Once you’re traveling in Constitutional legal circles,
“activist” is an epithet --- meaning, basically, that
the other person with whom you do not share a political party is
using the Constitution for political purposes. A horrible thing, to
be sure. Most of the time (but not always, there are exceptions)
the opposite epithet is “originalist,” which means that
the other person wants to interpret the Constitution based on the
received wisdom of the Founding Fathers, looking down on us, as
from a judicial Olympus with haughty and austere visages,
proclaiming the Only Right Approach to Constitutional issues, in
voices dry as dust and tinged with the irritation of the
centuries.
One suspects, however, that if the Founders were confronted with
the issues the Supreme Court is now facing --- particularly the
recent Establishment Clause case involving an obscure Utah cult
dedicated, among other things, to the practice of mummifying pets
--- that the exalted personages would find themselves laughing like
drains at the absurdity of it all.
Lawrence Goldstone’s avowed purpose is to illustrate that
one of the Founding Fathers --- John Marshall, the first great and
consequential Chief Justice --- belongs in the
“activist” category, and the question of whether he
accomplishes this purpose will be left to the intelligent and
discerning reader. What he actually manages to do, however (at
least in the area of judicial review), is shatter originalism into
a thousand broken pieces, scattered across the marble corridors of
jurisprudence like the debris of a gallant but doomed civilization
overrun by bandits.
The book traces judicial review --- the idea that an unelected
judiciary should have the authority to invalidate legislative or
executive actions that conflict with the Constitution --- through
the Articles of Confederation all the way down to the thump of
Marbury v. Madison landing on John Marshall’s desk. And what
Goldstone finds in all this mass of historical evidence is the
loud, clear, unequivocal voice of the Founding Fathers, stating in
unison, “Well, I don’t know, what do you
think?”
Of course, they said no such thing --- although it would have
been much more helpful if they had, because (as Goldstone proves,
and a comprehensive job he does of it) there really isn’t all
that much in the record, and what there is displays a good bit of
division on the issue, when there is not a complete lack of effort
to come to grips with the question. Goldstone follows the tracks of
judicial review through the lost history of the ratifying
conventions and the Federalist-Antifederalist debate, and comes up
with a startling lack of consensus on how the Supreme Court should
apply the Constitution to the law in case of a conflict.
The issue wouldn’t come up for quite some time ---