Forum; William Bradford Reynolds : U.S. Assistant Attorney General

but even for the exam results, don't forget to consult with friends. This is Alla Graham for Forum, this week US Assistant to 30 General William Bradford Reynolds. The underlying purpose of the federal structure was to give the people greater political control over their lives. It was originally intended that within the states the people would be left to tend to such matters as education, criminal justice, and the general welfare, morality, and health of the communities. The federal judiciary and the Constitution this week on Forum. From the Center for Telecommunication Services, the University of Texas at Austin, welcome to Forum, I'm Alla Graham. The underlying purpose of the federal structure was to give the people greater political control over their lives.

It was originally intended that within the states the people would be left to tend to such matters as education, criminal justice, and the general welfare, morality, and health of the communities. Regrettably, however, a great deal of this power of this political control over our lives has over time been unceremoniously stripped away or seriously compromised at the hands of an activist judiciary. US Assistant Attorney General William Bradford Reynolds. Today, Forum presents an address presented by William Bradford Reynolds, US Assistant Attorney General, and head of the Civil Rights Division of the Justice Department. He delivered the keynote address at a University of Texas at Austin Symposium devoted to the US Constitution. Entitled the bicentennial, a constitutional restoration, his presentation adopts a controversial stance since he has declared that laws and orders that prohibit discrimination have become discriminatory themselves.

He lays the blame at the feet of the federal judiciary, Assistant Attorney General Reynolds. In the year 1987, we have a choice. We can focus on pomp and ceremony and talk in abstract terms about a Constitution that has outlived its practical value. Or we can focus more intensely on what was accomplished in 1787 and why, and ask ourselves candidly whether subsequent judicial and political experiments have served or deserved the original constitutional design for popular government. Not surprisingly, I urge the latter course. For only then, might we hope to remedy the constitutional illiteracy that so plegs us. For most, the obvious starting point is to remember why the founders thought the popular government was inherently problematic and why their Constitution was deemed by them to be so novel and experiment. It was novel in their view because they were the first to endeavor to found a nation to create a scheme of government out of whole cloth.

History and political theory were their guides and the moral principle of human equality was their foundation. Our forefathers sought to establish this new and novel nation on the then radical proposition that all men are created equal and are endowed by their creator with certain and alienable rights. At a minimum, that idea of equality demanded in practice that each be treated the same as the others, without regard to what James Madison called frivolous and fanciful distinctions, distinctions such as race, religion, and ethnicity. While their own conduct often fell short of that standard, their ideal was enduring. And what began in 1787, finally was completed by ratification of the 13th, 14th, and 15th amendments, which were intended to allow all to participate fully in the constitutional scheme of self-government. The founders knew that the eyes of the world were upon them, nothing less than the future of human freedom depended upon the outcome of their efforts.

That is why Alexander Hamilton introduced the Federalist with something of a sober caveat. It remains to be seen, he wrote, whether societies and men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. To hedge their political bets on this most basic question, the founders, friends and foes of the new constitutional like, dedicated themselves to a proposition that was truly new in the science of politics. They were committed to the idea of a written constitution of clear and common language, that would at once create and limit the powers of government. Their novel experiment was to fashion a government at once limited and energetic, a government with the powers to act, but with a structure as Herbert's story described it, designed to make it act wisely and responsibly. This basic premise was best captured by the man often called the father of the constitution, James Madison.

In the Federalist 51, Madison summed it up simply, in framing a constitution which is to be administered by men over men, the great difficulty lies in this. You must first enable the government to control the governed, and in the next place oblige it to control itself. This was no easy task. Power he knew was always of an encroaching nature. Thus, one solution was to make good government depend upon the virtue of those who might come to govern, was not to make good government depend upon the virtue of those who might come to govern, any more than it was to depend primarily upon the civic virtue among people. Rather, the trick was to create a system of government that would be rendered self-regulating by its various internal contrivances, such things as federalism, separation of powers, a bicameral legislature, and both an energetic executive and an independent judiciary. This was the vision of our founding fathers. They contemplated a nation characterized by limited popular government that rested upon the consent of the governed, the achievement of which depended upon faithful allegiance to a complex system of divided sovereignty and separated powers.

