The Tempting of America

by Robert H. Bork

  Siegan lays out the model of judicial review he advocates. It is a comprehensive version of substantive due process and it is worth examining because Siegan, unlike most writers, makes clear what a rational version of substantive due process requires. What it requires is an impossible task. His model of review contains three steps:

  In suits challenging the validity of restraints [upon human freedom], the government would have the burden of persuading a court…first, that the legislation serves important governmental objectives; second, that the restraint imposed by government is substantially related to achievement of these objectives, that is, … the fit between means and ends must be close; and third, that a similar result cannot be achieved by a less drastic means.8

  The approach is libertarian because the burden is on the government to justify its law rather upon the claimant to show that the law is illegitimate. But no matter who must shoulder the burden, the task assigned is beyond the capacities of courts.

  The first task requires the court to decide whether the “legislation serves important governmental objectives.”9 The idea of importance, in this context, necessarily connotes as well the idea of legitimacy. It is not to be supposed that a court would find the government’s showing adequate if the objective was important but improper. It is necessary to be clear about the stupendous nature of the function thus assigned the judiciary. The court could not carry out the task assigned unless it had worked out a complete and coherent philosophy of the proper and improper ends of government with respect to all human activities and relationships. This philosophy must give answers to all questions social, economic, sexual, familial, political, moral, etc. It must be so detailed and well articulated, with all major and minor premises constructed and put in place, that it enables judges to decide infinite numbers of concrete disputes. It must also rest upon more than the individual preferences of judges. That is required both because a panel of nine judges, each voting his own preferences, would produce inconsistent results and because it is necessary to demonstrate the legitimacy of forcing a view of the ends of government chosen by judges upon elected representatives who have other ends of government in mind. No theory of the legitimate and important objectives of government that possesses all of these characteristics is even conceivable. No single philosopher has accomplished it, and nine Justices could not work it out and agree on it. Yet, upon the premise that a judge may not override democratic choice without an authority other than his own will, each of these qualities is essential.

  Suppose that a challenge is made to a federal minimum wage law on the ground that though it advantages unions and workers whose productivity makes them worth the higher wage, it leads to unemployment for less productive workers. Let us suppose that the court is, as it should be, persuaded that the effects of the law are as described. But the government’s counsel states that this does no more than show the statute was the result of interest group politics, which is inevitable in a large, pluralistic society. Or he states that Congress thought it best to moderate the speed of the migration of industry from the North to the South, since, in the legislators’ estimation, it is more painful to lose a job you have held for twenty years than not to be offered a job you have never had and did not expect. Or that the minimum wage was part of a governmental policy to aid unionization and collective bargaining, employers being willing to bargain wages at higher levels when the alternative of nonunion labor is made economically less attractive, and unionization is considered desirable because of the social values unions have traditionally fostered. How is a court to demonstrate that none of these objectives is legitimate and important?

  Suppose that the lawyer for Connecticut in Griswold argued that a majority, or even an intense and politically influential minority, regarded it as morally abhorrent that couples capable of procreation should copulate without the intention, or at least the possibility, of conception. Could the Court demonstrate that this moral view is wrong or that moral abhorrence is not an important and legitimate ground for legislation? The morality described is not one shared by most people, nor do I share it, but I would not know how to prove that a state that adopted such a moral stance had done something it must not be allowed to do. It seems to me a court would have no answer to the government lawyer in either the minimum wage or the contraception case. In the latter, it could say that most people do not feel that way, but that would not prove that people who do are wrong. I am quite clear that, as a legislator, I would vote against raising the minimum wage and against prohibiting the use of contraceptives, but that is because of my own moral views and not because of a principle that I think others with opposed views must accept even if they prove to be in the majority. Justice Holmes made a distinction like this one when he said that he had his “can’t helps” but did not pretend they were universal laws. Thus, he said, he could not help preferring champagne to ditchwater but did not attribute that preference to the universe.10

  Siegan’s second stage of review is about ends and means. The court must be persuaded that the challenged law is “substantially related to achievement of [important] objectives.”11 In the case of most laws about which there is likely to be controversy, the social sciences are not up to the task assigned. Should the government insist that a minimum wage law is designed to improve the lot of workers generally, microeconomic theory and empirical investigation will demonstrate that the law does not achieve that objective. But if the government states that the law is designed to slow the transfer of industry from areas with experienced and highly paid workers to areas with inexperienced and less expensive workers because of an estimate about relative psychological hurts, or from unionized to nonunionized areas because of a belief about the social values that unions inculcate, the means will fit the ends.

