To the extent that we believe in popular self-government, we should be skeptical of the value of constitutional restrictions on policy choices, favor their narrow interpretation, and adopt a strong presumption against the creation of new ones. Such restrictions make sense when a government is seen as the result of a contract between the people and their sovereign, but much less so, as Hamilton pointed out, when the people are themselves the sovereign.16 Constitutionalism, as Jefferson and other believers in democracy have noted, can amount to the rule of the living by the dead.
It is not rule by the dead, however, that is now challenging and undermining American democracy; it is judicial activism, rule by judges who are all too much alive.17 “Judicial activism” can most usefully be defined as rulings of unconstitutionality not clearly required by the Constitution—“clearly” because in a democracy the opinion of elected legislators should prevail over that of unelected judges in cases of doubt. Rulings upholding as constitutional the laws that the Constitution clearly prohibits are not only extremely rare (at least apart from the question of federalist limits on national power) but should, in any event, be seen as examples not of activism but of restraint, refusals by judges to overturn the policy choices made in the ordinary political process.18 Decisions overturning activist decisions should be seen, of course, as not activist but de-activist, as undoing activism and returning policy issues to the ordinary political process.
All or almost all the Supreme Court’s rulings of unconstitutionality, beginning at least with the Warren Court, are examples of judicial activism—usurpations of legislative power—in that they were not clearly, and usually not even arguably, required by, and indeed were sometimes in violation of, the Constitution. It is not the power of judicial review as such, therefore, that accounts for the dominant policymaking role the Court has assumed in our society but the Court’s abuse of the power. If the Court did in fact only what it invariably claims to do—enforce the Constitution—occasions for its invalidation of policy choices made in the ordinary political process would be rare enough to make judicial review a matter of little more than academic interest. The central question, of course, is why, in a supposedly democratic society, these judicial usurpations of legislative power to impose policy choices that legislators could not impose are permitted to continue.
The Irrelevance of the Constitution to Constitutional Law
Part of the answer undoubtedly is that the proponents and beneficiaries of rule by judges, the cultural elite, have succeeded in keeping the nature and source of constitutional law mysterious and obscure. Americans have been taught almost from birth to respect judges as part of respect for the rule of law. Only judges, of all our government officials, dress in robes and issue decrees from structures resembling temples. Judges, the public understandably wants to believe, are servants of the law, protectors of citizens from powerful and untrustworthy bureaucrats and other government officials. It is apparently difficult for the public to recognize the extent to which the judges are power-wielding government officials themselves, and indeed the most dangerous because for relief from the decrees of oppressive judges, as in the forced-busing cases, there is no court to which one can turn.
That the Constitution has little to do with constitutional law should be too clear to be a serious matter of controversy. The Constitution is a very short and apparently straightforward document, easily printed with all amendments, repealers, and obsolete matter on a dozen ordinary book pages. It is not at all like the Bible, the Talmud, or even the Tax Code, extensive tomes in which many things may be found with diligent search. It was adopted in 1789, replacing the short-lived Articles of Confederation, not to provide greater protection for individual rights—a stronger national government was rightly seen as a danger to liberty—but mainly for pressing financial and commercial reasons. The new national government, the Constitution’s proponents claimed, would be a government of limited powers, but its powers—including the power to tax in order “to provide for the common defense and general welfare,” the power to regulate interstate and foreign commerce, and the power to make war—were stated broadly enough to make them, as proved to be the case, very difficult to confine. Nor does it seem that the American people really want them to be confined; federalism is highly praised in theory, but rightly or wrongly, the people seem in practice to want a “normal” national government, one that is, like those of other countries, capable of dealing with whatever comes to be seen as a widespread problem.
The original Constitution placed very few restrictions on the exercise of granted national powers and even fewer on the general legislative authority of the states. Both were prohibited, for example, from passing ex post facto laws or bills of attainder and from granting titles of nobility.19 The only significant limitation on state power in constitutional litigation was the clause prohibiting any state “law impairing the Obligation of Contracts,” meant to disallow debtor-relief legislation.20 More restrictions on the exercise of federal, but not state, power were imposed by the adoption of the first ten amendments in 1791, the so-called Bill of Rights, but they are of limited scope, having mostly to do, apart from the First Amendment’s guarantees of freedom of religion, speech, and the press, with criminal procedure.
Not only is the Constitution short but very little of it is even purportedly involved in most so-called constitutional cases. The great majority of such cases involve state, not federal, law, and nearly all of them purport to be based on a single constitutional provision, one sentence of the Fourteenth Amendment, which has in effect become our second Constitution, largely replacing the original. The all-important sentence provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”21
The origin and purpose of this provision are not mysterious or obscure. The “one primary purpose” of all the Civil War or Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth—the Court said in its first consideration of the question in the 1872 Slaughter-House Cases, “without which none of them would have been even suggested,” was “the freedom of the slave race, the security and firm establishment of that freedom. . . .”22 The Thirteenth Amendment abolished slavery, the Fourteenth granted blacks basic civil rights (to own property, make contracts, have access to courts), and the Fifteenth added a political right, the right to vote.
