice of augterig animals was innocs- cus and revive ite noi, ut te reasoning wae notoriooty binare: The Supreme Court netted the privileges rims tate sha Jing aed none mening tothe Conatition, tn simply ving wm ened wit the supeemacy cave had alteady extablised marcy that ‘estate were oben to abrdgrighe ht the national Conattaton or ‘ational laws eeted® Without ee veri the decision the Supreme (Court within shor tne ban ta nterpretthe de proces adel pro teen clause at ding the work the pigs o immunities aus was ‘mean o dose eoeting the fundamental ight of etzes frm Alrignent by stat governmenti" uh is a 8 Hisar Brpecies ‘The pin of thi chapter ito aterpt to articulate what the rep, ence of ohn Marshall andthe ruling ofthe Supreme Court in Brown ‘Band hare in common that makes them exemplars of admirable ad revewsand also tocharaceie whats tht mikes the widely condering te removed te word expres as #moifer tthe pas, "the pom ‘es ot dlated tothe United tts by the Constitution” Aso importsat {tponghisacompisiment was his estabising2 brood seach fr the fed tral commerce power, sc hati reached ll commerce "whith concerns roe tts than one bat ood reach tat noethels acknowledged a sige of tet" : G Htc Pompei: lei tion mip ciently fet inesate commerce” ‘What am groping that what makes Marsal arnprence te icon tha is wasnt is epea text hee to ow inten of he Framers shes obstorclcontet somewhere ele. Twas sgl bi it ind i the text, nthe institutional structure, and inthe pring, ‘expressed i, andlor undying the tert he shape of consent relly ws intended to endef ge o come" and that ely iy ‘dare, ated by the enormous ation ancl aeration ofthe iil Wa “mendes One might ny # wn he wisdom ofthe pnp He sp in the Conttution and arculte for he nation. His was a purpose "peudence, and his jurspradence continues to endure Because of thee ‘lence athe purposes ht he ented a contined nthe Castation, He widors in nding thee principles war not he wisdom fasta! pa Ios but wat a wndom ated coneitiona ext, race, his, snd ao poical cote specially the poi coext that gave iy ‘he Constitution. 2 simi ioniclaimtorespec, ‘One reson fr thi I ei, thatthe Waren Cou 00, Ws sense tothe ned to bul espe forte rl flaw as proceeded, Beaute Warren Court ke tha the change it would be announcing woud lt teraton of deeply entrenched customs among ane portion ofthe ‘tion? the juste strug to jon together nt single unanimous de ‘ison Unaninty for hi cate wats highly pried that Jie Jace left his osptal bet tot wih the Court or the announcement fs dec sion in order to underline pyle wl evry tat the Court ws Unie in it view of he law Ifthe ak of ir weet petal the Bows (Court recognized hatte ata nimom to present united Fons ‘he Marsal Coat general ha). "The Warsen opinion fr the Cousin Brown ifr fom perfect a Jmedaely net scholaty xc sch, The Court might av chosn to ely more closely nthe igher-scationprevedents af 950," but stead gave thore precedents rately itl tention. In hos the Cost hd eslablised that de ure seated gradust programs were unequal ch “intangible ate as qultyofedaaton of teaches, reputation i aie pace fr tate epatues to met acl nods eenifsich ep | | Consittonaim sud Review 85 qmuniy prestige of alumni and inthe opportunity tear how to ame with th peopl il hd inet postions in sok, Sammie abit communi fete withthe Soro people who se) power stations of aity—and in the e950 this meat cone _isan inert sl for children to be eating. The Curt ap hve prev this pot moreforealyeould have done sina way aaa des hit snpy spending money to upgrade the so-called ia Mchools could never overcome these intangible diferences. To have SSesoina way that rphasized the close ies to precedents alteady in place i hey have deleted seme ofthe acl ecm Testend the Court went forthe memorable detorc (ales tee ust and ind na way unl be eer undone”) ad for lance on navi seince esearch tht cle wo demonstrate tat tenance ‘Ply doje segregated schools undermined te self-esteem of no hie children (in tha they picked wp loud anlar the mesa of de pre pezton viz, white soci viewed