When at Times the Mob Is Swayed
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Heller dealt with the meaning of the Second Amendment, which reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Over the years, two plausible competing readings of the constitutional text emerged, one blue and one red. The blue reading construed the right of the people to keep and bear arms as a way to ensure the ready availability of a pool of armed citizens needed to staff the “well-regulated” citizens’ militia as a protection against military overthrow of the government. The competing red reading argued that the clause about the right to keep and bear arms should be read in isolation from the militia clause because discussion of militias was merely an explanatory preface, not a legal restriction. Under the red reading, the right to bear arms becomes a deep protection of individual autonomy, not an engine of community.
Literalism fails to break the tie between the two competing readings. No matter how many dictionaries you consult, the riddle of which clause should predominate remains unanswered. Stymied literally, all nine justices in Heller embarked on an originalist quest for the true meaning of the Second Amendment, virtually cornering the market on historical texts. When the history smoke cleared, five Republican justices were sure that the Founders had intended the autonomy-protective “bear arms” clause to trump the equality-protective “militia” clause. Four justices—two Democrats and two maverick Republicans, John Paul Stevens and David Souter—after communing with the same historical materials, were equally sure that the “militia” clause trumped the “bear arms” clause.
You can agree or disagree with the result in Heller, but it is simply impossible to claim that the justices’ intensive historical investigation into the Founders’ intentions and understandings about the meaning of the Second Amendment delivered a single right answer to the text’s meaning. The justices’ values broke that legal and historical tie.
If originalism cannot produce a single right answer in a case like Heller, it’s fair to ask why we should look to the eighteenth century, with its quaint world of muskets and rural farmers, for guidance about constitutional law governing gun ownership in a twenty-first-century world of massive firepower in densely populated urban settings. Justice Scalia, a dedicated originalist, answered that even if historical research into original meaning results in more than one plausible answer, it is better for the justices to disagree over history than to disagree over values and politics.
Such a last-ditch defense of originalism might seem more persuasive if, as an empirical matter, a justice’s view of history didn’t almost always reflect the justice’s values. It’s simply amazing how often the members of the eighteenth-century “general public” share the values of the justice who is asking them about the original meaning of an ambiguous constitutional phrase. In Heller, the Founding rascals told one thing to Justice Scalia and another to Justice Stevens.
In fact, experience and common sense teach that whenever uncertainty and legitimate disagreement emerge about the historical meaning of an ambiguous text, originalism becomes a replay of the scene in Guys and Dolls where Big Julie is losing at craps and wants to substitute his own dice. “But Big Julie,” objects Nathan Detroit, “there are no spots on your dice.” Big Julie responds: “I remember where the spots were.” Antonin Scalia couldn’t have put it better.
Constitutional experts and judges spend a great deal of time doubling down on their claims that their particular approach is the Rosetta Stone decoding the Constitution’s one true meaning. If decibels equaled truth, the originalists, who tend to shout the loudest and pound the table, would prevail. But simply shouting louder can’t turn originalism into a way to decipher the Constitution’s one true meaning. In the end, originalism merely licenses justices to maximize autonomy without worrying about equality—and to pretend that Madison made them do it.
While you’ll never find a Democratic justice who embraces Justice Scalia’s brand of originalism, it is possible to generate a Democratic version of originalism that would treat the drafters of the Thirteenth, Fourteenth, and Fifteenth Amendments as a second set of Founders on a par with the first set of Founders in Philadelphia. A Democratic (or principled Republican) originalist judge would then feel bound to insert the idea of equality into the ethos of the Founding and imagine how equality would have interacted with the Founders’ commitment to autonomy. Maybe that’s what justices like Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan actually do.
