Neutrality in the Derivation of Principle
When a judge finds his principle in the Constitution as originally understood, the problem of the neutral derivation of principle is solved. The judge accepts the ratifiers’ definition of the appropriate ranges of majority and minority freedom. The Madisonian dilemma is resolved in the way that the founders resolved it, and the judge accepts the fact that he is bound by that resolution as law. He need not, and must not, make unguided value judgments of his own.
This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones. Any time he does so he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people. To put the matter another way, suppose that the United States, like the United Kingdom had no written constitution and, therefore no law to apply to strike down acts of the legislature. The U.S. judge, like the U.K. judge, could never properly invalidate a statute or an official action as unconstitutional. The very concept of unconstitutionality would be meaningless. The absence of a constitutional provision means the absence of a power of judicial review. But when a U.S. judge is given a set of constitutional provisions, then, as to anything not covered by those provisions, he is in the same position as the U.K. judge. He has no law to apply and is, quite properly, powerless. In the absence of law, a judge is a functionary without a function.
This is not to say, of course, that majorities may not add to minority freedoms by statute, and indeed a great deal of the legislation that comes out of Congress and the state legislatures does just that. The only thing majorities may not do is invade the liberties the Constitution specifies. In this sense, the concept of original understanding builds in a bias toward individual freedom. Thus, the Supreme Court properly decided in Brown that the equal protection clause of the fourteenth amendment forbids racial segregation or discrimination by any arm of government, but, because the Constitution addresses only governmental action, the Court could not address the question of private discrimination. Congress did address it in the Civil Rights Act of 1964 and in subsequent legislation, enlarging minority freedoms beyond those mandated by the Constitution.
Neutrality in the Definition of Principle
The neutral definition of the principle derived from the historic Constitution is also crucial. The Constitution states its principles in majestic generalities that we know cannot be taken as sweepingly as the words alone might suggest. The first amendment states that “Congress shall make no law … abridging the freedom of speech,”9 but no one has ever supposed that Congress could not make some speech unlawful or that it could not make all speech illegal in certain places, at certain times, and under certain circumstances. Justices Hugo Black and William O. Douglas often claimed to be first amendment absolutists, but even they would permit the punishment of speech if they thought it too closely “brigaded” with illegal action. From the beginning of the Republic to this day, no one has ever thought Congress could not forbid the preaching of mutiny on a ship of the Navy or disruptive proclamations in a courtroom.
But the question of neutral definition remains and is obviously closely related to neutral application. Neutral application can be gained by defining a principle so narrowly that it will fit only a few cases. Thus, to return to Griswold,10 we can make neutral application possible by stating the principle to be that government may not prohibit the use of contraceptives by married couples. But that tactic raises doubts as to the definition of the principle. Why does it extend only to married couples? Why, out of all forms of sexual behavior, only to the use of contraceptives? Why, out of all forms of behavior in the home, only to sex? There may be answers, but if there are, they must be given.
Thus, once a principle is derived from the Constitution, its breadth or the level of generality at which it is stated becomes of crucial importance. The judge must not state the principle with so much generality that he transforms it. The difficulty in finding the proper level of generality has led some critics to claim that the application of the original understanding is actually impossible. That sounds fairly abstract, but an example will make clear both the point and the answer to it.
In speaking of my view that the fourteenth amendment’s equal protection clause requires black equality, Dean Paul Brest said:
The very adoption of such a principle, however, demands an arbitrary choice among levels of abstraction. Just what is “the general principle of equality that applies to all cases”? Is it the “core idea of black equality” that Bork finds in the original understanding (in which case Alan Bakke [a white who sued because a state medical school gave preference in admissions to other races] did not state a constitutionally cognizable claim), or a broader principle of “racial equality” (so that, depending on the precise content of the principle, Bakke might have a case after all), or is it a still broader principle of equality that encompasses discrimination on the basis of gender (or sexual orientation) as well? …
… The fact is that all adjudication requires making choices among the levels of generality on which to articulate principles, and all such choices are inherently non-neutral. No form of constitutional decisionmaking can be salvaged if its legitimacy depends on satisfying Bork’s requirements that principles be “neutrally derived, defined and applied.”11
If Brest’s point about the impossibility of choosing the level of generality upon neutral criteria is correct, we must either resign ourselves to a Court that is a “naked power organ” or require the Court to stop making “constitutional” decisions. But Brest’s argument seems to me wrong, and I think a judge committed to original understanding can do what Brest says he cannot. We may use Brest’s example to demonstrate the point.
