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Stefan Bauschard, Co-Director, Harvard Debate Council Summer Workshops

The 2011 NCFL tournament resolution for Public Forum deals with the question of whether it is better for the judiciary or the legislature to create rights. 
 

This is an age-old question that has been the focus of many previous Lincoln-Douglas resolutions and has been part of policy debates related to court action for many years.

In this essay I will provide some background information related to the controversy and then discuss the pros and cons of rights creation by each institution.

Background

There are two basic ways that individual rights can be created.  First, the legislature can pass laws that articulate certain rights.  Second, the courts (the judiciary) can create rights by interpreting the Constitution, existing legislation, or previous court cases (case law) to argue that the right at stake is protected by one of those three things.  For example, there is no federal legislation that says that there is a right to an abortion.  There is also nothing explicit in the Constitution that says that there is a right to an abortion, but in Roe V. Wade (1972) the Supreme Court, relying on a previous case (Griswold) that said that the 4, 9^th, 11, and 14^th Amendment) establish a “right to privacy” (though none of those amendments reference privacy specifically) said that there is a right to privacy in the Constitution and that that right protects the right to have an abortion. In this way, the Supreme Court “created” a right to abortion.

The courts are always interpreting the Constitution.  In U.S. v. Katz (1967), the Supreme Court interpreted the Fourth Amendment to the Constitution, which prohibits "unreasonable searches and seizures," to mean that the government cannot conduct wiretaps without a warrant.  The Supreme Court said that these wiretaps were an example of an unreasonable search and seizure.  Other individuals may think such searches reasonable and not requiring a warrant, but that is how the Supreme Court interpreted that law, so that is what it means today.

Since the Constitution contains only general provisions, and there are many specific situations, the courts have to be convinced that a general constitutional provision can be interpreted to apply to the situation at hand (the "situation" being the affirmative plan).  

The Constitution is not the only law that the Courts can interpret.  The Courts can also interpret statutory or legislative law.  The legislature makes laws specify certain things.  For example, the legislature may pass a law that says that "discrimination" against the mentally ill by private actors is prohibited.  But, imagine that the law does not specifically say that employers cannot pay the mentally ill lower wages because they are mentally ill and that a mentally ill individual who is receiving lower wages from her employer because of her mental illness sues her employer for "discrimination" under the law that Congress passed.   It will be up to the courts to determine if that person has in fact been "discriminated" against. 

Courts are not limited to interpreting the Constitution or statutory law.  Courts can also interpret existing case law.  Think back to the example of the Fourth Amendment and conventional phone wiretaps.  Imagine that 50 years later someone is arrested and emails that have been sent to their friend are used to convict them (perhaps person A (the person convicted of the crime) was selling drugs to person B and arranging the deal through the Internet) and person A argues before the court that the emails cannot be considered legitimate evidence because the government did not have a warrant to read the emails.  The person could then argue that this constituted an "unreasonable search and seizure" by the government. In this instance, the person could make his case not only based on the Fourth Amendment itself, but also on the Supreme Court's decision in U.S. v. Katz, which said that the government was not permitted to use conventional phone wiretaps without a warrant.  The individual who was convicted with the emails could simply argue that this was essentially the same as a phone wiretap and the courts could interpret the existing Katz decision to apply to the issue of the government reading emails without permission.

Assuming that it is good to create rights, the question is, what institution should generally be charged with creating them, the legislature or the judiciary? 

Arguments Against Judicial Creation of Rights 

The arguments against judicial creation or rights come from conservative judicial scholars who argue that it is not the job of judges, who are in most cases not elected, create rights that have no popular support.  These conservative critics challenge this “Judicial Activism” and instead support “Judicial Minimalism.”

These critics have a number of basic arguments that that you can use when arguing against the judicial creation of rights.

First, it’s not the job of the judiciary and it violates the separation of powers.  The job of the legislature is to make law.  The job of the executive is to enforce the law. The job of the judiciary is to interpretthe law.  Judicial involvement in the creation of rights arguably steps on the role of the legislature, violating the separation of powers – the division of powers within the government.  The separation of powers is important because the founders created it to prevent any one individual or branch from amassing too much power. If the judiciary “creates” rights and then interprets the law that they create, they are violating the separation of powers and amassing too much power.

