Ourselves and Our Posterity: Essays in Constitutional Originalism

OURSELVES AND OUR POSTERITY

OURSELVES AND OUR POSTERITY Essays in Constitutional Originalism

Edited and Introduced by Bradley C. S. Watson

LEXINGTON BOOKS

A division of ROWMAN & LIT TLEFIELD PUBLISHERS, INC. Lanham • Boulder • New York • Toronto • Plymouth, UK

LEXINGTON BOOKS A division of Rowman & Littlefield Publishers, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200 Lanham, MD 20706 Estover Road Plymouth PL6 7PY United Kingdom Copyright © 2009 by Lexington Books All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Ourselves and our posterity : essays in constitutional originalism / edited by Bradley C.S. Watson. p. cm. Includes index. ISBN 978-0-7391-2789-6 (cloth : alk. paper) ISBN 978-0-7391-2790-2 (pbk. : alk. paper) eISBN: 978-0-7391-3633-1 1. Constitutional law—United States—Interpretation and construction. 2. Judicial review—United States. 3. Law—Political aspects—United States. I. Watson, Bradley C. S., 1961– KF4552.O97 2009 347.73'12—dc22 2008054010 Printed in the United States of America

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For our posterity

We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We, when mounting the stage of existence, found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them—they are a legacy bequeathed us, by a once hardy, brave, and patriotic, but now lamented and departed race of ancestors. Theirs was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights; ’tis ours only, to transmit these, the former, unprofaned by the foot of an invader; the latter, undecayed by the lapse of time and untorn by usurpation, to the latest generation that fate shall permit the world to know. This task of gratitude to our fathers, justice to ourselves, duty to posterity, and love for our species in general, all imperatively require us faithfully to perform. —Abraham Lincoln Lyceum Address

Contents

Acknowledgments Introduction Bradley C.S. Watson

xi xiii

Part I: Matters of Interpretation 1 Original Meaning and Responsible Citizenship Edward Whelan 2 “Common-Sense Constitutionalism”: Why Constitutional Structure Matters for Justice Scalia Ralph A. Rossum

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Part II: Originalism and the Judicial Role 3 Judicial Usurpation: Perennial Temptation, Contemporary Challenge Robert P. George 4 Authority Doctrines and the Proper Judicial Role: Judicial Supremacy, Stare Decisis, and the Concept of Judicial Constitutional Violations Jack Wade Nowlin 5 Freedom Questions, Political Questions: Republicanism and the Myth of a “Bill of Rights” Matthew J. Franck

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Part III: Law and Politics 6 Confirmations to the Court in Times Turned Mean: A Strategy for the Hearings Hadley Arkes 7 The Supreme Court and Changing Social Mores Christopher Wolfe

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Part IV: Originalism and Political Thought 8 The Devil’s Pitchfork: Scientism, Human Nature, and Modern Constitutional Thought Robert Lowry Clinton 9 A Constitution to Die For? Congressional Authority to Raise an Army Stanley C. Brubaker 10 Neoconservatives and the Courts: The Public Interest, 1965–1980 Ken I. Kersch

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Index

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About the Contributors

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Acknowledgments

HE BOOK IS BASED ON papers presented by leading constitutional scholars at a conference held at Saint Vincent College in Latrobe, Pennsylvania. The conference was sponsored by the Center for Political and Economic Thought, an interdisciplinary public affairs institute of Saint Vincent’s Alex G. McKenna School of Business, Economics, and Government. The Center combines the resources of the college’s political science and economics departments. It was founded in 1991 to sponsor research and educational programs in politics, economics, and culture. It seeks to advance a free and well-ordered society in the American and Western traditions. We at the Center are grateful to Saint Vincent College as a whole for providing a wonderful environment for our biennial Culture and Policy Conferences, as well as our other lectures and conferences—all of which deal with the conditions necessary for a free and decent political, social, economic, and moral order. The Benedictine Order did much to preserve and transmit classical learning and thereby lay the foundations for Western civilization. Saint Vincent, America’s first Benedictine college, today remains open and receptive to the conversation about ideas that is so central to that civilization. Special mention should be made of the Rt. Rev. Douglas R. Nowicki, O.S.B., the archabbot of Saint Vincent Archabbey and chancellor of the seminary and the college; Mr. Jim Towey, president of Saint Vincent College; and Dr. John Smetanka, vice president for academic affairs of the college. We owe special thanks to the foundations and individuals that support us. The conference would have been impossible without the confidence and generous support of the Sarah Scaife Foundation and its executive vice president,

T

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Michael Gleba. Other conference support was provided by the Philip M. McKenna Foundation, Inc., the Massey Charitable Trust, the Intercollegiate Studies Institute, Inc., and an anonymous donor. As a professor at Saint Vincent, I enjoy the college’s bounty in numerous ways, prime among them being the support provided by the Center, including especially the friendship of my colleagues therein. I should make special mention of T. William Boxx, the Center’s senior fellow, who is a source of good conversation and sound ideas, and Gary M. Quinlivan, the executive director of the Center and dean of the McKenna School, who never ceases to think of ways to lend energy and aid to our academic projects. I am also indebted to many individuals who assisted with the conference and book in ways large and small. Prime among them is Eva Kunkel, the Center’s former program coordinator, who handled the daunting logistical tasks associated with staging a major academic conference attended by hundreds. Kim Shumaker, the Center’s current program coordinator, has provided invaluable aid with many of the tasks associated with publishing this volume. The student staff of the Center aided me in ways too numerous to count. I am grateful too to the editors and staff at the Rowman & Littlefield Publishing Group and its scholarly imprint, Lexington Books, whose efficient decision and production timelines should be a model for academic publishing. And of course, I am deeply indebted to the contributors themselves, who remind us of the importance—legal, political, and moral—of constitutional originalism. I also owe thanks to my wife, Barbara, and our posterity—Victoria, Charles, and James—to whom this volume is dedicated, and whose future will be affected, for good and ill, by competing schools of constitutional interpretation.

Introduction Bradley C. S. Watson

N THIS VOLUME, some of

the nation’s leading constitutional originalists bring constitutional interpretation down from the clouds, showing its relationship to the concerns of the citizen and to the public good. Part I of the book deals with matters of interpretation. The volume opens with Edward Whelan’s cogent explication of the meaning of constitutional originalism. It is nothing other than interpretation of the Constitution according to the objective meaning its words bore at the time they were adopted. As Whelan notes, “originalism” is a relatively new word. Prior to the 1980s, serious people had the decency to dissemble if they were interpreting the Constitution in anything other than an originalist manner. There was simply no need for a specific term to describe what most took to be normative; originalism had no open competitors. Providing an example of powerful simplicity, Whelan asks how we might reasonably interpret the constitutional requirement that only a “natural born Citizen” is eligible to become President. For those who reject originalism in favor of a contemporary meaning approach, the constitutional phrase could exclude from office those who were born through a technique other than natural childbirth—such as Caesarean section. Originalism, unlike its competitors, is at least grounded in common sense. An originalist jurisprudence of course cannot give clear answers to all questions that arise in a constitutional republic, but it is to these questions that democratic choice is addressed. In the face of such choice, judicial restraint is called for—a restraint that is itself a dictate of the logic of originalism. When judges fail to ground themselves in an originalist methodology, judicial hubris

I

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and the unseemly politicization of the judicial confirmation process are near certainties, as virtually all properly political questions become judicial questions. In the next chapter, Ralph A. Rossum gives us further insight into the meaning and implications of originalist interpretation by examining Justice Antonin Scalia’s “common-sense constitutionalism.” That constitutionalism involves determining the objective meaning of the language, but also being cognizant of the structural principles of the Constitution to which the language points. Constitutional language is not oriented toward providing handles by which the least republican branch of government might expand its highly creative catalog of rights. It is, rather, largely about how powers are allocated among the branches of government and the people, and how best to preserve that allocation. It is in that allocation, as the Founders understood, that we find the true protection for rights. Indeed, in the absence of a resilient separation of powers regime, the Bill of Rights, in Scalia’s words, “would be worthless,” just as so many bills of rights across the world have proved to be. An omnipotent, unelected group of philosopher kings is hardly the government contemplated by the Constitution. What has come to be understood as “common-law constitutionalism” in America today is merely the gloss that the Supreme Court places on the constitutional text, rather than the text itself. In this sense, it bears little relationship to the grand English tradition of common-law constitutionalism, which suggests that law is discovered, articulated, and applied—rather than made—by judges. In Scalia’s view, the Court’s job is to preserve our society’s values, as those values are embodied in a Constitution, which provides a floor below which the citizenry cannot choose to descend. The Constitution was not designed to place progressively higher degrees of judicial limitation on democratic governance, constrained only by the tendentious cleverness of “common-law” judging. Only the text and tradition of American constitutionalism might—logically, prudentially, and structurally—provide the ground for a limitation on such governance. Robert P. George opens part II of the book, on originalism and the judicial role, with some meditations on the perennial temptation of judicial usurpation. As he notes, courts can only do what is authorized by law, and no consequentialist analysis can save judicial actions that amount to the exercise of prerogative. They are themselves unconstitutional. Jefferson’s critique of Marbury v. Madison (1803) was prescient: judicial despotism is our lot. After Marbury, the Court next presumed to tell Congress what it could not do in the Dred Scott (1857) case—a case that bears a striking resemblance to so much of today’s constitutional jurisprudence. As George notes, the case was an effort to settle a morally charged debate according to the personal preferences of a majority of the members of the Supreme Court. And, like so many contemporary decisions, it failed miserably.

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It took only a relatively short, very slippery slope for the Court to move from its argument that the Constitution contains a right to “marital privacy” in Griswold v. Connecticut (1965), to its assertion of a right to homosexual sodomy in Lawrence v. Texas (2003). Any state laws that embody Judeo-Christian norms concerning human nature have been, and continue to be, under assault. The Supreme Court has become the primary cultural warrior in our society, with no end in sight to its combat posture. The only response of its defenders is, “What, us?” In chapter 4, Jack Wade Nowlin expounds on the concept of judicial constitutional violations. In a powerful and original argument, he allows us to see more clearly the benefits as well as costs of judicial review, while offering guidance on how best to minimize the latter. He seeks to integrate various dimensions of the debates concerning the proper judicial role—from interpretive methodologies, to the authority of judicial versus non-judicial actors, to earlier versus later sets of judicial actors, to the question of whether certain forms of “activist” judicial power are themselves violations of the Constitution. He convincingly argues that when courts themselves violate the Constitution, their decisions are entitled only to “attenuated” authority as precedents or norms that bind other branches. This view recognizes and takes seriously the value of judicial review and stare decisis while providing us a framework to qualify those doctrines when circumstances demand. In chapter 5, Matthew J. Franck presents the radical argument that the Bill of Rights raises purely “political questions” that should be settled by the deliberation of the other branches without judicial interference or superintendence. The role of courts in our constitutional system is far more limited than most of us commonly suppose. In allowing constitutional meaning to be fixed by the judicial branch, we deviate greatly from the Founder’s Constitution, according to Franck. The First Amendment in particular has moved from “pointless” to “dangerous” over the last century as the Supreme Court has claimed—and we have acquiesced in—the notion that the judiciary has the final say over its meaning. The very phrase “judicial review” is handed down to us as if from Mount Sinai, though it is in reality largely an artifact of 20th century legal scholarship: The phrase is far more pleasing to the ear than judicial supremacy, and has become, for generations of Americans, too easy a pill to swallow. Part III of the volume, on law and politics, opens by directing our attention to Senate confirmation hearings for Supreme Court justices. Few events in American public life arouse as much controversy as Supreme Court appointments. Invariably, such events bring to the surface the full range of political, moral, and cultural fault lines in American society. Yet all the contending parties claim fealty to the Constitution. What do we, as citizens, need to be thinking about during a confirmation? What kinds of questions should senators be

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asking? What kinds of answers should we be hearing? Hadley Arkes presents a compelling argument that judicial confirmations present teachable moments to the country. Our current nomination and confirmation process, relying as it does on search teams, coaches, handlers, and bleating factions, bears little resemblance to confirmation hearings prior to the 1980s. What accounts for this is, in a word, abortion—the “paramount and architectonic” issue and “first freedom” of our time, according to Arkes. National politics have been consumed by abortion not because of the deliberative choices of the President and Congress, but because of judicial fiat that has made neutral confirmations impossible. Arkes advocates turning the tables on senatorial inquisitors by having nominees ask them how, exactly, they understand their subject—the Constitution. In Arkes’s world, a nominee would ask for a senator’s own understanding of the precise holding in Roe v. Wade in order to be clear on just what the senator is asking the nominee to affirm. Skillfully deployed questions such as these could bring the whole non-constitutional edifice of abortion rights tumbling down, not to mention bring the nominee’s wit and wisdom into relief—all the while pointing to salutary understandings of what is beyond the Constitution. Following on Arkes, Christopher Wolfe draws our attention in chapter 7 to the role of the Supreme Court in changing the nation’s sexual mores. Wolfe rejects the attractive but too simple account that the Court simply ratifies changing mores. That might have been true of Griswold, which overturned restrictions on the use and sale of contraceptives. However implausible its constitutional reasoning, Griswold can be said to have overcome undemocratic legislative inertia, thereby vindicating a kind of majority rule. However, when one examines the Court’s obscenity jurisprudence, we see reasonable restrictions on obscenity collapse with alarming rapidity in the face of the Court’s “community standards” approach, which quickly devolves toward the “outer limits of tolerance” a community might show toward obscenity, rather than what a community actually regards as good. Sex itself thereby becomes increasingly untethered from family and procreative purposes. And of course, after Griswold, marital privacy becomes privacy simply, justifying a full range of new and socially transformative rights that find themselves in constant tension with public opinion. That move relies on a new level of politicization of jurisprudence, and is an important cause of the “culture wars.” Cultural conservatives must expend great energy and resources— psychic as well as financial—to achieve some limited measure of legislative success, only to see that success overturned on the whim of the least republican branch of government. This is a recipe for frustration and political volatility.

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Furthermore, the courts are stacked with cultural liberals who wish to enforce their views judicially. Conversely, there are no cultural conservatives on the bench who seek to do the same. What is taken for cultural conservatism on the bench merely amounts to opposition to judicial activism. As Wolfe notes, “There has never been an opinion by any Supreme Court justice arguing that laws permitting abortion are a denial of the equal protection of the law to unborn children, or arguing that state laws against homosexual acts . . . are rational because heterosexuality is normative and homosexuality is a psychological pathology.” The deck is therefore stacked, and the cultural warfare is asymmetrical. Opening the fourth and final part of the book, on originalism and political thought, is Robert Lowry Clinton’s meditation on the impossibility of limited constitutionalism in an age of scientism. This scientism is the hubristic, antirational residue of a modern science that has fully divorced itself from the Western philosophic tradition. It has succeeded in reconfiguring our understanding of human nature by positing a universe—including the human things—devoid of meaning and purpose. Such a conception cannot help but have consequences in the realm of constitutional thought and interpretation. As Clinton argues, our social and political arrangements are, invariably, a consequence of what we think we are. If we see ourselves as determined by external stimuli and biology, we quickly lose faith in those things that make free government possible: Political institutions and practices based on choice, and the reality of political equality, natural rights, and morality itself. The only legal theory that can be supported on the rubble left by scientism is positivism. And the Supreme Court, in the purported finality of its interpretive authority—being both the ultimate and last expounder of the law—assumes the role of sovereign. “And from this conclusion there is no escape,” as Clinton notes in his sobering summary. Moving from the general to the particular, Stanley C. Brubaker argues in the penultimate chapter of the book that we can learn much about the principles of constitutional originalism from reflecting on something the Supreme Court has rarely directed its attention to—the constitutionality of the draft. From whence does the constitutional power to conscript come? According to Brubaker, the Founders envisioned that an army, as opposed to a militia, would be raised through “patriotism and purchase” rather than conscription. Large standing armies were notoriously viewed by the founding generation as threats to liberty. Brubaker argues for a “real meaning originalism” that points not simply to text and tradition, but the best meaning of the Constitution after the studied reflection of those attentive to text and tradition as well as larger claims of virtue embedded in the Western philosophic and moral tradition. Our aim is to personify constitutional text such that we can imagine the text

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saying “that’s what I really meant.” On this ground might conscription be seen to be in accordance with what was really meant by constitutional language. It is a meaning that a reflective founder could have settled on in light of reason and experience—including recognition that the Constitution fosters a good way of life worth fighting, and dying, for. Rounding out the volume is Ken I. Kersch, who offers a fascinating longitudinal view of neoconservative thought about the courts. As Kersch notes, the “conservative” position on matters of interpretation and the judicial role was not born but made. Only in the 1980s did conservative thought begin to cohere around what we now understand to be constitutional originalism. Kersch therefore examines neoconservative thinking in order to provide an important perspective on this coalescence. Through the 1960s and 1970s, the neocons were interested primarily in the limits and failures of social policy. Prior to the Reagan years, they engaged in remarkably little constitutional theorizing. They did not start from a position of high principle concerning fidelity to text or tradition, but rather as investigators and critics of public policy. In short, they retained their liberal modernist credentials. In terms of legal scholarship, they were pragmatists and realists. The “living constitution” model failed for them because it failed to achieve its own functional objectives. The main ground of their skepticism of judicial power was institutional competence. Kersch concludes by noting that the story of how and why conservative thought began to cohere around originalism is still to be told. As can be gleaned from this introduction, the present volume gives voice to a wide range of originalist thinking about the Constitution. It is hard to imagine any intelligent citizen—whether a friend or foe of originalism—not finding something in it that will challenge or inspire.

I MATTERS OF INTERPRETATION

1 Original Meaning and Responsible Citizenship Edward Whelan

I OF THIS CHAPTER, I aim to explain what the jurisprudential methodology of originalism is and to defend, as uniquely compatible with democratic government and responsible citizenship, a judicial approach that combines the “original meaning” species of originalism with principles of judicial restraint. In Part II, I illustrate how the judicial abandonment of originalism has degraded Supreme Court decision-making and triggered the Court’s ever more extravagant assertions of its own authority. In Part III, I discuss how the triumph of liberal judicial activism has affected the judicial-confirmation process.

I

N PART

I According to the Oxford English Dictionary, the term “heterosexual” came into usage barely a century ago. This is obviously not because heterosexuals did not previously exist, but rather precisely because what we now call heterosexuality had been widely understood to be normative. So it is, I would suggest, with the term “originalist.” That term appears to be of even more recent vintage, from the 1980s. The reason for this is not that there is anything novel about originalism. Precisely the opposite. Until recent decades, originalism had been so unchallenged as constitutional orthodoxy that there was no reason to develop a term that would distinguish it from any rival. As Justice Scalia has put it, “in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they

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were doing.”1 But the abandonment of originalism in recent decades made necessary a label for what everyone had previously recognized as elementary. What is originalism? Succinctly stated, the term “originalism” identifies the traditional—and, as I will show, common-sense—principle that the meaning of various provisions of the Constitution (and of other laws) is to be determined in accordance with the meaning they bore at the time they were promulgated. An illustration may be more enlightening than an abstract definition. Consider the clause of the Constitution (Article II, section 1, clause 5) that sets forth the criteria to be eligible to become president. The first criterion is that one must be “a natural born Citizen.” That’s an obscure phrase. As Jack Keefe, the protagonist in Ring Lardner’s “You Tell Me Al” baseball stories, says when he runs across it on a draft-registration form, “I wonder what they think I am. Maybe they think I fell out of a tree or something.”2 How should we go about figuring out what the phrase “natural born Citizen” means? One approach, which might fairly be called non-originalist textualism, would attempt to determine the current meaning of the phrase “natural born Citizen.” An adherent of this approach might, for example, note the linguistic connection between “natural born” and “natural childbirth” and conclude that if your mother used epidurals or other painkillers during your birth, you were not “natural born.” A second approach might look to the insights of literature for inspiration. Shakespeare’s Macbeth provides particular help. Macbeth finds great comfort in the promise that “none of woman born/Shall harm” him. But his comfort proves unwarranted when Macduff, who “was from his mother’s womb/Untimely ripp’d,” kills Macbeth. Under this literary approach, it would follow that anyone whose birth was by Cesarean section is not a “natural born Citizen.” Under a third, internationalist approach, a judge might determine that the “natural born Citizen” requirement, whatever it means, is obviously a relic of a benighted and xenophobic past, a past that “evolving standards of decency,” as reflected in modern transnational European electoral practices, requires be abandoned. It simply isn’t fair, this judge would conclude, that any candidates should be excluded by such an arbitrary requirement from running for president. The judge might instead invoke “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Planned Parenthood v. Casey, Lawrence v. Texas) as he instead substitutes his own arbitrary criteria for eligibility. A fourth approach, that of originalism, would aim to determine the meaning of the “natural born Citizen” requirement at the time that phrase was incorporated into the Constitution. If, as I hope and suspect, it is obvious to most people that the fourth approach is the sound one, then I submit that they are originalists. Specifically,

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the same intuition and the same common sense that they apply to this somewhat opaque but relatively non-controversial provision of the Constitution should apply to all the other provisions. It is, to be sure, theoretically conceivable that some constitutional provisions were intended to be open-ended and to delegate to judges over time considerable discretion to supply or change their meaning. Imagine, for example, that the Constitution contained a provision expressly stating: “The Supreme Court shall have plenary discretion to invent new constitutional rights whenever it sees fit.” Some theorists, trying to fight on the field of originalism, contend that phrases like “due process of law” or provisions like the Ninth Amendment should be understood to confer similar discretion. Now is not the occasion to examine the validity of those contentions or their compatibility with American principles of representative government. It suffices to observe that such theorists either expressly acknowledge or implicitly concede the legitimacy of originalism and merely contest with other originalists what originalism yields. The status of originalism as the only legitimate foundational method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as written law, as command. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is “committed to writing” so that its “limits may not be mistaken or forgotten.” To disregard its limits is to “reduce to nothing what we have deemed the greatest improvement on political institutions—a written constitution.” I strongly suspect that many heterosexual English speakers two or three generations ago disliked the odd term “heterosexual” and were not particularly eager to have the label applied to them. I hope that your reaction on discovering that you are an originalist is instead like the delight that Molière’s Monsieur Jourdain experienced in learning that he had been “speaking in prose” all his life without knowing it. To state, as I have, that originalism means that the provisions of the Constitution are to be construed according to the sense they bore at the time they were promulgated is to begin, not end, the exploration of originalist methodology. Which sense should control? The subjective intention of the Framers, as “original intent” theory would propose? The ratifiers’ understanding (in the approach often labeled “original understanding”)? Or the objective public meaning of the text of the law? There is obviously considerable overlap among these approaches. For example, as law professor Randy Barnett points out, “evidence of the intentions of the Framers and ratifiers is often highly relevant to determining the public meaning of the words they decided to enact.” The difference among these approaches, Barnett helpfully explains, “is defined, not by the evidence each includes or excludes

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from its analysis, but by what each method is trying to prove or disprove by use of evidence.”3 The “original meaning” school—now dominant within originalism but not, alas, within the broader legal culture—endorses the third, textualist approach, the search for discovery of the objective public meaning of the legal text at the time it was adopted. As Justice Scalia, the foremost proponent of the original-meaning school of originalism, has written, “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by [the objective meaning of] what the lawgiver promulgated.”4 This democratic underpinning of original-meaning interpretation and the very idea of an original public meaning in turn presuppose that the Constitution is, by and large, intelligible to the ordinary citizen. This presupposition is deeply rooted in the American understanding. For example, Jefferson, as President, wrote: “The Constitution on which our Union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption.” Joseph Story, the great Justice and constitutional scholar from the early 19th century, likewise observed: Constitutions are not designed for metaphysical or logical subtleties . . . . They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense.

Barnett quotes Lysander Spooner’s mid–19th-century explanation: “We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses, some certain, fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it.” Even within the original-meaning school, methodological issues arise. For example, in order to be intelligible, must the original public meaning of a provision have been a plain meaning? Or is it enough that, with effort (including the application of traditional legal tools), it could fairly be discerned? What is the relationship between original meaning and original expected applications (i.e., the applications that the people of the time would have expected)? Academics and other non-governmental actors are free to inquire into constitutional meaning without being constrained by institutional considerations. Their best guesses—and their many wrong guesses—as to original meaning have no direct real-world consequence. Not so for governmental actors whose conduct must be shaped by their assessment of what is and what

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is not constitutionally permissible. And especially not so for Supreme Court justices and other judges who decide constitutional meaning in the context of specific cases and who must have a legitimate basis for declining to apply (or for declaring invalid) enacted laws. An originalist approach is a necessary component of sound judging. And, for the vast bulk of issues that have been hotly contested in recent decades, it is sufficient. But there are also judicial cases in which originalism does not yield clear answers. In a democratic republic, principles of judicial restraint properly supplement originalism. Here I will highlight two principles in particular: First, judges, in crafting rules to implement constitutional meaning, do not have authority to “over enforce” the Constitution. It may well be inevitable that judicial doctrine—which law professor Kermit Roosevelt identifies as the set of rules that judges create to implement the meaning of the Constitution’s provisions in particular cases5—cannot perfectly comport with constitutional meaning. But (contrary to Roosevelt) judges need to understand that doctrine cannot legitimately over enforce the Constitution and lead them to decline to apply (or to invalidate) legislative enactments that are not, in fact, unconstitutional. Second, when originalist methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments. Reasonable people can dispute how to define the requisite level of clarity, and it may even be that the level will vary depending on context. But a law professor’s mere best guess as to constitutional meaning cannot be a judge’s basis for trumping the majoritarian process. Thus, when originalism is allied with judicial restraint, the fact that originalism will not always yield sufficiently clear answers is not, as some critics mistakenly think, a fatal or even a significant defect and does not somehow render originalism unworkable. Rather, that situation calls for judges to apply statutory law. Considerations of stare decisis, or adherence to precedent, are often confused (frequently deliberately, it would seem) with judicial restraint. But advocacy of judicial restraint and criticism of its opposite, judicial activism, focus first and foremost on the proper role of the courts in a representative government and in a system of separated powers. Judicial restraint is a necessary virtue for the courts because it works to keep courts within their proper bounds. Stare decisis, by contrast, is largely an intrajudicial doctrine. When the Supreme Court addresses a question that it has addressed before, it accords a degree of respect, or deference, to its previous treatment of the question, partly from the presumption that the Court carefully addressed the question the first time, partly from the impracticability of addressing every question anew in every case.

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Stare decisis may well have some interbranch implications in some cases, especially, say, where governmental institutions have been designed and maintained in reliance on previous Court rulings. But stare decisis considerations are at their weakest when a previous constitutional ruling by the Court has wrongly overridden the democratic processes. In such instances, a sound understanding of judicial restraint may well call for the Court to revisit its prior ruling. When judges override a legislative enactment, citizens have the right to demand that the judicial decision be right—and that a decision that usurps the political process be overturned. As Abraham Lincoln put it, “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Within broad bounds, the Constitution creates a democratic republic in which the vast bulk of issues, large and small, are left to American citizens to work out through their legislators at the state and national levels. A judicial methodology that combines originalism and judicial restraint gives citizens broad power to shape and revise policies over time. It thereby enables genuinely responsible citizenship, in which the American people take seriously their responsibilities as citizens to discern and promote the public good. At the same time, this methodology enforces the guarantees that clearly are in the Constitution. By contrast, under the make-it-up-as-you-go-along approach to constitutional decision-making that hides behind the moniker of the “living Constitution,” representative government is at the sufferance of the judiciary. Proponents of the “living Constitution” claim that an 18th-century Constitution can’t apply in the 21st century. But this claim is doubly defective. First, it ignores the broad play that the Constitution, properly understood, gives to the democratic processes to adapt policies to new conditions. Second, the use of the “living Constitution” approach to invent new rights entrenches current policy preferences in Supreme Court decision-making in a manner that deprives future generations of the very adaptability that proponents of the “living Constitution” purport to favor. In short, the “living Constitution” isn’t needed to deliver what it promises and it in fact delivers the opposite. II What happened to originalism? What effect has the judicial abandonment of originalism had on Supreme Court decision-making and on the Court’s understanding of its own role?