then as infer). This reduction of ‘Sesteem in urn reed the cure’ expectations of theses rd ‘hs of ther mosivation to lars. Hence de oe segregation so nonhite hire was predicing inferior eduston and very amounted to sae ‘pose unegultrestient in veaton ofthe gual protection afte aw, ‘Pedaps the Court emphasis the pryhologeal damage of site impo segregation because elyng too beaily onthe Courts higher dato precedent would have made more questionable strike down ‘he stte-mpose i Crow sate arose board, which the Court ro ede odoin sries ope cura decisions inte medial flowing seats Or peaps the Cour chow thiemphaisin he uid eb that Potingen primate of modern een esearchem teak ith Lssy 1 Fegan US 57g wold mike the break with precedent ook Imoe tie, i tht eas reign new, scetifally verified inform ton Bat the Court id nat eal eed science to ost this ew insight. ould ec stat i went century Arico longer Pe ‘ive sate imposed racial separation as promised on anything other than the be that the white race i operon and tat the use of sate aw to ‘xpren this bei cel wha he equal protection clase was meant too and does forbid Afterall Justice Haan the Fst bad onnouneed this ight with his 96 dissent o Pls” and what had changed was the American publics and the Supene Court majors pecepion—or ethap thie willingness to acknowledge the presin, By 9th ist Fac ran a see a8 Raving been core, athe tof the Plesya See a " a cl 86 Hore Perspectives Cour rong om the mater of thethe stat imposed segregation expe «mesg of white supremacy. Once this new understanding ofthe sac meaning of de jure sopreation peeved, continsing to pe hat ‘olteeqslprotetion ‘Apis the, it eas not the partclar rettoning tht the Court de. ‘lye in Brow» Boar! hat propelled this decison int the pantheon o igh universally respected adic decisions. Rather, it wast he Coun related the corm constationa principle the pial insane ig the ial protection couse, bt nels i ope ar fr neal etary “Thr was the ele tht govenment power tay nol be used suburb cone rae of einen, jot Because a dierent race conta the govern So wih to do "Thi was the principle ally articulated lly the time of Brown and it mediate segue. Since than ith lee over other subordrated groups whose subordination bars etl sin. Turis to that of Afcan Americans, Because the clause makes no meson fre thireoton sem appeoprite Ashe ist ustice Hala wots ‘roptc det, "There ino caste bere” Ta ation to taking» hag step tovard Hpog the nation fall promis ofthe Fourteenth Amend dhe Brow Cour furthered the rie ‘tlw nto by te sued attainment of unanimity, as aleny noted bt "lk by the radu of Rssecond Bsn Bard ling 93) Whe te particular bras“ deliberate speed abit ofan oxymoron, everthes {retical wisdam demanded giving some sot of justinent tine the at erent ofthe nation being asked to transfor itself nthe mids. A Towing een yearsmay have been overdoing bt cetinly everl yen ‘ofadjstent time made sens in ers of giving the Amerie abl tie tobscomesccsone tthe new constitutions standards. Once Congres {got on Boudin 96 with el enforcement measures it became appsen ‘atthe Brown ruling forall practi purpoes, woul now become the law ofthe land And 0 hs, De facto serepton to besure ges an presente myriad of oil problems, but doer nt care the ting of ramet backing snd government coercion that was pest wi he in Gow aytem Kedoes ot impose a lt onthe promise of the Fourth ‘Ameren in the way that ley “Thuis the widespread admiration forthe Brow dcsion a5 with th ‘widespread admiration forthe areal Cour appears wo sult ot fr the precise lines freasoning deployed by ihe ba frm each Court's ing corey discerned and delineated the onstitstional pice at sake tnd having deployed the fii statesmanship equized o make the pri CComsiutonali as adic Review 87 sik a mater ofthe rl of aw. or courts ax with individual, tan can be the beter arto lo. Mersball ay have looked moe ac ud the ands to Mao ha Mewsary requested he eet Jerson hed promibd ogee he Warren Court my oe oshed more bold hd it anounced hal cho mast desert st ere bt decison tha