Because the Court’s activism is very largely based on what the Court has made of the Fourteenth Amendment—rendering the due process and equal protection clauses empty vessels into which it can pour any meaning—a very large part of the answer to the problem of rule by the Court would be simply to return the Fourteenth Amendment to its intended meaning or to give it any specific meaning. If Representative Thaddeus Stevens, leader of the Radical Republicans in the House, and other proponents of full legal equality for the newly freed blacks had had their way, the Fourteenth Amendment would have simply prohibited all official racial discrimination. Concern that such an amendment would not be ratified (and would lead to the defeat of Republicans in the coming election), because of northern opposition to giving blacks the right to vote, resulted in rejection of the proposal and in adoption instead of the first section of the Fourteenth Amendment in its present, much more elaborate form.122 If interpreted to mean what it was intended to mean, it would, as noted above, guarantee blacks basic “civil” (but not “political”) rights. The right to vote was granted to blacks, however, two years later with the adoption of the Fifteenth Amendment, effectively abolishing the civil-political distinction. There is much to be said, therefore, for returning the Fourteenth Amendment to the clear, appealing, and easily administratable meaning that Representative Stevens intended, a simple prohibition of all official racial discrimination. This is the interpretation the Court adopted in one of its earliest and most important decisions under the amendment.123
Returning the Fourteenth Amendment to a specific meaning would very largely end extraconstitutional judicial review and, therefore, rulings of unconstitutionality against state laws. Doing so should be easy to support, and difficult to oppose, on the ground that if it is constitutionalism we truly want, not government by judges, it is necessary to have a Constitution with meaning. The Supreme Court would still be able in theory to enforce its imaginative interpretations of the first eight amendments against federal law, but Congress would be much more likely to assert itself if it became nearly the sole victim of the Court’s interventions. The Court, too, would undoubtedly find reasons for restraint in the face of a demonstrated public resolve to limit judicial power by reestablishing a Constitution with meaning.
In sum, if opponents of government by judges should ever gain sufficient political strength to obtain a constitutional amendment, they should not use it merely to tinker with the method of selecting Supreme Court justices or of deciding their term of office or with the requirement of a supermajority vote for rulings of unconstitutionality. They should use it, ideally, to abolish judicial review altogether, or at least to give Congress the last word on constitutional questions. Most easily defended and perhaps politically feasible—if any Court-limiting proposal can be—would be simply to give the Fourteenth Amendment a specific meaning. Such a change would amount to little more than a requirement that the justices use the power of judicial review honestly, do only what they purport, and are supposedly authorized, to do, and disallow only those policy choices made by the elected representatives of the people that the Constitution in fact disallows. It would reaffirm and reinstitute the federalist system of representative self-government with separation of powers that was created by the Constitution and bring to a halt the Court’s continuing assault on American society.
* * *
Epigraph: Alexis de Tocqueville, Democracy in America, p. 172 (Harvey C. Mansfield & Delba Westhrop ed. 2000).
1. See David Brooks, Bobos in Paradise: The New Upper Class and How They Got There (2000).
2. See William F. Buckley, Jr., “Au Pair Case No Reason to Condemn Courts,” Houston Chronicle (Nov. 8, 1997) at 36 (quoting his earlier statement).
3. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), provides a particularly clear example. The use of race preferences in granting and denying admission to a state institution was upheld, despite supposed constitutional and explicit statutory (Title VI of the 1964 Civil Rights Act) prohibitions, by appending to the opinion of the Court and effectively enacting into constitutional law the race preference program devised by Harvard University. This opinion was reaffirmed and made the basis of current constitutional law on the subject in Grutter v. Bollinger, 123 S. Ct. 232 (2003).
4. The concept may have arisen, however, because the acts of colonial legislatures operating under royal charters were subject to the review of the Privy Council in London.
