"All this," Hand concluded, Stone, "whether as judge or as teacher, believed with deep conviction and supported with undeviating loyalty. After many years of discouragement, he saw his school apparently triumphant." 1'2
But at the very moment of triumph there appeared "a logical dilemma, which like other political dilemmas, would not be suppressed as new problems arose. The battle had been fought almost exclusively over the institution of property; and, although the changes effected were revolutionary, they had been gradual, and they had not gone beyond what the prevailing fashions had demanded, here and even more in Europe." 103
Despite the New Deal triumph, Hand ominously acknowledged, "the losing school occupied a position from which logically it was hard to dislodge it."
It argued that the interpretation of the winners was in effect an abdication of the admitted premise that the Bill of Rights was law, and not merely a counsel of perfection and an ideal of temperance: always to be kept in mind, it is true, but whose infractions were to be treated only as matter for regret. If all it forbade were statutes or administrative excesses which were so utterly outrageous that nobody could give any rational support, it was an idle gesture, for it is nearly always possible to find a plausible justification for supporting any measure that has com manded enough popular support to get itself enacted. The winners answered that, however that might be, it was apparent that any more stringent doctrine than they were willing to admit made the courts a third camera-in fact final arbiters in disputes in which everybody agreed they should have no part. Unless they abstained, the whole system would fall apart; or, if it did not, certainly the judges must be made sensitive and responsive to the shifting pressures of political sentiment, a corrective which few were prepared to accept. Therefore, they argued, theirs was the only possible canon, let political logic find in it what flaws it would.104
Hand's eulogy, written under the immediate glow of the astonishing constitutional revolution of 1937, was addressed above all to his victorious Progressive allies. One can still feel his sense of wonder that, after a half century of struggle against the constitutional doctrines of the old order, victory had finally been achieved. At this moment of Progressive celebration, Hand turned to history to explain the meaning of its triumph.
The triumph of the Progressive position on limiting property rights, Hand suggested, was achieved only through a kind of quid pro quo, in effect an agreement on across-the-board constitutional disarmament of the Supreme Court. For otherwise, the defenders of property, who "occupied a position from which logically it was hard to dislodge" them, might return to "the admitted premise that the Bill of Rights was law, and not merely a counsel of perfection and an ideal of temperance."105 The only way to check the legal fundamentalism of the old order, with its legitimate predisposition in constitutional matters toward an absolutist protection of property, was to undermine in the first place the law-like character of constitutional prohibitions. For "unless [the judges) abstained, the whole system would fall apart.. . ." 106
Hand's candid discussion of the ideological premises behind the New Deal triumph took place before legal Progressivism sharply split into warring camps and before the most pious and unhistorical claims in favor of judicial restraint came to monopolize the airwaves. Hand's version of history, we should note, accepted the Beardian vision of a property-centered Constitution that needed to be defanged in a more democratic age. The holders of property, he reminded his listeners, "in entire good faith found ample warrant for the position that [regulatory] enactments were contrary to the fundamental presuppositions of a society based upon that system of free enterprise which the Bill of Rights guaranteed." 107 The only way to neutralize these pro-property constitutional norms, then, was through "the notion . . . that the Bill of Rights could not be treated like ordinary law; its directions were to he understood rather as admonitions to forbearance.. . ." 108
Those who insisted on treating the Bill of Rights as real legal prohibitions, therefore, risked this carefully constructed constitutional compromise. "Even before Justice Stone became Chief justice" in 1941, Hand wrote, "it began to seem as though, when 'personal rights' were in issue, something strangely akin to the discredited attitude towards the Bill of Rights of the old apostles of the institution of property, was regaining recognition." 109 Why property rights were not also personal rights "nobody took the time to explain," Hand complained, and "the fact remained that in the name of the Bill of Rights the courts were upsetting statutes which were plainly compromises between conflicting interests.. . ." 110
Hand thus enlisted Stone's name against the revival of the "discredited" doctrines, concluding with the assurance that anyone acquainted with Stone's "robust and loyal character" would know that he would not engage in any such "opportunistic reversion at the expense of his convictions. . . ." 111 Stone "could not understand how . . . the courts should have a wider latitude" in enforcing personal rather than property rights. "There might be logical defects in his canon, but it deserved a consistent application or it deserved none at all. . . ." 112
Hand's effort to enlist Chief Justice Stone's reputation against a preferred position stance seems astonishing in its failure to acknowledge Stone's important contributions to actually shaping such a position. Is it possible that the positions were still not clearly enough defined in 1946 for Hand to recognize the significance of Stone's Carolene Products footnote?
