Judicial activism in America

IT is a well-established function of judges to say what the law is, or what it means. Many of them will follow precedents and give due attention to the original lawmaker’s intent in performing this function. This approach is known as “judicial restraint.” Then there is the one called “judicial activism.” Judges of this persuasion will interpret the Constitution and laws in the context, among others, of their own ideological preferences and their assessments of society’s current circumstances and needs.

In arriving at their interpretations they feel free to ignore relevant precedents and the more generally understood scope of the law. In many instances, they will not adhere strictly to the text of the law and the ordinary meaning of the words contained in it. Thus, they will end up making new law.

I propose to examine some of the more notable cases of judicial activism in the American experience today and hope to discuss the subject with reference to Pakistan next Sunday.

Within a little more than a decade of the adoption of the Constitution, tension developed between the higher judiciary, appointed by the “Federalists,” the party of Alexander Hamilton and John Adams, and the Republican administration headed by Thomas Jefferson. A man of the name of Marbury, whom President Adams had appointed as a justice of the peace during his last day or two in office, petitioned the Supreme Court for a writ of mandamus to compel the new secretary of state, James Madison, to deliver to him his “commission” (appointment notification), which the latter had withheld on President Jefferson’s instructions.

Wishing to rebuke Jefferson and Madison but, at the same time, not wishing to aggravate the strife with the new administration, Chief Justice John Marshall (himself a prominent Federalist) ruled that Marbury had a right to his commission, that the administration had acted wrongfully by withholding it, and that the law did afford him a remedy. In arriving at these propositions, Marshall relied on a broad, commonsense interpretation of the Constitution and principles of the common law.

But the remedy, he added, did not lie in a writ of mandamus to be issued by the Supreme Court, which had been approached in this case not as an appellate tribunal but as a court of original jurisdiction. That jurisdiction did not include the authority to issue writs of mandamus. It had been added by Congress (Section 13, Judiciary Act of 1789), which Congress had had no authority to do. The relevant section of the Judiciary Act violated the Constitution and was therefore null and void.

The chief justice went on to say that any act of Congress repugnant to the Constitution would be void, and that it was the “province and duty of the judicial department to say what the law was. This is of the very essence of judicial duty.” It would be immoral to impose the oath of office upon judges if they were to be used to violate the Constitution they had sworn to uphold.

Chief Justice Marshall’s judgment in this celebrated case made the doctrine of judicial review firmly operational, and it elevated the judiciary to the status of a truly “co-equal” branch of the government.

Two cases of slaves who claimed to have become free men, because their owners had taken them to reside in “free” states for periods of time, and then brought them back to their original place of residence in a slave-holding state, reached the Supreme Court (Jones v. Van Zandt, 1847, and Strader v. Graham. 1851). In both of them the court held that the status of the petitioner would be determined according to the law of the state to which he had finally returned. It said it must settle the issue on the basis of the Constitution and the law as they were, and that it could not be guided by the moral status of the claims on each side, for that was a political issue. More than activism, these were instances of judicial restraint.

In the Dred Scott case (1857), which involved the same issue, the court went beyond its cautious reasoning in the two earlier cases. It held that Scott could not have access to a federal court because he was not, and could not be, an American citizen. That was the case because “Negroes had been regarded as persons of an inferior order at the time when the Constitution was adopted.” Chief Justice Taney, who wrote the court’s opinion, went on to say that “whether emancipated or not,” Negroes could have only such rights as the government might choose to grant them. They had no inherent rights that a white man must respect.

The Constitution, as it existed at the time, contained only an indirect reference to slaves when it provided that in determining the population of a state for certain electoral purposes one should add “to the whole Number of free Persons... three fifths of all other Persons.” This qualification evidently related to the slave-holding states in the South, for even in Taney’s day Negroes living in the “free” states north of the Mason-Dixon line were treated as full citizens.

