The Tempting of America

by Robert H. Bork

  That passage, which is thrown into utter incoherence by its last sentence, was, apparently, clearer to Johnson than article I, section 10. “I have thrown out these ideas that I may have it distinctly understood that my opinion on this point is not founded on the provision in the constitution of the United States, relative to laws impairing the obligation of contracts.” Just so. That is the only thing that can be understood.

  Fletcher v. Peck was, however, the end of the Marshall Court’s flirtation with the idea that legislative acts could be overturned on grounds of natural justice or the nature of government and society. Moreover, none of the Justices—Chase, Marshall, and Johnson—who suggested that laws not barred by the Constitution might nevertheless be invalidated by the Court ever gave a reason for that conclusion or ever described how the Court should go about identifying the extra-constitutional principles that might apply. There was no theoretical argument even remotely comparable to the extended justification in Marbury for conventional review under the express provisions of the Constitution.

  Aside from writing an extensive opinion in Marbury, attacking Madison and arguing for judicial review, in a case where the Court had no jurisdiction and where he had to misrepresent a statute in order to make his point, Marshall repeatedly ignored the actual legal materials before him in order to make points he thought important. In Gibbons v. Ogden (1824),14 he wrote an opinion for the Court striking down a New York statute that granted a monopoly to operate steamboats on the state’s waters. He strongly suggested the possibility that the power over commerce, given to Congress by the Constitution, though Congress had not exercised it, was sufficient to invalidate the law by its mere existence. That suggestion would have meant that the judiciary should assume a power that the Constitution lodges in Congress, and later in the century the suggestion was picked up, so that even today the Court does what Marshall suggested. But he went on in Gibbons to hold that Congress had in fact exercised the commerce power, thus preempting New York’s law, by providing for the licensing of vessels in the coastal trade. Though the license was rather clearly intended only to exempt American ships from the burdens Congress imposed on foreign ships, Marshall, in a feat of construction reminiscent of his distortion of the mandamus statute in Marbury, construed the license as federal permission of unimpeded passage on all navigable waters of the United States.

  Yet five years later, in Willson v. Black Bird Creek Marsh Co.,15 he upheld Delaware’s power to authorize a private company to block a navigable waterway with a dam. He made no mention of either his suggested inference from the existence of the congressional commerce power or of the coasting license, which was present in this case as well. Without explanation, and without authorization by Congress, Marshall simply decided which state regulations of commerce were reasonable and which were not.

  It remains true, of course, that Marshall was a great judge and a powerful expositor of the Constitution. His opinion in McCulloch v. Maryland (1819),16 upholding the power of Congress to establish the Second Bank of the United States, and denying the power of the state to tax the bank’s notes, is a magnificent example of reasoning from the text and the structure of the Constitution. And in Barron v. Baltimore (1833),17 Marshall wrote an excellent opinion refusing to apply the prohibitions of the Bill of Rights to the states, drawing inferences from the constitutional text, structure, and history. Yet, as David Currie, who very much admires Marshall, has said, “time and again he seems to have been writing a brief for a conclusion reached independently of the Constitution.”18 He seems, nonetheless, to have reached few conclusions that could not be justified by the Constitution. More objection may be taken to his way with statutes. But he seems to have abused them in order to create occasions for constitutional rulings that appeared essential to solidify the national power the Constitution had attempted to create. It would be wrong for those of us who have never faced the possible failure of the entire enterprise that is the United States to be too easily critical of Marshall’s performance. It must be remembered that centrifugal forces remained strong in the United States throughout Marshall’s tenure on the Court. Before he left, John C. Calhoun was elaborating his philosophy of virtual state independence, and not even the position of the Court was as secure as we have now come to take for granted. President Andrew Jackson is said to have remarked after the Court decided a land case in favor of an Indian tribe: “John Marshall has made his decision. Now let him enforce it!”19 The state involved ignored the decision, and Jackson did leave it unenforced. If these conditions provide some justification, by the same token it would be a mistake for us to take Marshall’s performance, in all its aspects, as a model for judges now that the basic structure and unity of our nation have been accepted. And it is well to remember that, when Marshall wrote his major essay justifying judicial power to strike down legislation, he did so on the ground that the Constitution is a written document, that it is law, that it governs courts as well as legislatures, and that its principles are those contemplated by the ratifiers and the framers who produced it.