The role of a judge committed to the philosophy of original understanding is not to “choose a level of abstraction.” Rather, it is to find the meaning of a text—a process which includes finding its degree of generality, which is part of its meaning”and to apply that text to a particular situation, which may be difficult if its meaning is unclear. With many if not most textual provisions, the level of generality which is part of their meaning is readily apparent. The problem is most difficult when dealing with the broadly stated provisions of the Bill of Rights. It is to the latter that we confine discussion here. In dealing with such provisions, a judge should state the principle at the level of generality that the text and historical evidence warrant. The equal protection clause was adopted in order to protect the freed slaves, but its language, being general, applies to all persons. As we might expect, and as Justice Miller found in the Slaughter-House Cases,12 the evidence of what the drafters, the Congress that proposed the clause, and the ratifiers understood themselves to be requiring is clearest in the case of race relations. It is there that we may begin in looking for evidence of the level of generality intended. Without meaning to suggest what the historical evidence in fact shows, let us assume we find that the ratifiers intended to guarantee that blacks should be treated by law no worse than whites, but that it is unclear whether whites were intended to be protected from discrimination in favor of blacks. On such evidence, the judge should protect only blacks from discrimination, and Alan Bakke would not have had a case. The reason is that the next higher level of generality above black equality, which is racial equality, is not shown to be a constitutional principle, and therefore there is nothing to be set against a current legislative majority’s decision to favor blacks. Democratic choice must be accepted by the judge where the Constitution is silent. The test is the reasonableness of the distinction, and the level of generality chosen by the ratifiers determines that. If the evidence shows the ratifiers understood racial equality to have been the principle they were enacting, Bakke would have a case. In cases concerning gender and sexual orientation, however, interpretation is not additionally assisted by the presence of known intentions. The general language of the clause, however, continues to subject such cases to the t
est of whether statutory distinctions are reasonable. Sexual differences obviously make some distinctions reasonable while others have no apparent basis. That has, in fact, been the rationale on which the law has developed. Society’s treatment of sexual orientation is based upon moral perceptions, so that it would be difficult to say that the various moral balances struck are unreasonable.
Original understanding avoids the problem of the level of generality in equal protection analysis by finding the level of generality that interpretation of the words, structure, and history of the Constitution fairly supports. This is a solution generally applicable to all constitutional provisions as to which historical evidence exists. There is, therefore, a form of constitutional decisionmaking that satisfies the requirement that principles be neutrally defined.
To define a legal proposition or principle involves simultaneously stating its contents and its limits. When you state what is contained within the clause of the first amendment guarantee of the free exercise of religion, you necessarily state what is not contained within that clause. Because the first amendment guarantees freedom of speech, judges are required reasonably to define what is speech and what is its freedom. In doing these things, the judge necessarily decides that some things are not speech or are not abridgments of its freedom. As to things outside the proposition, the speech clause gives the judge no power to do anything. Because it is only the content of a clause that gives the judge any authority, where that content does not apply, he is without authority and is, for that reason, forbidden to act. The elected legislator or executive may act where not forbidden; his delegation of power from the people through an election is his authority. But the judge may act only where authorized and must do so in those cases; his commission is to apply the law. If a judge should say that the freedom of speech clause authorizes him to abolish the death penalty, we would unanimously say that he had exceeded the bounds of his lawful authority. The judge’s performance is not improved if, following Griswold v. Connecticut, he adds four more inapplicable provisions to his list of claimed authorizations and claims that five inapplicable provisions give him the authority one alone did not. Where the law stops, the legislator may move on to create more; but where the law stops, the judge must stop.
Neutrality in the Application of Principle
The neutral or nonpolitical application of principle has been discussed in connection with Wechsler’s discussion of the Brown decision.13 It is a requirement, like the others, addressed to the judge’s integrity. Having derived and defined the principle to be applied, he must apply it consistently and without regard to his sympathy or lack of sympathy with the parties before him. This does not mean that the judge will never change the principle he has derived and defined. Anybody who has dealt extensively with law knows that a new case may seem to fall within a principle as stated and yet not fall within the rationale underlying it. As new cases present new patterns, the principle will often be restated and redefined. There is nothing wrong with that; it is, in fact, highly desirable. But the judge must be clarifying his own reasoning and verbal formulations and not trimming to arrive at results desired on grounds extraneous to the Constitution. This requires a fair degree of sophistication and self-consciousness on the part of the judge. The only external discipline to which the judge is subject is the scrutiny of professional observers who will be able to tell over a period of time whether he is displaying intellectual integrity.
