It seems clear that the drive of judicial revisionism has by no means ended.
* As a judge, I had earlier reached the same result by a somewhat different route. The Navy had discharged a petty officer for engaging in such conduct in the barracks with a young recruit. The former petty officer challenged his discharge and contended before our court that the right of privacy cases created a general rule that government may not interfere with an individual’s intimate decisions regarding his or her own body. My opinion examined those cases, found in them “no explanatory principle that informs a lower court how to reason about what is and what is not encompassed by the right of privacy,” and refused to invent a right to homosexual conduct, saying that “If the revolution in sexual mores that appellant proclaims is in fact ever to arrive, we think it must arrive through the moral choices of the people and their elected representatives, not through the ukase of this court.” Dronenburg v. Zech, 741 F.2d 1388, 1395, 1397 (1984). Since the right of privacy cases rest upon no constitutional principle, but are themselves mere judicial ukases, that position still seems to me correct.
5
The Supreme Court’s Trajectory
We have now surveyed the most explicit of the Supreme Court’s rewritings of law, most particularly the law of the Constitution. Though the survey has been necessarily partial, it has, I think, been representative. Almost two centuries of constitutional adjudication discloses several characteristics of the Court’s performance.
From first to last the Court has been a strong force for centralization in our national life. With the Marshall Court that was a deliberate strategy of solidifying national powers. But any Court that imposes values not found in the Constitution to that degree makes national policy that obliterates local and state policies. The New Deal Court centralized with gusto by refusing to limit Congress’s powers over commerce, taxation, and spending. The Court in the era of Earl Warren and after has imposed political and moral uniformity across wide areas of American life.
It is somewhat unclear whether the modern Court is more politicized than Courts of previous eras. Certainly it makes more political decisions each year than was true in any year in the nineteenth century, but that is largely due to the number of occasions for such decisions presented to it. Before the post-Civil War amendments, particularly the fourteenth amendment, the Court had little opportunity to impose rules on the states. The development of substantive content in the fourteenth amendment’s due process clause, and subsequently the incorporation of the Bill of Rights in that clause, enormously expanded the Court’s power over the states. It is conceivable, though unlikely, that, the Courts of the nineteenth century, given the opportunities that this legal structure presented, would have appeared as activist and political as do the Courts of the past five or six decades.
From era to era, the values the Court writes into the Constitution change. As new values are added, the old ones are dropped. The Court’s performance, in terms of favored values, displays no single political trajectory over time. Moreover, the style of the Court’s theorizing varies, as does the provision of the Constitution used to provide an appearance that what is being done is related in some legitimate manner to the actual document. The pace of judicial revision of the Constitution has accelerated over the Court’s history, as has the exertion of judicial power, revisionist or not. The Court struck down no federal statutes between Marbury in 1803 and Dred Scott in 1857, a period of more than fifty years. The post-Civil War Courts did strike down a number of laws. The rate of constitutional revisionism picked up with the New Deal Court and became explosive with the Warren Court. The Courts after Warren’s, those of Burger and Rehnquist, showed little significant slowing. We observe, therefore, the increasing importance of the one counter-majoritarian institution in the American democracy. That, by itself, would be worthy of remark, though not worrisome, if it merely reflected the number of occasions that the Court had to apply the Constitution to governmental incursions into more and more areas of American life. What is worrisome is that so many of the Court’s increased number of declarations of unconstitutionality are not even plausibly related to the actual Constitution. This means that we are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.
At the outset, I suggested that in each era the Court responded to the ideology of the class to which the Justices felt closest. By observing the values the Court chooses to enforce, it is often possible to discern which classes have achieved dominance at any given time in our history. “Dominance,” as I use the word here, is not an entirely clear concept. It refers to the tendency of a class’s ideas and values to be accepted by the elites that form opinion. In this century, we have seen the Court allied to business interests and the ideology of free enterprise. We have seen that ideology lose its power with the arrival of the New Deal and the effect of that ideological shift on the Supreme Court. The intellectual class has become liberal, and that fact has heavily influenced the Court’s performance. For the past half-century, whenever the Court has departed from the original understanding of the Constitution’s principles, it has invariably legislated an item on the modern liberal agenda, never an item on the conservative agenda.
The prospects for the immediate future are unclear. The present Court is divided in its approach to constitutional law, and it seems likely that the more extreme revisionists of a liberal persuasion will be replaced in the not too distant future. It is not obvious how the new Justices will affect the Court’s behavior, however. Our political parties have become polarized on the issue of desirable judicial behavior, as on so many other issues. The Republican Party has become more conservative, just as the Democratic Party has become more liberal. In the modern era, liberals have favored revisionist judges. The President’s nominees will have to be confirmed by a heavily Democratic Senate. That fact may mean that only persons with views acceptable to the left will be nominated or, more likely, that people will be nominated who have made no public record of their judicial philosophies. Their performance on the Court, for that reason, may not be predictable by either the President or the Senate. There was no reason to think that Earl Warren was not a moderate conservative when he was nominated, but on the bench he became a judicial radical. There have been more recent examples of judicial transformations. It is well to remember that the Supreme Court that produced liberal constitutional revisions in recent years had seven members who were appointed by Republican presidents. Nevertheless, the mood of the country is generally conservative, and that fact may in time tell on the performance of the Court.