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In 1896, the Supreme Court ruled in Plessy v. Ferguson, that governmentsegregated railway cars were constitutionally permissible. In the words of the majority opinion, the “object of the [Fourteenth Amendment] was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” Justice Harlan’s famous dissent declared that the post-Civil War amendments “removed the race line from our governmental systems” and, quoting the Court’s 1880 ruling in Strauder v. West Virginia (holding that a criminal defendant has a right under the Fourteenth Amendment not to have persons of his race barred from the jury), that they meant that “‘the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” Legal scholars dispute whether the ruling in Plessy was faithful to the original meaning of the Fourteenth Amendment. What is clear is that Plessy helped entrench a nefarious era of Jim Crow segregation in the South, an era in which citizens throughout the country failed to live up to their responsibility to combat the evil of severe—and government-sponsored—racial injustice. Had they lived up to that responsibility, of course, there would have been no occasion for the Supreme Court’s 1954 ruling in Brown v. Board of Education because racially segregated schools would not have existed. In his unanimous opinion for the Court in Brown, Chief Justice Warren purported to undertake an originalist inquiry into whether segregated public schools violate the Fourteenth Amendment. The inquiry, he determined, was at best “inconclusive.” Summarizing his investigation of the original intent of the Framers and the original understanding of the ratifiers, he stated: The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

He also opined that the limited existence of public-school education at the time the Fourteenth Amendment was adopted explained why there was “so little in [its] history . . . relating to its intended effect on public education.” Warren then turned to address whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.” Relying on findings

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by educational psychologist Kenneth B. Clark on how black children reacted to black and white dolls (and to other “modern authority” on “psychological knowledge”), Warren concluded that segregated public schools produce in black children “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone” and were therefore “inherently unequal.” (Contrary to the conventional understanding, Brown did not overrule Plessy; it merely declined to apply the separate-but-equal rule to public education.) The compelling moral case for the result in Brown has muffled candid discussion of the serious defects in its methodology, defects that surely did not enhance its acceptability to those predisposed to resist. In particular, the reasoning in Warren’s opinion is unworthy of being taken seriously as law. Are we to believe that the justices’ thinking actually rested on modern psychological research like Clark’s? Isn’t it telling that the Court does not even attempt to explain the less-than-obvious connection between how a black child describes black and white dolls and the relative effect of integrated vs. segregated schools on that child’s “feeling of inferiority”? What if research a few years later showed that integrated schools increased black children’s “feeling of inferiority”? Are we to suppose that the Supreme Court might have overturned the decision in Brown? If so, should we respect a methodology that yields results that are so flimsy? And, if (as seems surely the case) differing social-science data would never result in the overturning of Brown, doesn’t that show that the purported reasoning is entirely makeshift? Further, the Court’s cursory discussion of its originalist inquiry indicates that that inquiry (into original intent and original understanding, not original meaning) was not conducted with due care. Both the Court’s 1880 decision in Strauder—decided a mere twelve years after ratification of the Fourteenth Amendment—and Justice Harlan’s celebrated dissent in Plessy signal a much more muscular understanding of the original meaning of the Fourteenth Amendment. But the Brown Court’s evident unwillingness to re-examine Plessy head-on deterred it from exploring that meaning. That failure is highly regrettable. As the scholar (and now Tenth Circuit judge) Michael McConnell has shown (in his 1995 Virginia Law Review article “Originalism and the Desegregation Decisions”), in the years immediately following ratification of the Fourteenth Amendment, as Congress sought to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools. Although filibuster tactics and other procedural obstacles prevented ultimate passage of legislation abolishing segregated schools, McConnell argues that these votes provide powerful evidence that the

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original meaning of the Fourteenth Amendment was that segregated public schools were unconstitutional. Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment’s clear purpose of establishing racial equality under the law required an end to segregated schooling. Justifying Brown on originalist grounds ultimately requires resolving the subsidiary methodological issues that arise under a jurisprudence of originalism. Unfortunately, the lesson that the justices and the intellectual elites too hastily drew from Brown was that originalism could not and would not have produced Brown’s mandate to end segregated schools—and therefore had to be regarded as morally illegitimate. As a result, in the ensuing decades the Court squandered the moral capital that it had earned in Brown by abandoning originalism—and even reasoned decision-making—in furtherance of liberal activist results that are plainly contrary to the Constitution. Not coincidentally, at the same time the Court asserted ever more grandiose visions of its role in our constitutional scheme. I will highlight several major landmarks along the path to where we now are. In 1958, in Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidated the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime. Abstracting far from the actual text of the Constitution and invoking the notion of a changing Constitution, Chief Justice Warren’s plurality opinion declared that the “basic concept underlying the Eighth Amendment [its bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In his dissent for four justices, Justice Frankfurter pointed out that wartime desertion is a capital offense and made the originalist observation that it “has been so from the first year of independence.” Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.” Asked Frankfurter rhetorically: “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?” Later in 1958, in Cooper v. Aaron, the Court confronted severe resistance by Arkansas officials to implementing the principle of Brown—resistance that, the Court noted, had in turn fostered violence. Not content to order the

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Arkansas officials to desegregate Arkansas public schools, the Court misread Marbury v. Madison as “declar[ing] the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,” and it falsely declared that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” That would come as news to Abraham Lincoln, among others. In fact, Marbury established at most the principle that the Court had the authority to address the constitutionality of legal provisions that it was applying. It in no way asserted that that authority deprived other government actors of their independent responsibility to interpret the Constitution according to their best lights or that non-parties to a Supreme Court case were formally bound to abide by the ruling in that case. Cooper was the first time that the Supreme Court ever asserted not merely that it was supreme among the courts, but that the judiciary was supreme among all government actors, in construing the Constitution. In taking issue with Cooper’s formal assertion of judicial supremacy, I do not mean to suggest that Supreme Court rulings are not presumptively entitled to respect from other governmental actors (as well as from citizens). For a variety of reasons, they should generally receive that presumption of respect. But that prudential political proposition is a far cry from the claim of judicial supremacy asserted in Cooper. Let’s now examine the 1965 ruling in Griswold v. Connecticut and the 1972 ruling in Eisenstadt v. Baird. In Griswold, the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of a state law against use of contraceptives that had never been enforced.6 The Supreme Court, in an opinion by Justice Douglas, infamously stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious guarantees [in the Bill of Rights] create zones of privacy.” And, in the Court’s view, it was of course its role to discern these “penumbras” and “emanations” and “zones of privacy”—and thereby to establish new rights not subject to democratic governance. In a stunning example of this judicial power, the Court in Griswold then stated that “[w]e have had many controversies over these penumbral rights of ‘privacy . . . .’ ”, gave bare citations to six cases, and declared that “[t]hese cases bear witness that the right of privacy which presses for recognition here”—that is, the right not to be punished under the state anti-contraception law—“is a legitimate one.” That is, literally, the entirety of the Court’s demonstration. An intelligent layman would be entitled to presume that the six cases that the Court cited demonstrate forcefully that some sort of right to contracep-

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tion exists. But here’s what an examination of those cases reveals: The first case held that an ordinance forbidding commercial solicitation of private residences did not violate Due Process. The second case held that a regulated streetcar company did not violate the constitutional rights of its passengers by playing radio music on its streetcars. The third and fourth cases involved the application against the States of the Fourth Amendment right against unreasonable searches and seizures. The fifth case held that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate Due Process. And the sixth case ruled that an Oklahoma law providing for the sterilization of certain “habitual criminals” violated the Equal Protection Clause, not the Due Process Clause, because it improperly distinguished between classes of habitual criminals. In sum, none of these cases involved a violation of some general right of privacy; five of them arose in contexts that have not the least connection to contraception; and the only one that seems even remotely related involved an Equal Protection guarantee against State-compelled sterilization, not a right to sterilize one’s own sexual acts through contraception. But in case any citizen would be concerned that the Court had gone off the deep end, the Court assures us that it does “not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Connecticut’s law, it tells us, “operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” The Court, in its concluding paragraph, makes crystal-clear that its ruling is rooted in, and confined to, the marital relationship: We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

That this celebration of marriage would come from Justice Douglas, who, in the year he penned it, was divorcing his third wife (whom he had married just two years previously) and marrying his fourth, might suggest to the cynical mind that it shouldn’t be taken seriously. The Court’s ruling a mere seven years later in Eisenstadt would confirm that sense. The question in Eisenstadt was whether an unmarried person has a constitutional right to access to contraceptives. Given the critical emphasis on marriage in Griswold, the intelligent layman could fully expect a ruling that an unmarried person does not have such a right. But the Court (in an opinion by

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Justice Brennan, which Douglas joined) steamrollered any such distinction between married and unmarried persons: [W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

In short, the very distinction that the Court found critical to the recognition of a right to contraception in Griswold was dismissed seven years later as immaterial. In a wondrous bit of bootstrapping, the Due Process holding in Griswold gave rise to an Equal Protection ruling in Eisenstadt that undercut the very basis of the Griswold holding. But, rather than holding that no one had a constitutional right to contraception, the Court held that both married and unmarried persons had such a right. On January 22, 1973, ten months after Eisenstadt, the Court issued its ruling in Roe v. Wade. In an opinion that liberals as well as conservatives have ridiculed, Justice Blackmun, writing for a seven-Justice majority, modestly stated: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Again, the intelligent layman would be justified in supposing that the Court therefore deferred to the democratic process. But while feigning not to decide the question of when a human life begins—a question that is in fact rather simple as a matter of biology—the Court in essence ruled illegitimate any legislative determination that life begins at conception. Instead, the Court concocted—entirely from the words of the Due Process Clause—a trimester framework under which abortion could not be prohibited before viability and in which, even after viability, abortion could not be barred where it was necessary, in the sole judgment of the abortionist, for the preservation of the life or health of the mother. (And judgments of “health,” the Court indicated in the companion case of Doe v. Bolton, “may be exercised in the light of all factors— physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.”)

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Here’s how the Court explained its own holding: “This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.” (The “profound problems” the Court refers to are “population growth, pollution, [and] poverty.”) This explicit balancing of policy considerations is fully suited to a legislator’s role in crafting a law. The Court does not even try to explain how it has anything to do with the judge’s role of discerning what the Constitution actually means. Nor does its rambling world-history tour of “man’s attitudes toward the abortion procedure over the centuries”—from the ancient Persian Empire to the position of the American Bar Association in 1972—address squarely the most relevant history: the state of abortion regulation at the time of the adoption of the Fourteenth Amendment. As then-Justice Rehnquist’s dissent points out, as of 1868, “there were at least 36 laws enacted by state or territorial legislatures limiting abortion,” including the Texas statute at issue in Roe. The Court’s pretenses to the contrary notwithstanding, the Court in Roe and Doe created an essentially unlimited right to abortion on demand throughout all nine months of pregnancy and for whatever reason. In so doing, it invalidated the abortion laws of all 50 States and created an abortion regime theretofore unknown in the Western world. The strong adverse public reaction that Roe elicited transformed American politics and helped lead to the election of Republican presidents in 1980, 1984, and 1988—and the appointment by those presidents of five Supreme Court justices. In 1992, in Planned Parenthood v. Casey, the Court had a clear opportunity to correct its error in Roe, but, to the surprise of almost everyone, instead re-embraced Roe—this time, by a 5-4 vote. Justices O’Connor, Kennedy, and Souter combined to produce a joint majority opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the sterile incoherence of Blackmun’s opinion in Roe. In Casey, the Court relied on the combined force of (a) its “explication of individual liberty” protected by the Due Process Clause and (b) stare decisis to reaffirm what it described as (c) the “central holding” of Roe. Each of these elements warrants scrutiny. The core of the Court’s explanation of the liberty interests protected by the Due Process Clause is its declaration, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This lofty New Age rhetoric should not conceal the shell game that the Court is playing. What the Court’s declaration really means is that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation.

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Even with this infinitely elastic standard, the authors of the joint opinion are not ready to assert that Roe was correctly decided. Instead, they rest their reaffirmation of Roe on an understanding of stare decisis, and of the role of the Court generally, that betrays a remarkably profound confusion. The full discussion is too lengthy to quote, but these passages are illustrative: Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. .... To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. .... Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.

It would be difficult to improve on Justice Scalia’s devastating responses to the joint opinion’s bizarre assertions: The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. .... Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in partic-

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ular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees. .... The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders.

III As I will attempt to explain in this part, the triumph of liberal judicial activism over originalism in recent decades has dramatically degraded the judicial-confirmation process, especially for Supreme Court nominees. On a broad range of issues—abortion, the death penalty, pornography, homosexuality, criminal rights, and a secularized public square, to name a few—liberal judicial activism has promised and delivered substantive policy results that could not possibly have been obtained through the democratic processes. Those victories have in turn created a coalition of constituencies that are desperate to retain those victories and eager to win more. Over the last two decades, this coalition has come to dominate the Democratic Party. Liberal judicial activism has, of course, also triggered some enduring political opposition, most notably to Roe. But originalism is far less effective than liberal judicial activism at generating political coalitions to support it, precisely because it generally doesn’t promise or deliver policy results but instead leaves matters to the democratic processes for decision. To use the hot-button issue of abortion as an example, all that a sound originalist analysis would yield is that abortion policy should be returned to the democratic processes. In jurisdictions that would be expected, in a post-Roe world, to enact Roe-like regimes, it is not surprising that many voters who oppose legal abortion would not be highly motivated to mobilize in support of originalist judges. The Left, of course, routinely contends that the Supreme Court in recent years has engaged in conservative judicial activism. For present purposes, I will assume, for the sake of argument, that those contentions are all sound. What is striking is that few or none of the most prominent alleged instances of conservative judicial activism—Bush v. Gore, rulings on the Commerce Clause, the Eleventh Amendment, and Congress’s power under section 5 of the Fourteenth Amendment, and limitations on the use of racial preferences rulings— have created, or even have any prospect of creating, constituencies dedicated to their preservation or extension. Specifically: Bush v. Gore is at best a onetime victory; there is no reason to believe that it has any general application,

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much less that any broader application would redound to the benefits of those who welcomed its immediate impact in 2000. The other alleged instances of conservative judicial activism seem far more likely to have produced identifiable losers who condemn those decisions (e.g., feminists opposing the Commerce Clause limits on the remedies available under the Violence Against Women Act; state employees deprived of federal remedies on Eleventh Amendment grounds; persons unable to pursue claims against states for deprivation of their rights under the Religious Freedom Restoration Act; and minorities disadvantaged by the loss of racial preferences) than identifiable winners who will fight to maintain them. The political coalition that was created by, and that is determined to maintain, liberal judicial activism understandably views judicial nominations as a primary battlefield. The asymmetry that I have identified in the respective abilities of liberal judicial activism, on the one hand, and originalism, on the other, to mobilize constituencies on their behalf is reflected in the recent history of the judicial-confirmation process. Let me begin illustrating the point by drawing a public-choice model of a senator’s incentives on judicial nominations. This admittedly crude model assumes that a senator’s driving interest is not just in getting re-elected, but in getting re-elected easily. Two factors are foremost in his mind. First, as an incumbent, a senator is confident that he will win re-election in an issueless campaign. He is therefore intent on not creating controversies that a future opponent can exploit. Second, a healthy war chest can deter potential opponents from ever challenging him and can overwhelm an underfunded opponent. The incumbent senator is therefore drawn to matters that have significant fundraising potential. Consider what this model would predict about how, in the absence of a mobilized base, a senator will address judicial nominations. Above all, the senator won’t want judicial nominations to become controversial. Controversy means that lots of his constituents will be upset with him no matter what he does, and may create an issue in his re-election campaign. The senator will therefore want to preempt any controversy. The senator would very much prefer to support high-profile and home-state nominees, especially when the nominations have been made by a president of the opposite party. If he manages things properly, his own party won’t punish him for his support for the oppositeparty nominee, and he will win credit (or at least defuse criticism) from the opposite party and from independents. Conversely, he’ll discourage a president of his same party from making nominations that will likely be controversial. He won’t want to have to vote on any such nominations, and will be happy to have them languish. He sees in judicial nominations no fundraising potential that would change his calculus.

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I maintain that my model provides particular insights into how Republican senators have approached judicial nominations. Consider, for example, how Republican senators responded as they did to President Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court in 1993 and 1994, respectively. Recall that in both cases leading Republicans raced to support the nominees from the outset, even before they could possibly have fully reviewed their records. In Ginsburg’s case, that record included, among the set of publications that she submitted to the Senate in connection with her nomination, a potentially explosive 1974 report (titled “The Legal Status of Women under Federal Law”) in which the then-ACLU activist: • stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; • proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day; • criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; • and (my favorite) urged that prisons be co-ed rather than single-sex. In that pre-Internet age, this report never gained public attention, and not a single Republican senator at her confirmation hearing or during the Senate discussion of her nomination asked a question or made a comment about it. Both confirmation hearings were tame affairs, with, to take but one of countless possible examples, conservative senator Strom Thurmond assuring Ginsburg early on that “you don’t have to answer to any [questions] if you feel that you shouldn’t.” Ginsburg was confirmed by a vote of 96 to 3 and Breyer by a vote of 87 to 9. By contrast, the approach of Senate Democrats to Supreme Court nominations by Republican presidents began to change in the 1980s, as the Democratic base mobilized in response to the Reagan administration’s deep philosophical opposition to liberal judicial activism. That change was evident first in the bitter battle against the elevation of William Rehnquist to Chief Justice in 1986 and, more momentously, with the landmark defeat one year later of President Reagan’s nomination of Robert Bork. In recent years, it has become clear that Democratic senators with national ambitions are driven by their highly mobilized base, even at their political peril (recall the fate of former Democratic leader Tom Daschle), to fight vehemently against judicial nominees who don’t embrace the liberal activist vision of the living Constitution. The fight is most intense against Supreme Court nominees (because they, unlike lower-court judges, are not bound to abide by the Court’s previous decisions): John Roberts,

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for example, was viciously and falsely attacked as hostile to civil rights, as condoning violence outside abortion clinics, and as a “Neanderthal,” and the total votes against him (22) would have been much higher if key Democrats had not made the tactical decision to preserve their ammunition for the nominee to replace Justice O’Connor. That nominee, the superbly qualified Samuel Alito, encountered even more vitriolic and distorted attacks, an unprecedented partisan filibuster effort, and 42 votes against his confirmation. The Democrats’ open battle in recent years also extended to lower-court nominees, especially those perceived as potential future candidates for the Supreme Court. Indeed, the Democrats resorted to unprecedented measures, including filibusters, to obstruct the confirmation of President Bush’s lower-court nominees. Let me anticipate and rebut some possible objections to the fundamental political asymmetry that I have posited. Some would maintain that the explanation for the different responses to Roberts and Alito, on the one hand, and Ginsburg and Breyer, on the other, is that Ginsburg and Breyer were somehow more “mainstream” and “moderate” than Roberts and Alito. Insofar as these adjectives refer to fidelity to classic American values, that is highly implausible. For example, in sharp contrast to the extreme positions that Ginsburg took in the 1974 report that I refer to above and to her position (set forth in 1977) that the Constitution requires taxpayer funding of abortion, Alito somehow aroused the intense hostility of the Left when this classic statement of American principles, which he wrote in 1985, became public: “I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values. In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate.” A less partisan explanation is that President Clinton consulted in advance with leading Republicans like Senator Hatch and received their pre-clearance of Ginsburg and Breyer. But this explanation begs the question: Why did Republicans pre-clear Ginsburg and Breyer? The answer bolsters rather than refutes my theory. Unlike Senate Democrats dealing with President Bush, Hatch openly invoked the principle that Clinton was entitled to considerable deference on his Supreme Court nominees, and he never drew a jurisprudential line in the sand. He objected to candidates like Bruce Babbitt and Mario Cuomo on the ground that their prominent political profiles, and the enemies that they had earned over the years, would make it difficult for him and other Republicans to support them. He was, in short, eager to help Clinton avoid a fight. Can one, by contrast, imagine any serious proponent of judicial restraint for whom President Bush could ever have received pre-clearance from leading Senate Democrats?

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It is true that, in the Clinton years, individual Republican senators resorted to obscure procedures (such as holds) to obstruct lower-court nominees. But what is most telling is that Republicans, unlike Democrats in the Bush 43 years, shied from public battles. In other words, it was precisely the fact that the obstructing procedures were obscure—and therefore did not threaten to impose a political cost—that made them attractive to Republicans to use. There are hopeful signs that the political asymmetry between liberal judicial activism and originalism is diminishing. Among other things, a strong political coalition formed in support of the successful nominations of John Roberts and Samuel Alito to the Supreme Court, and the Left was anemic in opposing those nominations. As Americans become increasingly aware of the breadth of the judicial usurpation of politics and of the damage that that usurpation has done to our ability to sustain our culture, the image of judge as umpire has greater appeal across broad swaths of the American public. The real test of the survival of this political asymmetry will come, however, only when the next Democratic president makes a nomination to the Supreme Court. How many Republicans will try to preempt controversy by praising the nomination from the outset and by maintaining that judicial philosophy, of all things, should somehow not be a consideration in their review of the nominee? And will the Internet age enable opponents of the nomination to mobilize constituencies in a way that makes it costly for Republican senators to support the nominee? A judicial approach that combines the original-meaning methodology with principles of judicial restraint respects the broad play that the Constitution gives to American citizens to establish and revise, through their elected representatives, the policies that ought to govern the nation, their states, and their communities. With the widespread abandonment of originalism, liberal judicial activism has operated in recent decades to deprive American citizens of their basic political rights across a sweeping range of policy areas—and to assert an increasingly extravagant vision of the role of judges. In order to restore their full rights as citizens, Americans need to insist on the appointment of Supreme Court justices who will embrace principles of originalism and judicial restraint.

Notes 1. Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849, 852 (1989). 2. Ring Around the Bases at 135 (Matthew J. Bruccoli ed., University of South Carolina Press 1992).

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3. Randy Barnett, “Underlying Principles,” at 6. 4. Antonin Scalia, A Matter of Interpretation 17 (Princeton University Press, 1997). 5. Kermit Roosevelt III, The Myth of Judicial Activism (Yale University Press, 2006). 6. On the history of non-enforcement, see Poe v. Ullman, 367 U.S. 497, 501–502 (1961) (plurality opinion).

2 “Common-Sense Constitutionalism”: Why Constitutional Structure Matters for Justice Scalia Ralph A. Rossum

A Matter of Interpretation1 Justice Antonin Scalia argues for an original meaning approach to constitutional interpretation. There, in various law review articles,2 and in his 600-plus Supreme Court opinions, he argues that primacy must be accorded to the text and structure of the document being interpreted and that the job of the judge is to apply the clear textual language of the Constitution or the critical structural principle necessarily implicit in the text. If the text is ambiguous, yielding several conflicting interpretations, Scalia turns to the specific legal tradition flowing from that text;3 as he described his approach in a colloquy with Justice Stephen Breyer, “What I do when I interpret the American Constitution is, I try to understand what it meant, what [it] was understood by the society to mean when it was adopted. And I don’t think it changes since then.”4 “Text and tradition” is a phrase that fills Justice Scalia’s opinions.5 Judges, he insists, are to be governed only by the “text and tradition of the Constitution”— by its original meaning—not by their “intellectual, moral, and personal perceptions.”6 For Scalia, reliance on text and tradition is a means of constraining judicial discretion. Scalia believes that “the main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law.”7 Faithful adherence to the text of a constitutional or statutory provision or, if that is ambiguous, to the traditional understanding of those who originally adopted it, reduces the danger that judges will substitute their beliefs for society’s. N HIS BOOK,

I

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For Scalia, the Court’s opinions in the companion cases of Board of County Commissioners, Wabaunsee County v. Umbehr8 and O’Hare Truck Service v. Northlake9 fully displayed his colleagues’ willingness to substitute their beliefs for the traditional beliefs of society. In his combined dissent in these cases, he ridiculed the “Court’s Constitution-making process”10 that prompted his colleagues to declare that the Freedom of Speech Clause of the First Amendment protects private contractors from government retaliation for their exercise of political speech—in the former case, a trash hauler alleged that he had lost a county contract after he criticized the board in a letter to the editor of a local newspaper; in the latter, a towing firm alleged that it was barred from getting towing referrals after the owner refused to contribute to the mayor’s reelection. Scalia noted that “rewarding one’s allies” while “refusing to reward one’s opponents” is “an American political tradition as old as the Republic.” Zeroing in on this tradition, he asked: “If that long and unbroken tradition of our people does not decide these cases, then what does?” The constitutional text, he observed, was “assuredly as susceptible of one meaning as of the other.” And, so he asked, “[I]n that circumstance, what constitutes a ‘law abridging the freedom of speech?’ ” The answer for him was clear: It “is either a matter of history or else it is a matter of opinion.” Scalia then turned to libel laws and inquired why they were not regarded as an abridgment of speech? Again, for him, “[t]he only satisfactory answer is that they never were.” His anger was palpable: “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?”11 In his dissent in United States v. Virginia,12 in which the Court proclaimed that the exclusively-male admission policy of the Virginia Military Institute violated the Equal Protection Clause of the Fourteenth Amendment, Scalia declared that the function of the Court is to “preserve our society’s values, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees.” The Court, he insisted, is not to “supersede” but rather is to “reflect” those “constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.”13 Scalia embraces what can be called “common-sense constitutionalism,” nowhere better described than by Justice Joseph Story in his Commentaries on the Constitution of the United States: [E]very word in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties,

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for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of a practical nature, founded on the common business of human life, adopted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.14

Scalia utterly rejects its opposite—what can be called “common-law constitutionalism,” an approach that focuses not on the text but rather on its “extraordinary gloss” by the Supreme Court, that is, on past opinions filled with “metaphysical and logical subtleties” intended to allow the justices to escape from the constitutional text’s original meaning. “Famous old cases are famous,” Scalia observes, “not because they came out right.”15 Rather, they are “famous” because they have allowed the judiciary to announce a rule of law,16 that is, to depart from the text and “mak[e] law by judicial opinion.”17 “This system of making law by judicial opinion”—and then making even more law “by distinguishing earlier cases”18—defines “common-law constitutionalism.” And, in A Matter of Interpretation, Scalia makes clear to what extent “common-law constitutionalism” prevails today: If you go into a constitutional law class, or study a constitutional law casebook, or read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be the Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding.19

The mind-set of the judges enthralled with “common-law constitutionalism” does not ask what the text of the Constitution requires; rather, it asks, “what is the most desirable resolution of this case, and how can any impediments to the achievement of that result [be they found in the text or structure of the Constitution or in past judicial opinions] be evaded?”20 For Scalia, “common-law constitutionalism” views every judge as a potential “Mr. Fixit”21 and regards as a “great judge” that “man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law.”22

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For Scalia, “common-law constitutionalism” is doubly deficient; not only is it contrary to “a trend in government that has developed in recent centuries called democracy,”23 but it is also a violation of “the technical doctrine of the separation of powers.”24 Yet, those committed to its precepts seem oblivious to these deficiencies, for they have are simply inebriated, having drunk deeply from its “intoxicating well.”25 In A Matter of Interpretation, Scalia quotes approvingly from Robert Rantoul’s great screed against those who contend that common-law reasoning is “the perfection of human reason:” The common law is the perfection of human reason, just as alcohol is the perfection of sugar. The subtle spirit of the common law is reason double distilled, till what was wholesome and nutritive becomes rank poison. Reason is sweet and pleasant to the unsophisticated intellect; but this sublimated perversion of reason bewilders, and perplexes, and plunges its victims into mazes of errors. The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, the whole system of law is built up without the authority or interference of the legislator.26

Giving Primacy to the Constitutional Text Justice Scalia’s “common-sense constitutionalism”—with its emphasis on giving primacy to the constitutional text and on expounding its words based on their “plain, obvious, and common sense”—was on full display in Harmelin v. Michigan,27 in which he held that the Cruel and Unusual Punishments Clause of the Eighth Amendment does not prohibit the imposition of a mandatory term of life in prison without possibility of parole for possessing more than 650 grams of cocaine. Harmelin contended that his sentence was unconstitutional because it was “significantly disproportionate” to the crime he had committed. But, in announcing the judgment of the Court, Scalia noted that “this claim has no support in the text and history of the Eighth Amendment.”28 Concerning the text, he observed that “to use the phrase ‘cruel and unusual punishment’ to describe a requirement of proportionality would have been an exceedingly vague and oblique way of saying what Americans were well accustomed to saying more directly.”29 Concerning history, he surveyed English constitutional history since the promulgation of the English Declaration of Rights as well as eighteenth and nineteenth century American constitutional and legal history to show that the Cruel and Unusual Punishments Clause was understood only “to outlaw particular modes of punishment” (e.g., drawing and quartering, breaking on the wheel, flaying alive, etc.), not to require that “all punishments be proportioned to the offense.”30

