The Tempting of America

by Robert H. Bork

  In both Meyer and Pierce, it seems plain, the state was attempting to prevent the teaching of ideas not officially approved. In Meyer, learning German, or any other foreign language, at an early age was thought by the state to pose the danger of the inculcation of foreign ideas contrary to the best interests of the United States. Similarly, in Pierce the state wanted to do more than ensure that certain subjects and ideas were taught; it wanted to make sure that other ideas were not taught. Indeed, though it swept more broadly, the law was largely the product of anti-Catholic prejudice. So viewed, both of these decisions could have been laid under the guarantee of freedom of speech in the first amendment, and the application of Oregon’s statute to the Society of Sisters might have been invalidated as well under that amendment’s guarantee of the free exercise of religion.

  It is unfortunate that the Court chose to use the undefined notion of substantive due process instead, because that notion, which is wholly without limits, as well as without legitimacy, provided a warrant for later Courts to legislate at will. The use of substantive due process to invalidate economic regulations became highly unpopular. The fact that it had been used in Meyer and Pierce to defend real constitutional rights lent a spurious legitimacy to later decisions using the due process clause to create new rights which are neither mentioned nor implied anywhere in the Constitution or its history.

  In his 1905 Lochner opinion, Justice Peckham, defending liberty from what he conceived to be “a mere meddlesome interference,” asked rhetorically, “[A]re we all … at the mercy of legislative majorities?”57 The correct answer, where the Constitution is silent, must be “yes.” Being “at the mercy of legislative majorities” is merely another way of describing the basic American plan: representative democracy. We may all deplore its results from time to time, but that does not empower judges to set them aside; the Constitution allows only voters to do that.

  By the 1930s, with the deepening of the Depression and a consequent spectacular alteration of political forces, voters put in power an administration that had to change the Court’s performance radically in order to accomplish its ends.

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  The New Deal Court and the Constitutional Revolution

  The Supreme Court’s behavior, its systematic frustration of the political branches, eventually erupted in a constitutional crisis. But the crisis arose less because the Court’s behavior was illegitimate than because the judge-made values it protected suddenly went out of political and intellectual fashion. The Court could not stand for long against the large majorities that now opposed its work.

  Federalism and Sick Chickens

  Prior to the New Deal, there had been many attempts at the state and federal level to regulate business in a variety of ways, and the Court had struck down scores of these laws. Most of the regulations were enacted by states, and the Court usually employed the substantive due process technique. But with the coming of the Great Depression and the election of Franklin D. Roosevelt, there was an outpouring of regulation at the national level. Here the Court had additional techniques for invalidating laws. The substantive due process notion was practically the only device the Court had for invalidating state regulation, but national regulation could be curbed by finding that it was not within the scope of the powers granted Congress in article I, section 8 of the Constitution.

  That is precisely what the Court did, holding again and again that attempted national economic regulations went beyond the power to regulate interstate commerce or the power to lay and collect taxes. Roosevelt’s programs for recovery from the Depression were severely imperiled. A keystone of the New Deal’s strategy was the National Industrial Recovery Act of 1932, which gave the President power to approve and impose codes for various industries and trades. The Supreme Court found it unconstitutional in Schechter Poultry Corp. v. United States,1 the “sick chicken case,” which involved the application of a code’s minimum wage, maximum hour, and trade practice provisions to a kosher poultry slaughterer in Brooklyn. The Court held that conditions in Schechter’s plant had only an indirect effect upon interstate commerce and hence was not within congressional power. The opinion also said that giving the President the power to impose codes upon industry was an unlawful delegation of legislative power to the executive.

  Both of these points had considerable merit, though the Schechter decision is now regarded as utterly obsolete. There is little doubt that those who framed and ratified the Constitution enumerated the powers given the national legislature—and for good measure added the tenth amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”2—so that the federal government could not govern many aspects of life. Leaving the states as the sole regulators of areas left beyond federal power is the constitutional doctrine of federalism. Today it is usually thought passé, quaint, or even tyrannical, this last because federalism, rephrased as “states’ rights,” permitted some states to legislate racial discrimination.

  But federalism also had an important benign aspect, the protection of individual liberty. The geographical areas over which state governments rule are far smaller than that the federal government controls. People who found state regulation oppressive could vote with their feet, and in massive numbers they did. Blacks engaged in great migrations to Northern states at a time when Southern states blatantly discriminated. Businesses that found state taxation or regulation too burdensome moved elsewhere. Individuals moved to avoid heavy state income and estate taxes. Of course, this freedom to escape came at a price, but a far smaller one than moving away from national regulation, and many found the price worth paying. That freedom would be drastically curtailed if the national government had the power to impose all of the same burdens. Indeed, that was and is often the argument for national power: since people and businessescannot be effectively coerced if they can flee the jurisdiction, we must enlarge the jurisdiction to make escape impractical.

