The Tempting of America

by Robert H. Bork

  Poll Taxes and the New Equal Protection

  Poll taxes were common in this country for many years. After the Civil War, some poll taxes were enacted to disenfranchise blacks, but such taxes had other purposes as well. They were imposed in colonial times and afterward, before there was any question of black voting. Such taxes were a means of raising revenue and also of ensuring that those who voted had some minimal interest in the franchise and the outcome of elections. In 1937, the Supreme Court in Breedlove v. Suttles37 unanimously upheld Georgia’s poll tax against a challenge laid under the equal protection clause. No racial discrimination was present in the case. In 1964, the states ratified the twenty-fourth amendment, which barred poll taxes in all elections for federal offices. The amendment was carefully confined to federal elections, leaving the question of poll taxes in state elections up to the states. In 1966, the Supreme Court decided to complete what the twenty-fourth amendment had deliberately left undone.

  In Harper v. Virginia State Board of Elections,38 a Court majority, in a case where no racial discrimination was alleged or shown, held that any poll tax violated the equal protection clause. The Virginia tax amounted to $1.50 annually. Justice Douglas’s opinion changed the law of the Constitution by stating that the right to vote was a fundamental interest, like the right to procreate in Skinner v. Oklahoma, so that close scrutiny of the law was required. (The invocation of the phrases “fundamental interest” and “close scrutiny” in Warren Court jurisprudence were not aids to analysis but the first ring of the death knell for the law under scrutiny. Once those phrases appeared, there was no need to read the rest of the opinion.) Voting qualifications, he said, have no relation to wealth or to paying or not paying a poll tax or any other tax. The fact that such a tax had previously been unanimously upheld was of no significance. “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. [He cited Brown v. Board of Education.] Our conclusion, like that in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.”39

  Douglas must have enjoyed that line. The equal protection clause had required neither the result in Reynolds v. Sims nor that in Harper until the Court decided “what governmental policy should be.” The practice of stating emphatically that the Court was not doing precisely what the Court was doing was common in the years of the Warren Court. Attention should be paid to the remarkable statement that “notions” of equality under the equal protection clause “do change.” Whose notions? The Justices’, obviously, which means that the content of the equal protection clause changes with the notions of five or more Justices. It is significant, too, that Douglas cited Brown for the proposition that the equal protection clause changes, showing that the Court did not think Brown was consistent with the original understanding of the clause and further that Brown justified the Court in ignoring that understanding.

  Justices Black, Harlan, and Stewart dissented.40 Black noted that racially nondiscriminatory poll taxes rested on a number of state policies that the Court had not proved to be “irrational,” including: a desire to collect revenue; a belief that voters who pay a poll tax will be interested in the state’s welfare; and the rationality of the tax as shown by its history. He thought Douglas was manipulating the equal protection clause to “write into the Constitution [the Court’s] notions of what it thinks is good governmental policy,” just as it had done under the idea of substantive due process. Harlan wrote that the poll tax was “not in accord with current egalitarian notions”41 but that “legislatures should modify the law to reflect such changes in popular attitudes.”

  Congress’s Power to Change the Constitution by Statute

  The effort to reach liberal results routinely deformed the Constitution. The Constitution, in article I, section 2, unambiguously leaves with the states the authority to set the qualifications of voters in federal and state elections. One qualification states have regularly required for voting is literacy. There is clearly a valid state interest in literate electors, and the Supreme Court had held that literacy tests are constitutionally valid if not misused to disfranchise racial minorities. But one provision of the Voting Flights Act of 1965 stated that no person who had completed the sixth grade in Puerto Rico, having been instructed in a language other than English, could be denied the right to vote in any election because of inability to read or write in English. New York had a literacy test for voting. It was challenged and came before the Supreme Court the next year in Katzenbach v. Morgan.42 The Court had a problem. The statute could not be upheld unless the Court was prepared to say that Congress could take from the states a power given them by the Constitution. The Court majority managed to do just that. Justice Brennan’s opinion first noted that the states could not, of course, grant or withhold the franchise on conditions forbidden by the fourteenth amendment. That is true, but the Court had held that a literacy test was not forbidden by the fourteenth amendment. How to get around that? By saying that Congress in the Voting Rights Act had redefined the meaning of the amendment’s equal protection clause. How can Congress change the meaning of a constitutional provision by a mere statute? The Court said Congress could because the act was a valid exercise of Congress’s power to “enforce” the fourteenth amendment, given in section 5.