To this end, they undertook to shore up their good intentions with a complement of sturdy institutions. In electing to divide the powers of the new national government among three branches, they foresaw the need to build into the institutional framework safeguards against a usurpation of power by any one branch. Perhaps the greatest irony of our day is that the judiciary was seen by our forefathers as the least dangerous branch of all. Yet it is the judicial branch that has done the largest disservice to the Constitution and the bedrock principles on which it stands. The delicate balance struck in the Constitution's first three articles among legislative, executive, and judicial functions has long since been interpreted virtually out of existence by activist judges who through an overly expansive reading of the commerce and supremacy clauses have nationalized almost every social problem. The core principle of federalism enshrined in the 10th Amendment that reserves all power to the states not constitutionally assigned to or reserve for the federal government was recently removed in its entirety by the Supreme Court's pronouncement in the case of Garcia versus San Antonio Transit Authority that states sovereignty now exists only at the pleasure of Congress.

According to Garcia, the states have no special status that is constitutionally immune to a regulation by the national government. To put it most graciously, Garcia has left federalism in tatters. Nor is this the extent of the judicial mayhem. Our Constitution was read by justices of an earlier era in the infamous Red Scott case to protect the immoral institution of slavery. By others, some years later, in plusy versus Ferguson, to embrace the nearly equally noxious principle of separate but equal. And still other generations of judges saw fit to import into the Constitution their own clearly extra constitutional predilections such as the doctrine of liberty of contract.

More recently, we have seen an untethered judiciary deny the right of people to define the moral tone of their community by invalidating properly enacted death penalties by denying the constitutionality of soberly crafted statutes restricting the practice of abortion and by removing nearly every reference to God from our public places. Indeed, in the guise of interpreting the Constitution, our federal courts have instructed the elected officials of state and local governments that they no longer are free to limit welfare benefits to persons who have resided in the state for a particular length of time or to otherwise treat these payments as anything other than a constitutional entitlement. To notify parents that their minor child is seeking an abortion, to refuse to purchase and exhibit x-rated films on state college campuses, to extend remedial education programs and maps to students who choose to attend religious schools, although for some reason textbooks may still be provided, or to require that high school graduates be able to read and write if minority children seem to be disproportionately disadvantaged by such educational standards. They have gone even further. In order to remedy constitutional violations, federal courts have abolished any pretense of state sovereignty by dictating such things as the temperature of the dishwasher in state hospitals, the appropriate wattage of lamps in state prison cells, and the specific location of a piano in a public school.

Federal judges have even informed the local electorate that the court itself will raise taxes to finance its sweeping remedial schemes if the voters continue their churlish refusal to assume the additional fiscal burden voluntarily. To put it succinctly, the jurisprudential theories approved by the federal courts generally in the Supreme Court in particular have, through the years, been largely at odds with the basic principles of our Constitution. All too readily, activist judges have forced their own personal views of social order on an unsuspecting society under the rubric of constitutional law, regularly speaking as though their personal pronouncements were on a par with the Constitution itself. In this bicentennial year, sober reflection is needed on how such a state of affairs has come to pass.

How is it that a Constitution designed to enshrine imperpetuity, a nation of the people, by the people, and for the people, as Lincoln once described it, has been converted into a charter for the federal judiciary to thwart so many efforts to exercise the basic right of self-government? The answer I would submit is found in what must be regarded as a fundamental flaw in such jurisprudential impulses. A flaw common to courts is different as the one in 1905 that gave us Lawtoner versus New York, and the one in 1973 that gave us Roe versus Wade. And that is a blatant disregard for the legitimacy of popular government, and it's guiding principle that liberty is safe only under a nation of laws and not of men. A multitude of rationalizations have been advanced to justify the erosion of this principle, but all share a common attribute. A deep-seated antipathy to any suggestion that the citizenry have both the right and the ability to govern themselves.

Not surprisingly, such judicial pretension is marked by an abiding disdain for a jurisprudence of original intent. The activist judges of this school refused to take seriously either the text of the Constitution or the plainly discernible attentions of those who wrote, proposed, and ratified that text, including all subsequent amendments. They reject outright the wisdom of both Jefferson who deemed our written Constitution a peculiar security, and if Chief Justice John Marshall, who wrote in Marbury vs. Madison, that a written Constitution is the greatest improvement upon political institutions. For them, the security of our rights and the legitimacy of our government rests not nearly so much upon a written Constitution of definite and enumerated powers, as upon unelected and life-tenured judges who presume to roam at large in the trackless fields of their own imagination. Fortunately, there is no shortage of pointed and well-reasoned criticism of this view of constitutional affairs, and those far-suited, better-suited than I, from scholars such as Raoul Berger to the Attorney General of the United States, are sure to carry the great public debate over a jurisprudence of original intention for some time to come.

