REVIEWSrnTackling thernJudiciaryrnbv Paul GottfriedrnIn Defense of the Constitutionrnby George W. CareyrnIndianapolis: Liberty Press;rn202 pp., $7. SOrnAmong con,scr’atie constitutionalrnscholars, George Carcv bestrndemonstrates the knack of remainingrnperpetually relevant. From his collaborationrnwith his own mentor WillmoorcrnKendall in the 1960’s through his manyrnw ritings on the federalist papers oxerrnthree decades, some included in thisrnN’olumc, Carev has worked to show tliernxaluc of the American founding to ourrnown changing political predicaments.rnI le meticulously searches out the rootsrnof America’s constitutional tradition inrnWilliam Blackstone and the KnglishrnCommon I ,aw, as well as in the ideas ofrncady ymcriean political leaders. Careyrntakes pains to eontextualize our foundingrndocument as a political nation. Herninsists that the phraseology in whichrnMadison, I lamilton, and Jay spoke of liberties,rnrights, and procedures came outrnof a particular legal understanding.rnWithout reading the English juristsrngoing back to Edvard Coke and MagnarnCarta, and also American political dignitariesrnof the 18th century, Carey maintains,rnone cannot properly grasp the notionrnof “due process.” By the late ISthrncentury, an entire bod’ of dicta existedrnfor this term, which had come to meanrn|)reseribcd judicial procedure. Thus,rnCare reasons, the phrase “due process ofrnlaw,” which appears in the Fifth Amendment,rnwas intended to refer to certainrnlimits placed on the judieiar’. ‘Fhis vyasrnthe inherited mcanmg of that term inrnthe Anglo-American wodd of the time.rnIt did not signify, contrar- to the state-rn^So&^^^ofwrnTo order these books, (24hrs, 365 days)rnplease call (800) 962-6651 (Ext. 5200)rnments of recent social activists, the powerrnof judges to place restraints uponrnelected legislatures.rnCarey’s strength as a constitutionalrninterpreter is that he gladly performsrndrudge work in order to expose dishonestrnjudicial activism. Like Lino Craglia andrnRobert Bork, he catalogues the constitutionalrnabuses in which liberal judges havernengaged since the 1950’s. I le shows howrnsome amendments and sections ofrnamendments have become “privileged,”rnbecause of their compatibility with thern”new morality” favored by judges andrnthe media. Other amendments, like thernNinth and Tenth, have been pushed intornoblivion because they have been deemedrnto have no strategic use. Judicial socialrnengineers have tried to bypass states’rnrights, and the entire concept of distributedrnp(;)wer, in order to get what theyrnwant in a hurry. Most outrageously, arguesrnCare, judges have abused the FifthrnAmendment’s “due process” in twornways: first, by allowing the federal governmentrnto use it, often quite adiitrarily,rnagainst states; second, b citing thatrnphrase to increase their power, contraryrnto the clear intent of the authors of thernInfth Amendment.rnCarey does not pretend that the Constitution’srnauthors rejected entirely judicialrnoversight. Though Article Threerndoes not bestow upon the SupremernCourt an explicit power of judicial review,rnin Federalist 78 Hamilton recognizesrnthat the highest court may exercisernsuch a function. In fact, he hoped thatrnthe judiciary would restrain the “momcntar”rninclination of the “representativesrnof the people” when their “dangerousrninnovations” were incompatible withrn”the provisions of the existing Constitution.”rnBut Hamilton, and certainlyrnMadison, did not believe that thernSupreme Court should be allowed tornlegislate—or impose its political willrnagainst the stated will of Congress. Onlyrnlegislative assemblies, according tornHamilton in Federalist 78, should be empoweredrnto exercise “will.” In its role ofrnjudicial oxersight, the Supreme Courtrnwas onl} offering judgments to guide thernother branches of the federal government.rnAnd judicial oversight, as Hamiltonrnunderstood that function, was torntake place without “arbitrary discretion,”rnin accordance with the “clear tenor ofrnthe Constitution.” Where judges werernnot “bound down by strict rules,” therernwas no reason for legislators to listen tornthem. And the other branches of governmentrnlong viewed themselves as freernto ignore expressions of judicial activismrnwhich they found arbitrary. Both AndrewrnJackson and the ReconstructionrnCongress ignored Supreme Court decisions.rnAnd in neither case was thererna public outcry against constitutionalrnabuse. Of the three federal branches,rnthe judiciary was conceived as the weakest:rnits only expressed power in thernConstitution is to function as the highestrnappellate court.rnCarey proposes to deal with judicialrnusurpation by having Congress strip thernSupreme Court of its by now abused rolernof oversight. He rightly reasons thatrnthere is little chance to settle this problemrnpiecemeal, for example, by havingrnRepublican Presidents appoint nonactivistrnjudges. Such an approach hasrninvolved moving one step forwardrnand another back, as administrationsrnchange—and with them the power of judicialrnappointment. It is incorrect, asrnCarey notes, to draw distinctions betweenrnactivist and nonactivist judgesrnwhen what is meant by activism is thernimposition of an eccentric social moralityrnby judicial fiat. Carey documents howrnfar the advocates of this morality haverngone in twisting plain constitutional languagernin pursuit of their plans. As in thernreference to due process, Carey showsrnthat social activist judges disregard “originalrnintention,” even when it is illuminatedrnby centuries of legal exegesis.rnWhat distinguishes Ceorge Careyrnfrom some paleoconservatives, and fromrnall neoconservatives, is that he genuinelyrnbelieves in popular government. Hisrnstudies of the Constitution attempt tornprove that the Founders were not hostilernto the popular will, as has often beenrncontended. What they wished to dornwhen they instituted certain filters, asrnwhen they provided for the indirect electionrnof senators, was to make sure thatrnthe popular will was also a “deliberate”rnone. Carey couples his populist argumentsrnwith an emphasis on responsiblerncitizenship. He stresses that our truernconstitutional tradition is one of thernpeople governing themselves throughrnaccountable representatives. Within thisrnSEPTEMBER 1995/31rnrnrn