  Chief Justice Taney and Dred Scott: The Court Invites a Civil War

  After Marbury, the Supreme Court did not hold another major federal statute unconstitutional for fifty-four years. If Marshall’s cause was nationalism, that of the Supreme Court in 1857 was regionalism, and in Dred Scott v. Sandford20 the politics and morality of the Justices combined to produce the worst constitutional decision of the nineteenth century. Speaking only of the constitutional legitimacy of the decision, and not of its morality, this case remained unchallenged as the worst in our history until the twentieth century provided rivals for that title.

  The Court headed by Chief Justice Roger Taney of Maryland was dominated by Southerners, and to the South in 1857, as for many years previously, the overriding question of national politics was the “peculiar institution” of slavery. Slavery was attacked and defended on principles of morality, and the South had increasing cause to fear that the rising population and prosperity of the North would soon make it dominant and bring an end to the institution upon which the South’s prosperity rested. The problem became particularly acute for both sections of the nation as Americans who moved west and settled territories petitioned Congress for admission to the Union as states. The balance of power in the Union would be determined by whether the new states were admitted as slave or free.

  The crisis came to a head when Missouri sought statehood. Congress ultimately admitted Missouri as a state where slavery was permitted but balanced that by admitting Maine as a free state and by prohibiting the introduction of slavery into the rest of the territory acquired by the Louisiana Purchase north of Missouri’s southern border. This was the Missouri Compromise of 1820. Congress subsequently followed the practice of admitting paired slave and free states so that the balance of power in the Senate was not altered. Though not satisfactory to the more ardent opponents and defenders of slavery, North and South, this compromise, whatever its morality, had the beneficial political result of allowing the United States to develop with a degree of stability. There is a body of dubious opinion that, had the slavery question been permitted to simmer without exploding, ultimately the institution would have declined and disappeared.21 Abraham Lincoln was once of that view, “resting in the hope and belief that [slavery] was in course of ultimate extinction,”22 a view he later abandoned. We may discuss the Court’s performance, however, without assessing the accuracy of that belief.

  Taney, a Southern partisan, resented the arrogance of the North on the slavery issue and most especially resented the principle, insulting to the South, that lay beneath the North’s acceptance of the Missouri Compromise: slavery is an evil and must be limited so long as it cannot be ended. In 1857 he got the chance to make his resentments and his adherence to the cause of the slave states into constitutional law.

  Dred Scott was a slave taken by his owner into the free state of Illinois and then to federal territory where slavery had been forbidden by the Missouri C
ompromise. Having been returned to Missouri, Scott sued for his freedom on the theory that he became free when taken to soil where slavery was outlawed. He first sued in the Missouri courts, where precedent was on his side, and initially won, only to have the decision overturned by the Missouri Supreme Court. Scott turned to the federal courts, lost in the trial court and appealed to the United States Supreme Court, where Taney and a Southern majority awaited him.

  The Court produced a welter of opinions. It is sometimes unclear how many Justices joined Taney’s “opinion of the Court” on the various grounds he advanced. The case takes up 241 pages in the Reports. There is no need to examine all of its dubious arguments; it was quite evident not only that Scott was to remain a slave but that Taney intended to read into the Constitution the legality of slavery forever. When he was done he had denied the power of the federal government to prevent slavery in any state or territory and the power of the federal government to permit a state to bar slavery within its territory. This, of course, had the result of declaring the Missouri Compromise unconstitutional. It had been repealed in 1854, but Taney’s ruling was not entirely gratuitous, because Scott had been in free territory while the Compromise was in effect. What was important was the significance of the ruling for the future. The crucial passage comes near the end of his opinion, and it is as blatant a distortion of the original understanding of the Constitution as one can find.

  Taney was determined to prove that the right of property in slaves was guaranteed by the Constitution. He led up to his crucial point by noting, unexceptionably, that when the federal government enters into possession of a territory, “It has no power of any kind beyond [the Constitution]; and it cannot … assume discretionary or despotic powers which the Constitution has denied to it.”23 He illustrated his point: “[N]o one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.”

  All well and good. But there is no similar constitutional provision that can be read with any semblance of plausibility to confer a right to own slaves. It may well have been the case that the federal government could not then have freed slaves in states where the law allowed slavery without committing a taking of property for which the fifth amendment to the Constitution would have required compensation. But that is a far different matter from saying that the Constitution requires the federal government to permit and protect slavery in areas under its control. The definition of what is or is not property would seem, at least as an original matter, a question for legislatures.