For present purposes, therefore, I have elected to step back from such jurisprudential discourse and focus instead upon what is in many ways the most interesting political question. What would America look like today if a jurisprudence of original intention held sway? What would this theory mean in practice? The answer to these questions needs to be prefaced by two basic observations. First, the primary complaint against judicial activism is not at the level of policy choice. It is a problem that goes far deeper than simply whose political ox is being judicially gourd. What is it issue is not the right or the wrong, the morality or the immorality of certain public policies such as abortion, the death penalty or school prayer.

Rather, the core issue is one of process. At stake is nothing less than the question of how this country should be governed in regard to basic issues of social policy. Whether such issues should be decided by the elected representatives of the people, largely on a state-by-state basis, or by appointed members of the federal judiciary who serve for life and are politically accountable to no one. Second, the principle most undermined by judicial activism has been that of federalism, the constitutional division of sovereignty between the nation and the states. On the whole, the Supreme Court has refrained from juridically molesting Congress. This may well be because Congress has explicit power in the Constitution to exercise some control over the judicial process, from making exceptions to the Supreme Court's appellate jurisdiction at one level to how, when and even if it chooses to create lower federal courts at another. In any event, it is a fact that historically the Supreme Court has prescribed state power far more frequently than it has national power.

Indeed, just as Oliver Wendell Holmes once went so far as to say that not much would happen if the court lost its power of judicial review over congressional actions, but that nearly everything would be lost if it should lose the power of judicial review over state actions. The problem with this judicial attitude is that under the original design of the Constitution, the states matter. While there were certain things only a national authority could do, other things were considered best left to the states and localities, and they were afforded the sovereignty sufficient to handle most of the activities we think a government ought to do. The reason for this arrangement was a general awareness that greater political access would attend those lower levels of government. It would be there where the people were far more likely to have their opinions and passions and interests expressed and debated. Thus, those lower levels of government would understandably be more responsive to the people, and by the same logic also more accountable to the people.

And James Madison said in the Federalist number 51, by so dividing sovereignty between two levels, nation and state, there would be a double security to the rights of the people. The underlying purpose of the federal structure was to give the people greater political control over their lives. It was originally intended that within the states, the people would be left to tend to such matters as education, criminal justice, and the general welfare, morality, and health of the communities. Regrettably, however, a great deal of this power of this political control over our lives has over time been unceremoniously stripped away or seriously compromised at the hands of an activist judiciary. In this regard, my earlier catalog of judicial misadventure does not want for company. In the area of public education, for instance, one finds cases where the federal courts have demanded that schools allow a student to bring his homosexual lover to the junior prom. Other courts have invalidated a state law requiring that only persons who pass basic literacy tests can be awarded to a diploma.

On grounds that the disproportionate failure rate of black students constituted a vestige of past discrimination. Similarly, teacher competency tests and basic academic requirements for participation in athletics have by the same logic. School desegregation cases have gone so far as to determine who may or may not be the high school football coach. In Boston a few years ago, a district judge went so far as to consider invalidating a fair increase on the subway system for that financially strapped city because in his view it might impede his desegregation order. In the area of religious freedom and separation of church and state under the First Amendment, the judiciary has not only banned prayer and Bible reading in public schools but the posting of the Ten Commandments as well. Indeed, the courts have gone so far as to invalidate special education programs in parochial schools because the public school teachers who were to participate in the program might be infected by virtue of being in a building owned by a religious organization. The First Amendment has been stretched and distorted in other ways too.

The provision prohibiting Congress from infringing the freedom of speech has been made to prohibit states and localities from restricting new dancing or from making certain words impermissible. Thus upholding the right in one case of a young man to wear a jacket into a public building sporting an obscene phrase regarding the draft. The idea of what constitutes obscenity has been so gutted that the states and localities, our communities, I must emphasize, find it difficult to say that anything is out of bounds. The sale of magazines can either be banned or restricted. Video stores pandering to the most pureed interests find their trade secure by virtue of these expansive readings of the First Amendment. In the area of criminal law, the states find themselves bound by a virtual manual of police behavior written by judges overly solicitous of the criminal, largely indifferent to the suffering of victims and seemingly impervious to the needs of public order. Too often the law breaker is back on the street corner before his victim is released from the hospital, only to strike again.

It is just recently that the death penalty has been given a judicial reprieve of sorts, allowing the states once again to do away with those who have committed the most heinous crimes against society, and even so judicial resistance to this enlightened development still runs deep. Beyond these provocative examples are more mundane ones that are every bit as revealing of the poverty of our federal union today. Communities that have tried to pass environmental laws, laws thought worthy by the citizens, such as noise reduction ordinances near airports, have found them denied because the court has held that the field has been preempted by Congress, leaving no- All told what was once a sturdy and vibrant republic of states has become in many respects in unyielding national regime, where differences are rarely tolerated. What is good for New York must be equally good for Arkansas, whether those in Arkansas think so or not. What is needed night at home must also be applied in Massachusetts, whether those in Massachusetts wanted or not.