Justice Taney’s judgment invited a storm of protest from the abolitionists and other liberals in the country, and it served to deepen the cleavages that eventually brought on the civil war in which nearly half a million Americans were killed and much of the land was devastated. Let me now mention two cases in which judicial activism worked for liberal causes. The thirteenth amendment to the Constitution (1865) had abolished slavery, and the fourteenth (1868) made all native-born persons citizens entitled to equal protection of the laws. Nevertheless, blacks and whites were segregated in public places, including schools, professedly because these separate arrangements were equal in terms of the services provided. In Plessey v. Ferguson (1896) the Supreme Court held that separate but equal accommodations in railway cars were lawful, and in Cumming v. Richmond County Board of Education (1899), it specifically validated segregation in public schools. But the arrangements made for black Americans were not in fact equal to those made for the white folks in most instances.

By the middle of the twentieth century, segregation had become an extremely troublesome issue. A black gentleman, Oliver Brown, whose daughter had been denied admission to a white elementary school in Topeka, Kansas, sought relief in the federal district court, which ruled against him on the ground that the black elementary school in the area was just as good as the white one. Brown then took his case to the Supreme Court (Brown v. the Board of Education, 1954).

The Supreme Court, headed by Earl Warren, unanimously found in favour of Brown, holding that separate arrangements were inherently unequal and, thus, violated the equal protection clause in the 14th amendment. This was a long step forward for the civil rights movement in that it placed the weight of the federal judiciary squarely behind the proponents of desegregation.

The case involved judicial activism in two ways: first, it overturned the earlier precedents (Plessey v. Ferguson and Cumming v. Richmond County Board of Education mentioned above); second, its basic premise (that separate arrangements were inherently unequal) was not actually valid in all cases. The court’s assertion in this regard would therefore have to be regarded as an exaggeration.

Lastly, a brief reference to Roe v. Wade (1973). A law in Texas forbade abortion except when required to avert a grave threat to a pregnant woman’s life. An appeal against a federal district court’s decision concerning a woman’s right to abortion reached the Supreme Court. In a majority decision the court left the decision to the woman concerned and her personal physician in the first trimester of her pregnancy, and authorized the state to regulate only the terms and procedures of abortion in the second and third trimesters. The court based its finding on two premises: that the word “person” in the Constitution did not apply to the unborn, and a foetus could not therefore be said to have the rights of persons; second, a woman’s right to terminate her pregnancy formed part of her right to privacy, which the court deduced from certain amendments to the constitution.

This was a spectacular instance of judicial activism inasmuch as a woman’s right to privacy, especially one that includes her option to terminate her pregnancy, is not visible to many students of the Constitution either in the original text or in any of the amendments. In this connection, we cannot do better than to quote from Justice Byron White’s minute of dissent:

“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers. As an exercise of raw judicial power, the Court perhaps has the authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

Justice White concluded his dissent with the observation that “this issue, for the most part, should be left with the people and the political processes they have devised to govern their affairs.”

It took many years after the Court’s decision in Brown v. the Board of Education for desegregation in public schools to materialize in the states where segregation had been the norm. And even today it is an open question as to whether integrated schools are better places of education for black young people. The court’s judgment in Roe v. Wade has done nothing to settle the debate over the pregnant woman’s right to abortion. The issue is just as volatile and divisive today as it was 32 years ago.

In any case, it should be noted that the American Supreme Court has resorted to judicial activism, be it for liberal or conservative causes, only when the issues were momentous. It has not gone that way for minor or frivolous reasons as higher judiciary in some countries including Pakistan has lately been doing. But on that subject we will have more to say later.

The writer is professor emeritus of political science at the University of Massachusetts, Amherst, US.

Email: anwarsyed@cox.net.

Is the federation at risk?

CAN the building of the Kalabagh dam and the bombing of Baloch insurgents (or call them miscreants) lead to the break-up of the federation? The need is to confront this question. The federal government would rather duck the question altogether while its spokesman Sheikh Rashid prefers to answer it by breaking the necks of those who talk of a break-up.

