Judicial Review
...g, and it is far easier to use the Constitution to rule against an existing government activity than to create a new government activity. For these reasons the courts lack initiatory power, and can generally only limit existing policies. In Brown v. Board of Education, a rare case that could be said to mandate new government action, the decision of the Supreme Court achieved no practical effect until it had received concerted support from the rest of the federal government for some time. That is representative of the Court’s general ability to make such changes. In another case that dramatically changed national policy, NLRB v. Jones & Lauglin Steel Corp., the Court’s ruling coincided with the Roosevelt Administration’s plan to take a more active role in the eocnomy, which was backed by a popular mandate. Within those structural limits, the courts have a vital role to play in the government through judicial review. Without that function, the Constitution would essentially be a set of non-binding guidelines for the government to follow if it chose. Experience bears this point out. It was not until Mapp v. Ohio that the Fourth Amendment became an active piece of law; during the era of judicial passivity, the government had been allowed to violate it largely with impunity. The same was true of the Fourteenth Amendment’s equal protection provision. Were government officials, even elected representatives of the people, allowed to act against the consitiution whenever they chose to do so, abuses of power and political instability would result, and indeed did result for quite some time. Since federal judges are appointed by the president, one might think that they would share the agenda of the rest of the goverment, but that has proven incorrect time and time again. The devices political leaders generally use to bring other politicians into line are not generally applicable to the courts because of their independent nature. Insofar as the courts do set an agenda independent of the rest of the government and reaching beyond the mere limitations of its actions, it tends to be a progressive agenda that serves liberal democracy well. The most important policy initiative undertaken by the courts that lacks a direct mirror in the other branches of government is the derivation of the right to privacy, which began with Griswold v. Connecticut in 1965. The Constitution does not explicitly recognize such a right, but it...