end op ao stanford that they produce am ‘inpotn corto one ht prove eile he toot ions nay of estraiing cours, dna stegtben hee fgenence needed rhe lef, Coates smetines va fine Terund but thee Court di har Was Wrong with the Slaughterhouse Cases ‘Thisbeing us fo our madi example dession where the Supreme Cox Invi everyone’ adgeent crossed over the ine, the Slaghreronse ‘Casa. Thove cera desided together presented a group cha lenges to Lousans hw that erie the sgh of lesock 1 2 (ersin tea outside the bounds of New Orleans ad se up sate regulated “mop to ensure esol aes fr theleasing of slaughtering fi ‘eso tht place, Those keg callenges lied that the statue deprived the butcher of tee right abr in thei chosen ocopation an that it ‘eis interfered withthe puss ofthe business of butchering by all who {Tdnot onthe monopoy ait. Because id hese wo higs ment the {lint ltd the conttationlprobbitions on ivaluntary servitude, Livon being the privileges orn of cizns anda interfered ‘ihe protection and ie proce Befoethe Court aon ever goto the consittional questions sae te case tated tht te asertions tha this a sero interred wit racing the tad of butchering or deprived people of he right fo work ata eae for whic they wee quali ‘vere sing unjsiedsertiona Thus the Court majority had Do eal ‘eeson fo continue ono dca the constttonal ses, because this ease id not eset these iss. Bat continge omit what the Milt jority did And for many pes An inthe pags present theory ofthe pegs o isu "er awe that made alms no sensei terms ofits congressional sary ots textual content in thatthe jr izerpeted the clause sang ‘othingto the Consiation ater than to emphasie a point already covered Inthe supremacy las88 Hired Penpcives In Congres leading sponsors ofthe Fourteenth Amendment bog Jeroduced tino the Howse and Senate, had specified om tis eon tg the privileges or immunities clase mould protect the fundamental ci rights finsvieal against abridgment by tate goveneent hd ad a ‘ht these rights cided tee inten the i ght een the [Conattaton The speach othe Senate hat made this annouscement ey ote extensively or paraphrased in dtl sories onthe iso end page of major newspaper al ove the country.” Not every Congres meme ber dexrbed the preps orimmanite”to be protected inexact hae term Some spoke encraly a the cz ight tha re fundamenah {hat are basic na ene Some refered specifiy to the ih itd tn the ivi Rights fet of hs. No oben Congress and 0 oe 00 eco tn the to tat lists that have extant ratieation debates sid tt this late added nothing novel and was eal ust uerining Wha the sopremacy aus already did Taste Miles interpretation af the clause fr the dugherouse me Jory of ie, was rand nee It had no foundation other than hisexpresed ew that ova the clause a saying what that cv ight ae be federally protected guna tt abrigent nono Be 10 al fala changin our government spate, sch a adil change tha oth Couto allow it would reque# mote exc statement than the cae sleeady contained. Therefor, the clause could nat mean what it seme to ‘mean, that federa-ite relations had been fundamental retactre is the wake ofthe Gi ‘This majonty interpretation produced unusually haesh respons among the four dsenes. Justice Fel in an opinion forall fou) eon ‘eraed ites poor reading often: sted the privileges ad imi ‘lauseasa "win andide ecient, whic accomplihed nothing ™ Jase Saye In separate dient conned for poor reading of engrs- Sonal history: the Miller jority "rs what was meant for Bed iat "Asaspecifc eating ofthe privileges or immuitis aus, the workoh the Slaughterhouse endured but ata the Bai thrus af the urteeath ‘Amendent it withered. By 8, the Supreme Cour (ong the equal po tection clase) ard that tate legates may not abridge the fr mental right of otherwise uate) Wack people fo stn juries” By 89, the Couct applied piece ofthe Bill of Right theft compensation clause, to ste governments by meas of» sbtantive reading ofthe due proces clause" AS is well Known, in a period tht ran fom was through 968 CContiuionatin sfc Review 89 supreme Cour proceeded to "acorporate” mast ofthe tes of he Bill nigh “voles or nui” pans state governs ithe de ret louse, Thu the reading ofthe privileges or mbna by raugteriowefvewas tendered ime practical dead eter(alehough ares a technically vad precedent an thus continues exercise a Jes frecon the Court's compensatory eaings ofthe eal protection pd doe process ase) © cancusions: Lessons for filly Guarded Consttutionaism What can one esa from thi cxaination of the peaks and valley “ily guarded constant inthe United Sates? One leo i tbe Sento onc ge, whether protect by Ie tenure 28s the United Stes 0 by fed, engthy term in theres ofthe wal aot sim pi ac a philosopher kings the core or wits reading of entiation Fins snot enoogh, Because polizally dominant groups may na be Fea to accep thet princpes, tefl own versin of then, adi Seaanabp ie needed ohm Mail's avoidance ofa dict sh with the president, wherein the Court’ authority would have been Dated and ‘heey diminished enabled bin to gradually buildup judicial stature with ruling more ike tobe obeyed Ths mote often cnstttional oursean tries unanimous deo, the ber thei chances of sat pla jor to accept he cour’ edn of consiational mis nlite omer. Also, when the publi deeply vided ove a constatoal nt Fretstion allowing sockeal change to proceed with 2 cea graduaness {a besaltary fran jc authority and aang rspet or the ‘erpetatin. ‘One should not oes tis point. In counties such a Singapore, ong Keag, Hungary, and Russa, where governments have retaliated ‘ais arbitoas somittiona costs wth dempomeingcmttionat tmendments or with transparent court packing its nt certain that more ‘tous, stretepicaly este decison making by the courts woul have saccesflly avoided These problems Sil sh dal pence coukt rove helpful if actin very country, then at est n counties witha a ‘uate modicum of reper the rule flaw. (What his chapter teas as = probe —resitunc to cnstiutinal court by legate and executive branches lauded inthe chapter y Jes Stoner in this ome. Bt the contexts ate diferent, For anit where te rue ofl, epi in theidler 90 Historical Prpestives form ofthe constitutional rules that sim t cocking bss of nena owes i just geting off he ground and remains shaky. ich epost [ar more problematic than in a country where the ale flaw established) “The second leon to be garnered the lesion on whal make fr celles i the decisions ofa eonstiton-guerding cour is much mg eto article. cannot be simpy the mot clever reaing oy “onstutinal text of ofthe leone of conittonal bitory—akbough running roughshod over these snot going to greramiration,i teted withthe dcarsion of Slaughersure. The Maral Cor wide sdmized despite its having turned somersaults wth the contest dase he Brown Beard ecsion is smilrly aired despite the opinion’ eine ‘on pinchoogcal experimen whose conclusion underwent chaleg in ate experiments, ad despite the tore at hat much the US, pe ‘would not have seeped school desepreaton in 868" ‘Around the word national publics are resrinng thems by wie ten costtutions because there fe some pence, some comment, ‘hat these pbs value more highly than hey tale the commit design making by lgulative maori. Courts that ca suceslly yp. told these pins wl end ap valued in conetttonalis st. T be sure difences af ational culture and of poll instuions and ade ‘ions will modify she particule Sil he shared universal itn Sdn ‘hat sve to contiutomlis ster would sem to be thls raving fr sguidanceby endving principle ‘Weiten documents en set forth these principe, but ther concrete plication in specif stations eequiesjudges-as wel 5 obvious In implementation, leistors and executive bareacet- rincphes do not interpret themes. As James Madison wrte in Fede 37 ‘Alle ao though pened wit he rete echnical kil and pase on te fata ands maar deerton, ate consi more le bce equivocal meaning be iui ed ated bya setesof parti Inrdlacusons nd ston. Bide the ocr rig from the com liao andthe meron ofthe ra ies the me trough hi te conceptions of en ae conveyed eek ad es embars- en The wot words st xs ea Hepat therfore, ues at i tha thes hold be sity fred a ht hey soul be expres words stint and excsvlapropiteo them BUI 3 languages s0