Kline (1999) explains: 

A judicial activist is, simply put, a judge who exceeds the proper limits of his or her authority and usurps the authority delegated to another branch (or institution) of government.  In its most basic sense, activism is when judges make law instead of apply it (Kline, p. 689). 

And it is arguably unconstitutional, since there is no foundational basis for the idea that the judiciary should be involved in rights creation.

Jack Nowlin, Law Professor, University of Mississippi, 2001/1 (KENTUCKY LAW JOURNAL, Winter, p. 468) 

A summation of the findings above is in order. First, the most "natural" reading of the constitutional text certainly does not support expansive judicial power. Indeed, the text of the Constitution does not even explicitly provide for judicial review, much less establish the "maximalist" principle that the judiciary is the final arbiter of the meaning of the Constitution and that its decisions are binding on the other branches of government. Further, the constitutional text displays ample support for fundamental constitutional principles-representative democracy, federalism, separation of powers, and the like-that are incompatible with a highly expansive conception of judicial power. Finally, the text is highly suggestive of a wide array of congressional checks on the judiciary, such as those that limit its power to make social policy. The text therefore offers no obvious support for the claim that aggressive, quasi-legislative judicial interpretations of rights provisions are constitutionally legitimate. The constitutional text, as a whole, is much more suggestive of judicial minimalism than it is of maximalism.

Second, it is undemocratic for unelected judges to create rights that are not supported by the majority. Creation and recognition of new rights, judicial minimalists argue, should be done through the constitutional amendment process.

Courts usually have one judges or a more limited panel of judges.  These judges are often appointed by politicians.  Relative to the legislature, the public arguably has less input in court decision-making.  Given this, court decision-making is arguably more "authoritarian" or "tyrannical."  Perhaps, as Mark Tushnet, a law professor at Georgetown, argues, it is better to leave policy-making to the more branches that are more representative of public opinion. 

Some scholars even contentd that arguments in favor of giving the judiciary a greater role in rights protection are really just a ruse to increase the power of an institution that will subsequently reduce rights.

Ran Hirschl ‘4 Professor of Political Science & Law, University of Toronto (Towards Juristocracy p. 1-2) 

While the benefits of constitutionalization for economic libertarians and judicial elites appear obvious, its appeal for hegemonic sociopolitical forces and their political representatives may at first glance look questionable. However, when their policy preferences have been, or arelikely to be, in creasingly challenged in majoritarian decision-making arenas, elites that possess disproportionate access to, and influence over, the legal arena may initiate a constitutional entrenchment of rights and judicial review in order to transfer power to supreme courts. Based on the courts' relatively high public reputation for professionalism and political impartiality, their record of adjudication, and the justices' ideological preferences, these elites may safely assume that their policy preferences will be less effectively contested under the new arrangement. Judicial empowerment through constitution alization may provide an efficient institutional solution for influential groups who seek to preserve their hegemony and who, given an erosion in their popular support, may find strategic drawbacks in adhering to majoritarian policy-making processes. More "demographically representa tive" political processes are, in other words, a catalyst, not an outcome, of constitutionalization. The constitutionalization of rights is therefore often not a reflection of a genuinely progressive revolution in a polity; rather, it is evidence that the rhetoric of rights and judicial review has been appropri­ated by threatened elites to bolster their own position in the polity. By keep ing popular decision-making mechanisms at the forefront of the formal democratic political process while shifting the power to formulate and pro mulgate certain policies to semiautonomous professional policy-making bodies, those who possess disproportionate access to, and have a decisive in fluence upon, such bodies minimize the potential threat to their hegemony. '

Activism undermines the legitimacy of the court. If the courts make decisions for which there is little to no support their legitimacy will suffer. 

Judicial action creates a “Hollow Hope.”  This argument is based on a 1992 book by Gerald Rosenberg that argues that court action to protect rights is problematic because when the courts, particularly the Supreme Court, protects a right through a symbolic decision that interest groups that are interested in rights protections flock to the courts and away from the legislature and it is really the legislature where rights have the very best chance of being protected.  In this way, judicially-created rights act as “fly paper for social reform.”  Rosenberg cites examples of environmental groups who turned to the courts after the courts made environmentally-friendly decisions, of pro-choice activists who turned to the Supreme Court after its decision in ROE v. WADE, and a number of others. 