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Although Scalia’s “common-sense constitutionalism” led him in Harmelin to reject a criminal defendant’s claim, it does not do so invariably. Thus, in Coy v. Iowa,31 it led him to uphold the right of a defendant literally to “be confronted with the witnesses against him” and to overturn his conviction because Iowa law allowed the two thirteen-year old girls he was charged with sexually assaulting to testify behind a large screen that shielded them from the defendant.32 For Scalia, the text of the Sixth Amendment was unequivocal and governing: “Simply as a matter of English, it confers at least ‘a right to meet face to face all those who appear and give evidence at trial.’ Simply as a matter of Latin as well, since the word ‘confront’ ultimately derives from the prefix ‘con-’ (from ‘contra’ meaning ‘against’ or ‘opposed’) and the noun ‘frons’ (forehead). Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: ‘Then call them to our presence— face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.’ ”33 Scalia’s “common-sense constitutionalism” is apparent across the constitutional board, including the religion clauses of the First Amendment. Thus, in the Ten Commandments case of McCreary County v. ACLU of Kentucky,34 he responded to Justice David Souter’s assertion that the Establishment Clause mandates governmental neutrality between religion and nonreligion by asking: “Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only five nays in the House of Representatives, criticizing a Court of Appeals opinion that had held ‘under God’ in the Pledge of Allegiance unconstitutional.”35 And, concerning the free exercise clause, he concluded in his controversial majority opinion in Employment Division, Department of Human Resources of Oregon v. Smith36 that, “as a textual matter,” there is no need to provide a religious exemption to a generally-applicable statute, and that “to make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs—permitting him, by virtue of his beliefs, ‘to become a law unto himself,’—contradicts both constitutional tradition and common sense.”37 Scalia’s “common-sense constitutionalism” is also apparent in his opposition to what he calls the Court’s “‘negative’ Commerce Clause jurisprudence,”38 which holds that the Commerce Clause of Article I, § 8 not only grants power to Congress to regulate commerce among the states but also creates an area of economic free trade and confers power on the Court to protect the “right to engage in interstate trade free from restrictive state regulation.”39 Scalia opposes this “‘negative’ Commerce Clause jurisprudence,” first of all,

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because it has “no foundation in the text of the Constitution.”40 As he declared in American Trucking Association v. Smith, The text from which we take our authority to act in this field provides only that “Congress shall have Power . . . to regulate Commerce . . . among the several States.” It is nothing more than a grant of power to Congress, not the courts; and that grant to Congress cannot be read as being exclusive of the States, as even a casual comparison with other provisions of Article I will reveal. The Commerce Clause, therefore, may properly be thought to prohibit state regulation of commerce only indirectly—that is, to the extent that Congress’ exercise of its Commerce Clause powers pre-empts state legislation under the Supremacy Clause, Art. VI, cl. 2.”41

He also opposes the negative Commerce Clause because, consistent with his efforts to constrain judicial discretion, it takes the Court, “self-consciously and avowedly, beyond the judicial role itself ” and casts it in an “essentially legislative role.” It requires the justices to weigh “the imponderable” and to balance “the importance of the State’s interest in this or that (an importance that different citizens would assess differently) against the degree of impairment of commerce.”42 This weighing and balancing by the Court, he argues, is often impossible for the political interests on the opposite sides of the scale are often “incommensurate.” As he noted in Bendix Autolite Corp. v. Midwesco Enterprise, the Court is often asked to judge “whether a particular line is longer than a particular rock is heavy,” a role inconsistent with its “function as the nonpolitical branch.” Weighing “the governmental interests of a State against the needs of interstate commerce is,” he insists, “a task squarely within the responsibility of Congress.”43 One final example of Scalia’s “common-sense constitutionalism” must suffice: Based on the text of the due process clauses of the Fifth and Fourteenth Amendments and on how they were understood by the societies that adopted them, he argues that governments can pass laws that allow for unlimited punitive damages;44 grant visitation rights to grandparents against parents’ wishes;45 prevent suicide;46 criminalize homosexual sodomy;47 and pass whatever laws it wishes concerning abortion.48

Giving Primacy to Constitutional Structure Implicit in the Text Scalia’s “common-sense constitutionalism” understands that the Constitution provides more than a text (or the traditional understanding of that text) that judges are to apply in the course of ordinary litigation; it is also—to quote again from Justice Story—an instrument “of a practical nature.”49 The people

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made and adopted it for practical purposes—first and foremost, to constitute the new federal government. For Scalia, giving primacy to the constitutional text also means giving primacy to constitutional structure—in particular, to understanding, through the words they used, the original meaning of those who wrote and ratified the Constitution regarding how power was to be allocated among the branches of the federal government (separation of powers) and, equally importantly, regarding how, over time, that allocation was to be preserved in practice. During his confirmation hearings, Justice Scalia was asked by Senator Strom Thurmond why he thought the Constitution had endured for so long—why he thought it had come to be “the oldest existing Constitution in the world today.” Scalia responded as follows: I think most of the questions today will probably be about that portion of the Constitution that is called the Bill of Rights, which is a very important part of it, of course. But if you had to put your finger on what has made our Constitution so enduring, I think it is the original document before the amendments were added. Because the amendments, by themselves, do not do anything. The Russian constitution probably has better, or at least as good guarantees of personal freedom as our document does. What makes it work, what assures that those words [in the Bill of Rights] are not just hollow promises, is the structure of government that the original Constitution established, the checks and balances among the three branches, in particular, so that no one of them is able to ‘run roughshod’ over the liberties of the people as those liberties are described in the Bill of Rights.50

Justice Scalia’s response is most instructive. First, he says that our “liberties” are “described” (but not created or secured) by the Bill of Rights. Second and more importantly, Scalia identifies “the structure of government that the original Constitution established, the checks and balances among the three branches, in particular,” as the reason for the Constitution’s protection of liberties and, hence, its longevity. As he argued in James B. Beam Distilling Company v. Georgia, “the division of federal powers [is] central to the constitutional scheme.” Moreover, he continued in that case, “it seems to me that the fundamental nature of those powers must be preserved as that nature was understood when the Constitution was enacted.”51 The importance of preserving the structure of the Constitution—and especially separation of powers52—was central to Justice Scalia’s solitary dissent in Morrison v. Olson,53 the first major separation-of-powers case he heard after his elevation to the Supreme Court. Chief Justice Rehnquist held for a sevenmember majority in that case54 that the Ethics in Government Act of 1978, providing for the appointment of an independent counsel to investigate and

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prosecute violations of federal criminal law by high-ranking officials of the executive branch, did not violate separation of powers, even though that individual was appointed by a Special Division of the Court of Appeals of the District of Columbia Circuit and could be removed by the Attorney General only for “good cause.” Chief Justice Rehnquist granted that ‘[t]here is no dispute that the functions performed by the independent counsel are ‘executive’ ” in nature, but he disagreed that the Act “unduly trammels on executive authority.”55 While he acknowledged that “it is undeniable that the Act reduces the amount of control that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity,”56 he denied that “this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws”57 or that it “disrupts the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.”58 Separation of powers, he insisted, does not require “that the three Branches of Government operate with absolute independence.”59 Scalia vigorously dissented; for him, the question was not whether the Act could be sustained on the basis of the majority’s understanding of separation of powers but whether the Act violated “the text of the Constitution and the division of power that it established.”60 That “division of power” requires that “all purely executive power must be under the control of the President,” not simply those powers “the majority thinks, taking all things into account, . . . ought to be” under the President’s control.61 Scalia’s “common-sense constitutionalism” generally results in deference to the popular branches but not in separation-of-powers cases. As he pointed out in his dissent, the “caution that we owe great deference to Congress’s view that what it has done is constitutional . . . does not apply.” Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right to settling the boundaries between their respective powers. . . .” Federalist No. 49. The playing field for the present case, in other words, is a level one. As one of the

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interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt.62

Feeling no obligation to presume the constitutionality of the independent counsel statute, Scalia quoted the language of Article II, § 1, cl. 1 of the Constitution, providing that “[t]he executive Power shall be vested in the President of the United States,” and declared: “[T]his does not mean some of the executive power, but all of the executive power.”63 He then proclaimed that the independent counsel statute must be invalidated because “governmental investigation and prosecution of crimes is a quintessentially executive function,” and “the statute before us deprives the President of exclusive control over that quintessentially executive activity.”64 The Court majority’s response conceded that the statute reduced the President’s control but insisted that he preserved “sufficient control” to “perform his constitutionally assigned duties” and that it did not “interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.”65 Scalia’s rejoinder was direct: “It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.”66 He accused the majority of replacing “the clear constitutional prescription that the executive power belongs to the President with a ‘balancing test,’” and of abandoning the “text of the Constitution” as the “governing standard” in favor of “what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.” Waxing indignant, Scalia proclaimed: “This is not only not the government of laws that the Constitution established, it is not a government of laws at all.”67 He chided the majority for adopting an “ad hoc approach to constitutional adjudication” whose “real attraction, even apart from its work-saving potential,” is that “it is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be.” For his part, however, Scalia preferred “to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of the two centuries of history that have shown it to be sound.”68 Scalia bitterly attacked his colleagues for their failure to abide by what “the text of the Constitution seems to require, . . . the Founders seemed to expect, and . . . our past cases have uniformly assumed.”69 He sought to preserve separation of powers because, repeating his words to Senator Thurmond,“without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.”70 Scalia’s argument is clear: By refusing in this

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case to defer to Congress and by steadfastly protecting constitutional structure, he can be restrained and deferential elsewhere, that is, he is spared the need in other cases to protect constitutional rights that are better secured by structure than by judges. Justice Scalia’s argument in Morrison—his interest in protecting constitutional structure (i.e., the system of separation of powers created by the Framers) and his efforts to preserve all executive power in the hands of the President—was central (although discreetly soft-pedaled) in his opinion for the Court in Printz v. United States.71 Printz is typically viewed as a federalism case, because the Court used a federalism argument to consider the constitutionality of those provisions of the Brady Handgun Violence Prevention Act that commanded the “chief law enforcement officer” of each local jurisdiction (typically, the local sheriff) to conduct background checks on prospective handgun purchasers on an interim basis until a national instant background check system could be made operational.72 On the surface, it is, for Scalia held for a five-member majority that this congressional command was “fundamentally incompatible with our constitutional system of dual sovereignty” and was, therefore, unconstitutional.73 His opinion seems to be little more than an application of the Court’s “commandeering jurisprudence” first introduced by Justice Sandra Day O’Connor in New York v. United States,74 in which the Court held unconstitutional a key provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 that required a state that had failed to provide for the disposal of all of its internally generated low-level radioactive waste by a particular date to take title to and possession of that waste and become liable for all damages suffered by the generator or owner of that waste as a result of the state’s failure to take prompt possession. Justice O’Connor asserted for a sixmember majority that, “[n]o matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the states to regulate. The Constitution instead gives Congress the authority to regulate matters directly and to preempt contrary state regulation. Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.”75 Why does the Congress have the authority to regulate directly through preemption, but not through conscription or commandeering? O’Connor’s answer was that coercing the states into enacting or enforcing a federal regulatory program “infringe[s] upon the core of state sovereignty reserved by the Tenth Amendment.”76 In the course of her answer, O’Connor was forced to concede that the Tenth Amendment declares “a truism that all is retained which has not been

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surrendered.”77 That concession, however, raises an awkward question: How does a truism—what she also conceded was a “tautology”78—help the Court to “determine” whether that core has been penetrated by the federal government, whether the line separating constitutionality from unconstitutionality has been crossed? It was a question that O’Connor in New York never answered, and it was a question in Printz that Scalia never reached, because he ultimately held the Brady Act to be unconstitutional not because it violated the Tenth Amendment but because it violated the principle of separation of powers. Unlike O’Connor in New York, Scalia readily conceded in Printz that there is “no constitutional text,” not even the Tenth Amendment, that would justify Court invalidation of a commandeering statute so long as it was enacted by Congress pursuant to an express delegation of power enumerated in Article I, § 8.79 Scalia, however, did identify another basis for finding such a statute to be unconstitutional: the structure of the Constitution. He noted that “[t]he Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, ‘shall take Care that the Laws be faithfully executed,’ personally and through officers whom he appoints.” The Brady Act, however, effectively transferred this responsibility to thousands of state and local law-enforcement officers in the fifty states who were commanded to implement the program “without meaningful Presidential control.” Scalia pointed out that the Framers insisted on “unity in the Federal Executive—to insure both vigor and accountability.” That unity,” he concluded, “would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.”80 This is Scalia’s central argument, and it is powerful. It is, in fact, the same one that Scalia had made before in his dissent in Morrison. It is, however, most assuredly not O’Connor’s federalism argument; it is not an argument justifying invalidation of federal law on the grounds of preserving “our constitutional system of dual sovereignty.”81 Scalia was equally emphatic that Congress had violated separation-of-powers principles in Plaut v. Spendthrift Farm, Inc.82 While the facts in Plaut are complicated, the constitutional question was not. In 1987, Ed Plaut and his fellow plaintiffs alleged in a civil action that Spendthrift Farm and other defendants had committed fraud and deceit in 1983 and 1984 in the sale of stock in violation of § 10(b) of the Securities Exchange Act of 1934. The district court, however, dismissed Plaut’s action with prejudice when the Supreme Court in its 1991 decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson83 replaced an array of state statutes of limitations that had governed shareholder actions under the Securities Exchange Act and required instead

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that suits such as the Plaut’s be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. After the district court’s judgment had become final, Congress enacted § 27A(b) of the Securities Exchange Act, providing for reinstatement, on motion, of any action commenced before Lampf but dismissed thereafter as time-barred if the action would have been timely filed under applicable preLampf state law. The district court, however, denied Plaut’s ensuing § 27A(b) motion for reinstatement on the ground that it unconstitutionally violated the principle of separation of powers.84 The Court of Appeals for the Sixth Circuit affirmed,85 and Scalia for the Supreme Court majority agreed, arguing that “Congress has exceeded its authority by requiring the federal courts to exercise ‘the judicial Power of the United States’ in a manner repugnant to the text, structure, and traditions of Article III.”86 In categorical terms, he declared that the “Constitution’s separation of legislative and judicial powers denies [Congress] the authority” to require “an Article III court to set aside a final judgment.”87 Plaut and the United States Government both argued that, in § 27A(b), Congress did not review or revise any final judgments previously entered, and that it did not deprive the federal courts of the power or authority to determine finally the outcome of the reopened cases or prescribe a rule for their decision. In his dissent, Justice Stevens agreed: § 27A(b) “decided neither the merits of any 10(b) claim nor even whether any such claim should proceed to decision of the merits.”88 All it did was “remove an impediment to judicial decision on the merits,”89 an impediment he believed was created when the Court in Lampf supplied its own statute of limitations for these actions.”90 Scalia, however, was unpersuaded. For him, the issue was simple: Article III establishes a “judicial department” with the “province and duty . . . to say what the law is” in particular cases and controversies. Marbury v. Madison . . . (1803). The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy—with an understanding, in short, that “the judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.” By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.91

Scalia recognized that Congress was motivated by good intentions when it passed § 27A(b)—the desire to assist defrauded shareholders hurt by the Court’s ruling in Lampf. He acknowledged that this particular “legislative in-

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terference with judicial judgments” was not “prompted by individual favoritism.” But, he insisted, “it is legislative interference with judicial judgments nonetheless.” Then expressing the very core of his understanding of separation of powers, Scalia declared: “Not favoritism, not corruption, but power is the object of the separation-of-powers prohibition.”92 He continued, “The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature’s genuine conviction (supported by all the law professors in the land) that the judgment was wrong.”93 Later in his opinion, Scalia explained his refusal to be swayed by Congress’s good intentions: “[T]he doctrine of separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.”94 For Scalia, judicial independence must be resolutely protected even when the stakes are low for fear that the Court’s failure to protect “the judicial Power” from well-motivated congressional interference will encourage hostile congressional forces intent on punishing the judiciary for its protection of constitutional guarantees, and compromise the judiciary’s efforts, at that critical juncture, to preserve the Constitution’s system of separated powers. He concluded his extended discussion of separation of powers in Plaut by observing: “Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: Good fences make good neighbors.”95 Scalia’s invocation of Robert Frost prompted Justice Stephen Breyer, who concurred only in the judgment and not in Scalia’s opinion, to respond in kind: “As the majority invokes the advice of an American poet, one might consider as well that poet’s caution, for he not only notes that ‘Something there is that doesn’t love a wall,’ but also writes, ‘Before I built a wall I’d ask to know / What I was walling in or walling out.’ ”96 Breyer’s selection of these particular passages from Frost highlights the chasm that exists between him and Scalia—and more generally between the Court’s “common-law constitutionalists” and Scalia—concerning separation of powers. Unlike Breyer and his like-minded colleagues, Scalia loves the wall of separation of powers. He loves it because, as he said in his Morrison dissent, “without a secure structure of separated powers, our Bill of Rights would be worthless.”97 He loves the wall and wants it kept high and strong because, as he noted in Plaut, “low walls . . . will not be judicially defensible in the heat of interbranch conflict.”98 He also loves the wall of separation of powers, because, as

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he said in Morrison, it was built by and reflects the “judgment of the wise men who constructed our system, and of the people who approved it, and of the two centuries that have shown it to be sound.”99 Additionally, unlike Breyer and his fellow “common-law constitutionalists,” Scalia would never quote a passage that implies that it is his job to build the wall and, therefore, his task to decide what to wall in or wall out. True to his “common-sense constitutionalism,” Scalia would argue that the justices are to secure the wall of separation of powers built by the framers, not wonder whether it is worthy of their love and certainly not replace it with one of their own design. The decisions of the framers concerning constitutional structure are for the justices to secure, not to alter or to second-guess. Scalia is no less attentive to any possible trampling of the “good fences” of separation of powers by the judiciary than he is by the Congress. He argued, for example, in his concurrence in the judgment in Young v. United States ex rel. Vuitton et Fils S.A.100 that the federal courts have no constitutional power to prosecute contemnors for disobedience of court judgments and no power derivative of that to appoint attorneys to conduct contempt prosecutions.101 “Prosecution of individuals who disregard court orders is not an exercise of ‘[t]he judicial power of the United States.’” For Scalia, the judicial power is “the power to decide, in accordance with law, who should prevail in a case or controversy.” The judicial power includes “the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them—which would be quite incompatible with the task of neutral adjudications.”102 Prosecution of law violators is, he insisted, “part of the implementation of the laws” and, therefore, an “executive power, vested by the Constitution in the President.”103 Justice William Brennan for the majority argued that criminal contempts can be prosecuted by the courts themselves, because otherwise the efficaciousness of judicial judgments would be “at the mercy” of the Executive Branch and “what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.”104 Scalia strenuously disagreed: There are numerous instances in which the Constitution leaves open the theoretical possibility that the actions of one Branch may be brought to nought by the actions or inactions of another. Such dispersion of power was central to the scheme of forming a Government with enough power to serve the expansive purposes set forth in the preamble of the Constitution, yet one that would “secure the blessings of liberty” rather than use its powers tyrannically. Congress, for example, is dependent on the Executive and the courts for the enforcement of the laws it enacts. Even complete failure by the Executive to prosecute law violators, or by the courts to convict them, has never been thought to authorize

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congressional prosecution and trial. The Executive, in its turn, cannot perform its function of enforcing the laws if Congress declines to appropriate the necessary funds for that purpose; or if the courts decline to entertain its valid prosecutions. Yet no one suggests that some doctrine of necessity authorizes the Executive to raise money for its operations without congressional appropriations, or to jail malefactors without conviction by a court of law.105

While Scalia wondered why his colleagues believed that the courts alone should be immune from this interdependence, he knew that the framers of the Constitution, “of a certainty,” thought that they were not. He found it “instructive” to compare the Court’s claim that federal courts “cannot be at the mercy of another branch in deciding whether [contempt] proceedings should be initiated” with “one of the most famous passages from The Federalist: ‘[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. . . . The judiciary . . . may truly be said to have neither Force nor Will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.’ ”106 Scalia concluded by focusing directly on the separation-of-powers implications of this litigation. He reminded his colleagues of the “broad sweep of modern judicial decrees” and warned them of the “tyrannical” prospects”107 of “permitting a judge to promulgate a rule of behavior, prosecute its violation, and adjudicate whether the violation took place.” Such a “flagrant” violation of separation of powers was, for Scalia, “no less fundamental a threat to liberty than . . . deprivation of a jury trial, since ‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’”108 In fact, he continued, the “impairment of judicial power produced by requiring the Executive to prosecute contempts” is less substantial than the impairment produced by requiring a jury trial. “The power to acquit is as decisive as the power not to prosecute,” and the jury can abuse its power with impunity while the federal prosecutor “must litigate regularly before the judges whose violated judgments he ignores.”109 Finally, Scalia’s concern for trampling on the “good fences” of separation of powers is also manifestly evident in his scholarly writings and judicial opinions on “standing.” Standing was described by the Supreme Court in Sierra Club v. Morton110 as “a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” To have standing, parties invoking judicial power must show that they have sustained, or are in immediately danger of sustaining, some direct injury as a result of the enforcement of some statute or regulation. Article III, § 2 limits the jurisdiction of the federal courts to “Cases” and “Controversies,” and the doctrine of standing holds that there is no case or controversy when there are no adverse parties with personal interests in the matter.

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Scalia has devoted considerable thought and energy to revitalizing the doctrine of standing—much weakened during the “common-law constitutionalist” eras of the Warren and Burger Courts (see, for example Flast v. Cohen111 and United States v. Students Challenging Regulatory Agency Procedures [SCRAP]112)—by reconnecting it to the principle of separation of powers. In 1983, soon after his appointment to the Court of Appeals for the District of Columbia Circuit, he delivered the Donahue Lecture at Suffolk University Law School on the doctrine of standing. In it, he argued that “the judicial doctrine of standing is a crucial and inseparable element” of the principle of separation of powers, “whose disregard will inevitably produce—as it has during the past few decades—an overjudicialization of the process of self-governance.”113 In particular, he stressed the importance of having the federal courts re-establish “concrete injury” as “the indispensable prerequisite of standing.”114 When the law of standing is understood to demand “concrete injury,” Scalia observed, it “roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority.” However, when it is freed of this requirement, it involves the courts in the “undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself.”115 A decade later, Scalia was able to express these same sentiments in his opinion for the Court in Lujan v. Defenders of Wildlife.116 In Lujan, various wildlife conservation and environmental groups brought an action against the Secretary of the Interior, challenging a regulation promulgated by his department implementing a provision of the Endangered Species Act (ESA) of 1973 and arguing that it had failed to follow Congress’s intentions. Scalia held for a six-member majority that the plaintiffs lacked standing. He began by arguing that, consistent with the “essential and unchanging part of the case-or-controversy requirement of Article III,” there are three elements to the “irreducible constitutional minimum of standing:” (1) the plaintiffs must establish that they have “suffered an ‘injury in fact’ ”—an invasion of a legallyprotected interest that is concrete, particularized, and actual or imminent as opposed to conjectural or hypothetical; (2) they must show causation between the challenged action and the injury; and (3) they must establish that it is likely (as opposed to merely “speculative”) that the injury will be redressed by a decision in their favor.117 The plaintiffs invoking federal jurisdiction bear the burden of establishing these three elements, and, he continued, in the instant case, they had failed to bear that burden. The plaintiffs lacked standing because, he found, they had suffered no injury in fact; that, however, did not end the matter for the Court. The plaintiffs also argued that, by including a “citizen-suit” provision in the ESA, Congress had conferred standing on them by allowing them to claim that they had suf-

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fered a “procedural injury.”118 The Act stated: “[A]ny person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter.”119 Scalia rejected this claim as well. He insisted that those plaintiffs who raise grievances about government that claim harm to their and every other person’s interest in the proper application of the Constitution and law and who seek relief that benefits them no more directly or tangibly than the public at large “do not state an Article III case or controversy.”120 He then declared that Congress in the ESA had no more power to violate the Article III concrete-injury requirement than does the Court itself. Vindicating the public interest in government observance of the Constitution and laws is, Scalia asserted, “the function of the Congress and the Chief Executive.”121 Absent evidence of a particularized injury to a plaintiff caused by government failure to observe the Constitution and law, there is no case or controversy and therefore no function for the courts to perform. Providing a “common-sense constitutionalism” lesson on separation of powers, Scalia continued: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take care that the laws be faithfully executed.” It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” and to become “virtually continuing monitors of the wisdom and soundness of Executive action.” We have always rejected that vision of our role.122

Conclusion In 1837, a beleaguered Justice Story wrote to Harriet Martineau, lamenting the fate of his “common-sense constitutionalist” approach: His close friend and long-time colleague, Chief Justice John Marshall, had died two years before, and Story was feeling isolated on a newly-emerged “common-law constitutionalist” Supreme Court: “I am the last of the old race of judges. I stand their solitary representative, with a pained heart, and a subdued confidence. Do you remember the story of the last diner of the club, who dined once a year? I am in the predicament of the last survivor.”123 One hundred and sixty years later, in A Matter of Interpretation, Scalia acknowledged that his same “common-sense constitutionalism” is considered in “some sophisticated circles” as out of the mainstream and as “simpleminded— ‘wooden,’ ‘unimaginative,’ ‘pedestrian.’ ”124 Story’s pessimism was unfounded,

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and Scalia’s reaction is what one would expect from him: He denied that he was “too dull to perceive the broader social purposes that a statute is designed, or could be designed to serve, or too hidebound to realize that new times require new laws”; he merely insisted that judges “have no authority to pursue those broader purposes or to write those new laws.”125 With his elevation to the Supreme Court in 1986, Scalia became the latest in a line of “the old race of judges.” And during his distinguished 20-plus year career on the Supreme Court, Scalia has remained faithful to the “common-sense constitutionalism” so well described by Justice Story. He has rejected the intellectual fads and novel theories of interpretation of his “common-law constitutionalist” colleagues that he sees as having the invariable effect of transferring power from the popular branches to unelected judges. And, he is not dining alone. Contrary to Story’s gloomy prediction, the “common-sense constitutionalist” club survives and is gaining members. Scalia has been joined by Justice Clarence Thomas, and perhaps by even more recent initiates. Together, they are reminding their colleagues—and the American citizenry as well—of the most important right of the people in our democracy: the right to govern themselves as they see fit and to be overruled in their governance only when the clear text or traditional understanding of the Constitution they have adopted demands it.

