A Country I Do Not Recognize
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Griswold’s ludicrous but widely lauded invalidation of Connecticut’s anticontraception law emboldened the Court to go on to the next step of invalidating anti-abortion laws as well. In Roe v. Wade, these laws were also found to violate the right of privacy announced in Griswold, but the right was now said to be based not on any constitutional penumbra—once was apparently enough for that joke—but on a frank revival of substantive due process.39 An unlimited power to invalidate laws as “unreasonable” (i.e., as contrary to a majority of the justices’ policy preferences) was clearly a very bad thing, the justices and constitutional scholars had only shortly before agreed, but that was when in the hands of conservative justices the power was used as a brake on social change. In the hands of liberal justices, it became, they now also agreed, an indispensable means of achieving social reforms achievable in no other way. It was not the Court’s acting as a superlegislature that was objectionable, after all, but its legislating policies and preserving values that today’s justices and scholars do not share.
It is not possible to criticize the Court’s explanation of the constitutional basis of Roe, because there is no explanation, only assertion. Surely no one believes that abortion became a constitutional right in 1973 because the Court discovered in the then-105-year-old due process clause of the Fourteenth Amendment something no one had noticed before. But it was no longer necessary that anyone believe this. The Court now felt confident enough of its policymaking status to abandon—except for a pro forma mention of the “Fourteenth Amendment’s concept of personal liberty”—any pretense that its rulings of unconstitutionality necessarily had any constitutional basis.40
Roe is widely condemned as the clearest example of judicial activism since the infamous Dred Scott v. Sandford decision that returned plaintiff Scott to slavery,41 but it is not less legitimate than most or all of the Court’s other rulings of unconstitutionality, which are equally without constitutional basis. Roe is important because by effectively disallowing all state laws protecting the unborn, it is seen by many, probably most, Americans as imposing a sentence of death on millions of human beings and, at the same time, by the cultural elite as a crucial egalitarian social advance. It is an impressive display of the Court’s power—though not necessarily more so than its redistricting, busing, criminal procedure, pornography, and many other decisions—to fundamentally remake American society on no other basis than the commitment by a majority of the justices to an elite minority view. What is most revealing about the Court’s position in our political system is the utter futility of all attempts by the ordinary political system to respond. The election and reelection of a president strongly opposed to unlimited abortion, his appointment of Supreme Court justices, and a stream of state laws and proposals seeking some small protection for the unborn have all proved insufficient not only to significantly limit the Court-created abortion right but even to dissuade the Court from extending it.42
That the irrelevance of the Constitution to the Court’s abortion decisions is in no way unique can be seen in almost any of the Court’s interventions in the political process. Consider, for example, that there was a time when the assignment of children to public schools on the basis of race was constitutionally permissible, a time when it was constitutionally prohibited, and a time, the present, when it is sometimes constitutionally required.43 That covers all the possibilities, yet in all that time, the Constitution was not amended in any relevant respect. An impartial observer would have no trouble concluding that the Constitution is not the operative variable.
That the Constitution was not necessarily the basis of even the great Brown decision can be shown with a conclusiveness approaching that of a scientific experiment. School racial segregation by law was held unconstitutional in Brown, as everyone knows or at least believes, because it was found to be prohibited by the equal protection clause of the Fourteenth Amendment. What if it were possible to test that hypothesis scientifically by a controlled experiment, rerunning the Brown case without the equal protection clause? If the hypothesis is that chemical X causes a complex solution to turn blue, it can be tested by compounding the solution without chemical X, and disproved if the solution still turns blue. Such experiments can rarely be conducted in social science and law. But as if to advance the cause of science, one was in effect conducted on the school racial segregation issue.
On the day the Court decided Brown, it also decided the constitutionality of school racial segregation required by federal law in the District of Columbia, where the equal protection clause, applicable only to the states, was not available. What difference in result did this make? Why, none at all. School segregation was also unconstitutional in the District of Columbia, but now because it was found to be prohibited by the due process clause of the Fifth Amendment, which does apply to the federal government.44 That the Fifth Amendment was adopted in 1791 as part of a Constitution recognizing and protecting slavery has no relevance, of course, to the role it can be made to play in the Supreme Court’s constitutional law ruse. The solution still turned blue!
Consider, finally, the Court’s decisions holding unconstitutional, because prohibited by the First Amendment as “incorporated” in the Fourteenth, state-sponsored prayer in public schools, state assistance to religious schools, and the display of religious symbols on public property.45 These decisions are in a sense even less legitimate than, say, Griswold, Levy, or Roe. The purpose of the religion clauses of the First Amendment was to preclude federal interference in matters of religion, leaving them exclusively to the states.46 While Griswold, Levy, and Roe are based on nothing in the Constitution, the Court’s religion decisions are actually in violation of the very provisions on which they purport to be based. Similarly, the fact that the Constitution explicitly recognizes capital punishment in several places did not prevent Justices William J. Brennan Jr., Thurgood Marshall, and Harry Blackmun from insisting that it is constitutionally prohibited.47
Constitutional law without the Constitution—policymaking for the nation as a whole by majority vote of a committee of nine electorally unaccountable lawyers—is the antithesis of the constitutional system, whose basic principles are representative self-government, federalism, and separation of powers. We should return to the constitutional system not only because it is the one we are supposedly living under, but more important, because it is still the best system of government ever devised, the basis of our extraordinary success as a nation. But why, then, is our present inconsistent and indefensible system permitted to continue and how, most important, can the constitutional system be reinstituted?
