Coercing Virtue
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This recital of multiple misbehaviors does not prove judicial review illegitimate, but the manner in which the Supreme Court established its authority was hardly propitious. Even so, the Marshall Court of 1803 could not have foreseen the uses to which the Court’s authority was put in the twentieth century and, barring a miracle, will continue to be put in the twenty-first. Marshall justified judicial supremacy in the interpretation of the Constitution on the ground that the legislature must not be permitted to do what the Constitution forbids. The subsequent career of judicial review, however, demonstrates that courts, being uncheckable, freely do what the Constitution forbids while ordering others not to do what the Constitution allows.
The power of judicial review lay unexercised for fifty-four years until Dred Scott v. Sandford (1857), which was the worst constitutional decision of the nineteenth century – not merely in the immorality of its result and the speciousness of its reasoning, but because it is the true doctrinal ancestor of many modern constitutional follies. In this case the Court decided that the slave Dred Scott could not be declared free on the basis that he had been taken to Illinois, where slavery was forbidden by federal law. Chief Justice Roger Taney, writing for a majority of the Justices, could simply have dealt with the facts of the case and decided that Scott, as a slave, was not a citizen with standing to bring a lawsuit, but he went further and declared that the United States lacked the power to prohibit slavery in any state or territory or to permit a state to bar slavery in its own territory. That, he said, would deprive slave owners of their property without “due process of law.” With this single sentence Taney converted a clause of the Fifth Amendment from a guarantee of a proper process in the application of law to a guarantee of a proper substance, or meaning (in the view of the Justices), of the law itself.
The Court would now be able to judge the constitutionality of law by deciding, without any criteria to structure the judgment, that the substance of what the law commanded was not “due.” There could be no intellectual structure to substantive due process because its existence was unjustified, indeed contradicted, by the text, and the framers and ratifiers, of course, provided no legislative history for a concept they never intended. One might have expected this transparent sleight of hand from a Court trying to justify the unjustifiable. What could not have been foreseen was the scores of times the Court would use due process to substitute its law-making for that of the elected legislature.
If Marbury was motivated by Federalist politics and Dred Scott by sympathy with the slave states, the Court after the Civil War began to express the ideology of the rising business class. The most notorious example is Lockner v. New York (1905), which struck down a decision setting maximum work hours for bakers. Justice Peckham, writing for the majority, used the Due Process Clause of the Fourteenth Amendment to create a “liberty of contract,” a concept found nowhere in the Constitution, to hold that any limitation on hours of work was unreasonable. Statutes of this type, he wrote, were “mere meddlesome interferences with the rights of the individual.” Three of the Court dissenters even agreed that there was a liberty of contract. This freehand approach to constitutional argument was to have results that Peckham, let alone Marshall and Taney, would have abhorred. In the wake of the Great Depression, the next stage in the Court’s ideological journey was the enforcement of New Class values, rather than those of the business class.
The one thing that stood in the way of a full-blown activism was the Court’s fear of overreaching and a consequent political backlash. That fear must have seemed well founded after President Franklin Roosevelt, frustrated by the invalidation of much of the economic regulation of his New Deal, attempted to “pack” the Court by seeking legislation enabling him to appoint an additional Justice for every Justice who reached the age of seventy and did not retire. Six Justices were then over seventy. It soon became apparent, however, that a conservative activist Court was vulnerable in ways that a liberal activist Court was not. The Court regained its confidence and the activist enterprise went into high gear after the decision in Brown v. Board of Education (1954). I have argued elsewhere that Brown’s desegregation of public schools can find support in the Constitution, but, as demonstrated by the woefully inadequate opinion it issued, the Court did not think so. Yet, despite its belief that the decision had no real grounding in the Constitution, the Court saw that it could make a highly controversial decision stick, even over powerful opposition. Activism was safe, it believed, and the wraps were off.
What is this New Class agenda advanced by the Court?
The First Amendment: Speech and Religion
Perhaps no provisions of the Constitution are more central to American democracy and culture than those of the First Amendment’s guarantee of speech and religious freedom:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.1
The First Amendment is pivotal. Nothing reveals more clearly the contest of views concerning the proper relationship between the individual and society. Equally clear, in the Court’s recent deformation and reversal of the meaning of that amendment, is the rise to dominance of the New Class. Harry Kalven was correct in saying that freedom of speech is so close to the heart of democracy that, if we lack an appropriate theory of the First Amendment, we really do not understand the society in which we live. I would add that if we lack an appropriate theory of the Religion Clauses of the First Amendment, we do not understand the culture that religion in large measure formed nor the erosion of cultural virtues that the Court’s new-found hostility to religion has abetted.