In the Slaughter-House Cases, the majority in effect read the “privileges or immunities” clause out of the Fourteenth Amendment on the ground that the way it was being interpreted by the minority and plaintiffs (white butchers challenging the regulation of slaughterhouses in New Orleans) would have made it applicable to almost any law. The result, the majority feared, would have been to make the Court “the perpetual censor” of all state laws and end the federalist system by making Congress’s power to enforce the amendment (granted by its Section 5) a grant of unlimited power. The due process clause, the Court indicated, obviously imposed only a procedural, not a substantive, requirement on state law, and the Court “doubt[ed] very much” that the equal protection clause would ever be applied to anything except “discrimination against the negroes as a class.”23
The abnegation displayed by the majority in Slaughter-House was not due to last. Judicial review means that the losing side of an issue in the ordinary political process has an alternative way of becoming the winning side. For lawyers representing railroads and other business interests, the Fourteenth Amendment was a cornucopia of verbal ammunition with which to induce sympathetic judges to rescue their clients from a growing array of state regulatory measures.24 After at first protesting incredulously that the Fourteenth Amendment gave it no such power,25 the Court finally succumbed.26 Because “natural law” concepts had gone out of fashion, it was necessary that constitutional decisions purport
to be based on constitutional language. The due process clause and, to a lesser extent at first, the equal protection clause were seized on to meet the need.
The Court converted the due process clause from a requirement of procedural regularity—essentially, that criminal trials be in accordance with the preexisting legal procedure—to a restriction on the substance of laws, creating the oxymoronic doctrine of “substantive due process.” The justices thereby effectively empowered themselves to pass on the substance of all laws and to invalidate any they considered “unreasonable.” The result was to convert the clause from a legal rule to the simple transference of decision-making power, making the Court precisely the “perpetual censor” of all state and (under the due process clause of the Fifth Amendment) federal laws that the Court had resisted becoming in Slaughter-House. The Court later similarly converted the equal protection clause from a prohibition of racial discrimination into a prohibition of any discrimination—for example, on the basis of sex, alienage, or illegitimacy—that a majority of the justices considered “unreasonable.”27 Since nearly all laws limit liberty (restrict conduct) and discriminate (classify), the Court in effect granted itself an unlimited power of judicial review by merely citing one or both of the clauses, enabling it to invalidate almost any law on no other basis than a disagreement by a majority of justices with the policy choice involved.
From the late nineteenth century until the “constitutional revolution” of 1937 that took place under the pressure of President Roosevelt’s proposed “Court-packing plan” and his appointment of his own justices, the Court used the doctrine of substantive due process to invalidate both state and federal business and economic regulations. Justices Hugo Black and William Douglas and other New Deal justices, more inclined to favor than oppose business and economic regulation, rightly denounced these decisions as usurpations of legislative power and vowed that the Court would never again “sit as a ‘super legislature’ to weigh the wisdom of legislation.”28 The Court did cease protecting business and economic interests after 1937, but its renunciation of the role of “super legislature” was short-lived.
In its famous footnote four of the Carolene Products case, the Court announced that its newfound restraint in business and economic matters would not extend to all matters. It would engage now in what might be called a “functional” judicial review, intervening in the political process, not necessarily because of the Constitution but because of a belief that its intervention was “needed.” It would intervene now, for example, to protect “discrete and insular” minorities that it considered insufficiently protected by the political process and to improve the political process itself by correcting what it considered defects.29 The result was a 180-degree turn away from the Court as the protector of property rights and of the economic and social status quo to the Court as the champion of egalitarianism and engine of social reform.