  There were manifold difficulties with that. The power to “enforce” a law is not the power to change the law’s content. The power to enforce is the power to provide remedies, such as criminal sanctions, damage actions, injunctions, and the like. Had the ratifiers intended to reserve to Congress the authority to alter the concept of equal protection, they could have said so much more plainly. Indeed, there would have been no need for a constitutional amendment if the subject of the liberties of the newly freed slaves was to be left to such statutes as Congress might see fit to pass in the future. Still worse, if Congress’s power to enforce was a power to change the substance, why could it not do something like overrule Brown v. Board of Education and reinstitute the separate-but-equal doctrine so that states might segregate? Justice Brennan was forced into the position that the power to enforce was a liberal ratchet, it could go only in one direction. He said that section 5 “does not grant Congress power to exercise discretion in the other direction and to enact ‘statutes so as in effect to dilute equal protection and due process decisions of this Court.’ We emphasize that Congress’s power under §5 is limited to adopting measures to enforce the guarantees of the Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these guarantees.”43 No evidence is cited for the proposition that the ratifiers intended to give Congress power to amend the fourteenth amendment by statute but only by expanding the definitions of what states are constitutionally forbidden to do. The passage states that Congress can change the meaning of the clause only if it requires more equality rather than less. Only liberal, egalitarian statutes need apply. The notion that Congress can change the meaning given a constitutional provision by the Court is subversive of the function of judicial review; and it is not the less so because the Court promises to allow it only when the Constitution is moved to the left.

  Applying the Bill of Rights to the States

  There is no occasion here to attempt to resolve the controversy concerning the application of the Bill of Rights to the states. As an original matter, of course, the Bill of Rights was entirely a set of guarantees directed against the power of the national government. The Federalists, who sought the ratification of the Constitution, had not included a Bill of Rights because they thought the limited powers assigned the national government made such protections unnecessary. But the state constitutions had explicit declarations of rights, and the Anti-Federalists attempted to block ratification on the ground that, without such guarantees, the Constitution was fatally defective. To what extent the complaint about the lack of a Bill of Rights was merely a debating tactic by those who opposed ratification in any event is not entirely clear, but once ratifi
cation was accomplished, interest in the subject subsided remarkably. But Madison and others had promised to submit amendments guaranteeing rights during the ratification debates. Very little notice was taken when Madison submitted his amendments or when they were proposed and ratified.

  That lack of attention seemed justified for most of our history, for the rights specified received almost no judicial enforcement until this century. Rights against state governments continued to be governed by state constitutions. Federal enforcement of rights against the states came to seem important only after the Civil War, when it became essential to guarantee the liberties of the freed slaves against hostile Southern state governments. The adoption of the due process clause in the fourteenth amendment soon provided, as we have seen, a temptation to judicial constitution-making the Justices could not resist. Soon they were using the concept of substantive due process, invented in Dred Scott for use against the federal government, to strike down state laws in no way related to race on grounds reflecting nothing but the personal views of the Justices.

  Some of the values enforced, but by no means all, were those in the federal Bill of Rights, and it ultimately came to seem, primarily to Justice Hugo Black, that it would be best to hold that all of the federal Bill of Rights was “incorporated” in the due process clause and so applied to state laws and actions.44 Among Black’s reasons was the desire to end judicial legislation under the due process clause by substituting the provisions of the Bill of Rights for the vague formulas used in substantive due process. The Court ultimately did incorporate most of the Bill of Rights, but Black’s hopes were not realized, because the Court also continued to make up new rights under the fourteenth amendment.

  The controversy over the legitimacy of incorporation continues to this day, although as a matter of judicial practice the issue is settled. Nevertheless, the application to the states of the Bill of Rights enormously expanded the Court’s power. That meant making its interpretations of the various amendments the uniform law throughout the nation, which had never occurred before. This process, though it started much earlier, was completed during the years of the Warren Court and created the occasions for some of its most controversial rulings.

  The Court had, for example, devised a rule that evidence must be excluded in federal criminal trials if it had been obtained by a police search later held to have been unreasonable under the fourth amendment. In Wolf v. Colorado45 in 1949 the Court held that the fourth amendment applied to the states but that the rule excluding evidence improperly obtained was not required. In 1961, however, the Court switched its position in Mapp v. Ohio,46 and held that the state courts must use the exclusionary rule exactly as the federal courts applied it. Extending the reach of the principle that criminals should go free because the evidence of guilt was obtained in an unreasonable search was, it need hardly be said, a highly debatable and hotly debated development. A number of commentators have doubted the effectiveness of the rule in preventing improper searches and whether the deterrence achieved is worth the cost in decisions not to prosecute the obviously guilty. The Warren Court extended the principle in Miranda v. Arizona47 by laying down a body of rules governing police questioning of subjects. Miranda reads more like the work of a legislative drafting committee than a judicial opinion, and it was extremely controversial. Four Justices dissented from the holding.48

  Perhaps the most fiercely resented extension of the Court’s Bill of Rights jurisprudence to the states arose under the first amendment clause forbidding the “establishment” of religion. As an original matter, the clause might have extended no further than a prohibition against the government’s recognition of an official church or the favoring of some religions over others. The first Congress, many of whose members were also members of the Philadelphia convention or of the various state ratifying conventions, and hence aware of what the clause was intended to mean, adopted legislation that demonstrated they did not think the “wall of separation between church and state,” a phrase that does not appear in the Constitution, was as severe and complete as the Court has now made it. The Court has adopted a rigidly secularist view of the establishment clause, which would not have disturbed too many people if the clause had not been incorporated to prohibit religious practices that the states had employed for many years. The sense of outrage was particularly intense when the Court prohibited prayer in the public schools,49 and years later even disapproved some moments of silence.50 The application of the Bill of Rights to the states in this and other matters has done much to alter the moral tone of communities across the country.