In fairness, no one else makes a more persuasive case for their recipe for teasing a single correct meaning from the constitutional text. Justice William Brennan Jr., the great liberal icon and my personal hero, called his approach “constructive originalism.” He also claimed to talk to Founders. Unlike Justice Scalia, though, Justice Brennan didn’t pretend that he was talking to a real Founder and discovering an actual historical fact. Instead, he invented a “reasonable Founder,” rotated the reasonable Founder forward two hundred years and asked him (it was always a him) what the text should mean today. He called it a search for “the living Constitution.”
While Justice Brennan’s “living Constitution” approach frees us from the prejudices of the eighteenth century, allows us to factor equality into the text, and, in my opinion, delivered magnificent constitutional law, it hardly qualifies as a serious method of finding a single right answer in the constitutional text. As with Justice Scalia’s real Founders, I wonder whether any of Justice Brennan’s fictive Founders ever disagreed with him. As an effort to derive a single correct objective meaning from the constitutional text, Justice Brennan’s nocturnal conversations with fictive Founders were even worse than Justice Scalia’s scene from Guys and Dolls. It’s closer to Monty Python. Communing with fictive Founders may have assured Justice Brennan that those Founders would wish the Constitution to enshrine the “one person, one vote” principle in Baker v. Carr and the First Amendment “marketplace of ideas” in New York Times v. Sullivan, but the rest of us were just not in on the conversation.
A third approach, often called “purposivism,” championed by, among others, Justice David Souter during his underappreciated nineteen years on the Supreme Court, does not pretend to talk to long-dead Founders, real or imagined. Instead, it seeks to ascertain the underlying “purpose” of a constitutional phrase, using text, precedent, history, values, and the structure of the Constitution as a guide, and to construe doubtful constitutional phrases in a way that advances their underlying purpose. In effect, it’s the Brennan approach without the nocturnal theatrics.
Most American judges, including a majority of the current Supreme Court, use the Souter method today as their preferred way of deciphering the constitutional text. But while constitutional purposivism is capable of producing excellent constitutional law, it too fails to produce single right answers about the Constitution’s true meaning. The twin judicial tasks of ascertaining the dominant purpose of an ambiguous constitutional provision and deciding how best to advance that purpose in the modern era require repeated value-laden judgment calls.
Justice Stephen Breyer’s spin on purposivism takes it to an even higher level of generality. He finds a dominant general purpose to enhance equal participation in democratic self-governance in the Constitution’s deep structure and professes to break legal ties in hard constitutional cases in a way that advances such a laudable ideal. There is, of course, nothing wrong with such a characteristically Democratic, equality-friendly approach. It usually leads to excellent blue outcomes. But it hardly qualifies as a blueprint for single right answers. Why not, for example, treat the characteristically Republican vision of robust individual autonomy as the overarching purpose of the Founders? That would lead to red outcomes.
Finally, a few intrepid souls calling themselves “pragmatists,” led by former judge Richard Posner, acknowledge that the constitutional text is usually too ambiguous to generate single right answers, and that the variants of originalism and purposivism fail to deliver an objectiv
ely correct reading of the text. Judge Posner, during his distinguished service on the Court of Appeals for the Seventh Circuit, argued that the Founders’ use of ambiguous constitutional phrases at a high level of generality operated as a grant of power to future generations to interpret the constitutional text pragmatically. That is just what the Supreme Court did in Brown v. Board of Education when, in 1954, it rejected ninety years of contrary precedent to begin the process of ending racial apartheid in the United States. But such a process, wholly dependent on a judge’s personal assessment of what the times require, cannot possibly generate a single right answer.
So the dirty little secret of American constitutional law is that, except for literalism in a few trivial settings, none of the approaches to reading the constitutional text delivers a single constitutional meaning. Like it or not, Supreme Court justices must make choices about the text’s meaning in deciding many constitutional cases. That’s where values come in.