The Court attempted at first to distinguish its new program of active reentry into the political process from the renounced doctrine of substantive due process by showing that its current interventions were based on something in the Constitution, not merely on the justices’ subjective determinations of the “reasonableness” of policy choices. To this end, it greatly increased the amount of constitutional language apparently available to it by announcing, in a series of decisions mostly in the 1960s, that the Fourteenth Amendment’s due process clause “incorporated”—that is, made applicable to the states—most (though not all; the Court gets to choose) of the provisions of the first eight amendments.30 First among the many reasons to reject this implausible conclusion is that so basic a change in our federalist system should not be assumed unless stated in unmistakable terms. Further, the addition or expansion of constitutional restrictions should be disfavored because they limit self-government and, much worse, because in the hands of judges they inevitably evolve from legal rules to simple transferences of policymaking power. The historical evidence is strongly against the claim that the states that ratified the Fourteenth Amendment willingly and knowingly bestowed on the Court the enormous power it now exercises over them under the rubric of the selective incorporation doctrine.31
The doctrine does not, in any event, legitimate the Court’s rulings of unconstitutionality, because they do not in fact follow from the supposedly incorporated provisions. It is not clear, to say the least, that the First Amendment’s prohibition of laws respecting an establishment of religion, for example, even if incorporated, prohibits a state from making provision for prayer in public schools or from allowing the display of the Ten Commandments in a courthouse.32 It is even less clear, in fact surely incorrect, that the First Amendment’s protection of “the freedom of speech” was meant to protect nude dancing, flag burning, and political demonstrations in an elementary school classroom.33 To take another example, the incorporation of the Fifth Amendment’s prohibition of double jeopardy, if held to its intended meaning, would not invalidate any state law because no state permits, or has ever permitted, two complete, separate trials for a single offense.34
Even the selective incorporation doctrine and an expansive interpretation of the Bill of Rights provisions proved inadequate, however, to the justices’ need to purport to find constitutional grounds to invalidate laws that they strongly disapproved of. Griswold v. Connecticut, for example, involved a challenge (in fact, the third challenge) to Connecticut’s anticontraception law.35 Connecticut was not big enough for both Yale University and a law so offensive to the Yale law faculty (a member of which argued for plaintiffs), and Connecticut proved no match for Yale in the Supreme Court. The Court, accordingly, in an opinion by Justice Douglas, a former Yale law professor, found that the law was unconstitutional but had some difficulty in stating the ground.
Having renounced and reviled substantive due process for so many years, Douglas could hardly simply declare the law invalid because it was “unreasonable,” and he explicitly declined to do so. The Court would no longer, he reiterated, “sit as a super-legislature to determine the wisdom, need and propriety of laws that touch economic problems, business affairs, or social conditions”; it would now only enforce actual constitutional rights. The inconvenient fact that there was no relevant constitutional right Douglas overcame by imagining and enacting a new one, the right of “privacy.” Although this right could not be found in the Bill of Rights itself, it could be found, Douglas explained, in the “penumbras, formed by emanations” from Bill of Rights provisions.36 How this juvenile maneuver conceals better than the doctrine of substantive due process the fact that the Court is acting as a superlegislature is not apparent, except perhaps to the justices who joined the opinion. What the alleged right of privacy had to do, in any event, with a law prohibiting the public operation of a birth control clinic, the issue in the case, is also unclear.
Another way by which the Court purported to avoid the dreaded doctrine of substantive due process and acting as a superlegislature was by finding surprising new meanings in the equal protection clause. In Levy v. Louisiana, for example, it took the Court less than four pages of the United States Reports to overturn the centuries-old distinction in Anglo-American law, European civil law, and probably the law of all developed societies, between legitimate and illegitimate birth. Illustrating his typical contempt for traditional values and popular opinion as well as the Constitution, Justice Douglas, writing for the Court, found support for this revolutionary decision in a speech by Edmund the Bastard in Shakespeare’s King Lear.37 It would be difficult to imagine a distinction that the Fourteenth Amendment was less meant to prohibit, but that is irrelevant to justices who see no need to look outside themselves for wisdom or authority.
Illegitimates, Justice Douglas considered it sufficient to point out, were not responsible for their legal status, something, he apparently thought, his less perceptive or benevolent predecessors in the history of western civilization had failed to realize. That removing or lessening the social stigma previously attached to illegitimacy i
s responsible for its subsequent explosion we cannot be certain, but it cannot have helped. It also served to make clear that nothing is so universally accepted and fundamental a part of American (or Western) civilization that it cannot be obliterated by a Supreme Court decree.
Griswold and Levy exemplify Supreme Court decision making on matters of fundamental social importance on no basis other than the justices’ arrogant confidence in the rightness of their policy preferences and willingness to impose them on their fellow citizens. Because this constitutes an obvious abuse of office, convention requires that they make a pro forma attempt to show that the decision follows from the Constitution. This impossible task requires the permissibility of standards of reasoning in Supreme Court opinions that would not be acceptable in a discipline that aspired to the level of intellectual respectability of astrology. The justices, we are apparently expected to understand, are after all only lawyers, professionally permitted the unembarrassed assertion of whatever is needed to reach a desired result. The misstatements of fact and defects of logic, almost inevitable in Supreme Court opinions explaining rulings of unconstitutionality, do not make the rulings—any more than does the absence of a constitutional basis—less authoritative. “We are not final,” Justice Robert Jackson famously pointed out, “because we are infallible, but we are infallible because we are final.”38 The Court is not supreme only in name.
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