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WE CALL it judicial review, and while the point has frequently been disputed, sometimes fiercely, there is really no question but that the Framers intended federal judges to exercise the power to invalidate laws that they consider unconstitutional.
To be sure, under the provisions of Article III, the judges are not directly authorized to declare laws unconstitutional. The only power given them is to decide certain designated “cases” and “controversies.” The power to declare laws unconstitutional derives from the necessity to decide a case or controversy in which one party is relying on the law and the other party is relying on the Constitution, and where the law and the constitutional provision are in conflict. This was said by Chief Justice John Marshall in 1803 in the celebrated case of Marbury v. Madison and has been settled doctrine ever since.
It could hardly be otherwise. It would certainly violate the most fundamental of republican principles were federal judges given political power, in the sense of deciding on the wisdom or desirability of proposed legislation. Federal judges serve for life. Because they never have to submit themselves to public scrutiny, they have no right to decide public or political questions. And they were given this independence from the voters precisely because they were expected to make decisions respecting private rights. The judges were expected to stay out of the one area, and the public was expected to stay out of the other.
Marshall drew this distinction in his opinion for the Court in the Marbury case. “The province of the court,” he said, “is, solely, to decide on the rights of individuals. . . . Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”
Federal judges were denied the power to decide questions about the public good because, under the terms of republican government, such questions can be decided legitimately only with the consent of the governed. The public and their representatives were denied the power to decide questions about private rights because such questions can be decided legitimately only by some impartial body. When deciding questions about the public good it is relevant-indeed, in most cases it is essential-to exercise discretion and to weigh consequences; but discretion and the weighing of consequences may not properly enter into decisions respecting private rights. A court will have to decide whether the right exists-in the Constitution or in a statute-and, if so, what it is; but at that point inquiry ceases. What a person does with the right-for example, how he worships, what he says, or how he uses the money he earns or inherits-is none of the public’s business (unless, of course, what he does is “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community,” to quote Federalist 10).
In short, the public good describes that area where the judges may not intrude, the area where what is done may be done only with the consent of the governed. Private rights describe that area where the public may not intrude, the area where what is done may be done without the consent of the governed.
The situation is confused today because the judges, and more precisely the Supreme Court Justices, have taken upon themselves the authority to create rights, and with every right created they have narrowed the range of the public or political area. The constitutional right to privacy, for example, was not written into the Constitution; it was created by being discovered in 1965 in “penumbras, formed by emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. Eight years later, although not sure whether this “fundamental” right was located in the Ninth or the Fourteenth Amendment, the Court said it was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” By creating rights-and, moreover, by acting as if this were a traditional prerogative of the judiciary-the Supreme Court narrowed the range of public questions over which the public might exercise its authority.
It did more than that. It began to treat the Constitution in the way the currently most fashionable literary critics treat a work of literature, as a text to be “deconstructed” and then, in a way, “reconstructed,” but not interpreted because it has no “determinate” or “decidable” meaning; or better, as a text that can be interpreted but not misinterpreted. In this view, the job of the Supreme Court is not to expound the meaning of the Constitution but to provide it with meaning. Its highest function, so the argument goes, is a political function: to keep the Constitution up to date or in tune with the times. “The genius of the Constitution,” says Justice William J. Brennan, Jr., “rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs”; and the Court is in charge of this adaptation.
Although Brennan, like many others, wrongly claims that this notion can be traced back to John Marshall, it is in fact the Fourteenth Amendment, adopted immediately after the Civil War, that has given rise to the extraordinary growth of judicial power he is at such pains to justify. “WHO,” James Madison had asked at the beginning, “are to be the electors of the federal representatives?” And he answered:
Not the rich, more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. What Madison did not say in 1788 was, “not the white, more than the black,” a deliberate omission the Fourteenth Amendment attempted to repair about seventy-five years later. Section 1 of the Fourteenth Amendment reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, clearly, blacks were eligible to become part of the people of the United States-that is, citizens; and those born in the United States were declared to be citizens. As such, they were entitled to be represented in the lawmaking process where their rights would be protected. There they might be outvoted, but that was a prospect shared by everybody. At least now, having been officially incorporated into the body politic, they would be governed not, as in the past, as slaves or subjects, but with their consent.
