Tribe tries to dispose of what he calls the “classical critics” by positing as the basis of their position a “dichotomy between a democratic political process and an antidemocratic adjudicatory process.”43 He then claims the dichotomy is not real because, over time, the adjudicatory process responds to the political climate and representative democracy diverges from the ideal. Indeed, he insists upon “the non-existence of any satisfactory form of representation,”44 which “puts the burden of persuasion on those who assert that legislatures (or executives) deserve judicial deference as good aggregators of individual preference.”45 This certainly gets rid of the counter-majoritarian difficulty with judicial supremacy, but it does so only by denying that democracy has any claims that judges are bound to respect. If this nation were starting from scratch, we might argue about whether, as a general matter, judicial rule is to be preferred to democratic rule. I have no doubt that I would choose the latter. It appears from this passage that Professor Tribe would not. Much of the rest of his treatise confirms that hypothesis. In any event, we are not starting from scratch, and Tribe has told us that he has learned “the very great difference between reading the Constitution we have and writing the Constitution some of us might wish to have.”46 Well, the Constitution we have, on any coherent reading, leaves most areas of government to democracy and elected representatives, whether or not those representatives are “good aggregators of individual preference.” If it matters, elected representatives are certainly better aggregators of individual preference than a majority of a committee of nine lawyers sitting in Washington.
The treatise is an enormously long book, running some 1,720 pages of text and footnotes, and there can be no attempt here to describe all of the approaches to judicial review that Tribe thinks the Court has tried in one era or another. Often he argues from the original understanding of the Constitution’s provisions, but only when that does not hinder him from arriving at the result he thinks proper. When the original materials stand in the way, he generalizes the principle intended to such an extent that it loses all touch with the ratifiers’ understanding of what they were doing. Since the equal protection clause of the fourteenth amendment was designed to prevent the legal subjugation of blacks, Tribe creates an “antisubjugationprinciple” that applies to people and situations the ratifiers of the amendment did not dream they were addressing.47 This new principle (before his 1988 edition Tribe had not suspected its existence) is designed “to break down legally created or legally reenforced systems of subordination that treat some people as second-class citizens.”48 Not only does the antisubjugation principle make equal protection analysis unduly sweeping, but what Tribe means by “legally reenforced systems of subordination” makes the Constitution apply to much private action, although it explicitly applies only to action by government.49
The antisubjugation principle provides Tribe with his latest defense of Roe v. Wade, his three previous ones being now abandoned. He has had trouble finding a rationale for the decision but he is certain it is right. Abortion, he now writes, involves the “intensely public question of the subordination of women to men through the exploitation of pregnancy.”50 Making a woman carry her child to term is also like that “involuntary servitude” prohibited by the post-Civil War thirteenth amendment. The link to the thirteenth amendment, aimed primarily at protection of the newly freed slaves, “is underscored,” according to Tribe, “by the historical parallel between the subjugation of women and the institution of slavery.”51
To give society—especially a male-dominated society—the power to sentence women to childbearing against their will is to delegate to some a sweeping and unaccountable authority over the lives of others. … Even a woman who is not pregnant is inevitably affected by her knowledge of the power relationships thereby created.52
The Justices who dissent from the abortion decisions are in “diametrical opposition to the central premises of reproductive autonomy.”53 The Constitution now seems to contain another unmentioned right, reproductive autonomy. No doubt there are many who wish it did, which seems to them reason enough to say that it does. I am told that Tribe’s analysis here is entirely derivative from the work of feminist constitutional theorists. In fact, he claims much older roots than that. If Roe were overruled and the issue thus sent back for democratic resolution by the several states, he says, quoting a commentator, some states would trample the rights of women and others would sacrifice the rights of the unborn, which shows that allowing legislatures to resolve the issue is “the least legitimate alternative.”54 If the fact that states may differ on moral issues makes their legislatures the least legitimate organs for decision, there is no excuse for having states. Everything should be decided at the national level and, presumably, by the Supreme Court rather than Congress. Tribe adds:
It is worth recalling Abraham Lincoln’s warning, voiced on a previous occasion when the nation was deeply divided over a different issue of fundamental liberty, that the Union could not long endure “half slave and half free.”55
The preposterousness of citing Lincoln for the proposition that the Court should create a constitutional right of abortion apparently does not occur to Tribe. The abortion issue does not threaten the survival of the nation, and Lincoln certainly never suggested that the cure for a nation half slave and half free was for the Supreme Court to end slavery by inventing the thirteenth amendment. He knew that the solution had to be political, and ultimately it was. According to Tribe’s formulation, whenever the various states disagree over a profound moral question, the Court should impose its resolution of the matter. That means the Court is to take all really important issues away from the people, whether or not it has in the Constitution any authority to do so. “Fundamental rights,” Tribe says, cannot properly be reduced to political interests.56 The entire question, of course, is whether abortion is a “fundamental right” under the Constitution or a moral issue to be decided democratically. Tribe makes it a fundamental right only by comparing the position of women to that of slaves.
