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May 24, 2005

Graglia on judicial activism

graglia_lino_lg.jpgLino A Graglia is the A. Dalton Cross Professor of Law at the University of Texas Law School and Texas' foremost Constitutional law scholar. From time to time, he has also been one of the more outspoken and controversial commentators on application of Constitutional law to social issues in American society.

In this Opinion Journal op-ed, Professor Graglia notes that modern Constitutional law is narrowly based:

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment--in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original. . .

The problem is that the Supreme Court justices have made the due process and equal protection clauses empty vessels into which they can pour any meaning. This converts the clauses into simple transferences of policy-making power from elected legislators to the justices, authorizing a court majority to remove any policy issue from the ordinary political process and assign it to themselves for decision. This fundamentally changes the system of government created by the Constitution

The basic principles of the Constitution are representative democracy, federalism and the separation of powers, which places all lawmaking power in an elected legislature with the judiciary merely applying the law to individual cases. Undemocratic and centralized lawmaking by the judiciary is the antithesis of the constitutional system. . .

Plato argued for government by philosopher-kings, but who could argue for a system of government by lawyer-kings? No one can argue openly that leaving the final decision on issues of basic social policy to majority vote of nine lawyers--unelected and life-tenured, making policy decisions for the nation as a whole from Washington, D.C.--is an improvement on the democratic federalist system created by the Constitution. Yet that is the form of government we now have.

The claim that the court's rulings of unconstitutionality are mandates of the Constitution, or anything more than policy preferences of a majority of the justices, is false. Rule by judges is in violation, not enforcement, of the Constitution. Ending it requires nothing more complex than insistence that the court's rulings of unconstitutionality should be based on the Constitution--which assigns "All legislative Power" to Congress--in fact as well as name.

Read the entire piece.

Posted by Tom at May 24, 2005 5:33 AM |


Frankly, I don't think he's saying anything original here, Tom. He's endorsing a particular hermeneutical view of the Constitution, which is fine, but you could have changed the name from "Graglia" to "Scalia" and I wouldn't blink an eye.

It's a compelling narrative, I grant, but I don't think he broke any new ground.

Posted by: TP at May 24, 2005 10:00 AM

Agreed, Milton. Even though I don't agree with Graglia completely, I enjoy the clarity of his writing and oral presentations. He provokes discussion, which is not always the case with University professors these days.

Posted by: Tom K at May 24, 2005 10:06 AM

As merely a student, isn't what Gralia saying basically that Marbury v. Madison was decided incorrectly? And that judicial review is actually in violation of the constitution?

Posted by: Sinker at May 25, 2005 3:39 PM

Sinker, I don't know if Graglia would go that far. But I do think that Graglia and other "strict constructionalists" are not above modifying their approach to achieve a favored political result. For an example, see the prior post regarding some of Justice Scalia's decisions at


Posted by: Tom K. at May 25, 2005 4:31 PM

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