It is unmistakable that our current Supreme Court plays a robust role in our republic. And according to Joseph Story, that is what the Founders intended.
Justices Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy have recently weighed in with their perspectives on the scope of judicial power. In August 2013, Justice Ginsburg commented, “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.” Weeks later, Justice Scalia noted that the Court is activist when it creates “new” rights not articulated by the framers in the Constitution. Justice Kennedy made a plea for a more modest approach, stating that a “society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”
So what is the proper role of the court? In his Commentaries on the Constitution, Story noted that “the power to construe the constitution [was] expressly confided to the judicial department, without any limitation or qualification, as to its conclusiveness.”
Without a strong judiciary, Story continued, “the government must perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty.”
Story wrote the Commentaries, in part, to “impress…upon Americans a reverential attachment to the Constitution, as in the highest sense the palladium of American liberty.”
Please join us at 5:30 p.m. on Wednesday, October 23 (or watch online), for the sixth annual Joseph Story Distinguished Lecture given by Judge Diarmuid O’Scannlain. Judge O’Scannlain, who sits on the U.S. Court of Appeals for the Ninth Circuit, will discuss Joseph Story, the natural law, and modern judicial review.
The namesake of this annual lecture—the eminent jurist Joseph Story—became the youngest associate justice ever to serve on the Supreme Court of the United States when President Madison appointed him at the age of thirty-two in 1812. Story made a significant mark on American law in his 33 years on the bench, but his greatest contribution to jurisprudence is his renowned Commentaries on the Constitution. This lecture series celebrates his legacy.
Previous Joseph Story Lectures have been delivered by Judge Robert H. Bork, Professor John Harrison, Judge A. Raymond Randolph, Chief Judge Alice M. Batchelder, and Supreme Court Justice Anthony Kennedy.
This piece originally appeared in The Daily Signal