  Siegan has not directly addressed cost-benefit analysis, but it seems likely that a court employing his method of review would have to ask whether the benefits achieved were worth the costs incurred. Perhaps such an analysis is included in the requirement that there be a “substantial” relationship between the law and its objectives. If so, that introduces into the judicial calculus yet another judgment that can only be legislative and impressionistic in nature.

  Siegan might contend that the superiority of microeconomics to other social sciences makes the case for substantive due process review of economic regulations stronger than the case for such review as it is now practiced with respect to noneconomic freedoms. In a sense, that is true. Assuming that judges acquire competence in microeconomics, they will be able to assess the asserted relationship between an economic regulation and its economic results better than they can the fit between other laws and objectives. But that leaves judicial review of laws with noneconomic objectives in an awkward position. In the case of laws about forms of sexuality, for instance, a claim that the law states a moral standard can never be rebutted and the government should always win. But if the objective is said to be something else, perhaps a decrease in violent acts attributed to the availability of pornography, the government may not be able to carry its burden of showing that the desired outcome is likely. Depending on which way the government states the objective, the law will be impossible to strike down or impossible to uphold.

  The third step—that the government must show that a “similar result cannot be achieved by a less drastic means”12—is loaded with ambiguities and disguised tradeoff decisions. A “similar” result may be one whose tendency is the same but still not the full result desired by the legislature. Usually a lesser, though similar, result can be achieved by a lesser degree of coercion. Here cost-benefit analysis is in full blossom, and there is no way to quantify either the cost or the benefit when the law involves values that are not economic. A court undertaking to judge such matters will have no guidance other than its own sense of legislative prudence about whether the greater result is worth the greater restriction.

  The upshot is that any court undertaking the three-step analysis Siegan urges could not avoid exer
cising its powers in a purely legislative manner. For failures of the legislative process, which certainly occur, Siegan has devised a judicial process that must certainly fail. That the inevitable indeterminacy, and hence arbitrariness, of such judicial review is at least in the service of individual freedom is not a justification. Since it is not true, it is not even a plea in mitigation. In these matters, no matter whose theory of constitutionalism is under discussion, liberty is not exclusively on one side of the equation; it is on both. As well as the freedom of the individual challenging the law, there is also the freedom of the individuals who want the law upheld. We may not ignore the liberty of the individuals who make up a community to regulate their affairs as seems to them best, for objectives they regard as important, by means that seem to them effective, and for degrees of the objectives’ attainment that seem to them to justify the degree of restriction.

  It is only fair to say that Siegan’s effort seems to me both valorous and superior to most constitutional theory. Unlike many writers, he lays out his assumptions candidly so that there is no difficulty, as there often is elsewhere, in discovering the structure of the argument beneath a flow of rhetoric. He refuses, moreover, to claim a difference between economic and other liberties. There is much to admire in Siegan, and I wish it were possible to agree that the virtue of intellectual integrity is sufficient to make a valid constitutional theory.

  Richard A. Epstein

  Professor Epstein, of the University of Chicago law school, has expounded a theory of the proper constitutional role of the federal courts which leads to libertarian results similar to those which Professor Siegan would reach under the due process clauses.13 Epstein, however, advocates reliance on the takings clause of the fifth amendment14 and the contract clause of article I, section 10.15 In a sense, Epstein’s approach is more satisfactory because he works with textually explicit constitutional provisions. He, like Siegan, performs the valuable function of directing attention to economic liberties, liberties that have been valued too lightly by our recent jurisprudence as well as in the theorizings of the professors. Epstein’s statement of the theory as set out in Chapter 3 of his book Takings also presents a powerful defense of construing the clauses of the Constitution as they were originally understood.16 He rejects the view that constitutional provisions are either too indeterminate to apply or that those provisions change in meaning with the passage of time.17 Moreover, he finds no warrant for judges either to enforce any value that does not derive from the constitutional text or to refuse to enforce any value that does so derive.18 With all of this I wholeheartedly agree. There appears, however, to be a rather severe disjunction between Epstein’s description of the judge’s task and his argument about the meaning of the clause of the fifth amendment providing that “private property [shall not] be taken for public use, without just compensation.”19 He concludes that a proper construction of the takings clause forbids all redistributionist legislation. Thus, he reads the clause to forbid progressive income taxation,20 welfare,21 and the National Labor Relations Act.22 He concludes that compensation for unintentional torts by government officials is constitutionally mandated,23 and that Lochner v. New York24 and Coppage v. Kansas25 were correctly decided.