Notes 1. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, N.J.: Princeton University Press, 1997), p. 38. 2. See, for example, “The Rule of Law as the Law or Rules,” 56 University of Chicago Law Review (1989); “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review (1989); and “The Doctrine of Standing as an Essential Element in the Separation of Powers,” 17 Suffolk University Law Review (Winter, 1983). 3. By the most specific legal tradition, Scalia means “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.” Michael H. v. Gerald D., 491 U.S. 110, 127, n. 6 (1989). It should be stressed that Justice Scalia uses tradition to interpret only ambiguous constitutional texts; as he said in his dissent in Rutan v. Republican Party, 497 U.S. 62, 96, n. 1 (1990), “[N]o tradition can supersede the Constitution.” 4. “Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer,” American University, Washington College of Law, January 13, 2005, p. 12. 5. See, for example, Stenberg v. Carhart, 530 U.S. 914 (2000); Department of Commerce v. Clinton, 525 U.S. 316, 349 (1999); Minnesota v. Carter, 525 U.S. 83, 92 (1998); Lewis v. Casey, 518 U.S. 343, 368 (1996); Witte v. United States, 515 U.S. 389, 407 (1995); Plaut v. Spendthrift Farms, 514 U.S. 211, 217 (1995); Waters v. Churchill, 511 U.S. 661, 684 (1994); Callins v. Collins, 510 U.S. 1141 (1994); Herrera v. Collins, 506 U.S. 390, 427 (1993); Richmond v. Lewis, 506 U.S. 40, 54 (1992); Planned Parenthood of

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Southeastern Pennsylvania v. Casey, 505 U.S. 833, 980, 983, 998–1001 (1992); Morgan v. Illinois, 504 U.S. 719, 751 (1992); California v. Acevedo, 500 U.S. 565, 581 (1991); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 300 (1990); Rutan v. Republican Party of Illinois, 497 U.S. 62, 97 (1990); and McKoy v. North Carolina, 494 U.S. 433, 466 (1990). 6. Callins v. Collins, 510 U.S. 1141 (1994). 7. Scalia, “Originalism,” 57 University of Cincinnati Law Review 857. 8. 518 U.S. 668 (1996). 9. 518 U.S. 712 (1996). 10. 518 U.S. at 686. 11. Ibid., at 688. 12. 518 U.S. 515 (1996). 13. Ibid., at 568. See Scalia/Breyer Transcript, p. 13. Commenting on the phrase, “the evolving standards of decency that mark the progress of a maturing society,” Scalia declared: “I detest that phrase, because I’m afraid that societies don’t always mature. Sometimes they rot. What makes you think that human progress is one upwardly inclined plane [and that] everyday and every way we get better and better? It seems to me that the purpose of the Bill of Rights was to prevent change, not to encourage it, and to have it written into the Constitution.” 14. Joseph Story, Commentaries on the Constitution of the United States, Vol. 1 (Boston: Hilliard, Gray and Company, 1833), pp. 436–437. Scalia’s “common-sense constitutionalism” focuses on the text (and context) of the Constitution. In A Matter of Interpretation, Scalia clearly identifies himself with Justice Story when he invokes “context”—and therefore Story’s above-quoted approach to constitutional interpretation in his Commentaries: “In textual interpretation, context is everything, and the context of the Constitution tell us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation— though not an interpretation that the language will not bear.” Scalia, A Matter of Interpretation, p. 37. 15. Scalia, A Matter of Interpretation, p. 6. 16. Ibid. 17. Ibid., p. 9. 18. Ibid. 19. Ibid., p. 39. 20. Ibid., p. 13. “[I]t is known and understood that if [precedent] fails to produce what in the view of the current Supreme Court is the desirable result for the case at hand, then, like good common-law judges, the Court will distinguish its precedents, or narrow them, or if all else fails overrule them, in order that the Constitution might mean what it ought to mean.” Ibid., p. 39. Emphases in the original. 21. Ibid., p. 14. 22. Ibid., p. 9. 23. Ibid. 24. Ibid., p. 10. 25. Ibid., p. 7. 26. Ibid., p. 11. Scalia is quoting from Robert Rantoul, Oration at Scituate (July 4, 1836).

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27. 501 U.S. 957 (1991). 28. Ibid., at 994. 29. Ibid., at 977. 30. Ibid., at 981. See also his dissent in Atkins v. Virginia, 536 U.S. 304, 349 (2002): “The Eighth Amendment is addressed to always-and-everywhere ‘cruel’ punishments, such as the rack and the thumbscrew.” But where the punishment is in itself permissible, “the Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions.” 31. 487 U.S. 1012 (1988). 32. For other prominent cases where Scalia’s textualism leads him to support the rights of criminal defendants, see, especially, Crawford v. Washington, 541 U.S. 36 (2004), Blakely v. Washington, 542 U.S. 296 (2004), and Kyllo v. United States, 533 U.S. 27 (2001). 33. 487 U.S. at 1016. See also his dissent in Craig v. Maryland, 497 U.S. 836, 867 (1990). 34. 545 U.S. 844 (2005). 35. Ibid., at 889 (2005). 36. 494 U.S. 872 (1990). 37. Ibid., 878, 885. 38. American Trucking Association v. Smith, 496 U.S. 167, 202 (1990). The negative Commerce Clause is more typically known as the “dormant Commerce Clause.” The dormant Commerce Clause, however, has come to mean different things at different times to different people. For example, what Scalia terms contemporary “ ‘negative’ Commerce Clause jurisprudence” clearly differs from the theory of the “dormant” Commerce Clause as it was initially enunciated by Justice Johnson in his concurring opinion in Gibbons v. Ogden, 22 U.S. 1, 222 (1824). Johnson wrote that the grant of the commerce power to Congress in Article I, § 8, even though unexercised by Congress, necessarily prevented the states from regulating commerce and required the Court to invalidate all state regulations that touched on commerce. 39. Dennis v. Higgins, 498 U.S. 439, 448 (1991). 40. Pharmaceutical Research and Manufacturers Association of America v. Walsh, 538 U.S. 644, 674 (2003). See also Tyler Pipe Industries v. Washington State Department of Revenue, 483 U.S. 232, 254 (1987); American Trucking Association v. Smith, 496 U.S. at 202; State of Wyoming v. State of Oklahoma, 502 U.S. 437, 469 (1992); and Oklahoma Tax Commission v. Jefferson Lines, 514 U.S. 175, 200 (1995). 41. 496 U.S. at 202. 42. Ibid., at 202, 203. 43. 486 U.S. 888, 906 (1988). See also Quill Corporation v. North Dakota, 504 U.S. 298, 320 (1992). 44. Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991). See also his opinions in TXO Production Corp. v. Alliance Resources Corp. 509 U.S. 443 (1993), BMW v. Gore, 517 U.S. 559 (1996), and State Farm Insurance v. Campbell, 538 U.S. 408 (2003). 45. Troxel v. Granville, 530 U.S. 57 (2000). 46. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

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47. Lawrence v. Texas, 539 U.S. 558 (2003). 48. As he argued in his concurring opinion in Ohio v. Akron Center for Reproductive Health, “the Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution.” 497 U.S. at 520. “On the question of abortion, as an originalist, I would look at the text of the Constitution, which says nothing about the subject either way. I look at the text; it says nothing about it. And I look at 200 years of history; nobody ever thought it said anything about it. That’s the end of the question for me.” “Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer,” p. 30. 49. Story, Commentaries on the Constitution of the United States, pp. 436–37. 50. Hearings on the Nomination of Judge Antonin Scalia, p. 32. 51. 501 U.S. 529, 549 (1991). During a 1988 panel discussion on separation of powers, Justice Scalia assessed his legal career and remarked that, “if there is anyone who, over the years, [has] had a greater interest in the subject of separation of powers [than I], he does not come readily to mind.” Quoted in Christopher E. Smith, Justice Antonin Scalia and the Supreme Court’s Conservative Moment (Westport, Conn.: Praeger Publishers, 1993), p. 39. 52. See Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review (1989): 849, 851: “Indeed, with an economy of expression that many would urge as a model for modern judicial opinions, the principle of separation of powers is found only in the structure of the [Constitution,] which successively describes where the legislative, executive, and judicial powers shall reside. One should not think, however, that the principle was less important to the federal framers. Madison said of it, in Federalist No. 47, that ‘no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.’ And no less that five of the Federalist Papers were devoted to the demonstration that the principle was adequately observed in the proposed Constitution.” 53. 487 U.S. 654 (1988). 54. Justice Anthony Kennedy did not participate in this case. 55. 487 U.S. at 691. 56. Ibid., at 695. 57. Ibid., at 692. 58. Ibid., at 695. 59. Ibid., at 694. 60. Ibid., at 719. 61. Ibid., at 733. 62. Ibid., at 704. 63. Ibid., at 705. See Scalia’s similar formulation of the judicial power in Freytag v. Commission of Internal Revenue, 501 U.S. 868, 908 (1991): “Article III begins ‘The judicial Power of the United States’— not ‘Some of the judicial Power of the United States,’ or even ‘Most of the judicial Power of the United States’—‘shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’ ” Emphasis in the original. 64. 487 U.S. at 706. 65. Ibid., at 696.

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66. Ibid., at 709. Scalia wondered how willing the Court would be to have a portion of its judicial power given to another branch. “[T]o bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts. . . . Is there any doubt that we would not pause to inquire whether the matter was ‘so central to the functioning of the Judicial Branch’ as really to require complete control, or whether we retained ‘sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties’? We would say that our ‘constitutionally assigned duties’ include complete control over all exercises of the judicial power . . .” Ibid., at 710. Emphasis in the original. 67. Ibid., at 711–12. 68. Ibid., at 734. 69. Ibid. 70. Ibid., at 697. 71. 521 U.S. 898 (1997). 72. “[K]nowingly violat[ing]” the Act subjected CLEOs to a potential fine or a term of imprisonment “for no more than one year, or both.” 18 U.S.C. § 924(a)(5). 73. 521 U.S. at 935. 74. 505 U.S. 144 (1992). 75. Ibid., at 178. 76. Ibid., at 177. 77. Ibid., at 156–57. 78. Ibid. 79. 521 U.S. at 905. 80. Ibid., at 922. 81. That Scalia felt obliged to wrap the kernels of his separation-of-powers argument in the husk of federalism shows his mastery of the persuasive arts. When Scalia made this same separation-of-powers argument explicitly in Morrison, he spoke for himself alone; when he hid it in a defense of federalism, he spoke for a five-member majority. That Scalia found it necessary to shift the ground on which the Court’s commandeering jurisprudence was based from the shifting sands of the Tenth Amendment to the rock-solid principles of separation of powers shows how problematic Scalia regarded O’Connor’s reasoning in New York to be. 82. 514 U.S. 211 (1995). 83. 501 U.S. 350 (1991). 84. Memorandum Opinion and Order, Civil Action, No 87-438 (E.D. Ky, April 13, 1992). 85. 1 F. 3d 1487 (1993). 86. 514 U.S. at 218. 87. Ibid., at 240. Justice Breyer refused to join so categorical a statement: “[I]t is far less clear, and unnecessary for the purposes of this case to decide, that separation of powers ‘is violated whenever an ‘individual final judgment is legislatively rescinded’ . . . I do not subscribe to the Court’s more absolute statement.” Ibid., at 243. Emphasis in the original. 88. Ibid., at 249. 89. Ibid., at 254.

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90. Ibid., at 264. 91. Ibid., at 219. 92. Ibid., at 228. See Scalia’s statement in Morrison, 487 U.S. at 699: “That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that ‘a gradual concentration of the several powers in the same department,’ Federalist No. 51, can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” 93. 514 U.S. at 228. 94. Ibid., at 239. 95. 462 U.S. at 240. 96. 514 U.S. at 245. 97. 487 U.S. at 697. 98. 514 U.S. at 239. 99. 487 U.S. at 734. 100. 481 U.S. 787 (1987). See Neal Devins and Steven J. Mulroy, “Judicial Vigilantism: Inherent Judicial Authority to Appoint Contempt Prosecutors in Young v. United States ex rel. Vuitton et Fils S.A.,” 76 Kentucky Law Review 861 (1988). 101. See also Scalia’s concurring opinion in United States v. Providence Journal, 485 U.S. 693, 708 (1988). 102. 481 U.S. at 815. 103. Ibid., at 816. It should be noted that Scalia was not referring to the ability of courts to initiate contempt prosecutions for in-court contempts that interfere with the judicial process but only to their ability to initiate contempt prosecutions for out-ofcourt contempts. The latter, Scalia contended, are essentially conventional crimes that require prosecution by a party other than the court and only at the initiative of the Executive Branch. As he explained to his colleagues, the federal courts have those “inherent powers . . . necessary to permit the courts to function,” among which is “the contempt power when used to prevent interference with the conduct of judicial business.” This exception does not, however, include “the enforcement of judgments, much less of an investigative or prosecutory authority.” Ibid., at 817, n. 2. 104. Ibid., at 797. 105. Ibid., at 817–18. 106. Ibid., at 818. See The Federalist, No. 78, pp. 522–23. Emphasis added by Justice Scalia. 107. 481 U.S. at 822. 108. Ibid., at 824. Scalia was quoting “1 Montesquieu, Spirit of the Law 181, as quoted in The Federalist No. 78, p. 523 (J. Cooke ed. 1961).” 109. 481 U.S. at 824. 110. 405 U.S. 727, 731 (1972). 111. 392 U.S. 83 (1968). 112. 412 U.S. 669 (1973).

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113. Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 Suffolk University Law Review 881. See also Scalia’s Court of Appeals dissent in Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d 1322, 1341–45 (D.C. Cir. 1986). 114. Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 Suffolk University Law Review 895. 115. Ibid., p. 894. Emphases in the original. 116. 504 U.S. 555 (1992). 117. Ibid., at 560. 118. Ibid., at 571 119. 16 U.S.C. §1540(g). 120. Ibid., at 574. 121. Ibid., at 576. 122. Ibid., at 577. See Scalia’s opinion for the Court in Lewis v. Casey, 518 U.S. 343, 357 (1996), in which he elaborated on the need for the Court to enforce strictly the actual injury requirement as a means of keeping the Court from exceeding its proper role: “The actual-injury requirement would hardly serve the purpose . . . of preventing courts from undertaking tasks assigned to the political branches . . . if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration. The remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Emphasis in the original. 123. Joseph Story to Harriet Martineau (April 7, 1837). Reprinted in Joseph Story, Life and Letters of Joseph Story. Edited by William W. Story. (2 Vols.; Boston, 1851), Vol. II: 277). 124. Scalia, A Matter of Interpretation, p. 23. 125. Ibid.

II ORIGINALISM AND THE JUDICIAL ROLE

3 Judicial Usurpation: Perennial Temptation, Contemporary Challenge Robert P. George

UDICIAL POWER CAN BE USED,

and has been used, for both good and ill. However, in a basically just democratic republic, judicial power should never be exercised lawlessly—even for desirable ends. Judges are not legislators. The legitimacy of their decisions, particularly those decisions that displace legislative judgments, depends entirely on the truth of the judicial claim that the court was authorized by law to settle the matter. When this claim is false, a judicial edict is not redeemed by its good consequences, for any such edict constitutes a usurpation of the just authority of the people to govern themselves through the constitutional procedures of deliberative democracy. Decisions in which the courts usurp the authority of the people are not merely incorrect; they are themselves unconstitutional. And they are unjust. In this chapter, I will survey key examples of judicial usurpation and draw out their implications.

J

The First Test There were, and are, scholars and statesmen who believe that courts should not be granted the power to invalidate legislation in the name of the Constitution. In reaction to Chief Justice John Marshall’s opinion in the 1803 case of Marbury v. Madison,1 Thomas Jefferson warned that judicial review would lead to a form of despotism.2 It is worth remembering that the power of judicial review is nowhere mentioned in the Constitution. The courts themselves have claimed this power based on inferences drawn from the Constitution’s identification of itself as supreme law, and the nature of the judicial office.3 Yet — 49 —

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even if we credit these inferences, as I am inclined to do, it must be said that early supporters of judicial review, including Chief Justice Marshall himself, did not imagine that the federal and state courts would exercise the sweeping powers they have come to exercise today. Jefferson and the critics were, it must be conceded, more prescient. As for Marshall’s ruling in Marbury, a good case can be made that the power he actually claimed for the courts was quite limited. Remember: What the Supreme Court decided in that case was that the Court itself was forbidden by the Constitution to exercise original jurisdiction putatively conferred upon it by the Judiciary Act of 1789. Marshall reasoned that the Constitution, in Article III, fixed the Court’s original jurisdiction, and Congress was powerless under the Constitution to expand it. According to the contemporary constitutional scholar Robert Lowry Clinton, all this meant was that the Court was relying on its own interpretation of the Constitution in deciding what it could and could not do within its own sphere. This was entirely consistent with its recognizing a like power of the other branches of government to interpret the Constitution for themselves in deciding what they could and could not do in carrying out their constitutional functions.4 However that may be, the power of the judiciary has expanded massively. This expansion began slowly. Even if we read Marbury more broadly than Professor Clinton reads it, treating it as a case in which the justices presumed to tell the Congress what it could and could not do, it would be another 54 years before the Supreme Court would do it again. And it could not have chosen a worse occasion.

From Dred Scott to Brown In 1857, Chief Justice Roger Brooke Taney handed down an opinion for the Court in the case of Dred Scott v. Sandford.5 That opinion, which among other things declared even free blacks to be non-citizens, and Congress to be powerless to restrict slavery in the federal territories, intensified the debate about slavery and dramatically increased the prospects for civil war. Dred Scott was a classic case of judicial usurpation. Without constitutional warrant, the justices manufactured a right to hold property in slaves that the Constitution nowhere mentioned or could reasonably be construed as implying. Of course, Taney and those who joined him in the majority depicted their decision as a blow for constitutional rights and individual freedoms. They were protecting the minority (slaveholders) against the tyranny of a moralistic majority who would deprive them of their property rights. The reality was that the judges were exercising what in a later case would be called “raw judi-

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cial power”6 to settle a morally charged debate over a divisive social issue in the way they personally favored. It took a civil war and the constitutional amendments (especially the Fourteenth Amendment) made possible by the Union victory to reverse Dred Scott v. Sandford. The Dred Scott decision is a horrible blight on the judicial record. We should remember, though, that while it stands as an example of judicial activism in defiance of the Constitution, it is also possible for judges to dishonor the Constitution by refusing to act on its requirements. Judges who are more devoted to a cause than to the Constitution can—and sometimes have—gone wrong by letting stand what should have been struck down. In the 1896 case of Plessy v. Ferguson,7 for example, legally sanctioned racial segregation was upheld by the Supreme Court despite the Fourteenth Amendment’s promise of equality. Plessy was the case in which the justices announced their infamous “separate but equal” doctrine, a doctrine that was a sham from the start. Separate facilities for blacks in the South were then, and had always been, inferior in quality. Indeed, the whole point of segregation was to embody and reinforce an ideology of white supremacy that was utterly incompatible with the principles of the Declaration of Independence and the Fourteenth Amendment to the Constitution. The maintenance of a regime of systematic inequality was the object, point, and goal of segregation. As Justice John Harlan wrote in dissent, segregation should have been declared unlawful because the Constitution of the United States is colorblind and recognizes no castes.8

Lochner and “Freedom of Contract” Although more than a half-century would have to pass before the Supreme Court got around to correcting its error in Plessy in the 1954 case of Brown v. Board of Education,9 that did not prevent the Court in the meantime from repeating the usurpations that had brought it to shame in the Dred Scott case. The 1905 case Lochner v. New York10 concerned a duly enacted New York statute limiting to 60 the number of hours per week that the owner of a bakery could require or permit his employees to work. Industrial bakeries are tough places to work, even now. They were a lot tougher then. Workers were at risk of pulmonary disease from breathing in the flour dust, and in constant jeopardy of being burned by hot ovens, especially when tired and less than fully alert. The New York state legislature sought to protect workers against exploitation and abuse by limiting working hours. Yet the Supreme Court said no. Citing an individual right to “freedom of contract” purportedly implied by the Due Process Clause of the Fourteenth Amendment, the justices struck

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down the law as an unconstitutional interference by the state in private contractual relations between employers and employees. The Court justified its action with a story not dissimilar to the one it told in Dred Scott. Again, it claimed to be protecting the minority (owners) against the tyranny of the democratic majority. It was striking a blow for individual civil rights and liberties. It was restricting government to the sphere of public business and getting it out of private relations between competent adults—namely, owners and workers. Most commentators today—liberal and conservative alike—believe that in Lochner the Court was substituting its own laissez-faire philosophy of the morality of economic relations for the contrary judgment of the people of New York acting through their elected representatives in the state legislature. On the controversial moral question of what constituted authentic freedom and what amounted to exploitation, unelected and democratically unaccountable judges, purporting to act in the name of the Constitution, simply seized decision-making power.11 Under the pretext of preventing the majority from imposing its morality on the minority, the Court imposed its own morality on the people of New York and the nation. Just as Dred Scott fell, Lochner would eventually fall. It would be brought down not by a civil war, but by an enormously popular president fighting a great depression. Under the pressure of Franklin Roosevelt’s plan to pack the Supreme Court, the justices in 1937 repudiated the Lochner decision, and got out of the business of blocking state and federal social welfare and worker protection legislation. Lochner itself was relegated to ignominy, as Dred Scott had been. Indeed, the term “Lochnerizing” was invented as a label for judicial rulings that usurped democratic lawmaking authority and imposed upon society the will of unelected judges under the pretext of giving effect to constitutional guarantees of liberty.

Griswold and “Marital Privacy” For many years, the Court took great care to avoid the least appearance of Lochnerizing. In 1965, for example, when the justices in a set-up case called Griswold v. Connecticut12 struck down a state law against contraceptives in the name of an unwritten “right to marital privacy,” Justice William O. Douglas explicitly denied that he was appealing to the principle of Lochner.13 Indeed, to avoid invoking Lochner’s claim of a “substantive due process” right in the Fourteenth Amendment, Douglas went so far as to say that he had discovered the right to privacy in “penumbras formed by emanations” of a panoply of Bill of Rights guarantees that seem to have something to do with protecting privacy—

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such as the Third Amendment, which prohibits the government from quartering soldiers in private homes in peace time, and the Fourth Amendment, which forbids unreasonable searches and seizures. Griswold, though plainly usurpative, was not an unpopular decision. The Connecticut statute it invalidated was rarely enforced and the public cared little about it. The significance of the statute was mainly symbolic, and the debate about it was a symbolic struggle. The powerful forces favoring a liberalization of sexual mores in the 1960s viewed the repeal of such laws—by whatever means necessary—as essential to discrediting traditional JudeoChristian norms about the meaning and significance of human sexuality. However, the Court was careful to avoid justifying the invalidation of the law by appealing to sexual liberation or individual rights of any kind. On the contrary, Douglas’s opinion defends the putative right to marital privacy as necessary to preserve and protect the institution of marriage. In Douglas’s account of the matter, it was not for the sake of “sexual freedom” that the justices were striking down the law, but rather to protect the honored and valued institution of marriage from damaging intrusions by the state. Otherwise uninformed readers of the opinion might be forgiven for inferring mistakenly that the ultra-liberal William O. Douglas was in fact an archconservative on issues of marriage and the family. They would certainly have been justified in predicting—wrongly, as it would turn out—that Douglas and those justices joining his opinion would never want to see the Griswold decision used to break down traditional sexual mores or facilitate nonmarital sexual conduct. A mere seven years later, however, in the case of Eisenstadt v. Baird,14 the Court seemed to forget everything it had said about marriage in the Griswold decision, and abruptly extended the putative constitutional right to use contraceptives to non-married persons. A year after that, the justices, citing Griswold and Eisenstadt, handed down their decision legalizing abortion in Roe v. Wade. And the culture war began.

From Lochner to Roe v. Wade The Roe decision was pure Lochnerizing. Roe did for the cause of abortion what Lochner had done for laissez-faire economics, and what Dred Scott had done in the cause of slavery. The justices intervened in a large-scale moral debate over a divisive issue of social policy, short-circuiting democratic deliberation and imposing on the nation a resolution lacking any justification in the text, logic, structure, or original understanding of the Constitution. Indeed, Justice Harry Blackmun, writing for the majority, abandoned Griswold’s metaphysics of “penumbras

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formed by emanations” and grounded the putative constitutional right to feticide in the Due Process Clause of the Fourteenth Amendment—just where the Lochner court had claimed to discover the putative right to freedom of contract. It was in Roe that dissenting Justice Byron R. White described the Court’s ruling as an “act of raw judicial power.” Having succeeded in establishing a national regime of abortion on demand by judicial fiat in Roe, the cultural left continued working through the courts to get its way on matters of social policy on which the left faced significant popular resistance. Chief among these areas was the domain of sexual morality. Where state laws embodied norms associated with traditional Judeo-Christian beliefs about sexuality, marriage, and the family, left-wing activist groups brought litigation claiming that the laws violated Fourteenth Amendment guarantees of due process and equal protection, and First and Fourteenth Amendment prohibitions on laws respecting an establishment of religion. The key battleground became the issue of homosexual conduct. Initially, the question was whether it could be legally prohibited, as it long had been by laws in the states. Eventually, the question became whether homosexual relationships and the sexual conduct around which such relationships are integrated must be accorded marital or quasi-marital status under state and federal law.

Homosexual Sodomy and the “Right to Privacy” In 1986, the Supreme Court heard a challenge to Georgia’s law forbidding sodomy in a case called Bowers v. Hardwick.15 Michael Hardwick had been observed engaging in an act of homosexual sodomy by a police officer who had lawfully entered Hardwick’s home to serve a summons in a matter not involving a sexual offense. Left-wing activist groups treated Hardwick’s case as an opportunity to win the invalidation of sodomy laws by extending the logic of the Court’s “right to privacy” decisions. This time, however, they failed. In a five-to-four decision written by Justice White, the Court upheld Georgia’s sodomy statute as applied to homosexual sodomy. The justices declined to rule one way or the other on the question of heterosexual sodomy, which the majority said was not before the Court. The Bowers decision stood until 2003, when it was reversed in the case of Lawrence v. Texas,16 a case which set the stage for the current cultural and political showdown about the nature, definition, and meaning of marriage. In Lawrence, the Court held that state laws forbidding homosexual sodomy lacked a rational basis and were therefore nothing more than invasions of the rights of consenting adults to engage in the type of sexual relations they preferred. Writing for the majority, Justice Anthony Kennedy claimed that such

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laws are insults to the dignity of homosexual persons. As such, they are, he insisted, constitutionally invalid under the doctrine of privacy whose centerpiece was the Roe decision.

Lawrence v. Texas Kennedy went out of his way to say that the Court’s ruling in Lawrence did not treat the issue of same-sex marriage or whether the states and the federal government were under an obligation to give official recognition to same-sex relationships or grant benefits to same-sex couples.17 Writing in dissent, however, Justice Antonin Scalia said bluntly: “Do not believe it.”18 The Lawrence decision, Scalia warned, eliminated the structure of constitutional law under which it could be constitutionally legitimate for lawmakers to recognize any meaningful distinctions between homosexual and heterosexual conduct and relationships. On this point, many enthusiastic supporters of the Lawrence decision and the cause of same-sex “marriage” agreed with Scalia. They saw the decision as having implications far beyond the invalidation of sodomy laws. Noting the sweeping breadth of Kennedy’s opinion for the Court—despite his representations that the justices were not addressing the marriage issue—they viewed the decision as a virtual invitation to press for the judicial invalidation of state marriage laws that treat marriage as the union of a man and a woman. Indeed, there was already litigation on this subject going forward in the states: It had begun in Hawaii in the early 1990s, where a State Supreme Court ruling invalidating the Hawaii marriage laws was overturned by a state constitutional amendment. Lawrence turned out to be a new and powerful weapon to propel the movement forward and embolden state court judges who were inclined toward ruling that laws treating marriage as the union of a man and a woman lacked a rational basis and were therefore invalid. The boldest of the bold were four liberal Massachusetts Supreme Judicial Court justices who ruled in the case of Goodridge v. Massachusetts Department of Public Health19 that the Commonwealth’s restriction of marriage to male–female unions was a violation of the state constitution. The state legislature requested an advisory opinion from the justices about whether a scheme of civil unions akin to the one put into place a couple of years earlier by the Vermont state legislature (when that state’s Supreme Court had issued a similar ruling) would suffice. However, the four Massachusetts justices, over dissents by the three justices who had originally dissented in the case, said “No, civil unions will not do.”20 And so unelected and electorally unaccountable judges imposed same-sex marriage on the people of Massachusetts.

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In Defense of Marriage How are defenders of marriage as traditionally understood to respond to these developments? First, I believe, it is important to make clear that what is going on in the state and federal courts is Lochnerizing on a massive scale. Lawrence and Goodridge are not Brown v. Board of Education. They are not Loving v. Virginia21 (1964), which invalidated laws forbidding inter-racial marriage. Contrary to the claims of their supporters, Lawrence and Goodridge do not vindicate principles of equality. Rather, they impose a particular set of cultural leftist doctrines about the nature, meaning, and moral significance of sexuality and marriage. What they create is not equality or neutrality; it is rather, a regime of law and public policy that embodies these sectarian doctrines. These decisions shift the meaning of marriage for everyone. They do not expand eligibility for marriage, as supporters sometimes claim; rather, they redefine the institution and, strictly speaking, abolish it. The idea long embodied in our law of marriage, that it is the one-flesh union of spouses consummated, actualized, and integrated around acts fulfilling the behavioral conditions of procreation—acts which are the biological foundation of the comprehensive, multilevel sharing of life that marriage is—is literally abolished.22 The link between marriage and procreation and the nurturance and education of children in a familial context uniquely apt to serve their welfare is finally and decisively severed. And all of this is done without democratic deliberation or the resolution of disputed questions by the people acting through their elected representatives. So there is a double wrong and a double loss. There is a crime with two victims: The first and obvious victim is the institution of marriage itself; the second is the system of deliberative democracy. However, there will likely be a third victim: namely, federalism. For some same-sex partners “married” in Massachusetts will, in the nature of things, move to Indiana, and West Virginia, and North Dakota, and South Carolina, and Arizona. They will demand that these states accord “full faith and credit” to the legal acts of Massachusetts by honoring Massachusetts marriage licenses. The states will at least initially try to resist, invoking their own laws and the federal Defense of Marriage Act, but they will eventually lose. Liberal judges are determined to spread their gospel of sexual liberationism. They will strike down state and federal laws protecting the power of states to refuse to recognize out-of-state same-sex “marriages.” They will stress the importance of the portability of marriage across state lines, and the need for people to be able to structure their lives on the assumption that if they are married in Massachusetts, they don’t suddenly become unmarried when they visit Mississippi or move to Michigan.