  Federalism is, moreover, the only constitutional protection of liberty that is neutral. The various amendments to the Constitution specify what freedom is protected—freedom of speech, press, religion, freedom from unreasonable searches, and so on. If a liberty you cherish does not fall within one of the specified categories (or does not appeal to judges who are making up new constitutional rights), you will receive no protection from the courts. But if another state allows the liberty you value, you can move there, and the choice of what freedom you value is yours alone, not dependent on those who made the Constitution. In this sense, federalism is the constitutional guarantee most protective of the individual’s freedom to make his own choices. There is much to be said, therefore, for a Court that attempted to preserve federalism, which is a real constitutional principle, by setting limits to national powers.

  The Court’s behavior, however, enraged Roosevelt and the leading figures of the New Deal. The Court struck down the Railroad Retirement Act of 1934,3 the Bituminous Coal Conservation Act of 1935,4 and the Agricultural Adjustment Act of 1933,5 and the administration feared for the validity of such laws as the National Labor Relations Act and the Social Security Act. Lower court judges had issued hundreds of injunctions against New Deal programs.

  The New Deal was an economic and governmental upheaval. It stood for a sudden and enormous centralization of power in Washington over matters previously left to state governments or left in private hands, a centralization accomplished largely through the assumption of greatly expanded congressional powers to regulate commerce and lay taxes. Many judges, however, believed that the New Deal was assuming powers far beyond those the Constitution permitted. There was thus a collision between an emergent Zeitgeist, reflected in the political branches, and the old ideas, entrenched in the courts, that was regarded by both sides as a constitutional crisis. The same thing had happened when Jefferson’s Republicans won the presidency and the Congress only to be faced by a solidly Federalist judiciary. The reacti
on by the politicians in both cases was the same: an assault upon the independence of the federal courts. Jefferson chose impeachments of the Justices, a tactic that quickly failed. Roosevelt chose enlargement of the Court so that his additional appointments would produce a majority sympathetic to New Deal legislation, a tactic that also failed.

  Roosevelt Fails, Then Succeeds, in Remaking the Court

  After his landslide victory in the 1936 election, Roosevelt decided not only to attack the Court directly but to do so disingenuously. The disingenuousness may well have cost him the fight. The attempt certainly cost him enormous political capital. Instead of announcing that the Court was killing essential legislation with, in his view, unjustifiably narrow interpretations of federal powers, and that he proposed, for that reason, to return the Court to a proper understanding of the Constitution, Roosevelt disguised his plan as one to help the Court with its workload, intimating that the elderly Justices could not keep up. His bill provided that when any judge of the United States reached the age of seventy and did not resign or retire, the President could, with Senate confirmation, appoint one additional judge to the court where the older judge served. Six Justices of the Supreme Court were then over seventy. Roosevelt could have appointed six more, and five-to-four decisions against the New Deal presumably would have gone for the administration, ten to five. The pretense that the bill was designed as assistance to aged judges was instantly denounced as a ruse, and Roosevelt later urged the measure on the actual grounds that motivated it-“the Court has been assuming the power to pass on the wisdom” of acts of Congress, and it was necessary to “take action to save the Constitution from the Court and the Court from itself.” “We must,” he continued in his radio address to the nation, “find a way to take an appeal from the Supreme Court to the Constitution itself.”6

  This is a problem that has baffled, frustrated, and enraged many a President, many a Congress, and, indeed, large numbers of citizens. The Supreme Court may be issuing rulings that have no basis in the Constitution, but how is the nation to cope with that unconstitutional assumption of power? Jefferson tried impeachment; Andrew Jackson ignored the Court when it suited him; Abraham Lincoln ignored Chief Justice Taney’s writ of habeas corpus during the Civil War (“I must violate one provision of the Constitution so that all the rest may be saved”);7 Ulysses Grant did manage to enlarge the Court to alter its course; Senator LaFollette proposed a constitutional amendment that would allow two-thirds of the Senate to overrule a Court decision; Roosevelt tried to “pack” the Court; and in recent years there have been a number of proposals to eliminate the Court’s jurisdiction over particular classes of cases under the congressional power, given in article III of the Constitution, to make exceptions to the Court’s appellate jurisdiction.