  My difficulty is not that Epstein’s constitution would repeal much of the New Deal and the modern regulatory-welfare state but rather that these conclusions are not plausibly related to the original understanding of the takings clause. At first the reader thinks Epstein’s argument will run essentially like this: the Founders greatly admired John Locke; it is plausible that the takings clause was intended to enact Locke’s view of the proper relationship of governmental power to private property; we are, therefore, required to enforce that view as the meaning of the Constitution; and that meaning requires these results. But the argument then shifts to the nature of legislatures and to economic reasoning. As one sympathetic reviewer put it, “what starts out as a Lockean treatise ends up as an essay on public choice theory…. Epstein is not really a Lockean or a libertarian but a utilitarian with an especially grim view of majoritarian decisionmaking.”26 The upshot is that Epstein has written a powerful work of political theory, one eminently worth reading in those terms, but has not convincingly located that political theory in the Constitution.

  Justice John Marshall Harlan

  Justice Harlan offered a method of holding statutes unconstitutional, without recourse to any explicit provision, that many people find attractive. It seems to avoid, on the one hand, the obvious intellectual disingenuousness of some methods and, on the other, the necessity of allowing a bad law to stand. The occasion for Harlan’s discourse was the case of Poe v. Ullman.27 That was the previous challenge to Connecticut’s anticontraception statute, and the Court, in an opinion by Justice Frankfurter, dismissed the appeal because, the statute almost never having been enforced, the case presented no live controversy.

  Justice Harlan dissented, reached the merits of the claim, and concluded that the statute was unconstitutional.28 He employed the due process clause of the fourteenth amendment since it was abundantly clear that nothing else in the Constitution could conceivably apply to the statute, and the due process clause has become the usual resort when no actual provision is available. He noted that the Court had rejected both the view that the clause guaranteed only procedural fairness in the application of law and the view that the clause’s only substantive content came from incorporating part of the Bill of Rights.

  Harlan, too, would accept neither version:

  Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three.29

  That is a remarkable explanation of why due process is not a procedural guarantee alone: if it were, legislatures might enact laws that deprived people of life, liberty, or property. Of course, that is a major function of legislation, and Harlan was not objecting to such deprivations per se. He was objecting to those he disagreed with. He assumed that judges possess a legitimate method of deciding when the substance of a state law, even when applied fairly, improperly deprives people of life, liberty, and property. Such a method is also required to justify an undefined residue of judicial power outside the provisions of the Bill of Rights. For that reason, he turned next to the question of the proper method.

  Conceding that the substantive content of due process “has not been reduced to any formula,”30 Harlan went on: “The best that can be said is that through the course of this Court’s decisions [substantive due process] has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.”31 We have seen in the first four chapters of this book that that is exactly what cannot be said—unless, perhaps, the balance has swung wildly from one era to the next. Moreover, if it is “our Nation” that is striking the balance between liberty and order, it seems peculiar that the Court has to strike down the balance that the nation and various states have voted for. But Harlan referred to the traditions from which our country developed as well as those from which it broke, and said: “That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.”32 This is pure early Alexander Bickel. The primary safeguard against judicial willfulness seems to be a theory of the survival of the fittest decisions, a jurisprudential version of Darwinism. It is not explained what will kill off these constitutional mutations and how long that will take. By the same sort of reasoning, one might observe, there is no need for the judicial function described since it is even more plausible that, if a tradition is both real and valued, legislation that radicall
y departs from it will not long survive the democratic process.

  The “full scope of the liberty guaranteed by the Due Process Clause … is not a series of isolated points pricked out” by the Bill of Rights but is “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” (He cited Skinner v. Oklahoma and Bolling v. Sharpe.)33 The Justice must decide, that is, when the state has passed laws that are arbitrary and purposeless. It is rather odd to imagine a legislature enacting a statute that has no purpose.

  The state of Connecticut offered a number of interests to support its anticontraception law, among them that the state considered the practice of contraception immoral in itself. That is a difficult state interest for the Court to overcome, for, as Justice Harlan said, much lawT is based on moral precepts.34 But he adumbrated the Douglas of Griswold, arguing that enforcement of the law must mean arrests, searches and seizures, criminal charges, public trial, and testimony as to the marital relationship.35 The privacy of the home is protected by the third amendment, relating to the quartering of soldiers, and by the fourth, prohibiting unreasonable searches and seizures. This was, he said, the “privacy” of the home.36 It is, but that privacy which is constitutionally guaranteed is expressed in those amendments. That it is not general or absolute we know from the fact that many things done in the home are subject to both criminal and civil law. We had still to learn why, in constitutional terms, the Connecticut statute was different from physical abuse, conspiracy to commit a crime, or even marital incompatibility that would support a divorce action, all of which can occur in the home. Harlan, in fact, pointed out that the Connecticut statute would in all probability be “accomplished without any physical intrusion whatever into the home.”37 And he said that the right of privacy was not absolute. “Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal inquiry, however privately practiced.”38