That was the promise, and on the face of the amendment it appeared to be a serious promise: section 2 stipulated that any state denying the right to vote and be represented was to be deprived of its congressional representation just so much. The sanction was clear and, apparently, mandatory. Congress by law would simply reduce the number of members to which the offending state would otherwise be entitled; or perhaps the House of Representatives would simply refuse to seat a proportion of the state’s representatives, equal to the proportion of persons disenfranchised. As it turned out, however, although many a state denied or abridged the right, no serious effort was ever made in Congress to impose the sanction.
Nor did Congress make a serious effort to exercise the other major power granted it by the Fourteenth Amendment (in section 5), that of enumerating the privileges or immunities belonging to national citizenship. Although it has been a subject of considerable dispute, the power to provide that enumeration or specification seems to be crystal-clear in the language of the amendment, especially when read in the light cast by one of its related provisions.
Article IV of the unamended Constitution speaks of the privileges and immunities of state citizenship, and the language carries the presumption that enumeration of these privileges and immunities would be provided by the respective states. Would it not follow, having now for the first time prescribed the conditions of national citizenship, and having elevated national citizenship over that of the states, and having then, in the next sentence, spoken of the privileges or immunities of this national citizenship, that the Constitution intended to give Congress the authority to provide their substance?
Specifically, if New York may, by law or constitutional provision, declare that one of the privileges of New York citizenship is to sue in its courts, would it not seem an appropriate exercise of the power granted in section 5 of the Fourteenth Amendment for Congress, by law and in the course of time, to declare that one of the privileges of national citizenship is to attend a nonsegregated public school? (A privilege that may not be abridged by “any law” of any state?) Yet Congress never made a serious effort to provide that enumeration, and this, combined with a ridiculous decision of the Supreme Court in 1873, had the effect of rendering the clause a practical nullity.
These failures on the part of Congress-indeed, on the part of the political branches of the government-had consequences that extended into our own time and will extend beyond it.
Although now formally a part of the people of the United States, black Americans remained politically isolated, unrepresented in the constitutional majorities that governed the country. This meant that their rights would not be secured by the institutions of representative government, and the problem this presented festered until, almost of necessity and certainly not unjustly, the Supreme Court intervened. Unfortunately, the instruments available to and employed by the Court were not well adapted to the use to which they were put, and using them caused them to be deformed. More than that, their use contributed to the deformation of the Constitution.
READ literally, the due-process clause of the Fourteenth Amendment imposes restrictions not on state legislatures or on the kind of laws they may enact but on state courts. It forbids those courts “to deprive any person of life, liberty, or property, without due process of law”; which is to say, when imposing punishments or penalties on any person, the state courts are now under a national constitutional obligation to follow the accepted processes of law.
The equal-protection clause of the Fourteenth Amendment, again when read literally, also says something of real importance to the state executives. Governors and sheriffs and the rest were now, for the first time, under a national constitutional obligation to provide the protection of the laws to any person within the jurisdiction of their states or counties, whether resident or visitor, citizen or alien, black or white, adult or child, male or female.
Only by distortion of their terms could either of these clauses be made a measure of the constitutionality of state legislation. But in the absence of congressional definitions of privileges or immunities, making them so is what the Supreme Court began to do toward the end of the 19th century.
One of the first so-called substantive dueprocess cases illustrates the point. Louisiana had enacted a statute forbidding the purchase of insurance from out-of-state companies and had sought to recover a sum of $3,000 from a New Orleans cotton merchant who had insured a shipment with a New York company. Whatever might be said against the substance of this statute, Louisiana had not violated legal process by adopting or enforcing it. The Supreme Court nevertheless declared it to be a violation of due process. It said the liberty protected by the clause included the liberty to enter into contracts and then proceeded to say, in effect, that the states were forbidden to deprive any person of this liberty no matter what process, due or undue, it followed.
