Saturday, May 26, 2012

The Woodrow Wilson school of thought in matters of judicial activism

In "Constitutional government in the United States", Woodrow Wilson wrote the following: (Page 167)
The weightiest import of the matter is seen only when it is remembered that the courts are the instruments of the nation's growth, and that the way in which they serve that use will have much to do with the integrity of every national process. If they determine what powers are to be exercised under the Constitution, they by the same token determine also the adequacy of the Constitution in respect of the needs and interests of the nation; our conscience in matters of law and our opportunity in matters of politics are in their hands.

The courts are the instrument of growth? Because it is they who 'determine the adequacy of the constitution', it's all in their hands. Wilson explains this further:

There is so much to justify the criticism of our German critics; but they have not put their fingers upon the right point of criticism. It is not true that in judging of what Congress or the President has done, our courts enter the natural field of discretion or of judgment which belongs to other branches of government, a field in its nature political, where lie the choices of policy and of authority.

How odd. The 'German critics' were wrong, and Wilson seeks to correct them and show them the real place they should criticize. And with that as the precursor, I take this as a complaint. Wilson is stating that the courts aren't political enough - just like this; This is Obama complaining that the government isn't powerful enough, so too here in this book Wilson wants a more political court. He continues:

That field they respectfully avoid, and confine themselves to the necessary conclusions drawn from written law. But it is true that their power is political; that if they had interpreted the Constitution in its strict letter, as some proposed, and not in its spirit, like the charter of a business corporation and not like the charter of a living government, the vehicle of a nation's life, it would have proved a strait-jacket, a means not of liberty and development, but of mere restriction and embarrassment.

Again, just like Obama, Wilson is complaining here. If only the courts would cease all this strict constructionism, then Wilson could redistribute wealth and centrally plan every part of American life. Wilson was very much into this business of government-as-an-organism and here he makes it plain that he views government as a means of liberty and development. This is the antithesis of what the founders intended. And once more, Wilson puts on display his contempt for the founders by placing 'restriction and embarassment' next to each other. That the constitution is a government-limiting document is a good thing, it is these limits that guarantee the liberty of the people. It's very important to understand that when progressives prattle on about 'liberty', they have a very different meaning. He continues:

I have spoken of the statesmanship of control expected of our courts; but there is also the statesmanship of adaptation characteristic of all great systems of law since the days of the Roman praetor; and there can be no doubt that we have been singular among the nations in looking to our courts for that double function of statesmanship, for the means of growth. as well as for the restraint of ordered method.

The statesmanship of adaptation, as a "double function". What does he mean by this? He tells us:(Page 172)

What we should ask of our judges is that they prove themselves such men as can discriminate between the opinion of the moment and the opinion of the age, between the opinion which springs, a legitimate essence, from the enlightened judgment of men of thought and good conscience, and the opinion of desire, of self-interest, of impulse and impatience.

Woodrow Wilson was not playing games. He intended to remake America, just like Obama does. And well before he was elected president(He wrote this in 1908) just like Obama, he saw the courts as a vehicle to expand government. This is evident in that he's not asking the courts to stick within the realm of fact and law, but rather opinions of varying type. In another chapter of the book(page 193) he writes this:

The character of the process of constitutional adaptation depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the opinion and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation, the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaptation has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity.

So in many instances, we progressives can use the courts to circumvent the amendment process. Why go through all that messy nonsense of asking the states? Just pack the courts, and make it so.

In a lot of ways, the universities are the source of America's undoing. No doubt Wilson talked about ideas like this with all of his buds at Princeton and elsewhere, formulating ways of getting this sort of thing right.

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