Dirty secrets about judicial role also generate guilt. American judges, trapped between democratic political theory that asks skeptically where the power of value-driven judicial review comes from and a constitutional text that stubbornly resists yielding clear constitutional commands, often harbor guilt complexes about exercising judicial review. It’s what drives many judges into embracing originalism, even though they know it doesn’t work. I wish American judges would get over their guilt complexes and confront the inevitability of judicial choice about what the Constitution means. They have nothing to be ashamed of when their values operate to break legal ties in hard constitutional cases. To the contrary, I believe that American judges should proudly acknowledge that when text, precedent, and consensus values fail to provide a single right legal answer, a justice’s value choices often underlie the act of reading the constitutional text—not merely because such value choices are inevitable in many cases but also because using a justice’s value choices to break textual ties in hard constitutional cases is at the core of the deferred democratic process that harmonizes judicial review with our deep commitment to government by the people.
As I’ve argued, although it markets itself as an apolitical institution operating outside of politics, the Supreme Court often functions politically as a forum of indirect, deferred democracy. Viewed as an institution of deferred democracy, the Supreme Court has been a remarkably stable partisan institution. As we’ve seen, partisan political control of the Court has changed hands only three times since the Civil War. Republicans controlled the Supreme Court from 1865 to 1937. Twenty-one Supreme Court vacancies were filled between 1900 and 1932. Republican presidents filled eighteen, appointing a Republican-dominated Supreme Court that generated a series of autonomy-driven, characteristically Republican constitutional precedents favoring legal arguments protective of autonomy in cases such as Lochner v. New York striking down wage and hours protections for workers and Hammer v. Dagenhart, invalidating child labor laws.
Democrats have controlled the post–Civil War Supreme Court only once, from 1937 to 1972. Twenty-two Supreme Court vacancies were filled between 1932 and 1968. Democratic presidents appointed seventeen (not counting President Eisenhower’s nomination in 1954 of maverick California Republican governor Earl Warren as chief justice), ushering in the nation’s only Democratic-dominated Supreme Court, which repeatedly broke legal ties in favor of the weak, sweeping away two layers of Republican-era blocking precedents and enabling progressive reforms in both the economic and social arenas.
The first layer of dead Republican precedents was swept away by “the switch in time that saved nine”—the about-face by one Republican justice, Owen Roberts, who apparently changed his voting pattern to uphold the National Labor Relations Act in response to President Roosevelt’s threat to pack the Court with six additional Democratic justices—and by FDR’s ability to appoint four new justices between 1937 and 1941. The newly Democratic Supreme Court dramatically expanded the power of Congress (under the commerce clause) and states (under the due process clause) to regulate the economy in order to protect the vulnerable, ushering in the constitutional foundation for the modern regulatory state.
The second layer of dead Republican precedents (such as Plessy v. Ferguson, upholding racial segregation), which had favored the autonomy interests of southern racists over racial equality interests, was swept away by an avalanche of equality-driven cases (such as Brown v. Board of Education) that established the constitutional foundation for mass movements seeking equality for people of color, women, and gays.
Republicans regained majority control of the Supreme Court in 1972 and have held it ever since. In the early 1970s, the newly Republican-controlled Supreme Court quickly reverted to form, announcing a series of constitutional decisions favoring autonomy over equality. The newly minted Republican precedents froze the progressive reform agenda in areas ranging from educational equity to racial fairness, gender equity, access to the courts, democratic fairness, and regulatory authority.
The heightened Republican focus on autonomy provided a welcome boost for women’s equality. It turns out that abortion is one of those areas, like free speech, where autonomy and equality run on parallel tracks. Concern for a woman’s autonomy reinforces her right to control her own body. Concern for women’s equality reinforces the right of a woman to plan her life. In 1973, under a newly Republican Supreme Court, a signature gender-equality precedent, Roe v. Wade’s protection of a woman’s right to control her reproductive life, was established. The majority opinion was written by Harry Blackmun, a Republican justice, and the case was decided 7–2 by a Republican-controlled Court. But recall that Roe was initially viewed as a pure autonomy case, protecting a woman’s right, in consultation with her doctor, to decide what is best for her health, both physical and mental.