If the performance of the Court changes, it is to be hoped that liberal revisionism will not be replaced by conservative revisionism. The two are equally illegitimate. The Constitution is too important to our national well-being and to our liberties to be made into a political weapon. Departure from its actual principles, whether in Dred Scott, Lochner, or Roe, is inconsistent with the maintenance of constitutional democracy.
There are those, and they are many, who prefer results to everything else, including democracy and respect for the legitimacy of authority. It is that view that Alexander Bickel addressed in his essay on civil disobedience.1 He wrote of the moral imperatives that fueled the major episodes of civil disobedience in our recent history, including Southern resistance to desegregation orders, some of the opposition to the war in Vietnam, and the complex of events we call “Watergate.” But he continued:
The assault upon the legal order by moral imperatives was not only or perhaps even most effectively an assault from the outside. … [I]t came as well from within, in the Supreme Court headed for fifteen years by Earl Warren. When a lawyer stood before him arguing his side of a case on the basis of some legal doctrine or other, or making a procedural point, or contending that the Constitution allocated competence over a given issue to another branch of government than the Supreme Court or to the states rathe
r than to the federal government, the chief justice would shake him off saying, “Yes, yes, yes, but is it (whatever the case exemplified about law or about the society), is it right? Is it good?” More than once, and in some of its most important actions, the Warren Court got over doctrinal difficulties or issues of the allocation of competences among various institutions by asking what it viewed as a decisive practical question: If the Court did not take a certain action which was right and good, would other institutions do so, given political realities? The Warren Court took the greatest pride in cutting through legal technicalities, in piercing through procedure to substance.2
What Bickel said of the Warren Court may be said of all courts in our history that cut through procedure to substance, and through substance to political outcome. They engaged in civil disobedience, a disobedience arguably more dangerous, because more insidious and hence more damaging to democratic institutions, than the civil disobedience of the streets.
As Bickel also said, “It is the premise of our legal order that its own complicated arrangements, although subject to evolutionary change, are more important than any momentary objective…. The derogators of procedure and of technicalities, and other anti-institutional forces who rode high, on the bench as well as off, were the armies of conscience and of ideology.”3 They were also, he said, the armies of a new populism, and the “paradox is that the people whom the populist exalts may well—will frequently—not vote for the results that conscience and ideology dictate. But then one can always hope, or identify the general will with the people despite their votes, and let the Supreme Court bespeak the people’s general will when the vote comes out wrong.”4
There are heavy costs for the legal system, heavy costs for our liberty to govern ourselves, when the Court decides it is the instrument of the general will and the keeper of the national conscience. Then there is no law; there are only the moral imperatives and self-righteousness of the hour.
II
THE THEORISTS
Only recently has a body of writing appeared that can be called a literature of constitutional theory. Beginning a few decades back with a book here and an article there, this literature now qualifies as a torrent. Books, articles, and symposia taking up entire issues of law journals appear in such profusion and with such prolixity that it seems impossible anybody is reading all of the literature.
One might suppose that the sheer volume of writing coming out of our best law schools is a cause for optimism, that it is a sign of renewed vigor in scholarship and, therefore, in American constitutionalism. A more somber view is possible, however, even before sampling the writings characteristic of this genre. So much theory, theory in amounts dwarfing anything we have ever had before, suggests a need to shore something up. We are not talking, after all, about a field like mathematics or physics in which continual theoretical advances are a sign of health. We are talking about law, a field whose substantive rules often change but in which, one would suppose, the basic question of how judges and lawyers should go about deriving doctrine from legal materials would have been settled long ago. Indeed, one would have thought that the basic question of what are legal materials would hardly arise except in the most unusual cases. Yet that is the core of the controversy. The fact of a massive and rapidly growing literature about just such matters is, to say the least, puzzling, if not disturbing. Perhaps something has gone awry in law and courts. Self-confident legal institutions do not require so much talking about. If this is so, then the rising flood of innovative theories signifies not the health of scholarship and constitutionalism but rather a deep-seated malaise and, quite possibly, a state of approaching decadence.