Judicial Review: From Conservative Force to Engine of Social Change
That allowing judges to have the final say on any issue of public policy they choose is not an improvement on the constitutional scheme can be seen not only on the basis of theory and principle, but also of experience. The Court’s first significant exercise of the power of judicial review, fifty-three years after Marbury, to invalidate a federal statute was its 1856 decision in Dred Scott v. Sandford, invalidating, on no discernible constitutional basis, Congress’s attempt to settle the slavery question with the Missouri Compromise.48 The result was to leave it for settlement by the Civil War. That experience alone, the possibly otherwise avoidable deaths of over six hundred thousand American men, should have been enough to make clear almost from the beginning that judicial review was, as Tocqueville presciently warned, a very dangerous innovation.49
The Court’s most significant next use of the power was its invalidation of the 1875 Civil Rights Act’s prohibition of racial segregation in public accommodations.50 The result was to give us segregation for an additional eighty-nine years, until it was prohibited again by Congress in the 1964 Civil Rights Act. The most significant uses of the power in the first half of the twentieth century were to invalidate two federal anti–child labor laws and to bring to a temporary halt President Franklin Roosevelt’s New Deal.51 As to the states, it was used mainly at first to protect
municipal bond holders under the contracts clause and, later, to disallow various business and economic regulations under the doctrine of substantive due process.
Hamilton and Marshall, assuming that Supreme Court justices would always be successful, conservative, property-holding lawyers like themselves, undoubtedly thought that judicial review could be a useful restraining force in a democracy. As solid conservatives they most likely believed, along with their contemporary, Edmund Burke, that an inherent danger of popular government is a tendency to make basic social changes too rapidly, rather than too slowly, to enact too many laws, rather than too few. An inherently conservative institution capable only of invalidating laws might provide a safety valve or brake on the radical experiment in democracy contemplated by the Constitution. As plausible as the idea may seem in theory, it is almost surely mistaken, as the Dred Scott decision quickly demonstrated, because power in the hands of government officials remote from popular control is much more likely to be a source of, rather than a correction for, governmental error—that, at least, is the theory of democracy.
Although the history of judicial review would seem to demonstrate its harmfulness, its proponents contend that judicial review has, like the practice of medicine, recently so much improved that it no longer does more harm than good. Whether or not it has improved, it certainly has radically changed. Largely because of the Court’s 1954 decision in Brown v. Board of Education, the pivotal event in constitutional law in the twentieth century, it now performs a very different function in American government.52 As important as Brown was for what it held, prohibiting school racial segregation and, it soon appeared, all official racial discrimination, it was even more important for its effect on the understanding of the country—and most important, on the judges themselves—of the judges’ role in our system of government. Its eventual success, when it was in effect ratified and expanded by the great 1964 Civil Rights Act, made it the basis of modern constitutional law, with a Court of vastly enhanced power and prestige.
The obvious political, social, and moral rightness of prohibiting racial oppression seemed to demonstrate for many the superiority of policymaking by the Court, supposedly on the basis of principle, even if not necessarily constitutional principle, to policymaking through the often-stymied ordinary political process. If the Court could do so great and good a thing as Brown, what other great things could it not do, and if it could, why shouldn’t it? The near-universal acclaim bestowed on Brown converted the Court from a defender of the status quo and a brake on social change into the nation’s primary initiator and accelerator of social change. To question judicial policymaking after Brown was to be met with the response, “So you disagree with Brown?” As it is not politically, socially, or academically permissible to disagree with Brown, the desirability of leaving basic issues of social policy to the justices rather than electorally accountable legislators seemed to be put beyond question.
Although Hamilton and Marshall no doubt thought that the justices would always be conservative defenders of traditional values and mores, it has happened in modern times—largely because of the rise and influence of left-liberal academia—that persons can be and are appointed Supreme Court justices who are or turn out to be far from conservative. They can be, on the contrary, like Justices Douglas and Brennan, on the far left-liberal end of the American political spectrum. When Arthur Goldberg was added to the Court to join them and Chief Justice Earl Warren and Justice Black in 1962, the result was a solid liberal-activist majority in a position to remake America and eager to undertake the task. The Court became so firmly established and recognized as an engine of liberal social change that not even ten consecutive appointments to the Court—beginning with President Nixon’s appointment of Chief Justice Warren Earl Burger in 1968—by Republican presidents supposedly committed to “strict construction” of the Constitution have been sufficient to alter its course.