Viewed as a case about the right to be left alone, Roe fit neatly into the value system of the Republican justices as a logical extension of the well-established autonomy-driven precedents protecting the right to use contraception. It was not until sustained, religiously motivated insistence that the fetus also deserved autonomy-based protection had eroded the autonomy underpinnings of Roe that Justice Ruth Bader Ginsburg—the “Notorious RBG”—reconceptualized the case in gender equality terms.
As Roe demonstrates, shifting the Supreme Court from Democratic to Republican control does not endanger autonomy-based rights. Indeed, it usually strengthens them. Thus, the development of a Supreme Court jurisprudence deeply protective of free speech, begun in the 1960s under a Democratic Court that viewed free speech as protective of both autonomy and equality, continued with the post-1972 Republican-controlled Supreme Court, in which Republican justices were enthusiastically joined by the Democratic minority to double down on powerful free speech protections.
The Republican justices saw themselves as protecting autonomy. The Democrats extolled the equality-enhancing power of free speech to alter the status quo to protect the weak. Only when the autonomy rationale ran headlong into the equality rationale, as it did in cases involving campaign finance reform, hate speech, and privacy, did the Court fragment into Republican and Democratic First Amendment voting blocs.
Not surprisingly, the post-1972 Republican majority eviscerated many Democratic precedents designed to advance equality, especially the Warren Court’s criminal procedure cases, which were indirect efforts to deal with rampant racial discrimination at every level of the criminal process. And as Roe increasingly became understood as an equality case, it too became the target of a Republican majority bent on eroding it.
With Justice Scalia’s unexpected death in February 2016, the Court reverted to a 4–4 partisan tie. President Obama’s nomination of Chief Judge Merrick Garland, a moderate Democrat, to fill the ninth seat moved the Court to the cusp of a shift to the nation’s second post–Civil War Democratic majority. The Republican Senate’s adamant, unconstitutional refusal even to consider the Garland nomination, followed by President Trump’s unexpected minority victory in the 201
6 presidential election and the confirmation of his nominees, Neil Gorsuch and Brett Kavanaugh, by a radically malapportioned Senate narrowly controlled by the Republican Party, not only maintained the Supreme Court’s Republican 5–4 majority but shifted the ideological balance even more firmly in favor of autonomy and against equality.
At best, the current Republican-controlled Supreme Court will value autonomy over equality; at worst, it will permit the erosion of both of those prime constitutional values in the name of deference to the imperial presidency. The process may have already begun in Trump v. Hawaii, the challenge to President Trump’s travel ban targeting predominantly Muslims, where the Court’s five Republican justices subordinated the equality and autonomy-enhancing values of religious toleration to deference to unconstrained presidential authority in national security settings. As the travel ban case illustrates, the greatest risk posed by a Trumpist Supreme Court is not that it will favor autonomy over equality. Republican justices have been doing that for years. As long as we don’t revert to a Dred Scott world where equality is entirely written out of the Constitution, damage to the weak caused by overvaluing autonomy, while deeply troubling, can eventually be reversed at the polls and by future courts.
The greater risk is that additional Trump appointees may share the president’s disdain for both autonomy and equality, as well as the very idea of judicial review. That’s the formula that gave us Korematsu v. United States (upholding the placement of Japanese Americans in concentration camps during World War II), Dennis v. United States (upholding the jailing of the leadership of the American Communist Party during the Cold War), and United States v. O’Brien (upholding the jailing of draft card burners during the Vietnam War). That’s also the formula that upheld the president’s travel ban, despite the chief justice’s pious assertion that the Court’s five-justice majority was rejecting Korematsu. Trump v. Hawaii is simply Korematsu in modern dress. Imagine the damage a narcissistic authoritarian such as Trump can do if the Supreme Court, like the craven German judges in 1938, routinely defers to the leader’s judgment on questions of national security.