Rosenberg argues that Court action is problematic because the rarely support additional protections for these groups.  Instead, these groups just burn limited economic and personnel resources and consequently undermine the ability of these groups to obtain progressive social change due to three factors –

1. Limited opportunities for rulings.  Since constitutional rights are generally limited and do not specifically address many contemporary issues (such as welfare), the courts are generally bared from, and cannot credibly rule on, important issues of social reform.

2. Lack of judicial independence.  The judiciary is not independent enough from the other branches of government to lead their own charge for social change.

3. Implementation.  Courts lack the requisite tools to implement any socially progressive policies that they may develop.

Unpopular court action can also trigger a backlash against the decision, reversing social change.

Gerald Rosenberg, Political Scientist @ Chicago, 1991 (THE HOLLOW HOPE: CAN THE COURTS BRING ABOUT SOCIAL CHANGE?, p. 341-2) 

While I have found no evidence that court decision mobilize supporters of significant social reform, the data suggest that they may mobilize opponents. With civil rights, there was growth in the membership and activities of pro-segregation groups such as the White Citizens Councils and the Klu Klux Klan in the years after Brown. With abortion, the Right to Life movement expanded rapidly after 1973. While both types of groups existed before Court action, they appeared re-invigorated after it.

Arguments in Favor of the Judicial Creation of Rights

Judicially-created rights protect minorities.  Liberal activism (expanding individual rights and liberties that the constitution protects) offers a voice to the otherwise oppressed minorities in society. The courts, after all, ought to pay more attention to attempts to usurp the power of weak groups than they do to efforts to reduce the majority's power. The majority has the power to do anything it wants to the minority except those narrow restrictions that the court guarantees as individual rights. Therefore, activism that expands the protection of individual rights is necessary and proper to limit the power of the majority to harm the minority unnecessarily. Limitations on liberal activism make a tyranny of the majority possible.

A corollary to this argument is the notion that conservative activism is particularly dangerous. The usual way to prevent judicial activism is to respect stare decisis (respect for precedent see the Court Legitimacy Disadvantage). Conservative activism ignores the established precedents of the last 50-year regarding those rights of substantive due process established by the Warren Court. Since those rights were created illegitimately in the eyes of conservative activists, they must be eliminated. Supreme Court decisions that remove rights that many people have come to expect, however, pulls the rug out from under all of their life long plans. When the Court reverses liberal precedents and limits previously recognized rights, it aligns itself with the legislative majorities in society and against the minority interests that the original rights protected. This combination of power leaves no governmental institution on the side of those in society who lack the power of a majority vote to protect them. While liberal activism may question the purely democratic theory of our government, it does not do the kind of damage to minority views that conservative activism can.

Judicially created rights avoid political process arguments.  It is difficult to tell how this would play out in front of Public Forum judges, but the argument is that when the judiciary acts to protect rights it avoids complicating the President’s political agenda (the traditional “politics disadvantage”).  While this argument is unlikely to work in Public Forum Debate, I think it is important to mention it because someone may argue it. 

Judicially-created rights avoid politicization. Since most judges are not elected, they are not held hostage to the political process when deciding to protect rights.  Politicians who are elected in 2, 4, and 6 year cycles are much more vulnerable to politics. 

Judicially-created rights lead to social change.  There is some good evidence that argues that the courts are important to accomplishing social change because they are perceived as less political than the legislative branches and because people have a lot of respect for the law. 

 (John O. McGinni, Professor of Law, Northwestern University and Charles W. Mulaney Associate, Perkins Coie LLP, 12-8-07, “Judging Facts Like Law: The Courts versus Congress in Social Fact-Finding”)