To read the literature is to have one’s worst fears confirmed. The sense that something in constitutional theory has gone high begins with the style of argumentation. The older constitutional commentators, secure in their commonsense lawyers’ view of the Constitution, wrote prose that remains clear, to the point, self-confident, and accessible to the nonprofessional reader.1 The modern theorists are different. Their concepts are abstruse, their sources philosophical, their arguments convoluted, and their prose necessarily complex.2 These writers are in fact undertaking what Justice Story forswore, the alteration of the Constitution by “ingenious subtleties,” “metaphysical refinements,” and “visionary speculation” to make it not a document “addressed to the common sense of the people” but one addressed to a specialized and sophisticated clerisy of judicial power.3
To understand the new constitutions being built in the law schools, it is necessary to be a philosopher, at least an amateur one. If the literature were to be taken seriously, it would be necessary for lawyers and judges to study the vast outpouring of words that comes from the law professors and to choose among their methodologies. More than that, however, since many of the professors regard themselves as philosophers, it would be necessary to read widely in moral philosophy, hermeneutics, deconstructionism, Marxism, and who-knows-what-will-come-next. The reader is supposed to be familiar with utilitarianism, contractarianism, Mill, Derrida, Habermas, positivism, formalism, Rawls, Nozick, and the literature of radical feminism. It turns out, though previously it had never been suspected, that in order to understand the American Constitution ratified in 1787, one must study not John Locke or even James Madison, but a modern German Marxist. Working lawyers and judges can only despair in the realization that they will never be able to master even a significant fraction of what they are given to understand to be a very important body of theory. Indeed, some of the uninitiated appear not a little intimidated by the academic consensus that only comprehension of such profound and arcane inquiries can lead to a proper understanding of the way judges should deal with the Constitution. Given this state of affairs, it should come as no surprise that, in what I am increasingly tempted to call the real world, the literature remains largely unread.
This may sound like the description of a perfectly anemic academic genre, one without the potency to alter the practical workings of our legal system. In fact, that is not true. This philosophic enterprise has acquired great prestige in the law schools. Few students will master the complexities of the particular systems taught by the constitutional gurus in their schools, but that is not important. What is learned is an attitude. Many ardent Marxists, after all, have never read much Marx, and perhaps few of those who wear Adam Smith neckties have gotten very far into The Wealth of Nations. It is not necessary to become an adept to acquire a mind-set. Generations of law students are being trained to believe that one or another method of reasoning from nonlegal sources provides the method proper to constitutional argument. Law school moral philosophy—which deserves the same respect as what has been called “law office history”—turns out upon examination to be only a convoluted way of reaching the standard liberal or ultra-liberal prescriptions of the moment. One of my colleagues suggested that a professor of this bent change the name of his course from “Constitutional Law” to “Trendiness Made Complex.” What the students learn, to put it bluntly, is that legal reasoning of the sort that served us for centuries is now utterly outmoded, and a verbal formulation can always be devised to reach the correct political result. Many will carry that attitude with them, first as clerks to judges, then as lawyers, professors, and judges themselves.
There is also the effect of the written word. Although it is unlikely that many persons outside the academy are even aware of this literature’s existence, much less its content, that does not mean it is ineffective. Its very inaccessibility may, paradoxically, be a source of its influence. Because the public at large and the legal profession as a whole are unaware of what is being taught and written, the reaction of ridicule and hostility that might have been expected has not been forthcoming. But judges are aware that there is an enormous literature and that it is almost entirely disapproving of the idea that courts are bound by the original understanding of the Constitution. The message arrives where it counts. Because it is in effect coded, it is not read by out
siders.
Ideas, or at least attitudes, developed in the law schools do influence courts. As Schlesinger noted, the version of legal realism that infested the Yale law school earlier had a great influence upon the Justices who later became the center of the Warren Court majority. The new attitudes reach courts in various ways. Professors steeped in the revisionist liberal culture of the law schools may themselves become judges. This, of course, was the case with William O. Douglas, who had been a Yale law professor and became a powerful force on both the New Deal and Warren Courts. Many students become judicial clerks for a year or two after law school and carry the attitudes of the revisionist academic culture directly to federal judges. For some judges, the message that comes from the law schools reinforces their natural inclinations. The relationship between law school faculties and the federal judiciary is closer than many people realize. Professors are likely to have been clerks to federal judges, and they send their best students to clerkships. It is, moreover, important to federal judges to be well-thought-of and well-writtenabout in the law schools. Over time, disdain for the original meaning of the Constitution has a considerable impact.
The impact is all the greater upon judges who come to the bench with no developed view of the judicial role, of its scope and its limits. We frequently hear judges say, often with a surprising degree of satisfaction, that they have no theories of jurisprudence but are pragmatists who decide each case on its facts. Such statements are false, though not intentionally so, because the facts of a case mean nothing until the judge supplies an organizing principle that leads him to a conclusion about their meaning. Too often the judge is not conscious of the organizing principles that guide him, which means that he is likely to be led to a decision by sentiment rather than reason.
The Tempting of America Page 18
