American Constitutionalism in Historical Perspective (packet)

Court skeptical challenge:. Judicial humility to avoid usurping legislative power. Power should only be used when there is a rights violation. Const. history shows that jud rev should never be exercised as a political power: (Congress can negate any state law, no separate body to check Congress’s laws before they passed, ct should avoid political questions –complex eco debates, Jefferson/Jay debate on treaty’s constitutionality—ct will NOT give advisory opinions-will only use judicial review when have litigants)

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   Jefferson: critiques ct-review model after Alien and Sedition Act. Ct’s d/n strike it down, he was skeptical of this and led him to run in 1800. So once elected he undid A & S Act and pardoned those who had been convicted under it. If you want to protect human rts, need to do it via democracy.
   
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   Thayer: Judicial standard of review should be the rule of clear mistake. Judge should enforce act of legislature if there is any rational basis. Would allow progressive legislation to proceed, leaves most controversial issues in the hands of legislatures and Pres, elected representatives. Democratic justification used in McCulloch.
   
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      Restrained judiciary forces people to stand up for their rights. Forces Congress to take leadership positions, not just pandering to the polls (consumer model of politics) and relying on court to do dirty work. Keeps incentives for legislature to act to resolve human rights abuses.
      
   2. 
      Aggressive judiciary leads to reactionary politics, not democratic resolutions. Judiciary needs help from Congress and executive to enforce. J. Rosenberg’s: The Hollow Hope: After Brown and Roe, better off if issues w/n resolved by cts. Views wn be so polarized and madness of American politics.
      
   3. 
      Nixon: Rts exist, but ct d/n give us right reading of rts, better to be politically resolved. But Nixon isn’t rights skeptic b/c he has clear views of what is right but this allows majority to rule.
      
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