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Book Review: The Supreme Courts Constitution: An Inquiry into Judicial Review And Its Impact on Society by Bernard H. Siegan

OCTOBER 01, 1988 by ROBERT W. MCGEE

Transaction Books. Rutgers University, New Brunswick. NJ 08903 * 1987 * 215 pages • $29,95 cloth, $14.95 paperback

Bernard Siegan has written a number of books dealing with economic regulation i and the tension between government and the individual, such as Economic Liberties and the Constitution, Land Use Without Zoning, and Other People’s Property, and has edited several books on law and economics. President Reagan nominated him for a judgeship on the Ninth Circuit Court of Appeals. Libertarian Presidential candidate Ron Paul would like to nominate him to the Supreme Court.

His latest book, The Supreme Court’s Constitution, is in the tradition of Richard Epstein and Stephen Macedo—and Thomas Jefferson, for that matter. The theme of the book is that the Supreme Court has strayed from the original intent of the Founding Fathers, and over the last 200 years has systematically usurped legislative power. Congress is supposed to make Federal laws, yet that function increasingly has been taken over by the Supreme Court.

Various Supreme Court justices, over the past 200 years, have found political rights that are not explicitly protected in the Constitution, and have denied economic rights that the Con-situation is supposed to defend. Over the years, the Court has ranked political liberties above economic liberties, without recognizing that political and economic liberties are two sides of the same coin—individual liberty. The Court has consistently failed to look at the founders’ original intent, and instead rendered decisions based on sociological theory, an approach that weakens the rule of law:

. . . The Court would find it most difficult if not impossible to prove that a majority of the persons responsible for framing the relevant sections of the Constitution provided authority for major rulings the Court has imposed. A great many in the society have been affected both favorably and unfavorably; rights and powers have been created for some and denied or withdrawn from others, depending on the composition of a majority of the Court at a particular time. Such practices erode the rule of law, at the root of constitutional government.

The book is not easy reading, not because Siegan’s style is unclear, but because of the nature of the subject. It is difficult to write about complex constitutional theory in terms that a nonprofessional can understand. But Siegan does a good job of stating his case without watering down the content of what he is saying. The book is scholarly and nonpolemical. In fact, in some cases it is difficult to determine what Siegan’s position is because of the historical approach he takes. One chapter was partly taken from one of his law review articles. Each of the eight substantive chapters contains between 30 and 160 footnotes. Readers who want to delve deeper into one of Siegan’s topics can use these footnotes to advantage. The index is also quite good for those who want to fred quickly what he has to say on a particular subject.

Of the many constitutional topics that could be analyzed, Siegan chooses eight as representative of how the Court has strayed from the Founding Fathers’ original intent: federalism, implied powers, and the necessary and proper clause; paper money and legal tender; economic and property rights; classification on the basis of race; the establishment of religion clause; gender; abortion and sexual privacy; and the first amendment and libel• In each case, he establishes the founders’ original intent, and shows how each area has evolved over the last two centuries. In many cases, original intent has been ignored by the Court. A number of times, the Court’s view on a particular topic has reversed 180 degrees as the Court’s membership changed, a development which is disturbing to those who think society should be guided by the rule of law and not the rule of men.

The chapter on federalism, implied powers, and the necessary and proper clause discusses what went on at the Constitutional Convention and the effect Hamilton and Madison had on the final wording of the Constitution. Some early court decisions also are discussed, most notably the constitutionality of establishing a national bank. The chapter on paper money and legal tender outlines the founders’ position on paper money (they were against it) and how a series of decisions expanded the federal government’s authority to issue paper currency in whatever quantities it saw fit. The result is that the federal government can cause the very inflation the founding fathers sought to avoid.

Siegan says that the Court has relegated economic liberty to a position of low priority over the last four decades, but I would posit that economic liberties were accorded second place status much earlier than that. Any cut-off date, of course, is arbitrary. The Court now presumes that a law restricting economic liberty is constitutional, and it is the aggrieved party’s burden to overcome that presumption. Siegan reviews some of the more prominent cases in the area of economic regulation.

The Civil Rights Acts have been interpreted over the years to mean something very different from what the drafters intended. The equal protection clause of the 14th Amendment has been twisted and turned in so many directions that it now means whatever any five Supreme Court justices say it means. A wall has been constructed by the Court separating church from State, although there is no evidence to suggestthat the founders intended any such wall to be erected. The Court has become legislator in gender cases, especially since 1971. Abortion cases were decided on the basis of the individual justices’ personal views, and legal theories were found to support those views rather than to form them. Since 1964, the Court has tended to decide libel and First Amendment cases on a sociological basis rather than attempting to determine the intent of the framers.

Siegan shows a consistent pattern in eight constitutional areas which makes it easy for the reader to see that failure to consider original intent has resulted in a weakening of the Constitution and the rule of law:

. . . Justice demands the rule of law and not of individuals. By comparison, those who refuse to be bound “by the hand of the past” confront the troublesome question of how much discretion courts should have in departing from the document’s original meaning. Because no absolute answer to this question exists, omitting the restraint of strict construction accords immense authority to five of nine people who, at any one time, happen to occupy the highest judicial seats of power. They would then have unlimited power to define contemporary values and concerns, an exercise that is highly subjective. []

(Professor McGee holds a law degree and teaches accounting at Sewn Hall University.)

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October 1988

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