  Almost all such attempts have proved fruitless, and it is not hard to see why. Americans revere both the Constitution and an independent Court that applies the document’s provisions. The Court has done many excellent things in our history, and few people are willing to see its power broken. The difficulty with all proposals to respond to the Court when it behaves unconstitutionally is that they would create a power to destroy the Court’s essential work as well. If two-thirds of the Senate might have overruled Dred Scott, then perhaps it is imaginable that two-thirds might have overruled a case like Brown v. Board of Education.8 That depends upon the passions of the moment, but it is obvious that unpopular proper rulings may as easily be overturned as improper ones. There is, after all, no reason to think that over time the Senate will be a more responsible interpreter of the Constitution than the Court. This sense that once we start tampering with the Court there will be no end to the matter probably accounts for the vociferousness with which the Senate Judiciary Committee disapproved Roosevelt’s bill. “We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle…. [I]ts practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is—an interpretation to be changed with each change of administration. It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”9

  The Court’s power lies entirely in the fact that the American people choose to obey even its least defensible mandates rather than contemplate the alternative. In that sense, it is the Court’s vulnerability that makes it invulnerable. If that is true, the only safeguard we have in the long run against the abuse of a judicial power, which we have agreed in advance to obey, is the formation of a consensus about how judges should behave, a consensus which, by its intellectual and moral force, disciplines those who are subject, and properly so, to no other discipline.

  Roosevelt was fortunate, however, for there is, despite what I have just said, one other force that disciplines judges: mortality. The Justices who were trying to enforce constitutional limits on federal power were quite old. There is a dispute whether the threat of political retaliation against the Court induced Justice Roberts to look more favorably on New Deal legislation (“the switch in time that saved nine”).10 That is unimportant, however, for within four years resignations, retirements, and death allowed Roosevelt to remake the Court as he desired. In rapid succession he appointed Hugo Black, who had led the fight in the Senate to pack the Court, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, and Robert Jackson, and elevated Harlan Stone from Associate Justice to Chief Justice. A few years later he appointed Wiley Rutledge. New Court decisions made congressional power over commerce virtually limitless as the Court simply stopped protecting federalism.

  The Court Stops Protecting Federalism

  Wickard v. Filburn11 held that a farmer who raised wheat for consumption on his own farm could be penalized for exceeding the quota set by the Secretary of Agriculture in order to hold up the price of wheat. Even though the wheat is never marketed but is consumed on the farm, “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.” Hence the amount grown could be set by the national government under its power to regulate interstate commerce. Sound economics without doubt, but it meant that the most trivial and local activities could be regulated, a conclusion the Court that had just passed into history would never have countenanced.

  It is well to be clear that the new, permissive attitude toward congressional power was a manifestation of judicial activism. The Constitution does indicate that there are defined national powers and that they have limits. The fact that the powers of Congress are enumerated in article I, section 8,12 demonstrates that Congress was not intended to have unlimited powers, even aside from the specific limitations stated, primarily, in the Bill of Rights. That necessary inference is reinforced by the tenth amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”13 There were two kinds of limits to Congress’s power. To take the power to regulate commerce “among the several States” as an example, federal regulation was seen as confined to that commerce that affected more states than one, so that there was some intrastate commerce beyond Congress’s reach. In addition, a regulation of commerce had to be done for commercial reasons and not as a means of effecting social or moral regulation. The new Court’s refusal to enforce limits of any kind simply abandoned this aspect of the Constitution. That worked a revolution in the relationship of the federal government to the state governments and to the people, and the revolution did not have to await a constitutional amendment. The lesson to be learned from this is that the Court cannot stand forever against a strong and persistent political movement.

  Our concern, however, is less with the economic nationalizing thrust of the New Deal Court than with its employment of those techniques that had enabled prior Courts to make pol
icy judgments in the guise of constitutional principle in the cases that came before them.

  Economic Due Process Abandoned

  The notion of substantive due process had been used by prior Courts to protect both economic and noneconomic liberties, but there had been some indication prior to the New Deal Court that the protection of economic freedom was likely to decline. In 1934, a five-to-four decision in Nebbia v. New York14 upheld a New York statute empowering a Milk Control Board to fix maximum and minimum retail prices for milk. Nebbia was convicted of selling milk too cheaply in his grocery store. The effect of the statute, and its obvious purpose, was to transfer money from consumers to milk producers. There could hardly be a case that more clearly met Justice Miller’s test in Davidson, that a statute transferring title in land from A to B would violate the due process clause. Justice McReynolds’s dissent, without citing Davidson, paralleled it: “[F]ixation of the price at which ‘A,’ engaged in an ordinary business, may sell, in order to enable ‘B,’ a producer, to improve his condition, has not been regarded as within legislative power.”15 But Justice Roberts’s majority opinion said that “a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare…. With the wisdom of the policy adopted… the courts are both incompetent and unauthorized to deal.” McReynolds, consistently with the old substantive due process view, insisted that “this Court must have regard to the wisdom of the enactment.”