In this and a host of similar cases, the judges were exercising a power that had been explicitly denied them in the Constitutional Convention of 1787: they were passing judgment on “the mere policy of public measures.” Of necessity, and no doubt out of conviction as well, they cast these judgments in constitutional terms, but the time came when the people (led by the politicians) were not persuaded of the connection. By 1937, having long been “employed in the task of remonstrating agst. popular measures of the Legislature”-the words are those of Luther Martin in the 1787 convention-the Justices were on the verge of losing the confidence of the people, and it was on this confidence that their power ultimately depended. Hence, when President Franklin Roosevelt threatened to undermine their authority by “packing” the Court with new members of his choosing, the old members gracefully withdrew from the field. From that time forward, public economic policy would be made by officials constitutionally and nominally qualified to make it; at a minimum, it would henceforth be made with the consent of the governed.
What became true of economic policy, however, would prove not to be true of social policy; and with respect to racial policy especially, it would prove to be emphatically untrue.
THE “switch in time saved nine” in 1937 and also preserved the principle of judicial independence, but it could not by itself repair the damage done over the years to the Constitution. Thanks in large part to the Court’s Fourteenth Amendment jurisprudence, the Constitution came to be seen not as the embodiment of fundamental and clearly articulated principles of government but as a collection of hopelessly vague and essentially meaningless words and phrases inviting judicial construction. In other words, it came to be understood as no more than an invitation to these insulated judges to make constitutional law and, when necessary, remake it.
For a time after 1937, the Court was disposed to decline that invitation and to defer to the judgments made in the political branches of government, both state and national. To a far greater extent than in the immediate past, statutes were to be presumed constitutional or, at least, not unconstitutional; this was stated as a principle in a famous footnote in an opinion handed down in a 1938 case. In the same footnote, however, the Court indicated that it would not necessarily be governed by that principle in all categories of cases. One of the exceptions, it said, might be cases involving statutes directed at “racial minorities.”
What followed is too familiar to require elaboration: housing in formerly restricted neighborhoods was made available to black buyers; public schools and then public facilities generally were desegregated; and, to mention merely one more example, the various barriers to black voting were removed. All this and more was accomplished by the courts directly or, in some cases, as the result of their initiative, and it was done because the states, governed by white majorities, had failed to act and because Congress had done nothing to cause them to act.
But, again, the instrument employed was ill– adapted to the task. The Court’s treatment of racially restrictive real-estate covenants is one example. The covenants-private agreements entered into with a view to excluding (in this case) blacks from certain neighborhoods-were discriminatory but not, the Court acknowledged, illegal. Nevertheless, unlike other legal contracts, these were held to be unenforceable: “In granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws.” But this was by no means evident, and nothing the Court said made it evident. The blacks were surely the victims of private discrimination, but if anyone was being denied the equal protection of the laws it was the white covenantors. They had entered into legal contracts, reprehensible but legal nevertheless, and they were denied access to the courts, where, alone, those contracts might be enforced. In short, they were denied the right to claim the protection of the laws, which Chief Justice Marshall said many years ago is “the very essence of civil liberty.”
No more persuasive was the Court’s rationale in Brown v. Board of Education, the public-school desegregation case. The black schoolchildren were surely being denied a privilege that ought to have been enjoyed by all citizens, but as even the most venerable opponents of racial discrimination have admitted, the Court did not make it evident that they were being denied the equal protection of the laws. The Court might have meant that for a state to separate by race is to treat races differently and therefore-although the conclusion is by no means obvious-unequally. Yet what it said was that “separate educational facilities are inherently unequal,” a logical absurdity that evoked no comment from persons blandly contented with the result but hoots of derision from logicians and hostile white Southerners. Nothing in the Court’s opinion could persuade them that the decision was rooted in, or issued from, the Constitution.
To prove its nonconstitutional origins, the state of Virginia sponsored a project culminating in the publication of a sizable volume of over 700 pages containing the legislative history and the debates in the post-Civil War Congress on the Thirteenth, Fourteenth, and Fifteenth Amendments. Careful study of these materials would enable “judges, lawyers, teachers, and students” to determine for themselves whether decisions such as that in Brown v. Board of Education “comport with the reconstruction amendments as originally understood and intended.”
The project was, of course, naive in its conception and barren in its consequences. By this time the prevailing view was that Supreme Court Justices could not be bound by the original understanding of a constitutional provision or by the intent of its Framers, even if that understanding or intent could be unearthed from the rubble of those old words.