‘to pp ond nd phates for eery carpe eo 0 cme 91 Consiionlion audi Review — 98 cle may quvcally Snag nes Hence st gpen that per scary bet my be sian hse ad Doweve yh dsriinaton ay be comer he fn oe rb Tosca bytheiencray of thee in wich idle And hie ene isaac ms be este hs coring the copes 2nd tay othe obec deed pipemenr const dating a cotton ain i. ae enion helsing capi pec) wines drt gander acerananount trae dren Peer ey arc comping Manne etl thr the Co Stet knight ttt tl Be he aro pr nadie oth ds piping ie conten oun and cra the oped meaning hi new eae eChttenel corti rit nom oct she prin ‘Srnec wat am he werd tonto wilh one osemuosdatedin belong “cen the ght pc fete. lm yh con suo et eos wd sh the tor cet pe StcNnt impor, histo costa eg atin tamper echt ge ae hone ener abn Banhart fmt ripest thence tintisthory ssn gsi excepto oh Site teen ef ato poe rapt ste (cy ac menor inering wih aol one deepen), sd tena the pts faery hs Te cis hich he Consit ot Cements wats gnu as aed by abe fata pore tuk to upermoney shee ee se ensemble erfeeeh propery tea ails of tne pate nero ith Tale nrand gant xem om sing ameter te eng epi interes ith roped press The oe Snares prety se th Betws the ile Md dope them adhe ed thee tothe Us. Const “ea hat pod the porbelm omnes ws wel de sib oy wae by vie Miler inte ingore ds ‘one on perinatal hing eeton sfc without ih noe of hr wold hve ben eve gested Itc eto ches ree chy rm eismee2 Historical Prpecines that freedom, and the protection of the newlyamade Fema an ign from the oppression of those ho had femely exeried unlit ‘nian one his” (t 7). “Tse the ner saves ine new status of qu citizenship ty Constitution bad dele, eter ali that sat deny 0 any00 he ul protection of he laws I was prec theperceptian hat Southern tere using the foc the as to eep blacks in the postion o ‘ordinate ante that had proved the Fourteenth Amendtent With th Brown Board decision, the Supreme Cout fay redzemed the promise of hs smoendanent and te nation remains grate tothe Court Ty ‘bsurethis decison dl notimmnedtlygaaer unites suppor. Ii the country was divided over and admiration of tok some tie spread ‘A socetys understanding of ts own fundamental principles wil ay rally evolve ove ime, a the society encounters new challenges nd wie ‘ewes new developments. A Court tht cowectiyascetains ad tices ‘onsttional principle can bring public opinion to appreciate that pri plein ts fullness. ‘Moreoer, publics do seem t want fom their constitutional jue, sina oatcetan the seit ideal that he tox ame express een Im inmances where the text may have dane so merely as the mat ‘of Marly protection of etd property ight. Atetion tote iso (ofthe dating ofthe text can prove elf in his endeavor and needs Include testy othe fact that ome versions of tex were jc al st tothe words af the ones that were adopted Noteworthy in his espe Js Alexander Bickel satenton tthe fet that he Fourteenth vende Congres erchewed proposed wording tat woud have limited the en ments reach trace diciminaion in evil ight” understood a dying the specifies of rights the Ci Rights Ac 6 and nse Congress chose language more permissive of growth a "atitliaca dicen.” “The hed lesson about jad guarded constitutions thats ent rom this oerew mast be about isis. Assails evle 50 ms the appiations of thir costitational principles To ait chat “eq protection ofthe a meant desea education in wel ae Goomed the Fourteenth Amendment, bt bats public duction and Aft ‘can American asa gry played far diferent ial ol centr te—a roe tht made new pian ofthe principe is fat overdue y then. Lodging jaca review power in» consttational court that als @ Cosimo as adil Reriow 95 je this lesson concering sca evltion pose town rks. The ralzd, atonal stead US, conomy ofthe tenth entry re caly expanded the content of what amounted to "that commerce onctns re ats than on" andthe Supreme Cou esl etic produced the conontation withthe Cour packing lan Franklin Roose 9. ‘somewhat iia ky one