The Court had little occasion to consider First Amendment speech claims until the early years of the twentieth century; it did so particularly in prosecutions arising out of the First World War and what has become known as the Red Scare. Today, those cases are remembered less for the majority opinions than for the dissents by Justices Holmes and Brandeis that contained the seeds of doctrine that came to fruition in later years and are with us yet. I have expressed my doubts about those dissents elsewhere, but here I want to note that the assumption of complete human rationality made its debut in Holmes’s dissent in Abrams v. United States (1919). The defendants were convicted for circulating pamphlets construed as harmful to the war effort. Holmes would have set aside the convictions on statutory grounds, which would have been entirely proper, but then proceeded in his glittering prose to introduce into the First Amendment an unfortunate assumption of rationalism:
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the test of truth is the power of thought to get itself accepted in the competition of the market.
This is a distinctly odd passage since Holmes, again in dissent, said elsewhere that the only meaning of the First Amendment was that the dominant force in the society must have its way, even though that might prove to be the dictatorship of the proletariat – hence the only meaning of the First Amendment is to permit the victory of a fighting faith over the free trade in ideas. That anomaly aside, underlying his argument that the test of truth is acceptance of an idea in the competitive market is the assumption that, in a future short enough to be worth waiting for, men will be rational actors. Since that is obviously not true, the metaphor can be fatally misleading. An economic market imposes a discipline that the marketplace of ideas does not. A producer of shoddy goods will soon find that consumers will turn elsewhere. A producer of shoddy ideas may be able to sell them indefinitely, as Nazism and communism demonstrate. Holmes certainly knew from history that horrible ideas were often accepted in the market. His own experience as a soldier demonstrated that, when ideas differ sharply enough, the “truth” of one or th
e other is not settled in the market but in the slaughter of the battlefield. Nevertheless, the compelling quality of his prose and the attractiveness to intellectuals of the notion of the ultimate supremacy of good ideas served, down to our own day, to make his extremely dubious version of appropriate constitutional policy the dominant one. A counterfactual rationalism has become a central tenet of the law of freedom of speech.
The core value of the First Amendment’s Speech Clause is the protection of political speech, speech that informs and guides the political process essential to a republican form of government. Until recent years, the amendment was not understood to have anything to do with topics such as pornography and very little to do with subversive advocacy of revolutionary violence and law breaking. But now the First Amendment, as interpreted by Court majorities, has gone soft at its center while it becomes increasingly severe at its fringes.
The Speech Clause began to go soft with the 1976 decision in Buckley v. Valeo (1976). The Supreme Court upheld portions of the Federal Election Campaign Act limiting individual contributions to political candidates to quite small amounts, but held invalid restrictions on political expenditures. Though the statute was presented as an anti-corruption measure, its real effect was to limit and distort political speech. Had the Court-approved limits been in place in 1968, for instance, Eugene McCarthy’s challenge to President Lyndon Johnson in the New Hampshire primary, a contest that persuaded the president not to seek re-election, could not have been mounted. McCarthy’s campaign depended on very large individual contributions; he could not, in the time available, have raised the necessary funds from tens of thousands of small contributors.
Limiting contributions inhibits political speech in two ways. First, candidates are forced to spend large amounts of time raising money in small amounts – time they would otherwise devote to campaigning. Second, contributors make it possible for candidates to advance the contributors’ views. The Court held that restrictions on contributions were valid because of the fear of corruption, or even the appearance of corruption. These concerns, however, could have been dealt with by public disclosure requirements.
The Federal Election Campaign Act and the decision in Buckley v. Valeo, moreover, have shifted political power in America toward those with the leisure to engage in political activity – toward students, toward labor unions with members willing to engage in door-to-door campaigning and to run telephone banks, toward journalists and those with free access to the media, toward candidates with great personal wealth they are free to spend, and toward incumbents who have provided themselves with a variety of political resources at public expense. Many of these shifts in power were planned intentionally by the groups favored, and most of them favor the New Class’s liberal agenda.
Matters have not improved since 1976. In Nixon v. Shrink Missouri Government PAC (2000), the Court upheld a state law imposing even more drastic limitations on political contributions, in part to “democratize” political power and in part because, as Justice Stevens’s concurrence put it, “Money is property; it is not speech.” The first rationale is a perversion of the First Amendment. If democratization or equalization of speech were a valid reason, the Court should uphold a requirement that networks and newspapers employ equal numbers of liberal and conservative commentators. As to the second rationale, it would justify a ban on an owner’s donation of his auditorium for a campaign rally or a homeowner’s use of his living room for a political meeting. It might equally be said that telecasting equipment is property and not speech, but it is property without which political speech in a mass democracy would be utterly ineffective. It is difficult to see in Shrink anything other than what the dissenters said it was – a substantial suppression of political speech. The Court’s disrespect for the central concern of the First Amendment bodes ill for freedom of political speech as new restrictions on campaign financing are proposed.
Any version of the First Amendment not built on the political speech core and confined by it, if not to it, will prove intellectually incoherent and will leave judges free to legislate as they will. Both of these unfortunate results stem from the weakening of the amendment’s political core. They may also be seen in what the Supreme Court has made of the law relating to subversive speech and to pornography and obscenity.