5. U.S. Const. art. I, sec. 7.
6. Brutus, Essay XV (Mar. 20, 1788) in The Complete Anti-Federalist at 437 (Herbert J. Storing ed., 1981).
7. The Federalist Papers No. 78 (Clinton Rossiter ed., 1961).
8. Jefferson: to “consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.” Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Lincoln: “[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Roosevelt: Proposed speech stating that if the Supreme Court should invalidate a certain New Deal measure, he would not “stand idly by and . . . permit the decision of the Supreme Court to be carried through to its logical inescapable conclusion.” Quoted in Kathleen M. Sullivan et al., Constitutional Law 20–24 (15 ed., 2004).
9. See Missouri v. Jenkins, 515 U.S. 70 (1995).
10. Sullivan, Constitutional Law, supra n. 8 at 12.
11. 5 U.S. (1 Crunch) 137 (1803).
12. See, e.g., Eakin v. Raub, 12 S. & R. 330 (Pa. 1825) (dissenting opinion, Gibson J.); Alexander Bickel, The Least Dangerous Branch (1962).
13. Marshall read a sentence of Section 13 of the Judiciary Act of 1789, 1 Stat. 73, as adding to the original jurisdiction granted the Court by the Constitution, although the sentence does not even mention original jurisdiction. He then found that this supposed grant of additional jurisdiction was prohibited by the Constitution, although the Constitution contains no such prohibition. See William Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L. J. 17; Morris Cohen, The Faith of a Liberal, 178–180 (1946).
14. U.S. Const. Amend. XXII.
15. Federalist, supra n. 7.
16. “[B]ills of rights are, in their origin, stipulations between kings and their subjects. . . . they have no application to constitutions, professedly founded on the power of the people and executed by their immediate representatives and servants.” The Federalist Papers No. 84, 513, supra n. 7.
17. As then-Harvard law professor and later Supreme Court Justice Felix Frankfurter pointed out to President Roosevelt during the New Deal constitutional crisis, supposedly “when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases it is they who speak and not the Constitution. And I verily believe this is what the country most needs to understand.” Max Friedman, Roosevelt and Frankfurter 383 (1967).
18. The clearest example may be Home Building and Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), upholding, 5–4, state debtor-relief legislation clearly prohibited by the Contracts Clause. On this rare, if not the only, occasion that the Court actually encountered a clearly unconstitutional statute, it upheld it, illustrating that constitutional limits depending on judicial enforcement may prove to be no limits at all.
19. U.S. Const. art I, secs. 9, 10.
20. U.S. Const. art. I, sec. 10.
21. U.S. Const. amend. XIV, sec. 1.
22. 83 U.S. 36, 71 (1872).
23. Id. at 78, 81.
24. See Benjamin R. Twiss, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (1942).
25. E.g., Davidson v. New Orleans, 96 U.S. 97 (1
877): “there exists some strange misconception of the scope” of the due process clause, “looked upon as a means of bringing to the test of a decision of this Court every abstract opinion of every unsuccessful litigant in a state court of the justice of a decision against him.”
26. See, e.g., Lochner v. New York, 198 U.S. 45 (1905), which invalidated a law limiting the working hours of bakers.
27. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (sex); Graham v. Richardson, 403 U.S. 365 (1971) (alienage); Levy v. Louisiana, 391 U.S. 68 (1968) (illegitimacy).
28. Ferguson v. Skrupa, 372 U.S. 726, 731 (1963).
29. United States v. Carolene Products Co., 304 U.S. 144, n. 4 (1938).
30. See, e.g., Duncan v. Louisiana, 391 U.S. 748 (1968).
31. See, e.g., Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); contra, see, e.g., Michael Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1985).
32. Engel v. Vitale, 370 U.S. 421 (1962) (prayer); Stone v. Graham, 449 U.S. 39 (1980) (Ten Commandments).
33. Shad v. Mount Ephraim, 452 U.S. 61 (1981) (nude dancing); Texas v. Johnson, 491 U.S. 397 (flag burning); Tinker v. Des Moines Ind. Community School District, 393 U.S. 503 (1969) (demonstration).