I conclude with three broader consequences and implications. First, the institutional power of courts described in this article is both historically situated and, in important ways, constant over time. Courts gained power when elected officials were unable to respond on their own and looked to defer and displace political conflict onto the courts. In this regard, my work agrees with Mark Graber's (1993, 36) argument that courts are historically most powerful when “the dominant national coalition is unable or unwilling to settle some public dispute.” In addition, courts gained influence at a time when lawyers and judges were greatly expanding their own professional opportunities. Congress aided, but only tacitly, this expansion of the legal community. The specific historic nature of these reforms meant that they could later be taken away. By the mid-1970s, Congress started to pay closer attention to the politics of legal rule making. In 1973, Congress rejected rule changes for the first time and has since remained far more active in this process (Bone 1999). Congress has also scaled back professional opportunities for lawyers, restricting class action and attorney fee opportunities. The Supreme Court has also changed and now reviews legal and procedural matters differently. Many of the Court's key decisions that put pressure on unions, from Griggs to Weber, have since been either overturned, severely narrowed, or reinforced only by statute. At the same time, as American political development scholars have argued with regard to other institutions, certain historical developments that increase an institution's power are not so easily displaced even in times when electoral officials favor such changes (e.g., North 1990; Skowronek1993). Moreover, there are features of U.S. legal systems and courts, such as their reliance on common law and the multitude of judges and forums that are provided to civil rights litigants, which enable courts always to provide a certain degree of malleability and dynamism that can give rise to political activism even in moments of historical retrenchment (McCann 1994). 

One argument against rights created by the judiciary is that the courts lack enforcement capability. While this is true, it is also true of the Congress.  Congress may pass a law to do X, but they do not go out and do X themselves.  They rely on the executive to implement and enforce the laws.  

Another objection revolves around the idea that the courts do not have as much information and is not as qualified to draft legislation as the Congress and the specialized committees that cover different issues.  But, if we already know what we want to do (the affirmative has a plan), that seems to beg the question.  And, the court can seek scholarly advice and is often provided it through amicus curiae briefs.   Amicus curiae briefs are "friend of the court" briefs that are provided to the judges by parties who have an interest in the outcome of a particular legal dispute. 

Arguments in Favor of Legislative Creation of Rights 

The argument in favor of legislatively-created rights is based on the idea that Congress (the legislature) has the authority to expand the protection of individual rights beyond what is explicitly provided in the Constitution provided that those rights do not undermine the provision of other rights. For example, Congress may protect privacy rights as long as that protection does not undermine First Amendment rights.

Congress' authority to protect individuals living with particular states from state legislation comes from the Fourteenth Amendment. Section 1 of the Fourteenth Amendment states that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The authority to enforce this comes from Section 5 of the Fourteenth Amendment, which reads, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

 Jack Nowlin, Assistant Professor of Law, University of Mississippi, 2000/2001 (KENTUCKY LAW JOURNAL, Winter, The Constitutional Illegitimacy of Expansive Judicial Power: A Populist Structural Interpretive Analysis,   p. 448)

 

James E. Bond has concluded that this was also the general understanding of the highly reluctant ratifiers in the defeated southern states, who were generally much more concerned with the effects of Congress's section 5 power than with judicial enforcement. Additionally, Christopher Wolfe has argued that the understanding of judicial power in place in the nineteenth century requires the Supreme Court to grant a presumption of constitutionality to both (1) state legislation potentially violative of the Amendment and (2) congressional legislation purporting to enforce the Amendment against the states. Wolfe's view, then, also suggests thatCongress has potentially much broader interpretive/ enforcement power than the Court.

 Legislation (statutory law) can protect rights. 

Mark Tushnet ’99 (Taking the Constitution Away from the Courts, p. 168-169)

 

Statutory Rights. Eliminating judicial review does not mean doing away with judicially enforceable rights. We can still create statutory rights that can be as inspiring as constitutional ones, and sometimes more so. The Americans With Disabilities Act is a civil rights statute dealing with people whom the Supreme Court never found specially protected by the Constitution." And, as we saw in chapter 3, the Supreme Court has never found social welfare rights in the Constitution. Even so, advocates for the poor strenuously objected to the elimination of entitlements to public assistance during debates over welfare reform in 1996. As I have sug gested, their rhetorical position may actually have been weakened by the existence of Supreme Court opinions rejecting constitutional social wel fare claims, but those opinions did not deprive them entirely of the rheto ric of rights. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us. We can support and oppose legislation by invoking the Declaration's principles. Law professor Ira Lupu calls such laws "statutes revolving in constitutional orbits."" Professor Mary Ann Glendon has argued that we would be better off if whatever rights we had were based on statutes. As she sees it, the way people in the United States talk about rights "is set apart from rights discourse in other liberal democracies by its starkness and simplicity, its prodigality with the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities."" Some of Glen-don's examples of impoverished rights talk involve statutory rights, but sometimes she praises statutes. The problem as she sees it is that "the language of rights is the language of no compromise."37 But politics is the arena of compromise. As legislators develop statutes, even civil rights statutes, they necessarily listen to their opponents and often develop com promises accommodating some of their opponents' concerns—accommo dations that courts would be hard-pressed to create.