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The Protection of Marriage Given what has become the entrenched understanding of the authority of courts exercising the power of judicial review, there is no alternative, in my judgment, to amending the Constitution of the United States to protect marriage. The Massachusetts state legislature has made an initial move toward amending the state constitution to overturn Goodridge, but the outcome is uncertain, and the process of amending the Constitution of the Commonwealth of Massachusetts is lengthy and arduous. Even if the pro-marriage forces in Massachusetts ultimately succeed, liberal judges in other states are not far behind their colleagues on the Supreme Judicial Court of Massachusetts. And hovering over the entire scene, like the sword of Damocles, is the Supreme Court of the United States, which could at any time act on what Justice Scalia has rightly identified as the logic of the Lawrence decision to invalidate state marriage laws across the board. You may think: “They would never do that.” Well, I would echo Justice Scalia: “Do not believe it.” They would. And if they are not preempted by a federal constitutional amendment on marriage, they will. They will, that is, unless the state courts get there first, leaving to the Supreme Court of the United States only the mopping up job of invalidating the Defense of Marriage Act and requiring states to give “full faith and credit” to out-of-state same-sex “marriages.”

The Federal Marriage Amendment Supporters of marriage are not of a single mind about what a federal amendment to protect marriage should accomplish. In my judgment, the best approach is that embodied in the Federal Marriage Amendment (FMA) that has been proposed in the United States Senate by Wayne Allard (R–CO) and in the House of Representatives by Marilyn Musgrave (R–CO). That amendment defines marriage in the United States as the union of a man and a woman; preserves the principle of democratic self-government on the issue of civil unions, domestic partnerships, and other schemes under which some of the incidents of marriage may be allocated to non-married persons; and respects principles of federalism under which family law is primarily the province of the states rather than the national government. Some conservative critics of the FMA fault the proposed amendment for not going far enough. They would prefer an amendment that would have the additional feature of banning even legislatively adopted state schemes of civil union and domestic partnership. I myself oppose such schemes, but I do not think it is necessary or politically feasible to attempt to deal with this issue at

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the federal constitutional level. So long as marriage is protected by an understanding—implicit in the terms of the FMA—that states may not create “faux marriages” by predicating rights, benefits, privileges, and immunities on the existence, recognition, or presumption of sexual conduct or relationships between unmarried persons, I am content to leave the question of civil unions and domestic partnerships to the people of the states acting through the processes of deliberative democracy. Other conservative critics of the FMA believe that it goes too far by removing from the individual states the authority to define marriage as they see fit. Many of these critics agree that a federal constitutional amendment is needed, but believe that it should do no more than prevent the judicial imposition of same-sex marriage nationwide, whether by judicial action manufacturing a federal constitutional right to same-sex marriage or by a ruling that Massachusetts same-sex marriages must be given “full faith and credit” by other states when same-sex couples from Massachusetts move into those states. My own view, however, is that we need a uniform national definition of marriage as the union of one man and one woman. Here is why: Marriage is fundamental. Marriage is the basis of the family, and it is in healthy families that children are reared to be honorable people and good citizens. Therefore, marriage and the family are the basic units of society. No society can flourish when they are undermined. Until now, a social consensus regarding the basic definition of marriage meant that we did not need to resolve the question at the federal level. Every state recognized marriage as the exclusive union of one man and one woman. (The federal government did its part at one point in our history to ensure that this would remain the case by making Utah’s admission to the Union as a state conditional upon its banning polygamy.) The breakdown of the consensus certainly does not eliminate the need for a uniform national definition. If we do not have one, then marriage will erode either quickly—by judicial imposition, unless judges are stopped—or gradually by the integration into the formal and informal institutions of society of same-sex couples who, after all, possess legally valid marriage licenses from some state.23 In the long run, it is untenable for large numbers of people to be considered married in one or some states of the United States yet unmarried in others. As Abraham Lincoln warned it would be with the evil of slavery in his time, it is inevitable that the country will go “all one way or all the other.” Slavery would either be abolished everywhere or it would spread everywhere. The same is true of same-sex “marriage,” in the long run—and perhaps even in the not-so-long run.

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Notes 1. 5 U.S. (1 Cranch) 137 (1803). 2. See Thomas Jefferson’s criticism of claims by the judiciary of authority to bind the other branches of government in matters of constitutional interpretation (“making the judiciary a despotic branch”) in his letter to Abigail Adams, September 11, 1804, in 11 Writings of Thomas Jefferson (Albert E. Bergh, ed., 1905), pp. 311–313. 3. See Marbury v. Madison. 4. See generally Robert Lowry Clinton, Marbury v. Madison and Judicial Review (University of Kansas Press, 1991). 5. 60 U.S. (19 How.) 393 (1856). 6. Roe v. Wade, 410 U.S. 113, 222 (1973) (Justice Byron White, dissenting). 7. 163 U.S. 537 (1896). 8. Plessy v. Ferguson, 559 (Justice Harlan, dissenting). 9. 347 U.S. 483 (1954). 10. 198 U.S. 45 (1905). 11. See Lochner v. New York, 54–55 (Justice Holmes, dissenting).; but for a sympathetic interpretation and thoughtful defense of the majority opinion in Lochner, see “Lochner v. New York and the Caste of Our Laws,” in Robert P. George (ed.), Great Cases in Constitutional Law (Princeton: Princeton University Press, 200), ch. 5. 12. 381 U.S. 479 (1965). 13. See Griswold v. Connecticut, 482. 14. 405 U.S. 438 (1972). 15. 478 U.S. 186 (1986). 16. 123 S. Ct. 2472 (2003). 17. Lawrence v. Texas, 2484. 18. Lawrence v. Texas, 2498 (Justice Scalia, dissenting). 19. 798 N.E.2d 941 (Mass. 2003). 20. Opinion of the Justices to the Senate, 802 N.E.2d 565 (2003). 21. 388 U.S. 1 (1967). Attempts by supporters of “same-sex marriage” to draw an analogy between laws treating marriage as the union of a man and a woman and laws forbidding interracial marriages cannot be sustained. See Robert P. George, The Clash of Orthodoxies (ISI Books, 2001), ch. 4, especially at pp. 88–89. 22. See Robert P. George and Gerard V. Bradley, “Marriage and the Liberal Imagination,” 84 Georgetown Law Journal, 301–320 (1995). 23. See Christopher Wolfe, “Why the Federal Marriage Amendment is Necessary,” University of San Diego Law Review (forthcoming, 2005).

4 Authority Doctrines and the Proper Judicial Role: Judicial Supremacy, Stare Decisis, and the Concept of Judicial Constitutional Violations Jack Wade Nowlin

EBATES OVER THE PROPER ROLE for the Supreme Court in American constitutional interpretation remain a perennial feature of the legal and political landscape–often reflecting traditional divisions between proponents of judicial activism and restraint. These debates often center narrowly around particular dimensions of the question of the proper judicial role–such as interpretive methodology or interpretive authority–but rarely explore the broader interaction of these various dimensions or attempt to craft a comprehensive and holistic understanding of the judicial power involving multiple dimensions of the debate. Moreover, the positions asserted in these recurrent debates seldom strike a proper balance between the value of judicial primacy in constitutional interpretation and the danger of judicial usurpation of the authority of other institutions of government. This chapter explores some of the issues involved in the project of crafting a multi-dimensional approach to judicial power that attempts to balance the costs and benefits of judicial review. This chapter addresses several dimensions of debate about the judicial power as part of an attempt to develop a more comprehensive normative examination of the judicial power. One very common dimension of the debate over the role of the Court which this article engages is the question of judicial constitutional interpretation. The debate here centers on the proper methodologies of constitutional interpretation (e.g., should judges privilege original meaning over contemporary meaning?) and the degree of deference the judiciary should accord legislatures (e.g., should judges accord a presumption of constitutionality to legislation in certain circumstances and/or should they

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demand a high degree of clarity of constitutional violation before invalidating legislation?). These interpretive debates typically revolve around familiar terms and concepts–such as the “living Constitution,” the “framer’s Constitution,” “judicial activism,” and “judicial restraint.” A second, somewhat less common, dimension of the debate concerns questions of the interpretive authority of judicial actors over non-judicial actors or members of the judiciary acting later in time. One such question debated by political leaders in the early American Republic and by academics today concerns the issues surrounding the doctrine of judicial supremacy: The supreme or ultimate authority of the Supreme Court’s interpretations of the Constitution over the rival interpretations of political actors such as the president, Congress, or the states. Another question of interpretive authority often debated by judges and discussed in recent judicial confirmation hearings concerns the issues surrounding stare decisis or respect for precedent: The precedential authority to be accorded to past judicial interpretations of the Constitution in the face of (potentially) rival present or future judicial interpretations. Notably, the debate over this latter authority doctrine, stare decisis, overlaps with debates over interpretive methodology (i.e., what role should doctrinalism or adherence to precedent play as an interpretive method?). Finally, a third–and by far the least common–dimension of the debate over the proper judicial role concerns the concept of judicial constitutional violations and its implications for traditional debates between proponents of judicial activism and restraint. This dimension of debate addresses the question of the Constitution’s conferral of limited power on the Supreme Court and (thus) the question of the contours of the constraints the Constitution places on the Supreme Court and lower federal courts. Of special interest here is the question of whether the assertion of expansive or “activist” judicial power violates constitutional limits on the judicial branch. For instance, Justice Black, from a judicial restraint perspective, observed in his well-known Griswold dissent that: [t]here is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.1

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As Justice Black suggests, it is possible that the Court’s use of certain “activist” interpretive methods to invalidate legislation exceeds the Court’s grant of authority under the Constitution and violates constitutional structures– such as the separation of powers, federalism, and norms of representative democracy–that constrain the judicial branch as well as the other branches of the federal government. This third dimension of debate over the role of the Court raises the important question of the implications of the concept of judicial constitutional violation for the first two dimensions of debate over the proper judicial role: judicial interpretive method and interpretive authority. This chapter attempts to explore some of the issues surrounding the interrelationships between judicial interpretive methods, judicial interpretive authority, and judicial constitutional violations in order to develop a broader understanding of the judicial power, one which better harmonizes the analysis of these three dimensions of the judicial power and properly balances the costs and benefits of the judicial power. In brief, this chapter will argue that certain forms of judicial constitutional interpretation (e.g., “judicially activist” or “living constitutionalist” interpretations) entail judicial constitutional violations (i.e., judicial violations of constitutional norms of the separation of powers, federalism, and representative democracy that constrain the power of the Court and prohibit certain forms of judicial activism or judicially-imposed living constitutionalism) and that judicial constitutional violations of this type are entitled to attenuated interpretive authority as a matter of judicial supremacy and stare decisis. Thus these decisions could be legitimately accorded less deference under the doctrine of judicial supremacy by political institutions with authority to check the judiciary and accorded less weight as precedents under the doctrine of stare decisis by the Court itself. In sum, then, the authority of a judicial decision under the authority doctrines of judicial supremacy and stare decisis may be attenuated if the decision involves an improper assertion of judicial power that itself violates the Constitution. The advantage of this view as a means of promoting constitutional integrity is its recognition of both the value of judicial supremacy and stare decisis while also recognizing the need to qualify these doctrines in a potentially small but very significant class of judicial decisions violative of the constitutional constraints on the courts.

Judicial Supremacy and Stare Decisis as Authority Doctrines Judicial supremacy and stare decisis are both, in essence, authority doctrines. As John Finnis has observed, “[a] person treats something (e.g. an opinion, a pronouncement, a map, an order, a rule . . .) as authoritative if and only if he treats it as giving him sufficient reason for believing or acting in accordance

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with it notwithstanding that he himself cannot otherwise see good reason for so believing or acting . . . or would himself otherwise (i.e. in the absence of what he is treating as authoritative) have preferred not so to believe or act”).”2 The need for authority–and thus the political appeal of authority doctrines–arises out of the practical necessity of resolving co-ordination problems in the face of inevitable disputes about what to do in order to achieve the common good.3 In essence, then, authority doctrines are designed to resolve disputes by indicating an authoritative forum or manner of decision thus obviating the need for unanimity.4 Unsurprisingly, both judicial supremacy and stare decisis are justified (in part) by the need to settle disputes about legal meaning that inevitably arise as various interpreters at various times assert rival interpretations of the Constitution. The authority doctrine of judicial supremacy—which can be simply defined as the supremacy of the Supreme Court’s interpretations of the U.S. Constitution over those of the other institutions of government—is typically justified by a “forum” appeal to the court as the appropriate institution for resolving questions of legal interpretation (“it is emphatically the province and duty of the judicial department to say what the law is”5) and by a “settlement” appeal to the need for one authoritative institution to resolve disputes about the law in order to avoid continuing controversies and the political crises such controversies might portend (constitutional questions “must be decided peacefully” and if they are “to be so decided, by this [Court] alone can the decision[s] be made”6). The authority doctrine of stare decisis—which can be defined as extending substantial deference to the past decisions of a court by the present court—is most commonly justified by a simple settlement appeal in favor of the stability, continuity, and predictability of the law (“in most matters it is more important that the applicable rule of law be settled than that it be settled right”7). Scholars have recognized the common “settlement” function of both judicial supremacy and stare decisis,8 and the recognition of parallels between the two doctrines is not uncommon. Abraham Lincoln, for instance, in part viewed the authority of the Supreme Court’s decisions over the political branches, a supremacy question, through the lens of stare decisis, thus recognizing supremacy in a qualified form as applying only to “settled” decisions to be accorded weight as established precedents.9 Despite these similarities, the Supreme Court itself has recognized important differences between the two doctrines. First, the Court views judicial supremacy and stare decisis as different in terms of the weight of their authority. Judicial supremacy is viewed by the Court as, in essence, an absolute command: The decisions of the Supreme Court are to be accorded absolute deference by the other institutions of government and thus those institutions are to follow the Court’s decisions

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whether they agree with them or not.10 Stare decisis, by contrast, is not a command of absolute deference to precedent, but rather a counsel of qualified deference or respect,11 and thus precedents are to be followed unless there are sufficient reasons beyond simple disagreement for overruling them, such as the “unworkability” of the decision, a change in the underlying factual setting undermining the decision’s rationale, or doctrinal erosion by other post-decision precedents.12 Second, the Court views judicial supremacy and stare decisis as different in terms of their constitutional status. Judicial supremacy is clearly viewed by the Court as a grant of authority to the Court by the Constitution under the separation of powers, and thus supremacy is seen as a constitutionally-mandated authority doctrine.13 Stare decisis, by contrast, appears not to be understood by the Court as a constitutional command of respect for precedent but rather a sub-constitutional judicial policy, a prudential authority doctrine.14 The Supreme Court has never offered the kind of extensive analysis of either judicial supremacy or stare decisis that many much more narrow legal questions have received. It is therefore worth asking, in the context of this chapter, whether the application of these doctrines is altered by the nature of the Court’s exercise of the judicial power, particularly if a given decision is not merely incorrect as an interpretation of the Constitution but in violation of the Constitution as it constrains the judicial branch.

Judicial Constitutional Violations and Activist Judicial Decisions as Violations of the Constitution Whether the proper judicial role is one of activism or restraint is a recurrent controversy in American constitutional discourse. In this context, the claim that the Supreme Court has acted in an improperly activist fashion is seldom clearly articulated as an assertion that the Court has violated the Constitution as it constrains the interpretive authority of the judicial branch.15 Instead, criticism of activist judicial decisions moving beyond the assertion of “mere” interpretive mistake usually employs language sounding in concepts of illegitimacy,16 imprudence,17 and usurpation.18 The last of these is most suggestive of a judicial constitutional violation, but the language of “usurpation” also tends to obscure and potentially soften a claim that should be made in a clear and uncompromising fashion. Notably, then, Justice Black’s Griswold dissent–by expressly stating that the activist methodology underlying Griswold represents an attempt to “unconstitutional[ly]” shift authority from political institutions to the federal judiciary—is an exception rather than the rule.

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Any reluctance on the part of proponents of judicial restraint to characterize an improperly activist judicial decision as a violation of the constitutional constraints on the federal judiciary should be carefully reconsidered. This is so for two basic reasons. First, there should be no doubt that Supreme Court can exceed the constitutional limits of the judicial authority as the Court exercises the power of judicial review, violating the Constitution as it places limits on the Court.19 A number of constitutional limitations on the federal judicial power are uncontested or widely-recognized in American constitutional law. These include the limits on the Court’s subject-matter jurisdiction, original jurisdiction, power to create federal common law, state sovereign immunity from suit in federal court, and the constitutional dimensions of the justiciability doctrines.20 The Supreme Court itself recognizes these constitutional limits on its power and generally adheres to its understanding of them as it exercises the federal judicial power. Second, constitutional limits on the judicial power likely exist as well in the areas of judicial interpretive methodology–as Justice Black recognized in his Griswold dissent and as other justices and theorists have also asserted over the years.21 These constitutional limits on judicial interpretive methodology are grounded in constitutional norms of structure and the Rule of Law. The Constitution’s core structural norms—the separation of powers, federalism, and representative democracy—are plausibly seen as constraining important aspects of the judicial role related to interpretive methodology (i.e., how the Court may interpret provisions of the Constitution) because of the effect this aspect of the judicial role has on these core structural norms.22 For instance, whether the Court claims a broad or narrow power to invalidate laws under constitutional provisions such as the Due Process Clauses does much to determine the more precise contours of fundamental constitutional structures. As the Court’s power expands, the power of the political branches, the states, and representative institutions more generally necessarily contracts. Moreover, adherence to the Rule of Law norm of “fidelity” to law or faithful administration of the law as published or promulgated is often seen as the defining difference between the “rule of men” (i.e., unelected judges) and the true achievement of the Rule of Law.23 Whether a court endorses an activist “living” constitutionalist approach to constitutional interpretation or a restrained “historic” constitutionalist approach to constitutional interpretation may determine whether the court has been truly faithful to the Constitution properly conceived.24 Clearly, as the Supreme Court’s interpretations of the Constitution pivot more on the justices’ personal political views and less on the consideration of objective legal materials—such as text, history, and tradition—the Court’s ruling on questions such as free speech, religion, and abortion are necessarily more a function of the politics

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of the individual justices and less a product of legal materials that can be traced back in some fashion to the sovereign people as constitution-makers and that might be thought to constitute more objectively “the Constitution.”25 The common-sense distinction between the Rule of Law, as contrasted with the rule of men (i.e., the rule of the men and women who serve as federal judges), is thereby eroded. This chapter endorses the view that the basic structures of the Constitution (such the separation of powers, federalism, and representative democracy) and the basic Rule of Law norms of the Constitution (such as judicial fidelity to law as promulgated by the framers and ratifiers) prohibit activist judicial decisions and mandate some form of moderate judicial restraint as the proper judicial role.26 By the term “judicial restraint” this chapter signifies a conception of the judicial role where the decisions of the judge are tightly linked to traditional legal materials such as text, original meaning, and long-standing legal traditions, and authoritative precedents; minimize judicial discretion in resolving cases; are generally deferential to democratically-accountable political actors; and invalidate legislation only in relatively clear cases of unconstitutionality.27 By the term “judicial activism” this chapter signifies a conception of the judicial role where judges only loosely link their decisions to traditional legal materials, maximize their discretion, are non-deferential to political actors, and invalidate legislation in cases where constitutional meaning is sharply contested and highly controversial.28 These brief definitions of restraint and activism, of course, cannot provide a bright-line test as to whether a judicial decision is properly restrained (and therefore constitutional as an exercise of the judicial power) or improperly activist (and therefore unconstitutional as an exercise of the judicial power), but they are no more imprecise than many forms of constitutional analysis applied by courts to determine the constitutionality of legislation or other acts of government29 and, in any case, are capable of further refinement.30 Thus their application by individuals or institutions who may comment—with or without official legal authority within our constitutional system—on the constitutionality of the Court’s decisions is well within the ambit of accepted legal analysis. A full defense of the constitutionally-mandated norm of judicial restraint is beyond the scope of this chapter, but the basic outlines of such a view are not hard to discern: If one believes that the fundamental structures of the Constitution which limit the judicial branch as well as other institutions are to be interpreted in a robust fashion, one may well conclude that judicial decisions must sharply differentiate judicial “judgment” from legislative “will” or risk violation of the separation of powers, federalism, and norms of democratic accountability.31 Thus one may plausibly read the structure of the Constitution as mandating restrained judging and prohibiting unrestrained or activist

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judging.32 Moreover, if one believes that the foundation of the Constitution is grounded in popular sovereignty and its fundamental purpose is to constrain or limit the institutions of government, including judicial institutions, one may well conclude that judicial decisions must adhere to modes of interpretation that reflect fidelity to the “higher” will of the people in constitution-writing and provide relatively stable source of constitutional limitations on the institutions of government, including the federal judiciary.33 Significantly, while the judiciary can violate the Constitution by exercising the judicial power in an overly activist fashion, it is important to recognize that not every judicial decision which misinterprets the Constitution or erodes values associated with the Constitution necessarily violates the structural and Rule of Law constitutional limits of the Court’s interpretive authority. Under the doctrine of judicial supremacy, the Constitution confers principal interpretive authority over the Constitution on the U.S. Supreme Court.34 Part of this conferral of authority is necessarily the authority to make some class of reasonable mistakes about constitutional meaning.35 This is so because an institution whose decisions are followed by other actors or institutions only when deemed persuasive is not exercising true authority over those actors or institutions but rather merely persuasion.36 Additionally, a reading of the constitutional design that asserts that the Constitution confers principal interpretive authority over the Constitution on the Supreme Court and also mandates for its constitutional exercise a standard of interpretive perfection is hard to defend as a matter of rational constitutional design.37 The better view is that the Constitution confers this authority on the federal judiciary and mandates for its exercise not an unreasonable standard of interpretive perfection but rather a reasonable standard of proper respect for the Constitution’s structural and Rule of Law norms as they constrain the judiciary,38 a standard which can be captured by a traditional term describing the proper judicial role such as “judicial restraint.”39 Therefore a properly restrained judicial decision that happens to get the meaning of the Constitution wrong in some respect is constitutional as an exercise of the judicial power even as it is a mistake about constitutional meaning.40 Furthermore, even some decisions properly subject to criticism as inappropriately activist may not be activist to such a degree as to actually violate the Constitution but rather may be merely imprudently in tension with values associated with the Constitution.41 This may be so because the norms of the Constitution that constrain courts also reflect broader political values, and these values may be entitled to a level of prudential respect from the judiciary above that minimum mandated by the Constitution itself.42 Thus some judicial decisions may be activist only in sense of unwisely eroding political values associated with the Constitution without necessarily violating the specific instantiation of those values as norms of the Constitution. For instance, the

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Court itself has recognized dual prudential and constitutional limits on its exercise of the judicial power in the area of standing and has recognized that these limits have a common source in political values concerning the limits of the proper role for the Court within the constitutional design.43 Under the doctrine of prudential standing, the Court may decline to reach the merits of a case on prudential grounds—out of a judicious political respect for the limited role of the judiciary in a constitutional democracy—even though the constitutional requirements of standing are met and the Constitution (thus) does not prohibit deciding the case.44 Additionally, the sub-constitutional language of political (im)prudence is used upon occasion to condemn a decision as improperly activist. For instance, Justice White’s well-known dissent in Roe v. Wade reproved the Court’s abortion rights decision as an unwisely “improvident” and “extravagant” exercise of the judicial power, though one “perhaps” within the Court’s constitutional authority.45 There is, then, good reason to conclude that a class of decisions exist which are activist only to an “imprudent” degree and, as such, should be subject to sub-constitutional political criticism as insufficiently deferential to political values which are reflected in the constitutional design—such as federalism or representative democracy—and which are entitled politically to a greater degree of respect from courts than the actual constitutional minimum of these values demands. In short, then, judicial decisions misinterpreting the Constitution fall into three broad categories: (1) restrained judicial decisions which misread legal materials but which are also generally consistent with and supportive of the Constitution as it constrains the judicial power and thus which are best thought of as constitutional “mere” mistakes about constitutional meaning, (2) activist decisions which misread legal materials and which also undermine constitutional constraints on the judicial power clearly and substantially enough to warrant the label “judicial constitutional violation”; and (3) decisions falling somewhere between the two categories above, decisions which are properly considered constitutional but imprudent mistakes about constitutional meaning because they misread legal materials and also imprudently or unwisely undermine–but do not violate–the constitutional norms that constrain the judicial branch.46 This chapter is most concerned with decisions in the second of these three categories, judicial constitutional violations, and with the authority of such decisions under the doctrines of judicial supremacy and stare decisis. It is to those questions this chapter now turns.

Judicial Supremacy as a Constitutional Norm Judicial supremacy, defined as the supremacy of the Supreme Court’s interpretations of the Constitution over the political branches, has been both the

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orthodox theory and predominant practice in American constitutional law for a half-century or longer.47 As noted, the Supreme Court views the doctrine of judicial supremacy as a constitutional norm derived principally from the constitutional structure of the separation of powers,48 though the need to settle constitutional questions authoritatively has also been mentioned by the Court as part of the basis for the doctrine.49 This chapter does not dispute the core of the doctrine of judicial supremacy as an interpretation of the Constitution’s plan for the conferral of institutional interpretive authority over the Constitution. However, this chapter will raise the question of whether judicial constitutional violations are entitled to the constitutionally-mandated supremacy over the political branches that ordinary judicial decisions are entitled to such under the doctrine of judicial supremacy. And this chapter will raise the question of whether judicial constitutional violations should in some circumstances receive a form of sub-constitutional “supremacy” or prudential deference from the political branches. All these points deserve some elaboration. A full discussion of judicial supremacy as a constitutional norm is beyond the scope of this chapter. Still it should be enough here to outline briefly the common justifications for this position as an interpretation of the Constitution’s design for authoritative interpretation of the Constitution. Notably, the constitutional text fails to resolve the issue of what institution or institutions have authority to interpret the Constitution.50 Moreover, the original understanding of this question is also inconclusive, with debates at the Founding and in the Early Republic suggesting a broad range of views on this question from judicial preeminence to departmentalism to legislative preeminence and even state constitutional review (i.e., nullification or interposition).51 Therefore constitutional text, original understanding, and early constitutional practice appear not to provide a clear answer to the question of who has what authority to interpret the Constitution. If one then turns from these authoritative interpretive methods of text and original meaning to structuralism, doctrinalism, traditionalism, and policy analysis, one can find substantial support for the doctrine of judicial supremacy. First, under the separation of powers, one can plausibly maintain that it is the province of the judicial department to say what the law is, suggesting that questions of constitutional interpretation are ultimately questions for courts;52 second, the Supreme Court has repeatedly endorsed the doctrine of judicial supremacy in its decisions over the last fifty years, even “backdating” the practice, dubiously, to 1803 and Marbury v. Madison;53 third, the predominant practice of the institutions of government in the U.S. constitutional system for at least a half-century has been to accord the decisions of the Supreme Court a level of deference which one could properly call supremacy;54 fourth, an important policy concern in this context is the peaceful

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settlement of constitutional questions and the avoidance of constitutional conflict which could generate constitutional crises, a policy advanced by centralizing interpretive authority in the Supreme Court.55 Thus constitutional structure, judicial precedent, traditional legal practice, and “settlement” policy considerations each provide plausible support for recognition of judicial supremacy as a constitutional norm.