Tribe is very upset by the decision in Bowers v. Hardwick that there is no constitutional right to homosexual conduct within the home. He thinks that such a right is part of a broader right to sexual intimacies between consenting adults. (Tribe argued the case for Hardwick in the Supreme Court.) “The Court’s error in Hardwick was that it used the wrong level of generality to conceptualize the plaintiff’s claim of liberty to test its pedigree.”57 How, one might ask, are we to know what level of generality is appropriate? “[I]n asking whether an alleged right forms part of a traditional liberty, it is crucial to define the liberty at a high enough level of generality to permit unconventional variants to claim protection along with mainstream versions of protected conduct.”58 This is entirely resultoriented. The Court must choose the level of generality at which it states “traditional liberty” at any level that results in a constitutional right for unconventional behavior. This bypasses the question of whether the Constitution contains protection for any sexual conduct or whether that is left to the moral sense of the people. It also fails to come to grips with the central question Bickel and Ely at least grappled with, albeit unsuccessfully: How can any individual, professor, judge, or moral philosopher tell us convincingly that, regardless of law or our own moral sense, certain forms of unconventional behavior must be allowed? There is no apparent reason why the Court should manipulate the level of generality to protect unconventional sexual behavior any more than liberty should be taken at a high enough level of abstraction to protect kleptomania. Tribe has more sympathy for one than for the other, but that hardly rises to the level of a constitutional principle.
Related to his discovery of a principle that makes “subjugation” unconstitutional is Tribe’s discussion of rights of privacy and personhood.59 These are rights of individual autonomy which inhere in the Constitution because that document is claimed to have an implicit idea of what it means to be fully human.60 Quite aside from the dubious nature of that a
ssertion, Tribe’s version of what being human is turns out to be an extreme form of modern liberalism’s moral relativism. Starting from the Court opinions saying that it is inconsistent with the first amendment for government to try to control men’s minds, Tribe moves rapidly to the claim that the same sort of thing is involved when government attempts to regulate the way the mind processes the sensory data it receives from the world. He suggests that this is what happens when government is permitted to ban the use of “such psychoactive substances as marijuana.”61 He is not clear about the full range of “psychoactive substances” one might have a constitutional right to use, but he laments the fact that few courts have reached “the conclusion that the basic assertion of governmental power over the individual psyche in this area is illegitimate as a matter of due process. Typical was a North Carolina court’s assertion that it is ‘not a violation of [an individual’s] constitutional rights to forbid him … to possess a drug which will produce hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia….’ ”62 Moving from a case in which the Court found a constitutional right to use pornography in the home, Tribe says that if it is offensive to have government rummage through a person’s library to discover evidence of his mental and emotional tastes, it is not much less offensive for government to rummage through his medicine chest to discover his “chemical predilections.”63 “In either case, the offense is governmental invasion and usurpation of the choices that together constitute an individual’s psyche.”64
Although the Supreme Court protects pornography under the first amendment, it permits government to ban the most vile forms, termed “obscenity.” Tribe disagrees and condemns even laws that suppress obscenity.
[T]he attempt to single out some images or ideas for complete suppression … seems ultimately incompatible with the first amendment premise that awareness can never be deemed harmful in itself…. [S]uppression of the obscene persists because it tells us something about ourselves that some of us, at least, would prefer not to know. It threatens to explode our uneasy accommodation between sexual impulse and social custom—to destroy the carefully-spun social web holding sexuality in its place…. [T]he desire to preserve that web by shutting out the thoughts and impressions that challenge it cannot be squared with a constitutional commitment to openness of mind.65
The Constitution, according to Tribe, requires that the mind be open to both obscenity and narcotics. These conclusions follow from premises—awareness can never be deemed harmful, commitment to openness of mind, complete freedom of the psyche, etc.—that Tribe wants to be in the Constitution but that are not there.
But, fantastic though these conclusions will seem to most people familiar with the historic Constitution, it is on the subject of race that Tribe reveals the authoritarian side of his liberalism. Here the antisubjugation principle runs riot, flattening all the structures of our constitutional law. The Constitution’s most fundamental distinction is that between what is public and what is private; it forbids government from doing certain things but lays almost no injunctions upon individuals. Thus, the equal protection clause of the fourteenth amendment forbids racial discrimination by any level or unit of government. It does not forbid private individuals from discriminating on any grounds they choose. That is why, when it was desired to end racial discrimination in privately owned restaurants, hotels, and the like, it was necessary to enact the 1964 Civil Rights Act. Tribe would obliterate this basic feature of the Constitution whenever “a situation of pervasive interdependence between a government actor and a private actor [makes] it appropriate to focus not on the substantively acceptable government decision to leave particular choices to the private actor, but on the substantively unacceptable way in which those choices are exercised in the specific case.”66 Thus, courts should order racial balance in institutions like schools, presumably busing children throughout a school system, even though the school system had never engaged in racial discrimination. If there is racial clustering, it cannot be a result of individual choice but must reflect a “system of subordination”67 for which government must ultimately be held responsible. If people leave the area because of what the court is doing to their schools, the court should draw yet new boundaries to make possible the racial mix that Tribe thinks the Constitution always commands. Since Tribe analogizes the situation of women to that of blacks, and since the government is no less guilty of subjugation with respect to sex than it is with respect to race, one supposes courts could also impose sexual quotas throughout the society in the name of the Constitution.