There are two basic sets of benefits that stem from legislative action to create rights.

First, legislative action avoids the problems with judicially created rights that have been discussed above. 

Second, legislative creation has a number of benefits that cannot be captured by judicial action.  

One, legislative action is more democratic, as it inherently involves the consent of the governed and adoption through democratic processes. 

Two, legislative action to protect rights will likely encourage legislative action by other groups to protect rights, potentially leading to broader social change. 

Erwin Cherminsky, Irmas Professor of Public Interest Law, Legal Ethics, and Political Science, University of Southern California, 2000 (MICHIGAN LAW REVIEW, May, p. 1416)

 

In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He maintains that it produces relatively few benefits that could not be gained through the political process and that it actually has serious costs. He contends that without judicial review, a populist constitutional movement, with a vibrant public rhetoric of constitutionalism, would emerge (p. 154). Without constitutional judicial review, he posits, there will be more development of statutory rights and perhaps even a growth in welfare rights (p. 165). 

Three, legislative action tends to be more durable. When the legislature protects rights, it is rare for subsequent legislatures to produce those protections, but the judiciary often retracts its protections when new justices reach the bench.

David Kairys, Law Professor, Temple University, 1993 (WITH LIBERTY AND JUSTICE FOR SOME, p. 209)

 

Some of the civil rights and liberties protected by courts in the past would, no doubt, be difficult to implement through Congress. Protection of unpopular speech, such as flay burning, and a woman's right to choice in abortion are examples of this difficulty. However, lasting protection in such areas has been difficult to maintain when they are imposed by courts. The opposition to these rights continues and is bolstered by the antidemocratic fashion in which they were adopted. The best we can do -and the principled alternative -is to reinvigorate democracy with a more representative and democratic structure and the clear message that personal freedom is the work of these representatives and all of us, not the exclusive or even primary terrain of courts and lawyers

 

Important Notes on the Question of the Resolution

One very important point is that almost (or all) advocates of judicially-created rights argue that position on the assumption that the legislature is not acting to protect rights.  I don’t know of a single author that argues that the courts should create rights instead of the legislature.  All advocates of judicially-created rights assume that the legislature has not acted to create the rights, leaving the only alternative to be judicially-created rights.

For example, some argue that the judiciary must act to protect minority rights in order to protect them from the majority, but if the majority protects minority rights through the legislative process, there is no need for the judiciary to act.

Judicial action still creates all of the problems that have been previously discussed, including violations of the separation of powers, judicial tyranny, and Hollow Hope. In a world of legislative action (which can be assumed to occur of it’s just a comparison between legislative and judicial action), it’s hard to envision any benefits to court action.

A second important point is that the resolution uses the term createdin reference to the rights that are at issue. Teams cannot simply argue that the courts should enforce rights protections, which they clearly should do, but that they should be involved in the creation of rights.  This is a very important distinction because the arguments of many teams will center around the desirability of protecting rights.

It is also worth noting that the resolution does not say, “In the United States” anywhere in it. Given the different political situations in other countries in the world, it may be more or less desirable for the legislature or judiciary to protect rights in those countries.  There is obviously no space  (or time) to discuss the application of the resolution to every other country in the world, but there is some evidence in the release on many different countries.

Conclusion 

Both the judiciary and the legislature can create rights. The academic discussion concerning the issues related to both is really about if judicial action is appropriate when the legislature has failed to act, not about which branch is best suited to issue the exact same protection. Even advocates of judicially-created rights support legislative action to protect rights, but the flip is not true – advocates of legislatively-created rights do not necessarily support judicial action.  Given this, I strongly encourage you to pick the side the allows you to defend legislatively-created rights.

Of course, it is not impossible to win if you end up having to defend judicially-created rights.  You can argue that the judiciary can protect minority rights at least as well as the legislature and that judicial action avoids complicating the legislative process/disrupting the President’s agenda, and that Court action will advance social change in other areas.

I hope you find this essay to be useful. There is an extensive collection of evidence to support all of these arguments, and more nuanced versions of them, in the NFCL evidence release and pastrelease #1 and past release #2 by Yale’s Minh Louong.