The Constitutional Limits of Judicial Supremacy A recognition of the constitutional norm of judicial supremacy does not necessarily entail its acceptance in unqualified form. In particular, the character of a given judicial decision might alter the degree of deference it should be accorded, as Abraham Lincoln, for one, recognized.56 One might argue here that the president and Congress have an attenuated obligation to adhere to judicial decisions that themselves violate the Constitution as it constrains the judicial branch.57 This argument might suggest that the Supreme Court’s constitutional authority to interpret the Constitution with supremacy over the political branches extends only to decisions that actually remain within the constitutional authority of the Court–decisions, that is, that do not involve a form of violation by the Court of the constitutional limits on its power.58 This argument, in brief, flows from these three overlapping points. First, at a formal level, judicial authority under the Constitution may be best understood as unified form of authority, one where a particular aspect of the Court’s authority—the authority (i.e., supremacy) of the Court’s decisions over other institutions—cannot be severed and exercised independently from its general authority which is limited to the exercise of the federal judicial power. Thus the authority of judicial supremacy cannot extend to the Court’s decisions that exceed the constitutional limits of the judicial authority and (for example) exercise the substance of the federal or state legislative authority in violation of the Constitution. To elaborate further: Under the separation of powers, the Supreme Court may be viewed as the principal institutional interpreter of the Constitution, and thus the interpretive primacy or supremacy of the Court’s decisions may be seen as one facet of the federal judicial authority conferred on the Court by the structure of the Constitution. However, when the Court exceeds the judicial authority in contravention of constitutional structures such as the separation of powers and exercises the substance of the legislative authority—authority conferred by the Constitution on the U.S. Congress and the state legislatures— the Court, as a matter of constitutional structure, cannot claim supremacist judicial authority for its substantively legislative (and unconstitutional) action. Instead, on this view, the constitutional doctrine of judicial supremacy, as an aspect

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of judicial authority, extends only as far as the judicial authority itself, and no further. Decisions outside of the judicial authority thus cannot claim this aspect of the judicial authority, the force of constitutionally-mandated judicial supremacy.59 Second, at a substantive level, the principal structural-procedural justification for according supremacy to judicial decisions obtains when a judicial decision is properly restrained in nature, which is to say when a decision is substantively judicial and legalistic in character rather than legislative and political or politicized.60 Indeed, the major reason for according a “supremacist” deference to judicial decisions interpreting the Constitution—deference which is not accorded to legislative interpretations of the Constitution—is grounded in the basic structural-procedural features of judicial decisionmaking that distinguish such decision-making from legislative decision-making and support the view that judiciary is superior to the legislature as a forum for constitutional interpretation. In brief, these features are: the presumptively expert legal judgment of judges, a product of the traditional political norms governing the selection of federal judges;61 the refinement of that expert judgment by the judicial process of hearing an actual case or controversy with the clash of argument and counter-argument that such controversies provide;62 and, finally, the protection of that refined expert legal judgment from the potentially distorting effects of extra-legal political concerns by the political insulation of judges through appointment for a term of “good behavior.”63 This institutional context of judicial decision-making provides reasons for thinking that judicial resolution of constitutional questions is superior as a general matter to legislative resolutions, and thus this institutional context provides the ultimate policy foundation for the doctrine of judicial supremacy. When a decision is based upon these special features of judicial decision-making, it is entitled to deference or “supremacy.” However, when a judicial decision is not based on the legal expertise of judges as refined by the judicial process, but rather on their controversial political views; and when the political insulation of the judges is used not to protect their expert legal judgment from corrupting political pressures, but rather to shield their potentially controversial policy-making from popular disapproval; then the justifications for according deference to that decision—deference accorded to decisions considered mistaken by non-judicial actors—clearly no longer apply. In short, a substantively political and legislative decision by a court which manifests only the outward form of a judicial decision without its actual substance provides no substantive structural-procedural reasons for deference. Third, it is a truism in a legal system with a supreme constitution that an act of government which violates the constitution is legally invalid and therefore ultimately devoid of legal authority. For example, a constitution may create a

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legislature and confer upon it the general authority to legislate. The legislature’s resolution of issues by way of the passage of legislation is thus legally authoritative under the constitution, and laws so passed must be followed as authoritative within the constitutional system. However, legislation that violates the constitution is legally invalid and therefore does not share the legal authority of constitutional legislation. An appropriate response to the passage of unconstitutional legislation is public criticism of the legislation, a request that the legislature repeal the legislation, and an effort to replace the members of the legislature through the ordinary selection process (e.g., campaigns and elections) if the members do not repeal the legislation. Additionally, proposal of some form of constitutional amendment to clarify the unconstitutionality of the legislation is also appropriate when the issue is important enough to warrant an alteration of the constitutional text. These responses, however, may be insufficient to preserve the integrity of the constitutional system and establish the invalidity of unconstitutional legislation. Therefore, they may be accompanied by some set of procedures for the formal recognition of the legislation’s invalidity and lack of authority—thus “checking” or limiting such legislation. Since institutions often have systemic incentives to aggrandize their own power in violation of a constitution, a separate institution is needed to exercise this checking authority, such as a court exercising the power of judicial review to recognize formally the lack of authority of unconstitutional legislation and to declare such legislation invalid and without legal authority. Obviously, the U.S. constitutional system operates more or less along these lines. The same basic line of reasoning should hold true for the judiciary as it does for legislatures. Judicial decisions that violate the constitutional constraints on courts are legally invalid and thus do not share the legal authority of decisions that conform to those constitutional constraints, such as the authority of judicial supremacy. An appropriate, though insufficient, set of responses to an unconstitutional judicial decision is public criticism of the decision, a request that the court in question overrule the decision, an effort to replace the members of the court through the ordinary selection process (i.e., presidential nomination and Senate confirmation as vacancies arise) if the members do not overrule the decision. Proposal of a constitutional amendment to clarify the unconstitutionality of the decision will also be appropriate in some cases. However, the integrity of the constitutional system must be protected by a further response to unconstitutional judicial decisions, some form of recognition of their legal invalidity and lack of authority through a procedure for “checking” or limiting such judicial decisions. Given the incentives all institutions have to exceed their authority, this check needs to be sought in a non-judicial forum, such as the federal legislative or executive branches. Therefore the political branches should be understood as having a limited form of “departmentalist” authority

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under the Constitution to exercise some power to assert the unconstitutionality of a judicial decision and decline to extend to it the full legal recognition reserved for judicial decisions that do not violate the constitutional limits on the judicial branch.64 One such response is formal recognition by the political branches of the invalidity of the unconstitutional decision entailing a denial of its constitutionally-mandated authority as a “supreme” decision and potential non-compliance with the decision.65 Of course, disagreements over whether a legislative act or judicial decision violates the Constitution are to be expected, and authority doctrines such as judicial supremacy provide rules or standards for the authoritative resolution of such disputes. However, as noted, extending to the judicial branch full authority to determine the constitutional limits on its own authority is inconsistent with a recognition of the incentives institutions have to aggrandize their own power and the need for commensurate checks by other institutions with incentives to oppose such aggrandizement.66 No institution under the Constitution’s plan of checks and balances should be thought generally entrusted with the sole authority to determine whether it has violated the limits which the Constitution places on it and encroached on the authority of other institutions or actors—subject only to the common “checks” of self-correction, selection of new institutional personnel through the ordinary selection process, and the amendment process.67 Thus judicial decisions viewed by the political branches as violations of the constitutional limits constraining the courts should be subject to an additional range of checking activity extending beyond the ordinary political responses to judicial decisions that are merely mistaken about the Constitution but not violative of it as it constrains the judicial branch. In short, under our system of checks and balances, the political branches should be understood to have the limited “departmentalist” authority under the Constitution to recognize the legal invalidity of unconstitutional judicial decisions and to declare their lack of “supreme” authority or supremacy over the political branches, a recognition that could be followed legitimately by executive or legislative non-compliance with the invalid decision. Indeed, a form of this checking authority was recognized by even a very strong and early a proponent of judicial supremacy, Justice Joseph Story, who asserted, in his celebrated Commentaries on the Constitution of the United States, that the “legislative and executive authorities” can lawfully check a judicial “usurpation” of constitutional authority by “interpos[ing]” some form of “efficient barrier” as a remedial measure such as a “declaratory or prohibitory law.”68 The political recognition of the unconstitutionality of a judicial decision, as a practical matter, would not necessarily require the political branches to decline to accord the decision any degree of deference. For instance, in the con-

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text of judicial review, the judicial branch may have prudential reasons for the “under-enforcement” of constitutional norms on the legislature because of a recognition of the need to respect the legislative process and the democratic process which underlies it and to avoid potentially divisive conflicts with political actors over constitutional meaning.69 Similarly, the president and Congress may have sub-constitutional prudential or moral-political reasons for “under-enforcing” constitutional norms on the judicial branch and thus for according a judicial decision violative of the constitutional limits on the federal courts some form of sub-constitutional prudential or political deference on a general or case-by-case basis.70 This might be done, for instance, out of respect for the authority of the judiciary and the paramount role the judicial process plays in constitutional interpretation and enforcement.71 Or, in other words, in the interest of preserving the authority of the Court for its constitutional exercises of the judicial power, which are necessary to vindicate the Constitution against political institutions, a prudential or political degree of deference might be accorded some judicial decisions on sub-constitutional grounds even though the decisions cannot claim constitutionally-mandated supremacy. A degree of deference might also be accorded to the unconstitutional judicial decisions in some cases in the interest of minimizing conflict among the branches over the question of constitutional meaning.72 The decision by the political branches whether to check a decision vigorously by denying it deference or to “under-enforce” the Constitution on the judiciary by according the decision some substantial degree of prudential deference should entail a form of balancing of competing interests. In particular, the political branches should weigh the importance of defending the Constitution from the Court’s violation, on the one hand, against the concern that an assertive attempt to check the Court might damage the judiciary’s ability to protect the Constitution from political actors on other occasions and might generate an unjustifiable degree of political discord over the meaning of the Constitution.

Stare Decisis as a Constitutional Norm The doctrine of stare decisis has been both the orthodox theory and predominant practice in American constitutional law since the early days of the Republic.73 As noted, the Supreme Court apparently views the doctrine of stare decisis as a sub-constitutional judicial policy derived principally from the need to settle legal questions authoritatively in the interest of providing legal stability, continuity, and predictability.74 This chapter does not dispute the core of the doctrine of stare decisis, and it further endorses the view that stare decisis is part of the Constitution’s plan for the conferral of judicial interpretive authority over

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the Constitution—paralleling the constitutional status of the doctrine of judicial supremacy—rather than as a mere sub-constitutional prudential policy. However, this chapter will raise questions concerning the qualification of the application of the doctrine of stare decisis to judicial constitutional violations, a qualification which reflects the limits suggested above for the application of judicial supremacy to judicial constitutional violations. Each of these points deserves some elaboration. A detailed defense of stare decisis as a constitutional norm is beyond the scope of this chapter, but a few points are worth noting. First, the text of the Constitution is silent on the question of how to interpret the Constitution authoritatively as well as on the question of who is to interpret the Constitution authoritatively—and thus it is silent on the role of judicial precedent in constitutional interpretation just as it is silent on the question of judicial supremacy. Second, the original understanding of the norms of judicial decision-making is also inconclusive as to the precise role and status of precedent in constitutional interpretation, with uncertainties and divisions present on this question as there are with the question of institutional interpretive authority.75 If one turns from these authoritative interpretive methods of text and original meaning to structure, tradition, and policy analysis, one finds that each provides plausible support for the view that stare decisis is a constitutional norm.76 First, as Richard Fallon suggests, under the separation of powers, stare decisis can be seen as part of the traditional decision-making process of courts that distinguishes the judicial power from the legislative power and thus enables the judicial branch—in conjunction with the doctrine of judicial supremacy—to operationalize constitutional norms for judicial protection through the construction of stable bodies of constitutional doctrine.77 On this view, the core of the proper judicial role under the separation of powers in the realm of constitutional interpretation is the establishment of constitutional law by creating constitutional doctrines that reflect faithful interpretations of the Constitution through a precedent-oriented or common law method of resolving cases.78 Second, respect for stare decisis has been a feature of American constitutional practice since the early nineteenth century and such long-standing legal traditions are often viewed as constitutive of unenumerated constitutional norms.79 Third, the settlement policy advanced by stare decisis also supports the view the stare decisis is a mandate of the Constitution.80 In particular, it is hard to imagine the effective operation of contemporary constitutional practice without some substantial adherence to the bodies of precedent such practice creates.81 Thus constitutional structure, the traditional legal practices of the courts, and “settlement” policy considerations each provide plausible support for recognition of stare decisis as a constitutional norm.

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While judicial supremacy is a rule of absolute deference (at least where supremacy obtains), stare decisis has traditionally been understood as a rule of qualified deference.82 This distinction in deference is based in significant part on the availability of effective alternative methods for correcting mistaken judicial decisions. For instance, in the context of constitutional interpretation, if the political branches accord absolute supremacy to mistaken judicial decisions, the values associated with judicial supremacy are maximized and mistaken decisions may still be corrected through the not uncommon avenue of judicial reconsideration and overruling before recourse to the onerous supermajoritarian process of constitutional amendment becomes necessary. However, if the Court were to accord absolute deference to its past mistaken decisions about constitutional meaning, the values associated with stare decisis might be realized more fully, but such mistaken decisions could then be corrected only through the burdensome process of constitutional amendment.83 Therefore stare decisis remains—justifiably—a doctrine of qualified, rather than absolute, deference. Thus under the doctrine of stare decisis, the Supreme Court is not required to adhere absolutely to precedent, but rather to adhere to precedent unless special reasons beyond “mere” disagreement with the precedent are weighty enough to justify overruling the precedent. Among the special reasons identified by the Court as providing potential justifications for overruling precedent are the following: the “unworkability” of the decision; its doctrinal erosion by other cases; the absence of reasonable reliance on the decision; and changes in underlying factual situations that undermine the decision’s rationale.84 One or more such special reasons for overruling a mistaken precedent may ultimately overbalance the settlement policies that stare decisis embodies as it applies to a particular case or area of law and justify overruling a precedent or line of precedents. While a discussion and evaluation of each of these potential grounds for overruling a decision is beyond the scope of this chapter, it is worth noting that an additional special ground providing a potential justification for overruling a mistaken precedent could be a judicial decision’s imprudently activist erosion of basic political values properly seen as prudentially limiting the judicial power. Thus the fact that a mistaken precedent tends to undermine important political values—such as representative democracy or federalism—reflected in the constitutional design and entitled to a degree of respect from the federal courts above the minimum established by the Constitution might serve as a sufficient special justification for overruling a decision under the doctrine of stare decisis in at least some cases. Finally, the question of whether an activist judicial violation of the constitutional constraints on the judicial branch is entitled to any degree of constitutionally-mandated stare decisis is discussed immediately below.

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The Constitutional Limits of Stare Decisis A recognition of the constitutional norm of stare decisis does not necessarily entail its acceptance as an authority doctrine applying equally to all constitutional cases, and the justifications for qualifying the application of stare decisis arguably parallel those for qualifying the application of judicial supremacy. In particular, it might be argued here that less precedential weight should be accorded to judicial constitutional violations than to mere judicial mistakes about constitutional meaning that are consistent, for example, with the structural and Rule of Law constitutional constraints on the Court.85 The Supreme Court itself has suggested that judicial decisions which unconstitutionally usurp authority that the Constitution confers on other institutions of government are subject to limited precedential respect, observing in Erie86 that the doctrine of Swift v. Tyson87 was “an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.”88 This argument closely parallels that outlined above in the context of the constitutional limits of judicial supremacy and rests on three overlapping arguments concerning: the formal conception of judicial authority, the substantive reasons for deference to past decisions, and the lack of authority of unconstitutional acts of government. First, as suggested above in the context of judicial supremacy, the judicial authority within the constitutional design may be best conceived of as an unseverable set of judicial powers. Under the Constitution’s tripartite federal structure, the Supreme Court may be seen as the principal institution for implementing the norms of the Constitution through its judicial decisions.89 The proper judicial role within this constitutional design may be thought to incorporate a common law aspect of judicial decisionmaking–one which requires substantial respect for precedent–as a necessary predicate for effective implementation of constitutional norms through the creation of constitutional doctrine.90 Thus one aspect of the authority of the Court’s decisions conferred by the structure of the Constitution may be a constitutionally-mandated degree of stare decisis or precedential weight.91 Still, in those cases in which the Court exceeds the judicial authority in violation of the Constitution and exercises the substance of the federal or state legislative authority, the Court’s decision, as a matter of constitutional structure, cannot claim stare decisis as an aspect of judicial authority for its “unauthorized” exercise of legislative authority. In sum, the judicial authority doctrine of stare decisis extends only as far as the judicial authority itself extends under the Constitution and not further than that authority into the substance of the legislative authority. Judicial decisions extending beyond the constitutional authority of the judiciary thus cannot claim the force of constitutionally-mandated stare decisis as a dimension of the judicial authority.

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Second, the main structural-procedural justifications for why judicial decisions are accorded precedential weight under the doctrine of stare decisis obtain only when the judicial decision is properly restrained, which is to say when the decision is appropriately an exercise of the judicial power rather than an exercise of legislative power in the mere form of a judicial decision.92 Indeed, a major policy justification for the deference accorded to judicial decisions as precedents is grounded in the special structural-procedural features of judicial decision-making which enable the Court to operationalize provisions of the Constitution by establishing bodies of stable precedent that reflect reasonable judicial specifications and applications of actual constitutional norms–thus effectively ensuring that the rights and structures of the Constitution are respected through judicial resolution of cases and controversies.93 As suggested above, these special structural-procedural features are the presumptive legal expertise of judges as refined by the judicial process of resolving an actual case or controversy and as protected from ordinary political pressures by judicial service for a term of “good behavior.” When judicial decisions display these structural-procedural features, the Court’s decisions can construct stable lines of precedent reflecting reasonably legally-grounded judicial specifications of constitutional norms–thus giving practical effect to the Constitution in a substantively faithful and effective fashion. However, when the substance of a judicial decision reflects the controversial political views of the judges rather than their reasonably apolitical and expert application of the law, the justifications for according deference to that decision as a precedent no longer apply. Such decisions are not in substance reasonable judicial specifications of constitutional norms properly grounded in legal materials but rather mere judicial legislation. Because such decisions are legislative in their actual substance they should be entitled, substantively, to no more constitutionally-mandated degree of respect as precedents than the decisions of a legislature interpreting the Constitution. Such legislative interpretations, obviously, are not entitled to a constitutionally-mandated weight as a matter of stare decisis, though they may be properly entitled to a rebuttable presumption of constitutionality for other reasons (e.g., respect for a coordinate branch of government and the assumption that members of Congress take seriously their oath to uphold the Constitution). In short, then, while properly restrained judicial decisions reflecting legally-grounded applications of constitutional norms provide substantive reasons for future courts to respect them as precedents (i.e., the need to operationalize the Constitution through the common law method of creating concrete legal doctrines faithful to the values of the Constitution), substantively legislative decisions by a court which manifest only the outward form of judicial decisions provide no such reasons for deference. Third, an act of government which violates the Constitution is invalid and therefore ultimately devoid of authority. For example, when a constitution

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confers on a legislative body the general authority to legislate, the body’s resolution of issues via passage of legislation is authoritative and laws passed by the legislature must be followed as authoritative until repealed. However, as suggested earlier, legislation that violates the Constitution is legally invalid and therefore does not share the legal authority of constitutional legislation. The appropriate intra-institutional response to such legislation is its repeal by the legislature once the unconstitutionality of the legislation is recognized. The same line of reasoning should hold true for the judiciary as it does for legislatures. Judicial decisions that violate the constitutional constraints on courts are invalid and thus do not share the legal authority (including precedential authority) of decisions that conform to those constitutional constraints. An appropriate intra-institutional response to such decisions is their overruling once the unconstitutionality of the decision is recognized by a later court. Even so, the fact that a decision is not entitled to constitutionally-mandated stare decisis because it violates the constitutional limits on the judicial branch does not resolve the question of whether such a decision is entitled to any degree of sub-constitutional prudential deference in the interest of promoting legal stability and judicial integrity. In other words, the Court might accord prudential (or political or policy) precedential weight to judicial constitutional violations in the interest of promoting legal continuity, predictability, stability, and the institutional integrity of the courts.94 The issue here parallels the analysis suggested in the context of judicial supremacy: Just as the political branches may accord sub-constitutional prudential deference to the unconstitutional decisions of the Court in some instances in the interests of promoting the overall stability and integrity of the constitutional system, a present Court may accord sub-constitutional prudential deference to the unconstitutional decisions of a past Court in some instances to serve those same ends.95 In short, in some cases an unconstitutional decision may be so deeply entrenched in the traditions of the legal system that a prudent respect for legal stability, if nothing else, will justify adherence to the decision despite its unconstitutionality. Still, as will be discussed below, there are likely good reasons for extending only a limited degree of sub-constitutional precedential weight to judicial constitutional violations.96 Such decisions, then, should be overruled or—when accorded a degree of prudential deference—generally read narrowly rather than broadly, limited or isolated doctrinally, and perhaps incrementally eroded and eventually overruled after a substantial period of time and through a number of cases.97 This argument for limited prudential stare decisis, stated briefly, might take this form:98 First, the Supreme Court is the supreme institutional expositor of the Constitution and is subject to only a very limited array of checks when it

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violates the Constitution. Notably, when the Court’s decisions conflict with the Constitution there is no appeal to the authority of “super”-Supreme Court99 to remedy the violation, placing the Court in an institutional position unique within the constitutional system: as the ultimate institutional interpreter its own decisions remain formally unreviewed and unreviewable by any other institution.100 As suggested above, even if the political branches (re)assert some form of constitutional authority to check the constitutional violations of the Court, the exercise of this authority would be tend to be politically controversial and necessarily constrained by the need to preserve judicial authority and minimize institutional conflict. Thus the Court’s institutional position on questions of constitutional interpretation is uniquely authoritative, and with this unique authority comes heightened responsibilities, one of which is the special obligation of the Court to police with extreme care the constitutional limits on its own powers. Part of this special obligation is the Court’s duty to give substantial weight to the need to observe the constitutional constraints of the judicial authority when considering the question of adherence to unconstitutional precedents under a merely sub-constitutional degree of deference or stare decisis in the interests of promoting legal stability and institutional integrity.101 Therefore, as a general matter, the Court should not adhere to an unconstitutional precedent unless the sub-constitutional stare decisis policy concern is pressing and then should adhere to the precedent only to the minimum degree necessary to serve the policy interest. Second, the threat to the integrity of the judicial branch presented by the Court’s mere overruling of its own precedent is minimal compared to the threat posed by non-compliance with a decision by the political branches. This is so because the Court itself views supremacy as an absolute command of the Constitution and justifiably views stare decisis as a mere requirement of qualified deference. Thus the Court’s overruling of its own precedents involves no necessary challenge to the Court’s conception of its own interpretive authority or its primacy in constitutional interpretation, but rather reflects the Court’s view that precedents are subject to overruling in certain circumstances. Therefore, as a general matter, the overruling of a precedent does not present the same danger of erosion of the authority of the judiciary as does non-compliance with a judicial decision by the political branches. It is true, however, that the overruling of precedents with a high level of frequency can threaten the institutional integrity of the Court in at least two related ways. Such overruling has the potential to create a perception that the Court is unprincipled in constitutional interpretation and that the judicial branch simply responds to personnel changes on the bench and to varying political currents and pressures in much the same way as if it were an ordinary political institution.102 Moreover, frequent overruling also has the potential to

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undermine the ability of the Court to give practical effect to the Constitution through the construction of stable bodies of doctrine reflecting reasonable specifications and applications of constitutional norms.103 These are, of course, real concerns. Still, the policy of promotion of the institutional integrity of the courts also justifies and may indeed require overruling unconstitutional precedents even as it counsels against too great a frequency of overruling as a general matter. This is so for several reasons. First, judicial adherence to unconstitutional precedents can seriously damage the institutional integrity of the Court, as the Court may in such cases appear to put its own institutional self-interest above respect for both the Constitution and the constitutional authority of other institutions under the constitutional design.104 Second, overruling an unconstitutional precedent might tend to reduce institutional conflict with the political institutions and actors who object to the unconstitutional decision, and thus such overruling can minimize political resistance to the Court and foster its institutional authority. Third, judicial adherence to an unconstitutional precedent obviously frustrates rather than furthers judicial implementation of the Constitution, since the precedent in question violates rather than specifies or applies constitutional norms. Fourth, the overruling of unconstitutional precedents does not necessarily entail frequent overruling. If the Court over time displays a reasonable respect for the constitutional limits on its own authority, as one hopes it will, then the overall number of unconstitutional precedents will be small and the overruling of such precedents will be an infrequent occurrence. Thus a Court that generally respects the constitutional constraints on the judicial branch can actually advance judicial authority by overruling its occasional unconstitutional decisions. A decision to overrule, then, may promote rather than threaten the authority of the Court depending on the reasons for and frequency of overruling. In short, prudential concerns about the institutional integrity of the Court are present only in a very attenuated form in the context of stare decisis. What these lines of argument ultimately suggest is that the Supreme Court should start with a fairly strong presumption in favor of overruling a precedent which exceeds the Court’s authority in violation of the constitutional constraints on the judicial branch, a strong presumption which can be overcome only by an equally strong justification for adherence to the precedent such as a compelling need to avoid or minimize change in a particular area of law. Even then, the Court should move to narrow the unconstitutional decision, cabin its doctrinal force, and perhaps place it on a path of eventual overruling if this can be done without causing serious undue legal instability. In brief, no mere “lapse of time” or “respectable array of opinion” should cause the Court to adhere to “an unconstitutional assumption of power[ ]” by the

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federal judiciary.105 Notably, this line of thought clearly distinguishes prudential stare decisis from the prudential “supremacy” or deference the political branches may accord an unconstitutional judicial decision, suggesting that prudential stare decisis may be justifiable much less often than the prudential accordance of “supremacy” to judicial constitutional violations by the political branches.

Balancing Judicial Authority Against Protecting the Constitution from the Court The topics this chapter engages are highly controversial: Whether the proper judicial role is one of activism or restraint? Whether activist decisions erode basic values associated with the Constitution and even violate the Constitution in some significant number of cases? Whether judicial supremacy is a constitution norm? Whether stare decisis is a constitutional norm? Whether the authority of judicial supremacy or stare decisis, either as constitutional norms or sub-constitutional prudential norms, applies with ordinary force to decisions that not only misinterpret the Constitution but actually violate it as it constrains the federal judiciary? No doubt reasonable persons will differ on these questions, and debates about these fundamentals of the judicial power will likely continue as long as the constitutional system that gives rise to these questions exists. The principal aim of this chapter is to contribute to these debates by establishing that the approach outlined here is a reasonable understanding of the interaction of several dimensions of the judicial power. Further, the overarching policy basis of this “holistic” view of the judicial power provides at least one potential reason for preferring this reasonable understanding of the proper scope of the judicial power to other reasonable alternatives. This policy basis is found in the attempt to balance the value of judicial enforcement of the Constitution against the costs of judicial overreaching in violation of the Constitution, overreaching which can only be minimized through an effective array of political checks on the judiciary. In particular, then, the understanding of the judicial power outlined here attempts to justify a more assertive response from political actors and later Courts to the Supreme Court’s most problematic and controversial decisions while preserving the Supreme Court’s paramount role as interpreter of the Constitution for its much more numerous and less controversial decisions. This chapter, then, seeks then to defend the predicate for deployment of a set of “proportionate” responses to judicial impropriety, a set of responses which recognizes that the Court sometimes overreaches in violation of the Constitution but which does not, on that account, reject the authority of the Court’s proper decisions.

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In sum, the position defended here is essentially a middle-ground position. It recognizes that political actors sometimes violate the Constitution and that courts can act to protect the Constitution from political actors. It also recognizes that courts sometimes violate the Constitution and that political actors such as the president and Congress can protect the Constitution from the courts. It recognizes that the constitutional design reserves a uniquely authoritative role for the Supreme Court in constitutional interpretation but also that that special role is not without dangers or limits. More specifically, it recognizes the good of judicial authority in constitutional interpretation, while recognizing that not every judicial decision is good or authoritative.