The good judge, according to this new view, does not engage in the hopeless and, more to the point, irrelevant task of trying to ascertain the “true” meaning of the equal-protection clause, for example. He does what Justice William 0. Douglas was praised for doing: he raises the question of what is good for the country and seeks “to translate his answers . . . into constitutional law.” The instruments he employs-the equal– protection clause or whatever-cannot be said to be ill-adapted, not to this task; on the contrary, the (presumed) vagueness of those clauses affords him the freedom he requires to do his job, which is to make public policy. “Interpreting those five little words [“equal protection of the laws”] is hardly a question of law in the ordinary sense,” said Joseph Rauh, a one-time Supreme Court clerk and long-time Court watcher. “It is a matter of highest public policy based on history, custom, and current public morality.”
AS THOSE “five little words” had come to be understood, Rauh was surely correct; interpreting them is not a matter of constitutional exposition. Read literally, the clause means that every “person” within the jurisdiction of a state-regardless of race, gender, age, nationality, social status, or whatever-is entitled to the protection of the laws, whatever they are. There is nothing in its language (or, for that matter, in its legislative history) that can serve as a measure of the constitutionality of the laws themselves. To make a decision on this basis is policy-making, and Rauh admits as much when he goes on to say that the “Supreme Court is part of our nation’s political process, and the sooner this is accepted as inevitable the better.” It has become, against the expressed will of the Framers, a council of revision and, because the Court casts them in constitutional terms, its revisions or policy decisions cannot be overridden or reversed.
In his Pulitzer Prize-winning book on the Dred Scott case, Professor Don E. Fehrenbacher writes that, while the decision in that case represented an effort on the part of the Supreme Court to turn back the clock of civilization, “in at least one respect it had a distinctly modern ring.” Like its successor today, the Dred Scott Court was not content to play the role of constitutional censor of “public policies fashioned by other hands”; it attempted to do what the contemporary Court has succeeded in doing-namely, to become the initiator of social change. “Government by judiciary,” Fehrenbacher writes, “is now, in a sense, democracy’s non-democratic alternative to representative government when the latter bogs down in failure or inaction.” Not surprisingly, its most avid friends are of the opinion that government by judiciary is not a “non-democratic alternative”-that, in fact, the judiciary is more truly representative than even the Congress and, therefore, that the judges are under no obligation to wait for the other branches of government to “bog down.”
Why wait when, according to Harvard law professor Abram Chayes, the judicial process is superior in all respects to the way things are done (or not done) in the legislative and executive branches? Chief among its presumed advantages is that it is governed by lawyers, and lawyers are governed by a “professional ideal of reflective and dispassionate analysis of the problem before [them] and [are] likely to have some experience in putting this ideal into practice.”
Not only that, but it is a judge who presides over the process, a judge whose “professional tradition insulates him from narrow political pressures.” Which is to say, the judge, unlike members of Congress, is insulated from the voters and, for that reason, is better able to govern. As Chayes would have it, the Framers provided a system of representative government because they failed to see the advantages of government by judiciary-either that, or they thought the lawyers of their day were unprepared to assume the responsibilities of statesmanship. Perhaps they thought them incapable of disinterested actions.
Nothing, of course, could be further from the truth. In theory, the country was indeed founded by self-interested men who acted in order to secure their private rights; in practice, however, these same men pledged “to each other [their] Lives, [their] Fortunes and [their] sacred Honor.” In theory, the country was founded by men claiming rights against one another; in fact, they were men closely associated in families, churches, and a host of other private institutions. According to their books, government is created by men who had been living in a state of nature and are seeking to escape its miseries; in fact, the American government was created by men whose characters had been formed under the laws of an older and civilized politics.