The second defining characteristic of the constitutional law of the past half-century—besides the irrelevance of the Constitution—is that it has served almost uniformly to move social policy choices to the left. One could illustrate this by noting, with only slight exaggeration, that the American Civil Liberties Union, avatar of left-liberalism, nemesis of traditional American values, and paradigmatic constitutional litigator of our time, never loses in the Supreme Court, even though it does not always win. It either obtains from the Court a policy decision, such as the prohibition of state-sponsored prayer in public schools, that it could obtain in no other way because opposed by a majority of the American people, or it is simply left where it was to try again on another day. The opponents of Connecticut’s anticontraception law, for example, finally got the Supreme Court to invalidate it in Griswold only on their third try.53
The effect of the Court’s interventions in the political process since the Warren Court has been overwhelmingly to undermine or overthrow traditional American beliefs and practices on basic issues of domestic social policy. Some of the more revolutionary changes include creating the virtual right of abortion on demand and abolishing capital punishment for a number of years and then permitting it only with so many and accumulating restrictions and conditions as to make efforts to preserve it seem almost not worthwhile. Jurors in capital cases must be given both ample discretion and not too much discretion, making it very difficult for the states and federal government to get it just right.54 The Court has prohibited state-sponsored prayer in the public schools, while also prohibiting most forms of government aid to religious schools and the display of religious symbols on public property.55 It has created and imposed on the states and the federal government a system of criminal procedure, with Miranda rights, exclusionary rules, innumerable appeals, and other impediments to law enforcement, known to no other system of law.56 The result is seemingly interminable trials and retrials in which the question of guilt or innocence is often the least relevant consideration. In this country it often takes longer to select a jury than it takes in other countries to complete a criminal trial.
Because “the freedom of speech” is a phrase of very uncertain content—it cannot mean what it says—the First Amendment is capable of unlimited expansion and ever greater reach. It has proved to be one of the Court’s most potent weapons, second only to the due process and equal protection clauses, in pursuit of the justices’ and academia’s vision of a remade American society. It severely limits, for example, the ability of the states and the federal government to restrict the publication and distribution of pornography, including child pornography, while protecting nude dancing and public displays of vulgarity.57 Historic champerty and maintenance laws, meant to protect society’s fundamental interest in limiting litigation, were found to be prohibited by the First Amendment, because suing may be—and, by reason of the Court’s purely political constitutional decisions, often is—a form of political speech.58 The First Amendment severely limits the power of the states to maintain order by regulating marches—even by neo-Nazis in an area with Holocaust survivors—and other public demonstrations, and totally disables the states from prohibiting public burning of the American flag.59 Even elementary school children are protected from a state’s attempt to maintain order in the classroom by prohibiting divisive political displays.60 The Court’s intervention in the running of the nation’s public schools, the effect of which has been to seriously impair school discipline and the ability of teachers to teach, should be enough to illustrate the danger of giving the Court the final word on matters about which it can know very little.61
At the height of the Cold War, the “First Amendment” denied the federal government the power to exclude Communist Party members from working in defense plants and denied the states the power to exclude them as teachers in public schools.62 The American Communist Party, the justices, led by Douglas and Black, insisted, reflecting a central and unshakable liberal belief, was an organization of loyal Americans fighting for “social justice,” not, as proved the case, a tool of the Soviet
Union. Proving the justices wrong on issues where they can be proven wrong never serves, of course, to shake their confidence in the superiority of their insights. The Court has remade, or unmade, libel law, overthrowing traditional notions of the importance of protecting reputation.63 It has contributed substantially to the deterioration of the quality of life in our cities by seeing only oppression in traditional vagrancy control ordinances. “[P]oor people, nonconformists, dissenters, idlers,” Justice Douglas instructed, cannot “be required to comport themselves according to the lifestyle deemed appropriate” by public authorities.64 City dwellers may have reason to disagree, but their municipal governments cannot argue with the First Amendment.
The failure of the proposed Equal Rights Amendment—which would have equated sex discrimination with race discrimination—to gain adoption in the political process was taken by the justices as evidence of another defect in the process that required their remedy. It had already been adopted, the Court in effect declared in a series of decisions, by ratification of the Fourteenth Amendment, illustrating how much easier it is to amend the Constitution by a Supreme Court decision than by the onerous and contentious constitutional process. The Court, in an opinion by Justice Brennan, came within one vote of enacting the Equal Rights Amendment in all but name by equating sex and race discrimination.65 A state may not, the Court held in an opinion by Justice Sandra Day O’Connor, operate a nursing school for women even though it operated a co-ed nursing school as well.66 Not even a military school, the Court held in an opinion by Justice Ruth Bader Ginsburg, may operate as an all-male institution consistently with the Fourteenth Amendment.67
By disallowing nearly all distinctions based on alienage or illegitimacy, the Court has made American law probably unique in both respects.68 In no other country can the distinction between citizenship and alienage and between legitimacy and illegitimacy be less important. The Court has ordered the redistricting of all political entities, state and federal, on a “one-person, one-vote” basis, excepting only the United States Senate69—existence of which might be taken to show that the framers did not share the Court’s view.