Conclusion This chapter has addressed a range of issues concerning the interactions of judicial interpretive methods, judicial interpretive authority, and judicial constitutional violations in order to develop a holistic understanding of the judicial power, an understanding which both harmonizes the analysis of these three issues of judicial power and attempts to balance the advantages and disadvantages of authoritative judicial review of constitutional questions. This chapter has suggested that many activist judicial decisions are judicial constitutional violations (i.e., judicial violations of constitutional norms that limit the judicial power such as the separation of powers, federalism, and representative democracy) and that judicial violations of the constitutional constraints on the federal courts are entitled to only attenuated interpretive authority as a matter of judicial supremacy and stare decisis. In short, decisions that stay within the constitutional bounds of the judicial power are entitled to constitutionally-mandated supremacy and precedential weight; decisions that exceed the constitutional bounds of the judicial power are not entitled to such constitutionally-mandated authority, though there might be prudential reasons in at least some cases for according them a degree of deference which might be thought of as a subconstitutional and prudential form of judicial “supremacy” or stare decisis. The ultimate advantage of the view of the judicial power presented here is its recognition of the proper balance between the value of judicial authority doctrines (i.e., judicial supremacy and stare decisis) and the value of limiting the authority of judicial decisions that violate the Constitution. This is, of course, a balance that must be struck in order to protect the rights and structures of the Constitution from all the institutions of government that threaten them: political—and judicial.

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Notes 1. Griswold v. Connecticut, 381 U.S. 479, 521 (1965) (Black, J., dissenting) (emphasis added). 2. John Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford, 1980) at 233–34. 3. Ibid. at 231–33. 4. Ibid at 232. 5. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 6. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 400–01 (1819). 7. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). See also Walton v. Arizona, 497 U.S. 639, 673 (1990) (Scalia, J., concurring in part and concurring in the judgment) (observing that “[t]he doctrine [of stare decisis] exists for the purpose of introducing certainty and stability into the law and protecting the expectations of individuals and institutions that have acted in reliance on existing rules.”). 8. For instance, Larry Alexander and Frederick Schauer have defended judicial supremacy via the “settlement” thesis, contending that constitutional issues must be resolved by a single authoritative institution in order to settle constitutional issues and minimize the dangers of institutional conflict over constitutional meaning. And they have also recognized the “settlement” thesis parallels between judicial supremacy and stare decisis. See Larry Alexander & Frederick Schauer, “On Extrajudicial Constitutional Interpretation,” 110 Harvard Law Review 1359 (1997); Larry Alexander & Frederick Schauer, “Defending Judicial Supremacy: A Reply,” 17 Constitutional Commentary 455 (2000). 9. In discussing Dred Scot in 1857, Lincoln observed: If this important decision [Dred Scott] had been made by the unanimous concurrence of the judges, and without any apparent partisan bias and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts, which are not really true or, if wanting in some of these, had been affirmed and reaffirmed, it might be factious, even revolutionary, to not acquiesce in it. But when we find it wanting in all these claims to public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country. Abraham Lincoln, Response to Douglas in Representatives’ Hall in the Illinois State House (June 26, 1857), in The Living Lincoln: The Man, His Mind, His Times, and the War He Fought, Reconstructed from His Own Writings (Paul M. Angle & Earl Schenck Miers eds., 1955), p. 201. Lincoln, however, recognized that the Supreme Court’s “decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself.” See ibid. For a thoughtful exposition of Lincoln’s position on Dred Scott and on the limits of judicial authority, see Christopher Wolfe, The Rise of Modern Judicial Review (Rowman and Littlefield, 1994) pp. 113–116.

10. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (asserting that “federal judiciary is supreme in the exposition of the law of the Constitution” ); United States v. Morrison,

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529 U.S. 598, n. 7 (2000) (asserting that “[n]o doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text.”). 11. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (stating that “[s]tare decisis is not an inexorable command”). 12. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854–864 (1992). It is notable that Chief Justice Rehnquist in his Casey dissent maintained that the Court misapplied its stare decisis analysis in Casey and thereby wrongly reaffirmed the “central holding” of Roe v. Wade. See ibid. at 953–966 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). 13. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 401 (1819) (stating that “[o]n the Supreme Court of the United States has the constitution [sic] of our country devolved this important duty” of deciding constitutional questions); United States v. Nixon, 418 U.S. 683 (asserting that “[n]otwithstanding the deference each branch must accord the others, the ‘‘Judicial Power of the United States’ vested in the federal courts by Art. III, s 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto” and that “[a]ny other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government”). 14. See, e.g., Agostini v. Felton, 521 U.S. 203, 235 (1997) (stating that stare decisis “reflects a policy judgment” that favors legal stability over accuracy of interpretation in at least some significant set of cases). 15. Jack Wade Nowlin, “Constitutional Violations by the United States Supreme Court: Analytical Foundations,” 2005 The University of Illinois Law Review 1123 (2005). 16. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 194 (1986) (observing that “[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judgemade constitutional law having little or no cognizable roots in the language or design of the Constitution”) (emphasis added). 17. See, e.g., Roe v. Wade, 410 U.S. 113, 222 (1973) (White, J., dissenting) (observing from a judicial restraint perspective that the Court’s decision in Roe “is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”) (emphases added). 18. See, e.g., Roper v. Simmons, 543 U.S. 551, 615 (2005) (Scalia, J, dissenting) (observing that the Court’s invalidation of the death penalty as applied to minors is a “usurpation of the role of moral arbiter” of the imposition of the death penalty); City of Chicago v. Morales, 527 U.S. 41, 85 (1998) (Scalia, J., dissenting) (observing that “[t]he entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called ‘substantive due process’) is in my view judicial usurpation”). 19. See Nowlin, supra note 15. 20. See, e.g., U.S. CONST. ART III CL 1 (“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and

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treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party;—to controversies between two or more states;-between a state and citizens of another state;—between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”); U.S. CONST. ART III CL 2 (“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (invalidating a provision of the Judiciary Act of 1789 purporting to confer original jurisdiction on the U.S. Supreme Court to issue writs of mandamus); United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812) (rejecting the view that federal courts have an implied power to create federal criminal common law); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (rejecting the view that federal courts have an implied power to create federal civil common law in diversity cases); U.S. CONST. AMD. XI (“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”); Hans v. Louisiana, 134 U.S. 1 (1890) (extending sovereign immunity associated with the Eleventh Amendment to suits between a state and a citizen of the state); Alden v. Maine,527 U.S. 706 (1999) (extending sovereign immunity as part of the federal structure of the Constitution to suits against unconsenting states by private citizens in state court); Allen v. Wright, 468 U.S. 737 (1984)(observing that Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies’” and that the “case-or-controversy doctrines” of standing, mootness, and ripenes “state fundamental [constitutional] limits on federal judicial power in our system of government”). 21. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 203 (1970) (Harlan, J., concurring in part and dissenting in part) (observing that “[w]hen the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect”). A number of scholars have recognized that debates between proponents of judicial activism and restraint may in fact be debates about the constitutional structure and the constitutional scope of the judicial power. For instance, Robert P. George contends that interpretive debates between originalists such as Robert Bork and proponents of expansive judicial power such as Ronald Dworkin are in fact best conceived of as debates about constitutional design and judicial power as determined by the positive law of the U.S. Constitution. Robert P. George, “Natural Law and Positive Law,” in The Autonomy of Law: Essays on Legal Positivism (Oxford University Press, Robert P. George, ed., 1996). George also contends that the positive law of the U.S. Constitution does not grant the U.S. Supreme Court the broad power to invalidate legislation on principally moral or “natural law” grounds which theorists such as Ronald Dworkin advocate. George thus contends that expansive decisions such as Dred Scott,

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Lochner, Griswold, and Roe, given their lack of support in legal materials, are violations of the positive law of the Constitution by the Court. See Robert P. George, “Natural Law and the Constitution Revisited,” 70 Fordham Law Review 243, 274 (2001). See also George W. Carey, In Defense of the Constitution, 132–138 (Liberty Fund, revised and expanded ed., 1995) (drawing on Federalist No. 78 to argue that the judicial exercise of an activist legislative “will” rather than restrained judicial “judgment” is violative of the republican structures of the Constitution and is therefore an unconstitutional judicial action); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 273–274 (Liberty Fund, 2nd ed., 1997) (asserting that the judicial creation of substantive unenumerated rights “violate[s] the injunction of the separation of powers” and “encroache[s] on the sovereignty reserved to the States by the Tenth Amendment”). 22. See Jack Wade Nowlin, “The Constitutional Illegitimacy of Expansive Judicial Power: A Populist Structural Interpretive Analysis,” 89 The Kentucky Law Journal 387 (2000–2001). For an argument in favor of a “declaratory” amendment to the Constitution to clarify the unconstitutionality of judicial activism, see Jack Wade Nowlin, “The Judicial Restraint Amendment: Populist Constitutional Reform in the Spirit of the Bill of Rights,” 78 The Notre Dame Law Review 171 (2002). 23. See Richard H. Fallon, “ ‘The Rule of Law’ as a Concept in Constitutional Discourse,” 97 The Columbia Law Review 1, 3 (1997)(observing that “[w]ithin perhaps the most familiar understanding of this distinction, the law—and its meaning—must be fixed and publicly known in advance of application, so that those applying the law, as much as those to whom it is applied, can be bound by it. If courts (or the officials of any other institution) could make law in the guise of applying it, we would have the very ‘rule of men’ with which the Rule of Law is supposed to contrast”). 24. See Jack Wade Nowlin, “Conceptualizing the Dangers of the Least Dangerous Branch: A Typology of Judicial Constitutional Violation,” The Connecticut Law Review 39 (2007): 1211. 25. See Fallon, supra note 23. As H.L.A. Hart observed, from the perspective of an English lawyer, the fact that political issues many legal systems regard as policy questions for resolution by elected legislatures are “decided in American law courts by [activist] judges does not mean that they are not there decided politically” by courts which thereby risk politicization. H.L.A. Hart, “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream,” in Essays in Jurisprudence and Philosophy (Oxford University Press, 1983)(emphasis added). On this point, for instance, one could note Justice Kennedy’s objection in Boerne to a “congressional power,” necessarily in the hands of “shifting legislative majorities,” to change the Constitution through the use of the congressional enforcement power under Section Five of the Fourteenth Amendment, a point which could easily be reformulated to as an objection to judicially-imposed living constitutionalism: “Under this [living constitutionalist and judicial activist] approach, it is difficult to conceive of a principle that would limit [judicial] power” and thus “[s]hifting [judicial] majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.” See City of Boerne v. Flores, 521 U.S. 507, 529 (1997). Cf. Thomas Jefferson, Letter to Judge Spencer Roane (1819) (observing that the Constitution [in the hands of an unchecked judiciary] is a mere thing of wax . . . , which they may twist and shape

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into any form they please”). XV Thomas Jefferson, Writings of Thomas Jefferson 213 (Albert E. Bergh ed., 1903). 26. For an argument that the structures of the Constitution mandate some form of judicial restraint, see Nowlin, Constitutional Illegitimacy, supra note 22. 27. Nowlin, Constitutional Violations, supra note 5. 28. Ibid. 29. These tests or standards include the “totality of the circumstances” test used to determine probable cause under the Fourth Amendment and the “intermediate scrutiny” test used to determine the constitutionality of gender classifications. See Illinois v. Gates, 462 U.S. 213 (1983) (totality of the circumstances and probable cause); Craig v. Boren, 429 U.S. 190 (1976) (intermediate scrutiny and gender classifications). 30. For instance, this chapter suggests at the end of this section that there is a class of decisions falling in between restrained judicial decisions and unconstitutionally activist judicial decisions, a class of decisions which are activist only to an unwise or imprudent–but not unconstitutional–degree. 31. See Griswold v. Connecticut, 381 U.S. 479 (1965) (Black, J., dissenting); Carey, supra note 21; Nowlin, Constitutional Illegitimacy, supra note 22. 32. Nowlin, Constitutional Illegitimacy, supra note 22. 33. Cf. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997). Scalia observes that “[i]t certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change–to embed certain rights in such a manner that future generations cannot readily take them away.” Ibid. at 40. 34. See supra note 13. 35. Nowlin, supra note 24. 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. 40. Ibid. 41. Ibid. 42. Cf. Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice 84–128 (Yale, 2004) (endorsing an “under-enforcement” thesis contending that the Court rightly under-enforces constitutional norms in some cases out of respect for the role of other institutions, such as democratically-elected legislatures). 43. Warth v. Seldin, 422 U.S. 490, 498 (1975)(observing that “[i]n essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. In both dimensions it is founded in concern about the proper–and properly limited–role of the courts in a democratic society.”) (emphasis added) (citations omitted). 44. Ibid. 45. Roe v. Wade, 410 U.S. 113, 222 (1973)(White, J., dissenting) (observing from a judicial restraint perspective that “[a]s an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident

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and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”) (emphases added). Significantly, Justice Black’s Griswold dissent strongly suggests that he would–quite rightly–have viewed Roe v. Wade as a core example of a judicial constitutional violation. 46. Nowlin, supra note 24. 47. See, e.g., Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004) (observing that “after Cooper v. Aaron [in 1958], the idea of judicial supremacy seemed gradually . . . to find wide public acceptance” and by “sometime in the 1960s, [] incidents of noncompliance evolved into forms of protest rather than claims of interpretive superiority”). Robert Burt places the acceptance of judicial supremacy much earlier. See Robert A. Burt, The Constitution in Conflict 4–5, 253 (Belknap Press, 1992)(placing the general acceptance of a recognizable form of judicial supremacy in constitutional interpretation in the late nineteenth century). 48. See supra note 5 and accompanying text. 49. See supra note 6 and accompanying text. 50. The language of Article III extending the jurisdiction of the Court to all cases “arising under the Constitution” is obviously compatible with judicial supremacy as well as with departmentalism and legislative supremacy. 51. See Burt, supra note 47. 52. See supra note 5 and accompanying text. 53. United States v. Morrison, 529 U.S. 598, note 7 (2000)(asserting that “[n]o doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text.”). 54. See supra note 47; Larry D. Kramer, “We the Court, Foreword to The Supreme Court, 2000 Term,” 115 Harvard Law Review 4, 6–7 (observing that “[i]t seems fair to say that, as a descriptive matter, judges, lawyers, politicians, and the general public today accept the principle of judicial supremacy—indeed, they assume it as a matter of course”). 55. See supra note 6 and accompanying text; Alexander & Schauer, supra note 8. 56. Lincoln believed that the deference the political branches should accord a judicial decision varies with the character of the decision, and he argued that Dred Scott, given its serious failings as an interpretation of the Constitution, did not establish a “settled” precedent binding on the political branches. See, Lincoln, supra note 9 at 201(observing that “[j]udicial decisions are of greater or less authority as precedents, according to circumstances” and “[t]hat this should be so, accords both with common sense, and the customary understanding of the legal profession”). 57. See, e.g., Carey, supra note 21, at 135 (contending that when the Court exercises “will” instead of “judgement” in violation of the Constitution, the “obligation to respect or obey its power of judicial review is severed, and the other branches of government, principally Congress, are entitled, nay obliged, to use the constitutional means at their disposal to curb, regulate, and control the Court. . . .”)(italics in original). 58. Cf. ibid. 59. For a brief discussion of this point, see Nowlin supra note 24.

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60. This structural-procedural point, most fundamentally, reflects the essence of Lincoln’s criticism of Dred Scott as a judicial decision unworthy of respect from the political branches because of its plainly politicized character and its radical infirmities as an exercise in constitutional interpretation: Its “apparent partisan bias,” its failure to conform to “legal public expectation,” its break with “the steady practice of the departments throughout our history,” and its basis in “assumed historical facts, which are not really true.” See supra note 9. The view that the interpretive authority of politicized decisions is attenuated as a matter of judicial supremacy is also an obvious corollary to the common view among proponents of judicial restraint that judicial supremacy can be justified only by a legalistic and judicial–rather than a political or politicized–conception of constitutional interpretation. For an expression of the common view linking judicial supremacy and a form of judicial restraint, see Justice Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 854 (1989). As Justice Scalia writes: The principal theoretical defect of nonoriginalism, in my view, is its incompatibility with the very principle that legitimizes judicial review of constitutionality. Nothing in the text of the Constitution confers upon the courts the power to inquire into, rather than passively assume, the constitutionality of federal statutes. That power is, however, reasonably implicit because, as Marshall said in Marbury v. Madison, (1) “[i]t is emphatically the province and duty of the judicial department to say what the law is,” (2) “[i]f two laws conflict with each other, the courts must decide on the operation of each,” and (3) “the constitution is to be considered, in court, as a paramount law.” Central to that analysis, it seems to me, is the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of ‘law’ that is the business of the courts—an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. If the Constitution were not that sort of a ‘law,’ ” but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature? One simply cannot say, regarding that sort of novel enactment, that “[i]t is emphatically the province and duty of the judicial department” to determine its content. Quite to the contrary, the legislature would seem a much more appropriate expositor of social values, and its determination that a statute is compatible with the Constitution should, as in England, prevail. Ibid. (footnotes omitted).

61. See, e.g., Henry J. Abraham, The Judiciary: The Supreme Court in Governmental Process (New York University Press, Tenth Edition, 1996), pp.63–69; Alexander Hamilton, Federalist No. 78 (observing that “there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge”). 62. See, e.g., Flast v. Cohen, 392 U.S. 83, 95 (1968) (observing that the case or controversy requirement of Article III “limit[s] the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process”). 63. See, e.g., Alexander Hamilton, Federalist No. 78 (observing that “[t]he standard of good behavior for the continuance in office of the judicial magistracy, is certainly

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one of the most valuable of the modern improvements in the practice of government” and “it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws”). 64. Cf. Joseph Story, 1 Commentaries on the Constitution of the United States Sec. 373 (endorsing judicial supremacy but also observing that “if [a] usurpation should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases [i.e, usurpations not involving corrupt motives] the legislative and executive authorities could interpose an efficient barrier” such as a “declaratory or prohibitory law [which] would, in many cases, be a complete remedy”); Michael Stokes Paulsen, “The Most Dangerous Branch: Executive Power to Say What the Law Is,” 83 Georgetown Law Journal 217 (1994) (endorsing the co-equal departmentalist authority of all three branches to interpret the Constitution and defending the authority of the president within the sphere of presidential power to interpret the Constitution independently of the other branches and to review the constitutionality of their actions). 65. As suggested, this qualification to judicial supremacy endorses what can be understood as a limited form of departmentalism: The departmentalist authority of the political branches to determine whether a judicial decision violates the constitutional constraints on the federal judiciary and the departmentalist authority to check judicial constitutional violations through methods beyond those typically used to encourage the Court to correct its mistakes, methods such as non-compliance with the decision. Cf. supra note 64. 66. See James Madison, Federalist No. 51 (observing that the “great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others”); Story, supra note 64. 67. As Michael Paulsen has recognized, one can easily reformulate Marbury v. Madison or Hamilton’s Federalist No. 78 to defend the departmentalist authority of the political branches to check the Supreme Court when its decisions do not conform to the Constitution. See Paulsen, supra note 64, at 244–252. Consider here the Hamilton’s Federalist No 78, with its celebrated defense of judicial review, altered to apply to the question of whether judicial constitutional violations rather than legislative violations are binding on the other branches: There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No [judicial] act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the [judicial officers] of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the [judicial body] are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be

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supposed, that the Constitution could intend to enable the [judicial officers] of the people to substitute their will to that of [the people]. It is far more rational to suppose, that the [political branches] were designed to be an intermediate body between the people and the [courts], in order, among other things, to keep the latter within the limits assigned to their authority.

Alexander Hamilton, Federalist No. 78 (emphasis in original). 68. See Story, supra note 64, at Sec. 373; See also Story, supra note 64, at Sec. 379 (“And if the judicial department alone should attempt any usurpation, congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision”). 69. On the question of judicial “under-enforcement” of the Constitution driven by the judiciary’s recognition of institutional concerns relating to the responsibilities of popular political institutions, see Sager, supra note 42. 70. Cf. Paulsen, supra note 64, at 331–343 (suggesting that the departmentalist authority of executive review should be exercised with “executive restraint,” demonstrating respect for traditional legal materials and a degree of deference to and accommodation of the views of the other branches of government). 71. This point is also supported by traditional natural law theory, which recognizes in some circumstances a limited form of moral obligation to accord some degree of compliance to an unjust legal obligation in order to maintain the integrity of the just parts of the legal system and avoid calling the law as a whole into question. While the question is slightly different here—Should the political branches accord an unconstitutional judicial decision some degree of deference in order to preserve the Court’s authority for its constitutional exercises of the judicial power and/or to avoid potentially destructive institutional conflict over constitutional meaning?—the parallels are obvious enough. Both involve the question of when an actor should accord a unjust/unconstitutional law or judicial decision some degree of deference or compliance in the interest of protecting the broader integrity of the legal system. On the question of limited compliance with unjust laws in the interest of preserving the overall integrity of a just legal system, see Finnis supra note 2, at 361. 72. Cf. Paulsen, supra note 64, at 332–337. 73. See, e.g., Richard H. Fallon, Jr., “Stare Decisis and the Constitution: An Essay on Constitutional Methodology,” 76 New York University Law Review 570, 580 (2001) (stating that “[a]lthough stare decisis was initially a common law doctrine, its extension into constitutional law finds support in early constitutional history” and traces back “at least to the early nineteenth century”). 74. See supra note 7. 75. See, e.g., Thomas Healy, “Stare Decisis as a Constitutional Requirement,” 104 West Virginia Law Review 43, 120 (2001) (stating that stare decisis “was not finally accepted in England until the late eighteenth century and was widely disregarded by judges in this country until the beginning of the nineteenth” and “[i]t is therefore doubtful that the founding generation would have viewed stare decisis as an inherent limit on judicial power”); Hamilton, supra note 55 (observing that “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents”); Anastasoff v. United States, 223 F.3d 898 (8th Cir.),

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vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000) (asserting that “[t]he Framers of the Constitution considered [the doctrine of precedent or stare decisis] to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution”). 76. For a brief argument that text, history, and structure support the constitutional status of stare decisis, see Fallon, supra note 73. 77. Cf. ibid. at pp. 580 (asserting that “the location in the judicial branch of a power to invest precedents with binding authority also accords with the structure of the Constitution” as a “core power[ ]” of the judiciary). For a discussion of the Court’s role in implementing the Constitution through the creation of legal doctrine, see Richard H. Fallon, Jr., Implementing the Constitution (Harvard University Press, 2001). 78. See Fallon, supra note 77 (discussing judicial implementation of the Constitution). 79. See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (interpreting the Due Process Clause to protect norms that are “the very essence of a scheme of ordered liberty” and “principle[s] of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental”) (internal citations and quotations omitted); Fallon, supra note 58 at 582 (asserting that “ the relative entrenchment of stare decisis in constitutional practice counts as an argument supporting its constitutionally authorized status and, by entailment, the legitimacy of judicial decisions that could not be justified in the absence of stare decisis”). 80. See supra notes 7 and 8 and accompanying text 81. Cf. Fallon supra note 77. 82. See supra notes 11 & 12. 83. See, e.g., Agostini v. Felton, 521 U.S. 203, 235 (1997) (stating that the “policy [of stare decisis] is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.”) (citations omitted). 84. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854–869 (1992). 85. On the question of the precedential weight of judicial violations of the Constitution, see also Berger, supra note 21, at 393 (citing Erie and rejecting the claim that long-standing judicial usurpations of political authority allocated by the Constitution to Congress or to the states should be allowed to stand out of respect for precedent or the principle of stare decisis). 86. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) (rejecting the view that federal courts have an implied power to create federal civil common law). 87. Swift v. Tyson, 41 U.S. (16 Pet) 1 (1842) (embracing the view that federal courts have an implied power to create a federal civil common law). 88. Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab Transfer Co., 276 U.S. 518 (1928) (Holmes, J., dissenting). 89. See supra note 13 and accompanying text; Fallon, supra note 73. 90. Cf. Fallon, supra note 77(discussing judicial implementation of the Constitution). 91. Cf. Fallon, supra note 73 (discussing stare decisis as a constitutional requirement).

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92. Again, this structural-procedural point, reflects the essence of Lincoln’s criticism of Dred Scott as a politicized decision which did not create a true precedent as a matter of stare decisis because of its “apparent partisan bias,” its failure to conform to “legal public expectation,” its break with historical practice, and its other obvious failings as a judicial interpretation of the Constitution. See supra note 9. 93. Fallon, supra note 77 (discussing the Court’s institutional responsibility to ensure meaningful implementation of the values of the Constitution by crafting constitutional doctrines designed to render abstract constitutional principles more concrete and to provide a set of analytical tools for the protection of those values through judicial resolution of cases). 94. See supra note 7 and accompanying text. 95. Cf. Scalia, supra note 33, at 139 (observing that [t]he whole function of the doctrine [of stare decisis] is to make us say what is false under proper analysis is must nonetheless be held to be true, all in the interest of stability). 96. Cf. supra note 71. 97. Cf. Scalia, supra note 33, at 139 (observing that “where originalism will make a difference is not in rolling back accepted old principles of constitutional law but in the rejection of usurpatious new ones”); Finnis, supra note 2 at 361 (recognizing a limited moral obligation in some circumstances to accord some degree of compliance to an unjust law in the interest of preserving the overall integrity of a just legal system, a point which parallels in some respects the question of whether the Court should adhere to an unconstitutional precedent in the interest of preserving the overall integrity of the constitutional system). 98. For an earlier brief exposition of this point, see Nowlin, supra note 24. 99. The term “super-Supreme Court” is Justice Jackson’s. See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (observing that “[t]here is no doubt that if there were a super-Supreme Court, a substantial portion of our reversals of state courts would also be reversed”). 100. Such decisions are final subject only to reconsideration by the Court or amendment to the Constitution. 101. See supra note 7 and accompanying text; cf. Furman v. Georgia, 408 U.S. 238, 470 (1972) (Rehnquist, J., dissenting) (observing that “[w]hile overreaching by the Legislative and Executive Branches may result in the sacrifice of individual protections that the Constitution was designed to secure against action of the State, judicial overreaching may result in the sacrifice of the equally important right of the people to govern themselves . . . . The very nature of judicial review . . . makes the courts the least subject to Madisonian check in the event they shall, for the best of motives, expand judicial authority beyond the limits contemplated by the Framers. It is for this reason that judicial self-restraint is surely an implied, if not an expressed, condition of the grant of authority of judicial review”). 102. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 864–869 (1992). 103. On judicial implementation of the Constitution, see Fallon, supra note 77. 104. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 960 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (observing that “the Court’s stature would have been seriously damaged if in Brown

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and West Coast Hotel it had dug in its heels and refused to apply normal principles of stare decisis to the earlier decisions” upholding segregation and invalidating social welfare legislation on economic substantive due process grounds). 105. Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab Transfer Co., 276 U.S. 518 (1928) (Holmes, J., dissenting).