Moreover-and it is precisely here that the modern Supreme Court has shown its incapacities for governing-although the Framers (including all the lawyers among them) knew that their principles forbade the use of the laws directly to generate virtuous habits, they did not regard it as improper for the laws-and in practice this meant the laws of the states-to support the private institutions in which those habits had been generated and were to be generated. They apparently took it for granted that states would use the law to support the institution of the family, for example; on at least one occasion even the Supreme Court acknowledged its political importance. Here is John Marshall writing for the Court in an 1823 case:
All know and feel . . . the sacredness of the connection between husband and wife. All know that the sweetness of social intercourse, the harmony of society, the happiness of families, depend on that mutual partiality which they feel, or that delicate forbearance which they manifest towards each other. NO such sentiment, no such appreciation, ever surfaces in a modern family case-not, that is, at the Supreme Court level. With a view to supporting the institution of the family, and in a variety of ways, the states punish and seek to inhibit illegitimacy; but the Court, starting “from the premise that illegitimate children are not ‘nonpersons,’ ” that they are in fact “clearly ‘persons’ within the meaning of the equal-protection clause of the Fourteenth Amendment,” strikes such statutes down one and (almost) all. Only once did the Court, by the narrowest of margins, uphold such a statute-this one prohibiting an illegitimate child from sharing equally with legitimate children in the estate of a father -and here Justice Brennan, speaking for the four dissenters, complained that the majority had acted “to uphold the untenable and discredited moral prejudice of bygone centuries.”
Tocqueville, the greatest of democratic educators, could write powerfully of the importance of the woman who, in the family, shapes the morals and manners by which democracy lives, who is allowed to choose her husband and is taught that “the springs of happiness are inside the home,” and whose chastity as a young girl is protected not only by religion but by an education that limits her “imagination”; but not a trace of these lessons appears in today’s Supreme Court decisions.
The old-fashioned state laws proscribing obscene-to say nothing of pornographic-publications are regarded by the modern Supreme Court as narrow-minded comstockery that, by inhibiting the liberty to “express oneself,” are in flat violation of the Fourteenth Amendment. Indeed, Justice Douglas was of the opinion that obscenity was good for us, and quoted a Universalist minister in support of that judgment. One could never suspect from a reading of the Court’s opinions in these censorship cases that, as Allan Bloom has written, “during the greater part of recorded history disinterested, that is to say, philosophic, men were of the opinion that republics required the greatest self-imposed restraints whereas tyrannies and other decadent regimes could afford the greatest individual liberties.”
Tocqueville again, even more powerfully than Washington in his farewell address, could argue the importance of religion in a democratic regime. “When any religion has taken deep root in a democracy,” he wrote, “be very careful not to shake it, but rather guard it as the most precious heritage from aristocratic times.” But such a concern is foreign to the modern Supreme Court. Nominally, at least, it allows statutes supporting religious institutions if their purpose is “secular,” but in case after case the Court has managed to find that, whatever the purpose of the statute, its “primary effect” is to aid religion, and that cannot be permitted. Although the Court proceeds in blissful ignorance of the fact, what the First Amendment meant to the men who added it to the Constitution was not at all that government must be neutral between religion and irreligion.
It is not possible to point to a single statement proving that the Framers expected the states to provide the sort of civic or moral education required of citizens in a republican regime, but there is ample evidence that they were aware of the requirement. And it is incontestable that, from the very beginning, the states were aware of it and attempted to meet it, if only by supporting the private institutions whose business it was to provide such an education. The laws providing that support are certain to inhibit somebody’s freedom, or somebody’s idea of freedom, if only by depriving that somebody of his “right” to attend a public school where teachers are not required to “announce that a period of silence, not to exceed one minute in duration, shall be observed for meditation.” And sadly, when these laws are tested under the rubric of the Fourteenth Amendment, the Court tends to expand the rights of republican citizenship but ignore altogether its conditions or preconditions.
Nowhere is this more evident than with the so-called right of self-expression. This new right has nothing to do with representative government in general or with the gaining of consent in particular. By this right one may “express” himself (or his self) by wearing obscene jackets in courthouse corridors, uttering the foulest of language in schoolboard meetings or publishing it in student newspapers, hanging the American flag upside down or wearing it on the seat of one’s trousers or, under some circumstances, burning it. All forms of political expression, no doubt, but not the sort of speech that is calculated to elicit consent; nor, for that matter, is it uttered with that intention. On the contrary, it is a way of expressing contempt: for fellow citizens, for the country (“Amerika”), and for the very idea of representative government. “Those who are ‘into’ self-expression,” as one authority put it recently, “do not care whether they gain a point by persuading a majority.”
But to persuade a majority, or demonstrate a willingness to join one, is the constitutionally prescribed way of exercising the most basic of human rights, the right to consent to government, or the right to govern oneself. It is the most basic right because, as we know from the Declaration of Independence, without a government to which we give our consent no rights are secure. By “creating” this new right of self-expression, then, and thereby encouraging persons intent on exercising it to the limit described in these decisions, the Supreme Court has-unwittingly no doubt-contributed to the weakening of that basic right, thus putting at risk the sort of representative and constitutional government that depends on it.