The resistance to the dam and to central authority as a whole is symptomatic of a spreading discontent in the three smaller provinces about political rights and economic resources being denied to them by the federation which is dominated by Punjab, the largest province. They aspire to wrest control from both by remaining within the federation if they can and by quitting it if they must.

Pakistan, indeed, is a peculiar federation. The population of Punjab exceeds the population of the other three provinces — Sindh, the NWFP and Balochistan — put together. Balochistan contains 44 per cent of the area but less than five per cent of the population. The capital of the federation is in Punjab and so are the headquarters of the army, navy and air force, the railways and Wapda.

All three armed forces, more significantly the army, are overwhelmingly Punjabi. This is significant because the army exercises enormous influence on civil life and administration. When Pakistan is under military rule, which it has been longer than under elected governments, the other provinces feel deprived of political power but Punjab does not.

The Kalabagh dam, leaving aside the technical and economic arguments for or against it, has assuredly served to consolidate the sentiment in the three smaller provinces against the federation. Whatever the bias of the experts or motives of the politicians, the common people, more in Sindh than in the other two provinces, have come to believe that the project has been conceived for the benefit of Punjab alone. The federal government’s latest brainchild to push it through Council of Common Interests (a constitutional body that has remained dormant all this while) and then through the parliament will only harden this belief.

Everybody can foresee that it will not be difficult for the pro-dam lobby to garner a majority both in the council and in parliament. The four chief ministers and an equal number of members from the federal government appointed by the president, with the prime minister presiding, constitute the council. With the Punjab chief minister siding with the federal members, the council would obviously vote for the dam. As required under the Constitution, the divided opinion of the council will go before parliament where the ruling coalition has the majority both in the National Assembly and in the Senate.

By using this device the federal government may get the legal authority to build the dam but the differences between the centre and Punjab on the one side and the Sindh, the NWFP and Balochistan on the other are bound to degenerate into hostility. The three provinces will be convinced more than ever before that they can never be equal partners in the federation. Punjab, with a population larger than that of the three put together and, to boot, backed by the armed forces would always have its way.

Yet another aspect not to be lost sight of in this controversy is that the secular elements in the three smaller provinces are opposed to the dam. The clerics will watch from the sidelines and look out for the winning route. Musharraf will be compelled to woo them back once again making a mockery of his enlightened moderation.

It hurts to contemplate and is hard to concede but the ground reality cannot be overlooked that the issues bedevilling the country today are fundamentally the same ones that tore East Pakistan apart. The current forces may be weaker and divided but the underlying grievance is the same today as it was then that Punjab and the army together are steamrolling the opposition. The confidence that defeating the dissidents this time round would be surer and quicker in the absence of a hostile neighbour to provide arms and shelter should not make the federal authority complacent. The mistrust will exacerbate and economic progress will suffer.

The Marris may be subdued by force but foreign exploration companies will not venture into their area (as they haven’t so far) until their sardar agrees to help. The nation thus would continue to be denied access to the gas reserves in the Marri area which are believed to be larger than those in Sui and now fast depleting. Nor would it be possible to drill deeper in Sui while the Bugti sardar is on the warpath.

It is a sad commentary on the Balochistan policy of successive governments that while we explored and developed the Sui gasfield with the help of the tribes 50 years ago, today we have to fight them to save it from being blown up.

The controversy over Kalabagh and the military (or let it be paramilitary) action in Balochistan is undoubtedly hurting the unity of the federation. In the course of time with the majority in Punjab and the might of the army, opposition to the Kalabagh dam may die down and recalcitrant Baloch tribes may also be tamed but the country will be put to greater risk of internal subversion and foreign interference. In today’s globalized world one can’t be distinguished from the other.