34. See Palko v. Connecticut, 302 U.S. 319 (1937) (upholding retrial after successful state appeal); overruled in Benton v. Maryland, 395 U.S. 784 (1969).
35. 381 U.S. 479 (1965). Earlier attacks on the law were rejected in Tileston v. Ullman, 318 U.S. 44 (1943), and Poe v. Ullman, 367 U.S. 497 (1961).
36. Id. at 482, 484.
37. 391 U.S. 68 (1968). “We can say with Shakespeare: ‘Why bastard, wherefore base? When my dimensions are as well compact, My mind as generous, and my shape as true, As honest madam’s issue? Why brand they us With base? with baseness? bastardy? base, base?” Id. at 72, n. 6.
38. Brown v. Allen, 344 U.S. 443, 540 (1953) (concurring opinion).
39. 410 U.S. 113, 153 (1973).
40. Roe v. Wade, 410 U.S. 113 at 158.
41. 60 U.S. 393 (1856).
42. See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000) (rejecting an effort by Congress and the president to obtain the Court’s permission for a restriction on at least so-called partial-birth abortions).
43. Plessy v. Ferguson, 163 U.S. 537 (1896) (permitted); Brown v. Board of Educ., 347 U.S. 483 (1954) (prohibited); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (required).
44. Bolling v. Sharpe, 347 U.S. 497 (1954).
45. E.g., Engel v. Vitale, 370 U.S. 421 (1962) (prayer); Lemon v. Kurtzman, 403 U.S. 602 (1971) (assistance); Allegheny County v. American Civil Liberties Union, 492 U.S. 573 (1989) (display).
46. See, e.g., Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).
47. Gregg v. Georgia, 428 U.S. 153 (1976) (dissenting opinions of Brennan and Marshall, JJ.); Collins v. Collins, 510 U.S. 1141 (1994) (dissenting opinion of Blackmun, J.).
48. 60 U.S. 393 (1856).
49. Supra, p. 1.
50. Civil Rights Cases, 109 U.S. 3 (1883).
51. Hammer v. Dagenhart, 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922). See Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 (1936).
52. 347 U.S. 397 (1954).
53. Supra, n. 35.
54. See Furman v. Georgia, 408 U.S. 238 (1972) (too much discretion); Lockett v. Ohio, 438 U.S. 586 (1978) (not enough discretion).
55. Supra, n. 31. Lemon v. Kurtzman, 403 U.S. 602 (1971) (government aid).
56. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (exclusion of testimony given without required warnings); Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion of “improperly” obtained evidence). As early as 1953, Justice Jackson noted that the Court “has sanctioned progressive trivialization of the writ [of habeas corpus] until floods of stale, frivolous and repetitious petitions inundate the dockets of the lower courts and swell our own.” Brown v. Allen, 344 U.S. 443, 536 (1953).
57. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) (child pornography); Schad v. Mount Ephraim, 452 U.S. 61 (1991) (nude dancing); Cohen v. California, 403 U.S. 15 (1971) (vulgarity).
58. NAACP v. Button, 371 U.S. 415 (1963).
59. Village of Skokie v. Nat’l Soc. Party of Am., 69 Ill.2d 605, 373 N.E.2d 21 (1978) (Nazis); Cox v. Louisiana, 379 U.S. 536 (1965) (public demonstration); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning).
60. Tinker v. Des Moines School Dist., 393 U.S. 503 (1969).
61. See Heather MacDonald, “Unsafe at Any Grade,” Wall St. J., March 25, 2004, p. D6, reviewing Richard Arum, Judging School Discipline (2003) and Elizabeth Gold (2003), Brief Intervals of Horrible Sanity: “How did things get so bad? Blame one of the most ill-conceived chapters of 1960s legal activism.”
62. United States v. Robel, 389 U.S. 258 (1917) (defense plants); Elfbrandt v. Russell, 384 U.S. 11 (1966) (schools).
63. See, e.g., Curtis Publishing v. Butts, 338 U.S. 130 (1967).
64. Papachristou v. Jacksonville, 405 U.S. 156, 170 (1972).
65. Frontiero v. Richardson, 411 U.S. 677 (1973).
66. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).