tt iin 3 sense she other side of the an oi, exrpliied bya Cort thst nan on imposing its own ese tight thing ili othe principe actly doped ito De Cons goon. This ie what happend in the Sauer Cae ‘tactic deployed by Souther tate goverment o maintain ther ster ste ba bent forbi feedom of spezch and pes with spect, {otk abject of der, So adamant were southerners on thi pat that te ‘eof Abraham Linclnappesred on no Souhea balt in 18, Inore Ce preve uch fire denial of ght event a fie society, Congress [fered the priveges or immunities clause no the Fourteenth Arend feat Now the eral government would beable o poet fo tae gv fennel abridgment those citizen privegestha were fundamenta-Or50 thefderal government andthe pliteally attentive public alive untiltbe ‘Sngherhowe Cae were decied Had the Saugerkowe ve succates, tn important pee ofthe we-consiting ofthe natin ated by the Fosrtecnth Artendment would ave led. This decison is emblematic of themos seriou kof judicial guarded constttionalis, Jd omer tity bev to diamante inportantpees of constittion it succes inthis ican undermine the most sc elernea ofoverignty—the pone tomake the conaaton Tn su, he appointing of jad 8 constiinal guardians is olthee satel noe feof ss Because the pli’ tachment ois own en tain principe ay waves, conatitetional jdges can prove seal Ihe ge tempt to pos oo hard against poll fore, bower othe Debi at age dacs ot retain sticet attachment ote ending ei ‘les judi sevew ennot save society fom tel. Thee no guarantee thatthe Supreme Cout of Pakistan fo instance, on which much media snton we ocd this ok was ging fo press will manage oe in jl independence grnat ditto forces, oe that the legs tiny tamed courts of Rusa, Hungary, and Hong Kong will manage over ‘meta reas astong commitnet to cnstntioalchecson te pli calbranches "And the couse of jaca guardianship it in the fc hat 9094 Hiorcl Perspectives jndge i superman Jadges too may get it wrong To be se they fewer incentives to dstortconttatonal pine becase thy dona hg tor office on hs freedom ro iret majortran pres {an stengthen a soiely lds nits eso honor ending Pena, Moreoves most perhaps al oer coats wit judicial Fv yao fave consitations tht ae ease to amend than that the United Si “This fat dramatically reduces te risk of serous hare om judi cg On the mba ther perhaps one should contd this wording Se satry, Sil ike taking a vaccine it wil aay cary a nonneliie mount ik Chapter ive Who Has Authority over the Constitution of the United States? James Stoner “Who has thority over the Constitution othe Unie States?" emo in ed he oni il acm tobe ick gusto, fo the nse isaltoether obvious: [theft word ofthe document nake pa, the Constation made by tbe people—odained and “eased” are the cal erm. The ate tine procs specified inthe alate of the xigial document anaes the eat question, "Who comps th people?” The Consaton wast [Bo efect once ried by epeentative conventions in nine of he existing Ses, among thor states, “Who compris the people now?” Tha ile tougher The Constitation provides or its own amendment, howe, and thts y three-quarter of theses, erogh thei gltres ori con tention, bower Congesmight diet. Prom th point f cw of toate Inthoriy then theater othe question, “Who fs aur ver the Consttion?” is he peopl organs ina voting tbrugh hl Sts, ‘But as anyone with experience nthe splintering of oan in re so iis ight have prediced and ar several eet ofexpevene wer ‘he Consituion has now mae pli, consttaional amendments are dit flo pas, othe peopl itinae aor arly excised inde, afr the addition of he Bil of Rig, the Coataton has been amended ‘nly seventeen times, and most of thre amendment were seed fot ‘eads: the i605 the spt, the os, athe pos. Sof patie, the ‘tion of who ha authority ove the Consitation gecrally means no ‘hima but pelinateathoriy over the Consitain I wat oy the ‘arr here the sare—the eople-acting aa through the le eo ‘ex aray of institutions eth by our conatitatianal Famenork i {lading thou established severly inthe eet. Tht today his answer appears t be oats the mainstream The on