  How, then, can there be a constitutional right to own slaves where a statute forbids it? Taney created such a right by changing the plain meaning of the due process clause of the fifth amendment. He wrote: “[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

  The first sentence quotes the guarantee of due process, which is simply a requirement that the substance of any law be applied to a person through fair procedures by any tribunal hearing a case. The clause says nothing whatever about what the substance of the law must be. But Taney’s second sentence transforms this requirement of fair procedures into a rule about the allowable substance of a statute. The substance Taney poured into the clause was that Congress cannot prevent slavery in a territory because a man must be allowed to bring slaves there. The second sentence is additionally dishonest because it postulates a man who had “committed no offence against the laws,” but a man who brings slaves and keeps them in a jurisdiction where slavery is prohibited does commit an offense against the laws. Taney was saying that there can be no valid federal law against slaveholding anywhere in the United States.

  How did Taney know that slave ownership was a constitutional right? Such a right is nowhere to be found in the Constitution. He knew it because he was passionately convinced that it must be a constitutional right. Though his transformation of the due process clause from a procedural to a substantive requirement was an obvious sham, it was a momentous sham, for this was the first appearance in American constitutional law of the concept of “substantive due process,” and that concept has been used countless times since by judges who want to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs.

  Taney did just that, and created a powerful means for later judges to usurp power the actual Constitution places in the American people. It is clear that the text of the due process clause simply will not support judicial efforts to pour substantive rather than procedural meaning into it. As Professor John Hart Ely put it, “there is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’ … [W]e apparently need periodic reminding that ‘substantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’ ”24 More than a century after Taney’s legerdemain, Justice Hugo Black demonstrated in his In re Winship dissent that the constitutional phrase “due process of law” descended from the Magna Carta’s guarantee that no freeman should be deprived of his liberty except by the law of the land.25 Due process was satisfied, therefore, when government proceeded “according to written constitutional and statutory provisions as interpreted by court decisions.” When the Court poured substantive content into this procedural provision, Black said, “our Nation ceases to be governed according to the ‘law of the land’ and instead becomes one governed ultimately by the ‘law of the judges.’ ” He preferred to put his “faith in the words of the written Constitution itself rather than to rely on the shifting, day-to-day standards of fairness of individual judges.” The latter is always, and only, what the notion of substantive due process means. But the Supreme Court will not abandon the notion, despite demonstrations of its utter illegitimacy, precisely because it is an ever flowing fount of judicial power.

  Professor David Currie wrote that Dred Scott “was at least very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade.”26 Lochner employed substantive due process to strike down a state law limiting the hours of work by bakery employees.27 Roe used substantive due process to create a constitutional right to abortion.28 Lochner and Roe have, therefore, a very ugly common ancestor. But once it is conceded that a judge may give the due process clause substantive content, Dred Scott, Lochner, and Roe are equally valid examples of constitutional law. You may or may not like the judge’s politics or his morality, but you have conceded, so far as the Constitution is concerned, the legitimacy of his imposing that politics and morality upon you. Lenin is supposed to have written: “Who says A must say B.”29 In that he was logically correct. Who says Roe must say Lochner and Scott. This is vehemently denied by today’s proponents of judicial policymaking, but the denial is hollow and merely means that they like the policies now being made.

  Justice Benjamin Curtis of Massachusetts dissented in Dred Scott, destroyed Taney’s reasoning, and rested his own conclusions upon the original understanding of those who made the Constitution. At one point, complaining of divergent views on congressional power offered by counsel, he wrote: “No particular clause of the Constitution has been referred to… .”30 One argument “rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right.” A second was drawn from “the rig
ht of self-government, and the nature of the political institutions which have been established by the people of the United States.” The third rested upon “the equal right of all citizens to go with their property upon the public domain,” so that a regulation excluding slavery from a territory was an “unjust discrimination.”

  The weight of these considerations, when presented to Congress, Curtis said, was not the concern of the Court. “The question here is, whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery, not found therein, nor in any other part of that instrument… . To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible—because judicial tribunals, as such, cannot decide upon political considerations.”

  Curtis went on to make essentially the same argument that Iredell had made in response to Chase, an argument that should have been conclusive: “Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” But Curtis’s argument did not prevail then, and it does not deflect willful courts today.