An example of the nonneutral application of principle in the service of a good cause is provided by Shelley v. Kraemer,14 a 1948 decision of the Supreme Court striking down racially restrictive covenants. Property owners had signed agreements limiting occupancy to white persons. Despite the covenants, some whites sold to blacks, owners of other properties sued to enforce the covenants, and the state courts, applying common law rules, enjoined the blacks from taking possession.
The problem for the Supreme Court was that the Constitution restricts only action by the state, not actions by private individuals. There was no doubt that the racial restrictions would have violated the equal protection clause of the fourteenth amendment had they been enacted by the state legislature. But here state courts were not the source of the racial discrimination, they merely enforced private agreements according to the terms of those agreements. The Supreme Court nonetheless held that “there has been state action in these cases in the full and complete sense of the phrase.”15
In a 1971 article in the Indiana Law Journal,16 I pointed out the difficulty with Shelley, for which I was severely taken to task in my Senate hearings and elsewhere. That criticism consisted entirely of the observation that I had disapproved of a case that favored blacks and was therefore hostile to civil rights. Both the fact that many commentators had criticized Shelley and my approval of other cases that favored blacks were ignored. The implicit position taken by some senators and activist groups was that a judge must always rule for racial minorities. That is a position I reject, because it requires political judging. Members of racial minorities should win when the law, honestly applied, supports their claim and not when it does not. Shelley v. Kraemer rested upon a theory that cannot be honestly applied, and, in the event, has not been applied at all.
The Supreme Court in Shelley said that the decision of a state court under common law rules constitutes the action of the state and therefore is to be tested by the requirements of the Constitution. The racial discrimination involved was not the policy of the state courts but the desire of private individuals, which the courts enforced pursuant to normal, and neutral, rules of enforcing private agreements. The impossibility of applying the state action ruling of Shelley in a neutral fashion may easily be seen. Suppose that a guest in a house becomes abusive about political matters and is ejected by his host. The guest sues the host and the state courts hold that the property owner has a right to remove people from his home. The guest then appeals to the Supreme Court, pointing out that the state, through its courts, has upheld an abridgment of his right of free speech guaranteed by the first amendment and made applicable to the states by the fourteenth. The guest cites Shelley to show that this is state action and therefore the case is constitutional. There is no way of escaping that conclusion except by importing into the rule of Shelley qualifications and limits that themselves have no foundation in the Constitution or the case. Whichever way it decided, the Supreme Court would have to treat the case as one under the first amendment and displace state law with constitutional law.
It is necessary to remember that absolutely anything, from the significant to the frivolous, can be made the subject of a complaint filed in a state court. Whether the state court dismisses the suit out of hand or proceeds to the merits of the issue does not matter; any decision is, according to Shelley, state action and hence subject to constitutional scrutiny. That means that all private conduct may be made state conduct with the result that the Supreme Court will make the rules for all allowable or forbidden behavior by private individuals. That is not only a complete perversion of the Constitution of the United States, it makes the Supreme Court the supreme legislature. The result of the neutral application of the principle of Shelley v. Kraemer would be both revolutionary and preposterous. Clearly, it would not be applied neutrally, and it has not been, which means that it fails Wechsler’s test.
Shelley was a political decision. As such, it should have been made by a legislature. It is clear that Congress had the power to outlaw racially restrictive covenants. Subsequently, in fact, in a case in which as Solicitor General I filed a brief supporting the result reached, the Supreme Court held that one of the post—Civil War civil rights acts did outlaw racial discrimination in private contracts.17 That fact does not, however, make Shelley a proper constitutional decision, however much its result may be admired on moral grounds.
Judicial adherence to neutral principles, in the three senses just described, is a crucial element of the American doctrine of the separation of powers. Since the Court’s invocation of the Co
nstitution is final, the judiciary is the only branch of the government not subject to the ordinary checks and balances that pit the powers of the other branches against each other. If it is to be faithful to the constitutional design, therefore, the Court must check itself.
The Original Understanding of Original Understanding
The judicial role just described corresponds to the original understanding of the place of courts in our republican form of government. The political arrangements of that form of government are complex, its balances of power continually shifting, but one thing our constitutional orthodoxy does not countenance is a judiciary that decides for itself when and how it will make national policy, when and to what extent it will displace executives and legislators as our governors. The orthodoxy of our civil religion, which the Constitution has aptly been called, holds that we govern ourselves democratically, except on those occasions, few in number though crucially important, when the Constitution places a topic beyond the reach of majorities.
The Tempting of America Page 20