A prudent course for the government to follow at this stage would be to stop aggressive advocacy of the Kalabagh project and to reach an understanding with the Baloch sardars under which their supporters do not damage the public installations and the government doesn’t seek any more control of their territory than it has traditionally exercised.

The construction of Kalabagh or other dams may be left to be decided by parliament and the provincial legislatures elected after the next election. The same should hold true for the degree of autonomy the Baloch tribes demand. Both these issues have waited a resolution for a number of years — and an additional two years wouldn’t do any harm. The paramount question is of greater provincial autonomy. It is demanded by every province and party and has been conceded in principle even by the president. Once the provinces acquire greater and equal say in the affairs of the federation, the dam and Baloch problems will resolve themselves.

The critical question that rankles is whether the next elections will throw up legislatures and governments that are truly representative of public opinion across the country. That would only be if all individuals and parties are permitted to contest and results are not rigged.

Free and fair elections are not difficult to plan and hold if such is the intention. Many countries, more backward and violent than Pakistan, have been able to do it. Will the next elections be fair and free? On this question hinges the fate of the country. Pessimism abounds but there is no alternative. A political government emerging out of rigged elections is worse than a dictatorship. That has been Pakistan’s experience.

Better late than never

IN retrospect, it is truly amazing how fast the Department of Homeland Security, set up in 2003 to protect the nation from another Sept. 11 terrorist attack, deteriorated into yet another vehicle for the distribution of federal pork.

In large part, the speed of this metamorphosis resulted from Congress insisting that homeland security funding be distributed according to formulas designed to ensure that each state and each congressional district received a slice, regardless of genuine threats. But it also happened because DHS failed to establish strict criteria for what constituted a real terrorist “risk” to a particular city or industry.

Homeland Security Secretary Michael Chertoff’s announcement of a change in the way his department distributes money to cities is a very big step in the right direction. Originally set up to help seven cities considered to be at especially high risk — New York, Washington, Los Angeles, Seattle, Chicago, San Francisco and Houston — the urban security programme soon expanded, first to 30, then to 50.

Mr. Chertoff has now cut back the number to 35 metropolitan areas and, more important, is requiring the authorities in each of them to apply for funding and prove they can make good use of the money. These grants, he stated, are “not party favours to be distributed as widely as possible.”

—The Washington Post

Cleaning up Congress

LIKE Enron’s Andrew Fastow or WorldCom’s Bernard Ebbers in the scandals that shook corporate America earlier this decade, Jack Abramoff is the quintessential “why stop there?” character in the lobbying scandal currently roiling Washington.

He took the capital’s custom of wooing politicians to a grotesque, illegal but not necessarily illogical extreme. Now that Abramoff has pleaded guilty to bribing at least one member of Congress, among other things, Washington is bracing itself for a major corruption scandal.

It will be interesting to see how many other members of Congress are ensnared in an Abramoff-assisted prosecution, whether the scandal marks the definitive end of the DeLay era and what effect the stench of corruption has on this year’s congressional elections. But in the end, what will matter most is how the scandal will affect Congress’ attempts to reform itself.

Abramoff was almost a caricature of the connected lobbyist. He bilked his own clients, many of whom had conflicting interests. He not only doled out free food and drink to politicians, he owned a luxury restaurant where they could be camped.

He served as a kind of concierge for members of Congress and their staffs, offering tickets to sporting events and lavish golf trips to Scotland “in exchange for legislative favours,” according to the charges filed against him.

That’s the rub - proving a quid pro quo is the challenge for the prosecution in any corruption case.

American political customs demand that we suspend our disbelief and buy into the notion that there typically is no quo for the quid, that lobbyists and their business clients shower millions of dollars on politicians not because they are seeking favours but because it is the patriotic thing to do.

The conventions of the game also require us to believe that politicians aren’t influenced by huge campaign contributions, and that they go on golfing trips to Scotland to better educate themselves on pressing legislative business.

—Los Angeles Times