To be sure there are certain areas of concern where such a symmetry displays a strength, not a weakness, in our constitutional understanding. Some problems are national in scope and demand a national solution. Civil rights enforcement, for one, came upon this country with a rush in 1964 with an act of a series of federal anti-discrimination laws. These measures were appropriately passed by Congress in aid of the 14th Amendment based on a dismal history of inactivity by the several states spawned by earlier Supreme Court decisions in 1883 and 1896 that had severely limited the scope of the 14th Amendment. A national response was needed to address a national discrimination problem and uniformity of standards promised to be the most effective protection. But it is also important to note that these national laws are the result of legislative deliberations and presidential programs, not judicial decree.

And even in this area of national concern, it is interesting to observe progressive state and local civil rights laws, not inconsistent with federal statutes, also abound. The central point is the good government, that is, good constitutional government, at a minimum requires full allegiance to the structural design of the Constitution, and a due regard for the purposes and principles for which that structural design stands. In losing sight of this cardinal rule, our courts have effectively trash the Founder's idea of popular government, of a nation wherein people still have a hand in defining the moral, legal, and political content of their lives. Where, at otherwise, as the Constitution demands, some communities would be allowed to have prayer in schools if that was their choice, while elsewhere others could freely follow different dictates of their community conscience. Similarly, some states could exercise their prerogative to prohibit abortions, while other states would be free to have abortion policies as liberal as that posited in row versus weight.

Under a popular form of government, racial discrimination would find no safe haven among the 50 states. But neither would the neighborhood school system in this country be threatened with extinction because some federal judges, largely oblivious to education consequences, think it opportuned to bus school children miles from and back to their homes in early morning and late evening hours in order to achieve some arbitrarily imposed racial blend in the public schools. A jurisprudence of original intention would see no harm in communities restricting the sale and distribution of pornographic literature, or the entertainment of new dancing or live sex shows. Indeed, it would celebrate the power of the people to decide these sorts of policies for themselves, collectively, in deliberative represented bodies where the true sense of the community could be registered and felt. This is not a jurisprudence with a strict social agenda. It is rather a jurisprudence aimed at restoring democratic self-government.

It is a way of constitutional thinking and litigating and judging that seeks not to impose so-called right answers on the people, but instead grants the people ample latitude to choose for themselves. That, after all, is what popular government, a truly democratic form of government, is all about. At this distance of 200 years, we must ask the question of just how successful the founders experiment in popular government has turned out to be. For the Gulf that separates our generation from theirs is more than a simple Gulf of years. It is made even wider by social and technological advances that some suggest render our Constitution more in anachronism than a vital charter of fundamental law. But this is, in my opinion, a woefully erroneous point of view. For the vitality of the Constitution today is as great, perhaps even greater, than it has ever been.

The reason for this is attributable to the founders' political genius. The Constitution, they bequeathed to us, was a Constitution designed not in light of the peculiar circumstances of the late 18th century, but in light of what they understood to be the permanent attributes of mankind. Yet to acknowledge that the Constitution remains today a vital source of fundamental law is not to say that American politics has evolved according to the principles intrinsic to the Constitution itself. Indeed, as I have indicated, it's my thesis that in too many ways the Constitution has been all but ignored or too facile contravened through the years. While I lay primary blame on the Federal Judiciary, ultimate responsibility must lie with us the people. The bicentennial, I would suggest, is a most opportun occasion to take stock of our sorry state of constitutional affairs and collectively set about to restore the basic principle of our Constitution to our politics. A significant step is being taken in just that direction with the appointment by President Reagan in recent years of a number of superbly qualified federal judges.

Unlike a lot of activist jurors named by the prior administration, men and women who have ascended the federal bench in the past six years have been selected not on the basis of some ideological litmus test or allegiance to a partisan agenda, but because they understand and appreciate the written Constitution. They regard it quite properly as a viable lasting blueprint of an interlocking system of governments who strength derives from a close adherence to the framers original intention to devise a popular but limited government that rests upon the consent of the government. By unequivocally endorsing that basic tenant in this 200 year celebration of that most magnificent of political charters, we the people can unquestionably form a more perfect union. Thank you all very much. U.S. Assistant Attorney General William Bradford Reynolds participated in the symposium entitled The American Constitution Retrospecting Prospect.

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