67. United States v. Virginia, 518 U.S. 515 (1996).
68. Graham v. Richardson, 403 U.S. 365 (1971) (alienage); Levy v. Louisiana, 391 U.S. 68 (1968) (illegitimacy).
69. Reynolds v. Sims, 377 U.S. 533 (1964).
70. According to two prominent constitutional law scholars: “[C]onservative judicial activism is the order of the day. The Warren Court was retiring compared with the present one.” NYU law professor Larry Kramer, “No Surprise It’s an Activist Court,” N.Y. Times, Dec. 12, 2000, at A33; “We are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals.” University of Chicago law professor Cass Sunstein, “Tilting the Scales Rightward,” N. Y. Times, April 26, 2001, at A23.
71. The Burger Court: The Counter-Revolution That Wasn’t (Vincent Blasi ed. 1983).
72. Roe v. Wade, 410 U.S. 113 (1973) (abortion); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (busing); Reed v. Reed, 404 U.S. 71 (1971) (sex discrimination).
73. Employment Division v. Smith, 494 U.S. 872 (1990), in effect overruling Sherbert v. Verner, 374 U.S. 398 (1963), a Brennan opinion creating a religious exemption from the application of ordinary law (which, however, had almost never been followed) is an exception. Ironically, Congress then attempted to overrule Smith by the so-called Religious Freedom Restoration Act of 1993, which the Court, insisting on having the last word, then held unconstitutional. City of Boerne v. Flores, 521 U.S. 507 (1997).
74. Stenberg v. Carhart, 530 U.S. 914 (2000).
75. Lee v. Weisman, 505 U.S. 577 (1992).
76. United States v. Virginia, 518 U.S. 515 (1996).
77. Dickerson v. United States, 530 U.S. 428 (2000).
78. Kyllo v. United States, 533 U.S. 27 (2001) (heat sensor); City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (drug-sniffing dog).
79. Romer v. Evans, 517 U.S. 620 (1996).
80. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 918 U.S. 727 (1996) (child pornography); Atkins v. Virginia, 122 S. Ct. 2242 (2003 (capital punishment); Ring v. Arizona, 122 S. Ct. 2428 (2002) (same).
81. United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
82. Lawrence v. Texas, 123 S. Ct. 2472 (2003) (sodomy); Grutter v. Bollinger, 123 S. Ct. 2325 (2003) (race preferences).
83. Dickerson v. United States, 533 U.S. 27 (2001).
84. 531 U.S. 98 (2000).
85. 123 S. Ct. 2472 (2003).
86. E.g., Dolan v. City of Tigard, 512 U.S. 374 (1994); Luca
s v. S. C. Coastal Council, 505 U.S. 13 (1992); Nolan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
87. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S. Ct. 1465 (2002).
88. Federal Maritime Comm’n v. South Carolina State Ports Auth., 535 U.S. 743 (2002); Kimel v. Florida Bd. of Reports, 528 U.S. 62 (2000); Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank. 527 U.S. 666 (1999); Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996).
89. Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
90. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 592 (2000).
91. Nevada Dep’t of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003).
92. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987).
93. The principal effect of American constitutional federalism, therefore, is to require Congress to do indirectly, by pretense, what it cannot do directly. Congress, for example, clearly has no authority to define sexual crimes—that is exclusively a matter for the states—but Congress can make it a crime to cross a state line for an improper sexual purpose. See, e.g., Caminetti v. United States, 242 U.S. 470 (1917).
94. See, e.g., Ronald Divorkin, Taking Rights Seriously (1977).
95. Learned Hand, The Bill of Rights (1958).
96. In fact, the revival of explicit substantive due process that began with Griswold means that the making of constitutional law without or despite the Constitution requires no more than a willingness to assert that the opposite of the favored result would be “unreasonable.”
97. Supra, n. 47.
98. United States v. Virginia, 518 U.S. 515 (1996).
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