Understanding the Constitution

Given his misrepresentation of Chief Justice John Marshall’s judicial style as a form of judicial restraint, it is difficult to believe that Gary L. McDowell (Letters, Nov. 19) is an associate director of the Office of Public Affairs in the Justice Department. As your editorial (Oct. 16) correctly noted, the liberal Justice William J. Brennan Jr. is a jurisprudential descendant of the great conservative Chief Justice John Marshall. Brennan like Marshall is a judicial activist.

Marshall wrote many landmark opinions which broadly interpreted the Constitution in line with his conservative Federalist values. Marshall’s decisions consistently expanded the power of the national government. In Marbury vs. Madison (1803) he gave the judicial branch the power of judicial review despite the lack of any specific constitutional provision granting this power. In McCulloch vs. Maryland (1819) he broadly interpreted the necessary and proper clause. In Dartmouth College vs. Woodward (1819) his opinion implied that he was giving a narrow reading to the contract clause when, in fact, the court’s holding greatly expanded the meaning of that clause. In Gibbons vs. Ogden (1824) Marshall gave a very broad interpretation of the commerce clause that supports the expansive regulatory power of the federal government.

Unfortunately for McDowell, his boss, Atty. Gen. Edwin Meese III, and other contemporary conservative critics of judicial activism, the history of the court does not support their contention that this is a new judicial philosophy at odds with traditional jurisprudence in the United States. Expansive readings of the Constitution date almost from its origin.

The practice of judicial activism is largely a conservative creation and until 1937 was almost exclusively associated with conservatives on the court. Even today, staunch conservatives, including Justice William H. Rehnquist in his 1976 opinion in National League of Cities vs. Usery, practice judicial activism when it fits their ideological goals.

There is nothing unfair about criticizing the court or individual justices for practicing judicial activism when we would prefer to see them practice judicial restraint in a particular policy area. It is unfair, however, to imply that only liberals practice judicial activism and it is unwise to attempt to rewrite the history of the court in order to support the view that judicial activism is a recent development by liberal justices.

EDWARD S. MALECKI

Altadena