  The Right of Privacy: The Construction of a Constitutional Time Bomb

  The 1965 decision in Griswold v. Connecticut51 was insignificant in itself but momentous for the future of constitutional law. Connecticut had an ancient statute making; it criminal to use contraceptives. The state also had a general accessory statute allowing the punishment of any person who aided another in committing an offense. On its face, the statute criminalizing the use of contraceptives made no distinction between married couples and others. But the statute also had never been enforced against anyone who used contraceptives, married or not. There was, of course, no prospect that it ever would be enforced. If any Connecticut official had been mad enough to attempt enforcement, the law would at once have been removed from the books and the official from his office. Indeed, some Yale law professors had gotten the statute all the way to the Supreme Court a few years previously, and the Court had refused to decide it precisely because there was no showing that the law was ever enforced. The professors had some difficulty arranging a test case but finally managed to have two doctors who gave birth control information fined $100 apiece as accessories.

  Such enforcement in the area as there was consisted of the occasional application of the accessory statute against birth control clinics, usually clinics that advertised. The situation was similar to the enforcement of many antigambling laws. They may cover all forms of gambling on their faces, but they are in fact enforced only against commercial gambling. An official who began arresting the priest at the church bingo party or friends having their monthly poker game at home would have made a most unwise career decision and would be quite unlikely to get a conviction. There are a number of statutes like these in various state codes, such as the statutes flatly prohibiting sodomy and other “unnatural practices,” which apply on their faces to all couples, married or unmarried, heterosexual or homosexual. The statutes are never enforced, but legislators, who would be aghast at any enforcement effort, nevertheless often refuse to repeal them.

  There is a problem with laws like these. They are kept in the codebooks as precatory statements, affirmations of moral principle. It is quite arguable that this is an improper use of law, most particularly of criminal law, that statutes should not be on the books if no one intends to enforce them. It has been suggested that if anyone tried to enforce a law that had moldered in disuse for many years, the statute should be declared void by reason of desuetude or that the defendant should go free because the law had not provided fair warning.

  But these were not the issues in Griswold. Indeed, getting off on such grounds was the last thing the defendants and their lawyers wanted. Since the lawyers had a difficult time getting the state even to fine two doctors as accessories, it seems obvious that the case was not arranged out of any fear of prosecution, and certainly not the prosecution of married couples. Griswold is more plausibly viewed as an attempt to enlist the Court on one side of one issue in a cultural struggle. Though the statute was originally enacted when the old Yankee culture dominated Connecticut politics, it was now quite popular with the Catholic hierarchy and with many lay Catholics whose religious values it paralleled. The case against the law was worked up by members of the Yale law school faculty and was supported by the Planned Parenthood Federation of America, Inc., the Catholic Council on Civil Liberties, and the American Civil Liberties Union. A ruling of unconstitutionality may have been sought as a stateme
nt that opposition to contraception is benighted and, therefore, a statement about whose cultural values are dominant. Be that as it may, the upshot was a new constitutional doctrine perfectly suited, and later used, to enlist the Court on the side of moral relativism in sexual matters.

  Justice Douglas’s majority opinion dealt with the case as if Connecticut had devoted itself to sexual fascism. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”52 That was both true and entirely irrelevant to the case before the Court. Courts usually judge statutes by the way in which they are actually enforced, not by imagining horrible events that have never happened, never will happen, and could be stopped by courts if they ever seemed about to happen. Just as in Skinner he had treated a proposal to sterilize three-time felons as raising the specter of racial genocide, Douglas raised the stakes to the sky here by treating Connecticut as though it was threatening the institution of marriage. “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.” The thought was incoherent. What the right of privacy’s age in comparison with that of our political parties and school system had to do with anything was unclear, and where the “right” came from if not from the Bill of Rights it is impossible to understand. No court had ever invalidated a statute on the basis of the right Douglas described. That makes it all the more perplexing that Douglas in fact purported to derive the right of privacy not from some pre-existing right or law of nature, but from the Bill of Rights. It is important to understand Justice Douglas’s argument both because the method, though without merit, continually recurs in constitutional adjudication and because the “right of privacy” has become a loose canon in the law. Douglas began by pointing out that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” There is nothing exceptional about that thought, other than the language of penumbras and emanations. Courts often give protection to a constitutional freedom by creating a buffer zone, by prohibiting a government from doing something not in itself forbidden but likely to lead to an invasion of a right specified in the Constitution. Douglas cited NAACP v. Alabama,53 in which the Supreme Court held that the state could not force the disclosure of the organization’s membership lists since that would have a deterrent effect upon the members’ first amendment rights of political and legal action. That may well have been part of the purpose of the statute. But for this anticipated effect upon guaranteed freedoms, there would be no constitutional objection to the required disclosure of membership. The right not to disclose had no life of its own independent of the rights specified in the first amendment.