There is much more of this sort of thing in Tribe’s writings, but perhaps enough has been said to demonstrate that, while he professes to have no overarching theory of constitutional interpretation, Tribe is in fact a constitutional revolutionary who would overturn the Constitution we have. Judge Posner, reviewing another of Tribe’s books, said: “As Tribe conceives constitutional ‘interpretation,’ the Constitution is flexible enough to embrace—to command—a partisan political position,”68 and noted that his “method is to use the skills of a lawyer to make political choices for society in the name of a fictive constitution, as if the Supreme Court really were a superlegislature and government by lawyers had, at last, arrived.”69 Tribe’s philosophy is that of a radical egalitarian, which is to say that he would require courts to impose moral relativism in such areas as pornography and drugs but would have courts also impose quotas in such areas as race and gender. As Professor Stanley Brubaker concluded, Tribe thinks the people should accord the Court authority to do whatever it thinks is right. “What he finds intolerable is a similar claim to authority by the people themselves. The ‘mainstream’ thinking preeminently articulated by Tribe is thus carrying us to a place in which there will be no room at all for self-government, and none for constitutional democracy.”70 It is a just comment.
More Liberal Revisionists of the Constitution
I have focused on Alexander Bickel, John Hart Ely, and Laurence Tribe because they are three quite different constitutional theorists. They have different intellectual approaches and they vary enormously in the modesty or immodesty of the role they would assign to the Supreme Court. But they have in common the fact that they would depart, in varying degrees, from the actual Constitution of the United States. Their constitutions are more liberal, egalitarian, and socially permissive than either the actual Constitution or the legislative opinion of the American people. In that, they typify today’s American professoriate, legal and nonlegal. What follows is a demonstration of that truth by sampling the views of other academic constitutional theorists.
Harvard is apparently a hotbed of revisionist law professors. In addition to Laurence Tribe, Professor Frank Michelman has long been working on a theory that would make welfare payments a constitutional right that would-be recipients could enforce in court.71 Professor Richard Parker finds our present democracy in a state of “corruption,” which asserted condition he regards as warrant enough for courts to use the Constitution to remake society. He promises a new constitutional theory that will “take seriously and work from (while, no doubt, revising) the classical conception of a republic, including its elements of relative equality, mobilization of the citizenry, and civic virtue.”72 This sounds a bit like a Court-managed version of the French Revolution.
Harvard law school is also a stronghold of Critical Legal Studies, a nihilistic neo-Marxist movement that views all law as oppressive and political. It is nihilistic because its members typically demand the destruction of current doctrine and hierarchies as illegitimate, but they acknowledge that they have no notion of what is to replace this society. To give the reader some flavor of the mood of these folk, I once attended a lecture by one of its leading Harvard proponents, which he concluded by saying: “The first year of law school is designed to destroy the minds of the students. It does that by asking them to reconcile the irreconcilable and to justify an obviously unjust society.” He immediately left, saying
he had a train to catch and could not stay for questions, Another leader of the movement at Harvard is Professor Duncan Kennedy. He states that he is against illegitimate hierarchy, domination, and oppression. What he is for is Utopian speculation concerning an impossible Eden73 which aspires to a “shared vision of a social harmony so complete as to obviate the need for any rules at all.”74 He has described his philosophy as a “utopian fragment” that is “very egalitarian” and “somewhat erotic and aesthetic.”75 That, presumably, is why he has suggested that Harvard abolish all salary differences so that janitors and deans would be paid the same. Each member of the school should rotate through different jobs, janitors to teach sometimes and professors to mop floors.76 Tenure should be abolished, admission to law school should be by lot, with quotas within the lottery for minority, female, and working-class students.77 The purpose of the lottery device is to eliminate notions of merit and of better and poorer law schools.
Kennedy states his teaching goals as politicizing, in a leftward direction, as many students as possible. “[F]ind ways to use your normal classroom interaction as a political tool, as a political weapon, as an aspect of political activist practice.”78 The Critical Legal Studies movement is, admittedly, an extreme case, but it is significant that it and its fellow travelers constitute about one-third of the Harvard faculty and that it is prominent at other law schools as well. Indeed, it is significant that it exists and survives at all. Prior to the 1960s generation in the universities, and many of the Crits are of that generation, the movement’s mindless form of leftist politics, its crude anti-intellectualism, would not have been tolerated on any decent law school faculty. That it now thrives speaks volumes about the political and intellectual atmosphere in many of today’s most prestigious law schools.
The Tempting of America Page 27