The Court displays an extraordinary concern, indeed solicitude, for the well-being and vigor of subversive advocacy, whether it be American Nazis marching through a neighborhood having a substantial number of Holocaust survivors or speech urging the violation of law in the service of one or another cause. The willingness to protect such speech, though it is of no social or political value in a nation where elections are free, follows from Holmes’s metaphor of open competition in the marketplace. This line of cases culminated in Brandenburg v. Ohio (1969), which laid down the rule that the Speech Clause does “not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That extraordinary ruling replaced older law that saw little, if any, social value in the advocacy of forcible overthrow or law violation but did give weight to its dangers, even if the violence or law violation was not “imminent.” Brandenburg would allow demagoguery to bring its audience to a boiling point and permit intervention by the state only when the last in a series of incitements was likely to produce action. That prescription will often be unworkable and, in any event, the conclusion makes little sense in a democracy where speech is directed to governing, not to the self-fulfillment of the demagogue or to minority violence.
A parallel development occurred in the alteration of the law relating to pornographic or obscene expression. This area is the one in which the Supreme Court’s capture by the philosophy of radical individualism is perhaps most blatant. For two centuries, in fact ever since the establishment of the first colonies, Americans suppressed such expression. As late as 1942 a unanimous Court could say in Chaplinsky v. New Hampshire that prohibiting “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words” had “never been thought to raise any Constitutional problem” because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Order and morality? In the culture created by modern liberalism, the words sound quaint, if not benighted and repressive.
The Zeitgeist mutated so rapidly that, in 1973, when a bare five-Justice majority upheld minor (and, as it proved, utterly ineffective) restraints on pornography in Miller v. California, there was a great outcry about censorship. Communities now find it impossible to control the torrent of pornography loosed upon them. Juries can no longer agree, as Miller requires, that any depiction of sexual conduct is “patently offensive” or that “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” And there is always a clutch of professors at hand to testify that the purest pornography is actually a profound parable about the horrors of capitalism or the repressiveness of the bourgeois state, or that, in any event, the photography or the prose has artistic value.
The Court has proved almost equally unable to cope with the problem of obscene speech. Cohen v. California (1971) threw First Amendment protection around a man who wore into a courthouse a jacket suggesting, with a short Anglo-Saxon verb, that the reader perform a sexual act of extreme anatomical implausibility with the Selective Service System. Justice Harlan, writing for the majority, relied on both the dangers of the slippery slope and moral relativism. He said “the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?” He might as well have said that, in tort law, the negligence standard is inherently boundless: How is one to distinguish the reckless driver from the safe one? The answer in both cases is the common
sense of the community. Almost all judgments in law are matters of degree, as, to take another example, in distinguishing between libel and fair comment. Harlan’s other reason was a classic of moral relativism: “One man’s vulgarity,” he said, “is another’s lyric.” On that ground, it is impossible to see how law on any subject can be allowed to exist if any citizen disagrees with it. One man’s armed robbery is, after all, another’s just redistribution of wealth.
The First Amendment does not enforce virtue, but the Court should not misuse the guarantee to outlaw the legitimate efforts of communities to slow the erosion of moral standards, to safeguard the aesthetic environment, and to set minimal standards for the decency of public discourse. If the First Amendment were interpreted, as it was for most of our history, to permit such efforts, nothing of any worth would be lost and much would be gained.
The inversion of the Speech Clause so that pornography and calls for violence and law violation are better protected than political speech is a continuation of the Court’s transformation of the clause from an indispensable element of democratic government to a guarantee of individual self-gratification and diminished popular engagement in politics. This trend, too, is congenial to the scale of values advanced by the New Class.
Much the same may be said of the Court’s interpretation of the Religion clauses of the First Amendment. The liberal intelligentsia is overwhelmingly secular and fearful of religion; hence its incessant harping on the dangers posed by the “religious right.” That ominous phrase is intended to suggest that Americans who are conservative and religious are a threat to the Republic, for they are probably intending to establish a theocracy and to institute an ecumenical version of the Inquisition. (Exasperated, a friend suggested that the press should begin referring to the “pagan left.”) It is certainly true, however, that the liberal intelligentsia’s antagonism to religion is now a prominent feature of American jurisprudence. The Court moved rather suddenly from tolerance of religion and religious expression to fierce hostility. Though not the first manifestation, one case illustrates the place of religion on the Court’s scale of values. Major philosophical shifts in the law sometimes occur through what may seem to laymen mere tinkerings with technical doctrine. The judiciary’s power to marginalize religion in public life was vastly increased through a change in the law of what lawyers call “standing,” which withholds the power to litigate from persons claiming only a generalized or ideological interest in an issue. Some direct impact on the plaintiff, such as the loss of money or liberty, is required. But in 1968, in Flast v. Cohen, the Supreme Court created the entirely novel rule that taxpayers can sue under the Establishment Clause to prohibit federal expenditures aiding religious schools. The Court refused to allow similar suits to be brought under other parts of the Constitution. Thus, every single provision of the Constitution, from Article I, section 1, to the Twenty-seventh Amendment, except one, is immune from taxpayer or citizen enforcement – and that exception is the one used to attack public manifestations of religion.