In a speech given in New York almost 100 years ago, U.S. Chief Justice Charles Evans Hughes argued, “We are under a Constitution, but the Constitution is what the judges say it is” (1). When trying to effect change the presidency, Supreme Court and congress are often at odds with one another over policy and perspective on the U.S. Constitution. In America there is a tendency for politicians, congresspersons, and justices to take an interpretive point of view toward the constitution and to oppose judicial activism. For persons of these kinds on the left, there is a strict reading or non-interpretivist view of the constitution and these individuals typically support judicial activism. If we look at two eras of major constitutional reform in American history, the laissez-faire constitutionalism of the 1870s-1930s and the Warren Court dominant from the 1950s-1970s, we can see these differences as they were played out between those on the right and left.
The political agenda is typically being pushed to the left or the right depending on the justices who serve on the Supreme Court, the political composition of Congress, and the perspective of the presidency. While the Warren era was considered one of judicial activism, the political agenda is not always pushed to the left. The biggest period of activism that occurred at the Supreme Court level before Warren’s reign was the period from the 1870s-1930s. The U.S. Supreme Court repeatedly used the Bill of Rights during this period to strike down redistribution legislation. One Supreme Court Justice, Stephen Field, was so loose in his laissez-faire interpretations of the Constitution that one author wrote, “The fact that Stephen Field had been born too late to participate in the Constitutional Convention was an accident of history that he was happy to correct” (Friedman 54). Such interpretations are plain in cases like U.S. v. E.C. K
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