In any case, we do see that Hand had already developed the extreme version of judicial restraint that he would later articulate in his Holmes Lectures. Unless there was "a consistent application" of the principles of judicial restraint, there could he no "tradition of detachment and aloofness without which, I am persuaded, courts and judges will fail." 113
What is most surprising about Hand's history is the apologetic tone he uses in describing the New Deal triumph. There is no substantive defense of the Progressive constitutional position about property. Rather, all that seems to be said in favor of the constitutional revolution is that it was necessary because the property doctrines of the old order were out of touch with fashion.
Consistency thus became central to Hand precisely because he seemed to feel unable substantively to justify New Deal redistributive doctrines. Because he believed that, at its core, the Constitution actually did protect absolute property rights, he could only defend the New Deal in terms of judicial method. The basic source of the fixation on consistency, uniformity, and neutral principles in postWorld War II constitutional thought may have been precisely this lingering doubt among many Progressives about whether they had won an illegitimate constitutional victory during the New Deal.
By the time Brown v. Board of Education was decided, judge Hand had staked so much of his justification of the New Deal triumph on methodological grounds that he was no longer able to articulate any substantive conception of distributive justice in the Constitution.
In his Holmes Lectures, Hand endorsed Professor Paul Freund's criticism of the clear and present danger test as "an over-simplified judgment" because there was no "substitute for the weighing of values." 114 The clear and present danger formula, Freund continued, conveyed "a delusion of certainty when what is most certain is the complexity of the strands in the web of freedom that the judge must disentangle.""' Yet, it was precisely to criticize such "weighing of values" that Judge Hand had challenged the Supreme Court for assuming the illegitimate role of "a third legislative chamber" in Brown v. Board of Education. Was it not, in fact, because he felt that any such weighing of values by judges was illegitimate that Hand was able to characterize as "extreme" the view "that racial equality was a vague that must prevail against any conflicting interest. . . . "? 116
Was there any alternative to the weighing of values other than complete judicial abdication of a constitutional role? Scattered throughout The Bill of Rights are vague suggestions of an alternative. In one place, Hand refers to "that temper of detachment, impartiality, and an absence of self-directed bias that is the whole
content of justice."117 In another, he argues for judicial deference to the legislature "unless the court is satisfied that it was not the product of an effort impartially to balance the conflicting values.""' "In the end," he suggests at another point, "all that can be asked on review by a court is that the appraisals and the choice shall be impartial." 119 The judge, he adds at still another point, "is charged with freeing himself as far as he can from all personal preferences, and that becomes difficult in proportion as these are strong." 121 "Impartiality," "detachment" and the absence of "strong . . . personal preferences" appear to be Hand's implicit alternatives to a simple balancing of values.
Whatever the content of such a position, it seems clearly to exclude the judge who passionately sees injustice in racial segregation or in the suppression of minority opinion. And without such a vision, is judicial capitulation to dominant opinion not virtually guaranteed?
Along with Learned Hand's The Bill of Rights, the second representative expression of post-war constitutional thought was the series of Holmes Lectures delivered by Professor Herbert Wechsler of Columbia. His lectures, published as "Toward Neutral Principles of Constitutional Law,"121 continue, after thirty years, to be the second most often cited law review article ever written. 122
Wechsler's lectures were written in clear response to Hand's. First, Wechsler denied Hand's challenge to the historical legitimacy of judicial review. Next, he sought to justify the Court's ruling in Brown v. Board of Education. Finally, through the concept of "neutral principles," he attempted to spell out the ideas that Hand had been groping towards with words like "impartiality" and "detachment."
For Wechsler, the fact that "the Court has been decreeing value choices" 123 did not, as it did for judge Hand, seem to end the inquiry and establish the illegitimacy of judicial intervention. Rather, value choices were legitimate if they could be justified by neutral principles. "[T]he courts ought to be cautious to impose a choice of values," Wechsler continued, and they should do so "only when they are persuaded, on an adequate and principled analysis, that the choice is clear. That I suggest is all that self-restraint can mean and in that sense it always is essential, whatever issue may be posed." 124
The question, of course, was what was the content of neutral principles and principled analysis that could legitimate clear value choices? "A principled decision," Wechsler continued, ". . . is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.""' The key was whether there was a workable idea of "reasons that in their generality and their neutrality transcend any immediate result. . . ." A result-oriented person, Wechsler emphasized, "may not . . . realize that his position implies that the courts are free to function as a naked power organ [and] that it is an empty affirmation to regard them . . . as courts of law." 126
So unless there were "reasons that in their generality and neutrality transcend any immediate result," a court that reacted against McCarthyism or racial segregation was behaving like "a naked power organ." Any person who "disapproves of a decision when all he knows is that it has sustained a claim put forward by a labor union or a taxpayer, a Negro or a segregationist, a corporation or a communist . . . acquiesces in the proposition that a man of different sympathy but equal information may no less properly conclude that he approves." 127 Value differences were mere difference of "sympathy' that could not be legitimately resolved by "ad hoc evaluation."