SUCCESS in the legislature is measured by the extent to which one’s interest is accommodated in the law adopted by the majority, and to achieve that success it is necessary to display a willingness to be accommodating oneself. Immoderate and outrageous demands especially are not likely to be successful, which explains why immoderate politicians are disdainful of legislative assemblies. “Take away that fool’s bauble,” Oliver Cromwell shouted, the bauble being the mace symbolizing the authority of the House of Commons.
Success in the Courts, however, is measured by having one’s interest declared a right, and with the right comes the freedom to be immoderate because-to repeat-the right defines an area where the public may not enter. And the modern Supreme Court has done little to discourage interests that are immoderate to begin with. When the Court looks into those “penumbras, formed by emanations” from a potpourri of constitutional provisions and manages to find a “right” to terminate a pregnancy, it is almost inevitable that it will be asked to look again and see if it cannot come up with a right to engage in consensual sodomy. And had the Court succeeded in finding it-and it recently came within one vote of doing so-it would have inevitably been asked to look one more time and see if it could not find hidden somewhere in those shadows the “fundamental right” to be incestuous. After all, as one law professor said back in 1973, the Constitution protects all fundamental rights, sexual expression is a fundamental right, and sexual intercourse between “blood relatives” is one form of that expression.
But what foundation is there for any of these new “rights”? This nation began by declaring that certain rights-among them the rights to life, liberty, and the pursuit of happiness-are unalienable or natural, and natural because they are grounded in the nature of man. Many an American at the time was familiar with the philosophical works purporting to prove this. Then, because there was a general agreement that these rights were indeed fundamental, we the people were able to institute a government designed to secure them. In the literal sense of the word, we were able to found a government on what was understood to be fundamental. It is not possible to believe that we could have founded a government on the right to terminate a pregnancy or the so-called right to engage in consensual sodomy, even if some judge or some law professor were solemnly to assure us that they were fundamental. Besides, what could possibly be the basis for such an assurance or such a declaration?
Justice Harry A. Blackmun, whose most enduring legacy to the American people will be his opinion in Roe v. Wade, the leading abortion case, wrote the principal dissent in the sodomy case, Bowers v. Hardwick. He began by protesting that, contrary to what was said in the majority opinion, the case did not concern a fundamental right to engage in homosexual sodomy but, rather, the fundamental right “to be let alone.” But that argument carries no weight whatever. There is, and can be, no general constitutional right to be let alone. Let alone to do what? To worship? Absolutely. To read? Yes. To waste time? Even that. But to rob a bank? To counterfeit money? To make noise? To refuse to be vaccinated? To shoot heroin? To manufacture it? To make child pornography films?
In countless ways the law invades privacy, even (with a warrant) the privacy of the home. So it is not enough to speak abstractly of a right to be let alone, and, implicitly at least, Blackmun acknowledges this in the very next sentence when he says that the Georgia statute at issue “denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity.” So the question is, what is the foundation for this so-called right? And the answer is, no more than the interest that some persons have in being let alone to engage in that form of sexual activity.
The Court is undoubtedly under pressure from the jurisprudence currently in fashion in the prestigious law schools to take rights seriously. Fair enough. But contrary to the purveyors of this fashion-in the press as well as in the schools -this does not require the Court to grant interests the status of rights, as if by natural right a person consents to government on condition that his interests be satisfied. This is absurd because it is impossible, and it is impossible because not all interests can be satisfied.
For example, it is a fact that the interests of the pro- and anti-abortion groups cannot both be satisfied. Indeed, by making abortion a right, the Court brought into being an organized and frequently violent anti-abortion interest. And that is likely to happen whenever the Court declares an activity to be a fundamental right when it is demonstrably-because it has no basis in nature, in convention, or in contemporary opinion-not a fundamental right. A professor (Ronald Dworkin) who set out to take rights seriously proceeded to find, in a model of government of his own devising, a fundamental right to disobey the law, which, if exercised by a significant number of persons, would return us to the state of nature where we could enjoy that “right” to our hearts’ content-to our hearts’ content but within the limits of a life that, if Hobbes was correct, will be “solitary, poor, nasty, brutish, and short.” And that is the direction in which the Court’s decisions have been taking us.
