Bend Sinister Summary

Ideology and the role of the judiciary are frequently in tension. In Six Great Inventions in the Art of the Government, Samuel Finer praises Judicial Review as one of the practices that established and shaped the modern state. He sees the Supreme Court’s ability to interpret a case to protect American citizens as foundation of an effective government. Nonetheless, Judicial Review is more applicable as a doctrine than as an unchanging invention. Theodore Lowi’s piece Bend Sinister: How the Constitution Saved the Republic and Lost Itself would inherently disagree with Finer. Instead of viewing judicial review favorably, Lowi condemns the United States government for participating in illegitimate practices. Judicial Review determines that the

For the first era of the Constitutional System, the right of pursuit of happiness was directly equated with Property Rights. Legislators, however, had trouble with the precise application of constitutional law. In attempting to resolve the issues of the scope of protections to different rights, the concept of Judicial Review became the process for declaring legislation unconstitutional. Judicial Review, however, was not concrete as it was influenced by the everchanging constitutional thought of the time. In the beginning of the United States, Property Rights were the most protected rights. This was because many Americans asserted that persons responsible for state and national constitutions were to be committed to protecting Property Rights, as this was the most important part of securing their national freedom. This influenced Judicial Review to consider many restrictions to the freedom of property as unconstitutional. Other rights such as the Freedom of Speech and Equality, were not considered as important and received far less protection. In regards to free speech, the consensus was that citizens had right to speak, think, and write freely but with decency and truth. This led to Judicial Review ruling what was decent and true. In the case of Equality, many Americans believed anti-slavery constitutional provisions were a

However, there were also many who believed that Judicial Review would lead to Justice-created policy. Cases such as Barron v Baltimore settled much of this debate, declaring the United States Bill of Rights did not have power over state governments. This ruling echoed the sentiment of the people over judicial power rather than sentiment towards state power. The judicial independence of the Justices worried those who believed that judicial rulings would reflect the moral and political views of the Court, rather than of the Constitution. This led to controversies over what exactly this commitment looks like in practice, as well as citizens questioning the legitimacy and authority of the rulings. Constitutional decision makers chose to stay on par with the majority opinion, and advanced the rights of middle and lower class white men’s rights the most. This reflected the prioritization of white males who did not own property, as they attained voting and other democratic rights not held previously. Meanwhile, the same constitutional decision makers restricted the rights of racial minorities and women. By choosing to not be perceived as legislators, the court limited its own