Wechsler quoted at length from a Harvard alumni history that suggested that Justice Curtis had contradicted himself when, six years after he dissented in the Dred Scott Case, he delivered a private opinion that Lincoln's Emancipation Proclamation was unconstitutional. "How simple the class historian could make it all," Wechsler declared, "by treating as the only thing that mattered whether Mr. Justice Curtis had, on the occasions noted, helped or hindered the attainment of the freedom of the slaves.""' Why freedom from slavery was not a sufficiently neutral principle he did not explain.
Finally, Wechsler turned to recent Supreme Court decisions involving racial equality, "the decisions that for me provide the hardest test of my belief in principled adjudication." '29 While these decisions, he wrote, "have the best chance of making an enduring contribution to the quality of our society of any that I know in recent year," they "are entitled to approval" only insofar as "they rest on neutral principles. . . ."110
First, he directed strong criticism against the cases that had outlawed the "white primary" and racially restrictive covenants, concluding that they were simply "ad hoc determinations of their narrow problems, yielding no neutral principles for their extension or support ."131 Then he returned to Brown v. Board of Education, "which for one of my persuasion stirs the deepest conflict I experience in testing the thesis I propose."132 The judgment, he wrote,
must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved. For many who support the Court's decision this assuredly is the decisive ground. But this position also presents problems. Does it not involve an inquiry into the motive of the legislature, which is generally foreclosed to the courts? Is it alternatively defensible to make the measure of validity of legislation the way it is interpreted by those who are affected by it? In the context of a charge that segregation with equal facilities is a denial of equality, is there not a point in Plessy in the statement that if "enforced separation stamps the colored race with a badge of inferiority" it is solely because its members choose "to put that construction upon it?" Does enforced separation of the sexes discriminate against females merely because it may be the females who resent it and it is imposed by judgments predominantly male? Is a prohibition of miscegenation a discrimination against the colored member of the couple who would like to marry? 133
Why does Wechsler find inadequate "the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed [because] the group . . . is not dominant politically and, therefore, does not make the choice involved"? Why does he characterize the assertion of systematic white domination not as a statement of social reality but rather as an impermissible "inquiry into the motive of the legislature"? Indeed, does Wechsler show any real understanding of the bitter reality of racial domination when he declares that there is "a point" in the statement in Plessy v. Ferguson that if "enforced separation stamps the colored race with a badge of inferiority" it is because its members choose "to put that construction upon it"? Likewise, he finds it equally difficult to imagine that "enforced separation of the sexes is discriminatory . . . merely because it may be the females who resent it and it is imposed by judgments predominately male." And why should he have had any doubt about whether a prohibition against miscegenation discriminated "against the colored member of the couple who would like to marry"?
From the perspective of a generation later, Wechsler's difficulties in holding racially discriminatory statutes unconstitutional have that inaccessible quality of ancient structures of understanding derived from a time when a fundamentally different moral order seemed to prevail with assurance. Indeed, his conclusion that "the question posed by state-enforced segregation is not one of discrimination at all" 134 seems positively astonishing. Was there something about neutral principles analysis that produced such a startling conclusion?
If discrimination of whites against blacks did not provide a neutral principle for Wechsler, "freedom of association" might, he argued. "I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied," 13s Wechsler wrote. In other words, unless the Southern white "also pays heavily for segregation," there is no sufficiently general principle to condemn segregation. "But if the freedom of association is denied by segregation, integration for
ces an association upon those for whom it is unpleasant or repugnant. . . . Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles" for barring segregation? Wechsler asked. And he concluded: "I should like to think there is, but I confess that I have not yet written the opinion." 136
A second consecutive Holmes lecturer had ended in doubt about the legitimacy of the Brown decision. 137
Why did Wechsler find "freedom of association," not "discrimination," the appropriately neutral framework for evaluating the segregation cases? Though he was never entirely explicit, Wechsler seems to have believed that only something approaching unanimous agreement-that is, consensus-constituted a sufficiently general and neutral basis for making a value choice. Discrimination analysis entailed choosing between victims and victimizers-in other words, being forced to choose between conflicting moral positions. Yet freedom of association analysis also failed because it too could not be generalized, since it "forces an association upon those for whom it is unpleasant or repugnant." There was no basis for choosing on neutral grounds between denying or imposing freedom of association because Wechsler offered no basis for concluding that whites had been systematically wronging blacks. If there was a "point" in the Plessy view that blacks had chosen their "badge of inferiority," there could, of course, be no such basis. The moral claims of whites and blacks could only be prima facie equal.
B004E3WO62 EBOK Page 42