No government, not even the most liberal or generous, can promise to satisfy all wants or interests. What it can fairly promise, if it is properly organized, is security for those rights that are understood to be unalienable or fundamental, which in practice will mean the right to be governed only with one’s consent. Under the Constitution’s system of representative government, this becomes the right to be part of a governing majority. Such majorities cannot be constructed out of the variety of hostile single– interest groups that have been generated by the Supreme Court’s recent holdings under the Fourteenth Amendment, an amendment adopted in order to make one people where there had previously been two. Quis custodiet ipsos custodes? Who indeed will guard the guardians themselves? The extravagance of the power now claimed by some members of the Court is nowhere better seen than in Justice Brennan’s actions in a women’s-rights case decided during the period when the so-called Equal Rights Amendment, having been proposed by the required twothirds vote in each House of Congress, was awaiting ratification by the required three-fourths of the states (a ratification it never received). The issue in the case, Frontiero v. Richardson, or more precisely, the issue on which the Justices were divided, was whether sex, like race, should be treated as a suspect classification. If so, states would be required to bear a heavier burden when attempting to justify the distinctions drawn in the statute.
Brennan circulated a draft opinion on the limited grounds, and then he sent around an alternative section that proposed a broad constitutional ban, declaring classification by sex virtually impermissible. He knew that his alternative would have the effect of enacting the Equal Rights Amendment, which had already passed Congress and was pending before the state legislatures. But Brennan was accustomed to having the Court out in front, leading any civil-rights movement.
The authors of this account conclude by quoting Brennan as being of the opinion that there “was no reason to wait several years for the states to ratify the amendment”-no reason other than the fact, which Brennan knew to be a fact, that the Constitution as then written would not support the decision he wanted the Court to render. Unable to persuade Justice Potter Stewart to join the coalition he had put together, Brennan lamented to his law clerks that he had come “within an inch of authoring a landmark ruling that would have made the Equal Rights Amendment unnecessary.”
No statement is more revealing of the contemporary liberal’s view of the Constitution and the powers of the Court respecting it. It says, in effect, that Brennan and any four of his colleagues are entitled to do in private-in the privacy of the Court’s conference room-what may be done in public only by extraordinary majorities of the states and of the House and Senate. It says, in effect, that the Constitution may be amended in two ways, one difficult and the other easy; one public and the other private; one by following the procedures delineated in Article V of the Constitution and the other by vote of William J. Brennan, Jr., joined by four other Supreme Court Justices. Assigned the task of being the “faithful guardians” of the Constitution, these Justices fancy themselves its surrogate parents.
The recently decided Santa Clara County affirmative-action case provides further evidence of Justice Brennan’s disdain for constitutional law and, indeed, for the very idea of constitutionalism. In his majority opinion, Brennan converts a federal statute forbidding racial and gender discrimination (the Civil Rights Act of 1964) into one effectively requiring, indeed compelling, such discrimination, and by doing so reminds us of that legendary National League umpire, Bill Klem, who, in response to a batter’s protest that the pitch was a ball, outside the strike zone, said, “It ain’t nothin’ till I call it.”
The Santa Clara case establishes these three propositions: (1) some people do not have to obey the law; (2) they do not have to obey it when a Supreme Court majority does not like the law as written; (3) there is nothing in the Constitution preventing Justice Brennan, speaking for that majority, from simply rewriting the law to suit his fancy.
Meanwhile, the rest of us-members of Congress, the President, Admiral John Poindexter, Colonel Oliver North, and plain private citizens -are expected to obey the law as well as the Constitution. Following Brennan’s example, however, we can also be expected to want to change this requirement to obey the law when it suits our fancy. That we are entitled to do this is the lesson in constitutionalism taught by Justice Brennan.
Walter Berns is John M. Olin University Professor at Georgetown University and the author of The First Amendment and the Future of American Democracy, In Defense of Liberal Democracy, and other works. The present essay will appear in somewhat different form in his forthcoming book, Taking the Constitution Seriously, which Simon & Schuster is publishing later this month. Copyright 1987 by Walter Berns.
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