The Revolution, The Constitution, and America's Third Century; The Bicentennial Conference on the United States Constitution: A social and philosophical examination of the Constitution, its two centuries of influence on American life, and its implications for future generations

Philadelphia: University of Pennsylvania Press for the American Academy of Political and Social Science, 1980. First Edition. First Printing. Hardcover. Very good. 2 volumes in slipcase. Volume I, xi, 318 pages. Illustrations. Notes. Index. Volume II, 476 pages. Biographical Information on Conferees. Notes to Discussion Material. Reflections on the Conference by Herbert Wechsler. Index. Volume II has minor corner bumping. Slipcase has some wear and soililng. Foreword by Chief Justice Warren E. Burger. Whose view of the Constitution should be authoritative? The Constitution itself did not explicitly say. In 1803, the Supreme Court, under Chief Justice John Marshall laid claim to the power of judicial review. In the case of Marbury v. Madison, Marshall asserted the judiciary's power to interpret the Constitution and to nullify laws it deemed unconstitutional. Noting that Article VI, Section 2, enjoins the courts to enforce only laws that are "in pursuance" of the Constitution. Marshall contended that before the court is entitled to enforce a law, it must first determine whether the law is in fact in pursuance of the Constitution.

The Constitution, Marshall declared in that decision, was "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs....To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." Champions of states' rights and of a strict construction of the Constitution were hardly silenced by the decision. Marshall and the court were frequently criticized. And there was considerable opposition to judicial review. Jefferson repeatedly contended that giving the Supreme Court the exclusive right to interpret the Constitution would make it "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

If the Constitution was admired in the pre-Civil War era, it was venerated in the last quarter of the 19th century. In 1913, however, the conservative world was scandalized-and Progressives were cheered-by a book about the matchless instrument, An Economic Interpretation of the Constitution of the United States by historian Charles A. Beard. Beard contended that the "overwhelming majority" of the members of the Constitutional Convention, far from being "disinterested," had been "immediately, directly, and personally interested in the outcome of their labors at Philadelphia, and were to a greater or less extent economic beneficiaries from the adoption of the Constitution." They had built the new government "upon the only foundations which could be stable: fundamental economic interests." Liberal reformers continued to be frustrated by the Supreme Court. Sen. Robert LaFollette, the Wisconsin Progressive, argued in 1922 that the court had usurped the power of judicial review. In the half-century since. Howard has noted, the court, while abandoning "judicial activism" in the economic sphere, "has made vigorous use of the Constitution to police governmental acts in other areas. In a sense, it has turned its attention from 'property rights' to 'human rights.'" The court's landmark decisions-among them. Brown v. Board of Education (1954) on school segregation. Baker v. Carr (1962) on proportional representation in state legislatures, Gideon v. Wainright (1963) and Escobedo v. Illinois (1964) on the right to counsel, Miranda v. Arizona (1966) on the right to avoid self-incrimination, and Roe v. Wade (1973) on abortion and the right to privacy-have gladdened the hearts of liberals and given conservatives reason to complain of "judicial supremacy."

One noted political conservative, Attorney General Edwin Meese Ill, called in 1985 for a return to "a jurisprudence of original intention." Rejecting Meese's views, Justice William J. Brennan Jr. said. "The ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." Whether judicial activism over the decades has found critical favor or disfavor among liberals and conservatives seems often to have depended on whose political ox was being gored. But when the power of the judges is viewed in perspective, it appears rather limited.