5 Freedom Questions, Political Questions: Republicanism and the Myth of a “Bill of Rights” Matthew J. Franck

BEGIN WITH A NAÏVE QUESTION: Why should the Supreme Court of the United States attempt to give legal force and effect, through binding adjudication, to the First Amendment of the United States Constitution? I confess I have never encountered a satisfactory answer to the question. The conclusion to which I am drawn is that the Supreme Court—and all other courts, state or federal—should stop trying, and should relegate the First Amendment (and certain other provisions of the first ten amendments) to the category of “political questions,” to be the subject of the constitutional deliberations of other institutions. A recent column by George Will, on the subject of the reintroduced Equal Rights Amendment (now renamed the Women’s Equality Amendment but with the exact same text as before), could have been written about the First Amendment if that were now a freshly proposed addition to the Constitution: “Most debates about proposed amendments concern whether the amendments are necessary or would be beneficial. Debate about the ERA has always concerned what it might mean. . . . Presumably, judges would, over time, tell the nation what it had ratified.”1 Aside from the last sentence just quoted, this was substantially one of the objections made by Alexander Hamilton in 1788 to the addition of a “bill of rights” to the Constitution. Homing in on one of the most popular proposed amendments, concerning the “liberty of the press,” he wrote in Federalist No. 84:

I

What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, — 97 —

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I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.2

Notice the important difference between Will and Hamilton with respect to the inferences they draw from the open-ended or ambiguous character of the constitutional language in these two proposals. Believing, as he goes on to say, that “[a]ll amendments generate litigation,” and evidently believing as well that litigation is how all constitutional meaning is fixed, Will concludes that any equivocal new constitutional language will have an authoritative judicial stamp placed upon it, with which the rest of us will simply have to live, like it or not. Where the Constitution is concerned, in short, we have government by judiciary; hence imprecise constitutional amendments are always dangerous proposals. Hamilton, on the other hand, does not evidently believe (just six essays after his famous defense of what we have come to call “judicial review”) that a “liberty of the press” provision in the Constitution will necessarily generate litigation, and certainly he gives no sign of believing that litigation is how all constitutional meaning is fixed. Therefore Hamilton’s inference is that “public opinion” and not judicial opinions will govern the question of what latitude is given the freedom of the press. Where the Constitution is concerned, at least some of the time as to some kinds of questions, we have government by the people and their elected policymakers; hence imprecise constitutional amendments are pointless proposals. The last century or so in the history of the First Amendment is the story of that amendment’s journey from the pointless to the dangerous. Sometimes the danger is simply that we will laugh ourselves silly over the pretense that something like legal decision-making is going on in the Supreme Court’s jurisprudence. Recently, in the case of Morse v. Frederick, the Court took up the question whether a high school principal in Juneau, Alaska violated the freedom of speech of a student when, during a supervised outdoor event as a spectator watching the Olympic torch being carried by in 2002, that student produced for public display a 14-foot banner reading “BONG HITS 4 JESUS,” and the principal responded by suspending him.3 During the oral argument in March 2007, counsel for the student insisted that the principal, having studied the relevant case law in graduate school to become a school administrator, should have known perfectly well the complex and meandering line of decisions the Court has handed down on the free speech rights of public school students since Tinker v. Des Moines Independent School District in 1969.4 As Wall Street Journal columnist Daniel Henninger was quick to notice, “Chief Justice Roberts replied: ‘So it should be perfectly clear to her exactly

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what she could and couldn’t do.’ The lawyer: ‘Yes.’ Justice Scalia: ‘As it is to us, right?’ (Laughter in the court.)”5 Whether it was nervous laughter in the court, or knowing, cynical laughter is not recorded. But even Justice Souter, not generally known for his aversion to the judicial making of social policy, said immediately after this jocular moment, “We’ve been debating this in this courtroom for going on an hour, and it seems to me however you come out, there is reasonable debate.”6 What constitutional principle, then, compels the Supreme Court to say anything whatever on the propriety of young Master Frederick’s suspension from school? This question neither Justice Souter nor anyone else in the argument saw fit to take up. Robert Bork argues that the ridiculous tangle of a case like Morse is the result not only of the Tinker decision of 1969, but can be traced back to “the storied but overvalued dissents of Justices Oliver Wendell Holmes Jr. and Louis Brandeis” in certain 1920s free speech cases—opinions whose position was essentially adopted in Brandenburg v. Ohio, also in 1969, when the Court held that government may not “outlaw the advocacy of force and violence except where the advocacy is directed to inciting or producing imminent lawless action and is likely to succeed in doing so.” Judge Bork is surely right to call it “unfortunate in the extreme that law is being forced into every institution and social relationship.”7 But he seems to believe, if I understand him correctly, that this state of affairs is the result of some kind of wrong turn in the development of First Amendment jurisprudence. My argument is that this state of affairs is more or less to be expected just as soon as we admit that there can properly be any such thing as “First Amendment jurisprudence.” To a large extent the source of the problem is linguistic in nature. Sixty-five years ago, in another context, Justice Felix Frankfurter remarked on “the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.”8 In our case, three felicitous expressions have bedeviled the law, two of them by soaring high as constitutional abstractions of astounding breadth, the other by being rendered narrow, formulaic, and almost dead as a working concept in constitutional law. These three expressions are judicial review, political questions, and Bill of Rights. The nearly dead one is the second of these three. Judicial Review Robert Lowry Clinton, in his unsurpassed 1989 book Marbury v. Madison and Judicial Review, observes that the phrase “judicial review” was never part of

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John Marshall’s vocabulary, in Marbury or any other case, and that it appears to have been coined by Edward S. Corwin in a law review article in 1910.9 The culprit was Corwin, but the date was just a little earlier, in 1909, when he used the phrase twice in an article on the Fourteenth Amendment, and mentioned in a footnote his work on a book “to be entitled The Growth of Judicial Review.”10 Actually, Corwin did not act alone. He published his article in the December 1909 issue of the Michigan Law Review. But in January of that year, Justice William Day had used the expression “judicial review” to mean the power of a court to judge the constitutionality of a legislative act. This was the first such use that was both unequivocal with that meaning and approving of it, and though the statute in question was the act of a state legislature, not of Congress, it is possible that Corwin picked up the phrase from Day’s opinion and ran with it for multiple uses.11 He had, after all, been in search of some such handy expression for a few years. In 1906 he had published an article titled “The Supreme Court and Unconstitutional Acts of Congress,” in which he tried out a variety of ways to express the idea he was discussing.12 He had referred in his opening sentence of this article to “[t]he power of the Supreme Court of the United States to supervise congressional legislation,” and a few lines later to its “right to declare an act of Congress of no effect.”13 Similar circumlocutions are littered throughout the article, such as the following: “that power to supervise federal legislation and to nullify it when inconsistent with the Constitution”; “the right to veto unconstitutional acts of Congress”; “the right to declare unconstitutional acts of Congress null and void”; “the power of the Supreme Court to sit in judgment upon the constitutionality of congressional legislation”; “the power of the Supreme Court to overturn unconstitutional acts of Congress”; “pass[ing] upon the validity of the acts of a coordinate legislature”; “the power to question the validity of federal legislation”; and so forth.14 The variations here are interesting in themselves: the Court is said to have acquired a power or right to supervise—or to declare of no effect—or to veto—or to nullify—or to sit in judgment on—or to pass upon the validity of—or merely to question—acts of Congress with an eye to the Constitution. But Corwin never once used the phrase “judicial review” in this 1906 article. When he wanted a handy two-word phrase, he came up with “judicial paramountcy,” which he used four times in the article, referring three times to the “doctrine of judicial paramountcy.”15 But no one wants to go around talking all the time of “judicial paramountcy,” so if, as might be guessed, Corwin spied “judicial review” in Day’s opinion in 1909, it must have seemed a godsend. Compared to “judicial paramountcy,” which sounds interchangeable with the now more common (and commonly alarmist) phrase “judicial supremacy,” the new phrase was more neutral and dis-

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passionate, implying nothing by the force of its own terms about the relative positions of the judiciary and other institutions in the authoritative interpretation of the Constitution. Prior to these uses of the phrase by Day and Corwin in 1909, there were only a few very recent, very sparse, and wholly unelaborated appearances of “judicial review” in the scholarly journals with anything connoting a constitutional-law context,16 and there were no such uses at all in the Court’s jurisprudence. Once Day and Corwin had both adopted the phrase in the same year, “judicial review” took about five more years to catch on in both judicial opinions and the law review literature, but when it did so, jurists and scholars never looked back, talking about “judicial review” from then on as though they had never been talking about anything else. But there is a pre-history, so to speak, of the phrase “judicial review” that may reveal a good deal about the trouble it has caused in constitutional law over the last century. The expression “judicial review” in fact has its origins in administrative-law developments of the late nineteenth century, to refer to the way an increasing number of statutes provided for the review by courts of the decisions of executive officers, railroad rate commissions, and the like— whether that review was to examine the question of mere authority of these decision-makers, or to go further and assess the “reasonableness” of their decisions.17 The important point is that this form of “judicial review” was a creation of legislatures themselves, which chose in certain enactments (and not in others) to subject subordinate administrative decision-makers to some form of judicial check, and set the scope and limits of each of these instances of judicial control. It took a conceptual leap beyond the context of administrative law to assert that such “review” extended to the statutes themselves, especially those enacted by Congress.18 On the Supreme Court, the analogy of “reviewing” administrative decisions under statutes to “reviewing” legislation itself under the Constitution was resisted throughout the nineteenth century. Only once does the phrase appear at all before the Civil War,19 and just a little more than twenty mentions of “judicial review” appear in the opinions of the justices over the next half century. In each instance, the expression is either clearly embedded in an administrative-law context, or it refers (rarely) to nothing more than an opportunity for appellate consideration of legal questions already adjudicated, or—and this is the most interesting—a member of the Court will use the phrase to distinguish the administrative from the constitutional context, by denying that certain matters are subject to “judicial review” precisely because they have been decided by a legislature and not by someone acting under an authority it has delegated.20 The shift of contexts from administrative to constitutional law is a momentous one. When a court is authorized to review the factual accuracy, the

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legal sufficiency, or the statutory permissibility of an administrative decision, judicial discretion is frequently wide-ranging, though it can be circumscribed by the authorizing legislation. The courts are, in effect, enlisted as adjuncts of the legislature, harnessed to the legislature’s purposes as the junior member of a team whose joint purpose is to control the discretion of executive officials who perform the front-line administration of the law. The legislature states an end to be accomplished and the means to accomplish it, sets the executive to work on the use of those means for the sake of that end, and directs the judiciary to monitor the proper performance of the executive in using the prescribed means in reasonable pursuit of the desired ends. By authorizing such judicial monitoring, the legislature explicitly or implicitly creates a cause of action—a right—possessed by those affected by the law’s administration, to come into court complaining that this or that administrative decision has been rendered on a factually inadequate basis, or was an unreasonable action given the ends to be pursued, or was just plain ultra vires, beyond the administrative authority given by statute. But does such a description of judicial power necessarily hold in the arena of constitutional law? If so, what or who is the “legislator” to whose purposes the judiciary is harnessed as an adjunct or helper? That seems an easy question on its face. It is the people, as Hamilton said in Federalist No. 78, whose “power . . . is superior to both” the legislative and judicial branches.21 But what textual support for a wide-ranging “supervisory” power of courts is there in the Constitution that can match the explicitness of the typical statutory authorization of administrative “judicial review” given to courts by legislatures? That is a tougher question. Article III gives the federal courts the power to hear certain kinds of “Cases, in Law and Equity,” as well as other specified sorts of “Controversies.” But what is a “case” that comes before a court of law? The common-law background of our constitutional language gives the answer: it is a legal controversy in which a party claims an injury to a right and seeks a remedy from the court. As William Blackstone, the great English teacher of early American lawyers, put it, “the primary and principal objects of the law are RIGHTS, and WRONGS.”22 He could well have added that these are the exclusive “objects of the law” as it is adjudicated in courts. Chief Justice John Marshall certainly evinced this understanding when he remarked in Marbury v. Madison that the business of a court of law is “solely, to decide on the rights of individuals,” and not on questions of any other character.23 But the laws enacted by Congress, while frequently creating all sorts of rights that may be vindicated in the courts, do not routinely carry any implications at all for the rights any persons may have that are protected by the Constitution. Under the first of its enumerated powers in Article I, Section 8, for

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instance, Congress may “lay and collect Taxes.” If no specific prohibition or restraint on the taxing power is violated, who can make out a claim of an “injured right” not to have his whole substance taxed away by an act of Congress? Justice Oliver Wendell Holmes, Jr. said a foolish thing when he claimed (albeit in a case involving a state’s taxing power, not Congress’s) that “[t]he power to tax is not the power to destroy while this Court sits.”24 Everyone who has ever filed an income tax return knows perfectly well that Holmes was wrong. Likewise for many other powers granted to the Congress. It may “regulate Commerce . . . among the several states” (Art. I, § 8, cl. 3). Certainly there are proper limits on the exercise of this power, having to do with whether or not a species of activity Congress regulates is really commercial, or is really not confined within the bounds of a single state. But suppose Congress tramples right through those boundaries in a way that every reasonable observer would recognize. Does a person so regulated by an act of Congress have a claim of an aggrieved right not to be so regulated that he can claim in a court of law in search of a remedy? Chief Justice Marshall did not think so, when he declared in the first great case concerning this clause, Gibbons v. Ogden, that the only remedy lay in the political process.25 Those who think that this narrow view of the judicial power is contradicted by Marbury v. Madison should read Professor Clinton’s book, mentioned earlier. I have also published elsewhere my own view of the case (similar to Clinton’s),26 and will not go over the whole ground again here. But the common error in reading Marbury is to think the whole case is summarized in the single sentence: “It is emphatically the province and duty of the judicial department to say what the law is.”27 We should turn our attention to the first two-thirds of Marshall’s opinion, prior to the famous section associated with “judicial review” that gets sawed off and reprinted in modern casebooks. Here, discussing William Marbury’s right to his commission as a District of Columbia justice of the peace, Marshall writes that “[t]he question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority.”28 Strictly speaking, it is only when the vested rights of other parties are involved that the exercise of executive power becomes amenable to the judicial enforcement of legal (and thus of constitutional) principles. Responding a few pages later to the view some might express that a court would thus “intermeddle with the prerogatives of the executive,” Marshall writes: It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties

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in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.29

If we are to make some kind of consistent sense out of Marshall’s career as chief justice, from Marbury to Gibbons and beyond, it seems we must conclude that for him, rights questions, framed properly in a legal shape, are judicial questions. Questions of institutional powers, on the other hand, are political questions, such that those powers, when implicating no particular rights, are not in themselves subject to the restraint of courts of law interpreting the Constitution—not, that is, where the coequal branches of the national government are concerned. (A different calculus obtains, in light of the supremacy principle of Article VI, where the powers of state governments are concerned.) Hence we are arrived at the second of our key expressions for the present analysis.

Political Questions With its pedigree (though not its exact appearance as a two-word phrase, adjective followed by noun) traceable all the way to the Marbury case itself, “political questions” has the advantage over the latecomer “judicial review.” Unsurprisingly, we find “political question,” or casual variations on it, in use among the justices throughout the Supreme Court’s history. But the first use of the phrase “political question doctrine” did not occur until 1962, in the case of Baker v. Carr.30 We will turn to that case presently, but the fact that no one thought to state a “doctrine” of political questions until so recently should tell us something. On the modern Court, “doctrine” almost invariably has the flavor of a closed theoretical system, an internally consistent body of legal rules of decision developed by the justices themselves in the course of adjudicating cases. Since, as we shall see, “political question” is a way of identifying a case or an issue that the Court will not adjudicate, the idea that there can be a “doctrine” of such matters is rather curious. The emergence of a doctrine of political questions, moreover, has obscured the fact that the sorts of questions called “political” by the justices over the years really fall into three distinct categories. All three categories contain questions or issues that are considered “nonjusticiable”—that is, outside the proper purview of judicial decision-making—because the answers to them are authoritatively provided by other, “political” branches of government. But such a description does not say nearly enough.

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The first category of political questions concerns those matters about which there is no controversy at all under the Constitution, either in its text or in any implicit principles thereof, but about which someone must say something authoritative, or has said something authoritative, in the nature of a political decision that affects the facts of a legal case before a court. These should be understood, in other words, as policy questions settled by the political branches that, in themselves, raise no legal or constitutional questions. Have the rebel combatants in a foreign civil war been recognized by the United States under international law? “[S]uch questions are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be . . . than to that tribunal whose power as well as duty is confined to the application of the rule which the legislature may prescribe for it.”31 Where exactly is the boundary line between United States territory and Spanish territory on the western frontier? This is “more a political than a legal question,” and the Court “must respect the pronounced will of the legislature.”32 Was the representative of a foreign sovereign competent to conclude a treaty with the United States? “[T]hese are political questions and not judicial. They belong exclusively to the political department of the government.”33 Is a question raised about the propriety of a legislature’s exercise of eminent domain to take private property for public use? “The question is purely political, does not require a hearing, and is not the subject of judicial inquiry.”34 The reader will notice that most of the examples just given come from the realm of foreign affairs. This is not because courts are completely disabled, for instance, from adjudicating questions of rights under treaties, or questions about the title to land on the frontiers of the nation. But the making of foreign-policy decisions, and the trial of legal issues under a set of facts already settled by those decisions, are two very different matters. The latter may fall within the purview of a court. The former not only is no business of the judiciary, but almost never raises any constitutional issues whatsoever. In the instances mentioned above, the Court did not pretend for a moment that any questions of constitutional law had been brought before it by the parties, and sternly rebuffed any attempt to manufacture such questions regarding decisions already reached by the other branches. Policy decisions had been made by those in undoubted possession of the authority to make them. This is quite different from the second and third categories of political questions the Court has faced over the years. In these categories, genuine issues about the meaning of the Constitution are brought before the Court by the parties, but the Court refuses to answer them on the grounds that the Constitution itself leaves those issues to be settled by political—i.e., nonjudicial—decisionmakers. The distinction is not between the political as policy issue on the one hand and the legal or constitutional on the other, as in the instances noted above.

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It is between the political as the legislative or executive on the one hand, and the judicial on the other. But in these cases there are genuine questions of constitutional interpretation that the Court regards as none of its business to answer. In the second category of political questions, while constitutional principles are truly at stake, the Constitution’s text is silent on what the answer should be. Better and worse arguments may be made about what decision would best live up to the Constitution’s principles, but the silence of the text leaves the judiciary with no authority to impose an answer on the other branches of government. May a president terminate a treaty with another nation without seeking the approval of the Senate, which must ratify all new treaties? “Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty,” and so the question is a political one to be settled between the other branches without judicial intervention.35 What is a “reasonable period within which ratification” of a constitutional amendment should be permitted? “Where are to be found the criteria for such a judicial determination? None are to be found in Constitution or statute,” and so it is left to the discretion of Congress to set any permissible time limit, or none at all.36 The foregoing are political questions not because they are strictly policy questions where no question of constitutional meaning is raised, but because the silence of the Constitution provides no point of law on which a court could possibly rule. In the third category, however—by far the most interesting— there are genuine questions of constitutional law, the Constitution does have something to say, and yet the Court holds that questions about the text’s meaning are political and not justiciable. May the Congress, without interference from the judiciary, decide that the “public safety” requires suspension of the writ of habeas corpus? Yes, suggested Chief Justice Marshall, for “[t]hat question depends on political considerations, on which the legislature is to decide.”37 Can a federal court decide whether a state government is legitimate under the clause guaranteeing to each state a “Republican Form of Government” in Article IV, Section 4? No, for “it rests with Congress to decide what government is the established one in a State,” and “its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.” It is the Court’s “duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums.”38 May an impeached and convicted federal judge contest his removal from office in the courts on grounds that he was not properly tried by the Senate? No, for the Constitution gives to the Senate “sole Power to try all Impeachments” (Article I, § 3, cl. 6) by procedures of the Senate’s making that are unreviewable in courts of law.39

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Note that for each of these questions, the text is not silent, and there is in principle a correct answer about the meaning of the Constitution that should govern the settlement of the controversy. Congress would certainly violate the Constitution were it to suspend the writ of habeas corpus on no plausible showing that the public safety required it.40 The practice of lawmaking by referendum rather than by representative legislative assemblies may well violate the requirement that state governments be republican in character.41 And it would surely be regarded as unconstitutional by any fair-minded interpreter if the Senate summarily convicted an impeached official without conducting even a semblance of a trial, or made a snap judgment to remove that official as “a bad guy.”42 Hence the question becomes, if thinking about the text and principles of the Constitution may yield right answers to such questions—if, that is, the Constitution may be followed or flouted by the other branches in instances such as these—then why does it not fall to the Supreme Court to supply authoritative answers to them? The short answer to this question is, the separation of powers, which creates coequal branches of government and not judicial supremacy. If the choice is between one all-powerful constitutional interpreter whose abuses of constitutional meaning are of unlimited range and remain wholly unchecked, and three branches sharing power, each of which is capable of a limited range of unchecked abuses of constitutional meaning, all the evidence of the founding points to the latter and not the former. A longer answer would require an extended tour through the constitutional thought of John Marshall, from his brief congressional career,43 to Marbury v. Madison’s judicial origination of the “political questions” category, to major cases such as McCulloch v. Maryland,44 Cohens v. Virginia,45 Gibbons v. Ogden,46 and Osborn v. Bank of the United States,47 all of which shed light on this idea, and which together stand as a rebuke to the thesis that Marshall was the apostle of judicial supremacy. But such a tour would take us far afield here. It is also more than the present occasion warrants to trace the legacy, and the gradual erosion, of Marshall’s distinction between judicial and political questions, over the many decades between his death and the final liberation of the judicial power that he understood to be so constrained. We will instead fast-forward to the completion of that liberation in the landmark case of Baker v. Carr, decided in 1962. In Baker the Court held that a question previously regarded as nonjusticiable when raised under the “republican government” clause of Article IV—the apportionment of a state legislature according to population distribution— was justiciable after all when raised under the “equal protection” clause of the Fourteenth Amendment.48 Justice William Brennan, for the Court, examined

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what he now called the “political questions doctrine” at length, summarizing his findings as follows (I have added the numbers in brackets): Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.49

This passage has been the Supreme Court’s Fodor’s Guide to “political questions” for the last forty-five years, more’s the pity. Here Brennan provides six ways to identify whether a question is political or not. Four of these ways— numbers 3 through 6—cannot be said to state legal or constitutional principles at all. At best, they bear slightly on the first category of “political questions” we have identified above, though they miss the point of that category altogether. At worst, they simply express prudential or policy reasons for a court to refrain from taking action, without taking account of whether there is or is not a duty to act. Here Brennan appears to consider constitutional decision-making an optional behavior for courts, or in other words, he makes the presence or absence of a “political question” turn on a finely-calibrated political judgment by the judiciary, rather than on a principled legal or constitutional conclusion about the nature of the alleged “case.” Brennan’s second way of identifying a “political question” (“a lack of judicially discoverable and manageable standards”) is less a statement of principle than a confession of incapacity on the part of judges. It might possibly correspond to our own second category discussed above, in which a constitutional issue is arguably present but the text is silent. Or it might not. Who can say? Brennan’s description again floats off on a breeze, it is so insubstantial as a description of anything meaningful in constitutional law. All one can say with certainty is that it describes a degree of difficulty in decision-making, which is no reason not to make a decision if one must be made; likewise the absence of this difficulty is no reason to make a decision if one should not be made. Only Brennan’s first way of identifying a “political question” can with certainty be said to state a constitutional basis for holding a question to be political and therefore not justiciable. And the very narrowness of Brennan’s statement makes this standard woefully inadequate. The justices are to look for “a textually demonstrable constitutional commitment of the issue to a coordi-

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nate political department.” But as Justice Byron White was to say more than thirty years later, “there are few, if any, explicit and unequivocal instances in the Constitution of this sort of textual commitment.”50 If any! There may be none at all for a Court that defines its position in the constitutional framework as Brennan did in Baker: “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”51 There is an obvious logical fallacy here. The traditional understanding of “political questions,” from the founding until the day before the Baker decision, was that if a question of constitutional meaning was properly committed to some institution other than the federal courts, then it was no business of the courts whether “that branch” had “exceed[ed] whatever authority” the Constitution gives it. No sense can be made of “political questions” unless it is said as bluntly as possible that, where such questions are concerned, the Constitution can be violated by the responsible institutions utterly without interference from the judiciary. And it must mean, if it means anything, that the Court is anything but the “ultimate interpreter of the Constitution.” But Justice Brennan here insists that the distinction is between a “political question,” on the one hand, and a violation of the Constitution, on the other. The former are left alone by the courts, while the latter are redressed by them. What then becomes of the class of questions Brennan is attempting to identify? It vanishes like the morning dew. This attempt to state a “political questions doctrine” came just a few years after the Court’s declaration that “the federal judiciary is supreme in the exposition of the law of the Constitution,” so perhaps it was only a matter of time before that new dispensation came to be expanded to cover, in principle, all of the Constitution.52 But under the Baker understanding, the Court has spent the last four decades making an absolute hash of “political questions.” In 1969, for instance, in a case involving whether the House of Representatives could exclude, from its biennial swearing-in, someone duly elected by the constituents of a district, Chief Justice Earl Warren held the following: In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review.53

To answer the question stated in the second sentence here is to decide the merits of the issue, while the first sentence barely holds out the possibility that

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the immediate question is whether the merits can be reached at all. This is the tangle in which the Court will ever find itself so long as “a textually demonstrable constitutional commitment . . . to a coordinate political department” is regarded, as it has naturally come to be, as the sine qua non of “political questions.” It is no wonder that the Court found no political question in this case, where the pre-Baker Court would have thought it obvious. The modern doctrine is severely prejudiced against reserving any constitutional questions for decision by institutions other than the courts. But of course this operates neatly in tandem with the modern understanding of the Court’s power over questions of constitutional meaning as encompassed within a misbegotten phrase like “judicial review.”

Bill of Rights Nowhere is this more true than in the case of the “Bill of Rights,” where all the difference is made by our reference to the first ten amendments by this phrase. In his recent book on the subject, Akhil Reed Amar reports “a remarkable fact: before the adoption of the Fourteenth Amendment, the Supreme Court never—not once—referred to the 1791 decalogue as ‘the’ or ‘a’ ‘bill of rights.’”54 For Amar, the pivotal event in raising the profile of the first ten amendments as the Bill of Rights (definite article, capital B, capital R) is the adoption of the Fourteenth Amendment, and the transformative person in the drama is Ohio congressman John Bingham, the prime mover of the amendment in the House of Representatives, who was inordinately fond of the phrase “bill of rights.” But the linguistic shift takes decades to catch on. As Amar notes, equivocations and qualifications litter the references, so that one finds the ten amendments referred to as “in the nature of a” bill of rights, or “commonly known as the” bill of rights.55 Then, as though it had been planned to mark the dawn of a new era, we find in 1900 a reference, in a dissent of Justice John Marshall Harlan, to the adoption of the first ten amendments eleven decades earlier, followed by the flat statement: “These amendments have ever since been regarded as the National Bill of Rights.”56 (Never mind whether that “ever since” is accurate in light of the history we’re discussing here.) Before this watershed moment, it is not only in the opinions of the Supreme Court that one finds this curious hesitancy to refer to the amendments by the definitive label THE Bill of Rights. In a fairly representative sampling of the academic law journals of the late nineteenth century, one finds the same phenomenon. As late as 1899 in a single issue of the Harvard Law Review, for instance, we find two of the leading figures in the legal academy, Harvard’s own Christopher Colum-

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bus Langdell and James Bradley Thayer, using language that still shrinks from applying the plain, unadorned label “the Bill of Rights” to the amendments. Langdell says of them, “it may be said that they are in the nature of a bill of rights.”57 Thayer, for his part, refers to “the early amendments and other parts of the Constitution which make up what is called its bill of rights.”58 (That “other parts” is curious. Does Thayer recall that John Marshall had referred in 1833 to Article I, section 9 of the original Constitution as “having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government,” and this in a case in which Marshall neglected to use such an expression for the amendments, whose application he was construing at that very moment?)59 Professor Amar doesn’t really know quite what to do with his discovery of this late arrival of “Bill of Rights” language in the Supreme Court’s vocabulary, other than to praise it Whiggishly, and to credit it (improbably) to his hero Bingham. Several years before Amar, however, the same discovery was reported in an unpublished paper by Gary Glenn, who provides more detail and draws a more pointed lesson from the story.60 For Glenn, the “official” naming of the amendments as the Bill of Rights is a watershed event in the “judicialization” of the amendments, or, as he puts it in an earlier paper, their conversion from “community-defining declarations” into “judicially enforceable law.”61 (Professor Glenn was really on to something in these papers, and I am deeply indebted to his work on these questions.) We should dwell for a moment on this era in which so many streams are converging into a great rushing river of judicial power. The last decade of the nineteenth century and the first of the twentieth witnessed the creeping progress of the imperial phrase “judicial review,” gradually invading the territory of “political questions.” It is the period when the Supreme Court invalidated the national income tax;62 first applied a provision from among the first ten amendments to the actions of a state or local authority via the Fourteenth Amendment;63 and first used the notion of substantive due process in an application of the Fourteenth Amendment.64 This is when, as Robert Clinton reports, the academic legal and historical literature begins to fill up with furious scholarship, pro and anti, on the subject of what would soon be called “judicial review,” with the centennial of Marbury v. Madison being linked to much of the reconsideration in light of current events.65 It is, under these circumstances, the least surprising thing in the world that the judicialization of the first ten amendments occurs in this same period. I think Professor Glenn is right—that the name “Bill of Rights” gains its prominence as the label for the first ten amendments at just the moment when the Supreme Court is about to have its innings as the branch of government “supreme in the exposition of the law of the Constitution,” as it was to describe

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its own power a half century later.66 I think he is right to suspect that the name itself is indicative of a shift in the Court’s thinking about its relationship to the Constitution and to the other branches of government. I think he is right that the amendments were chiefly thought at their origins to be what Glenn calls “community-defining declarations” and not to be the subjects of authoritative adjudication by courts of law. But several things remain unexplained, which can be expressed in several overlapping questions. Why should the expression “bill of rights” be so much used in the debate over the Constitution, be indeed a pivotal expression animating the campaign for amending the Constitution immediately after its ratification, and yet drop from view in the professional legal vocabulary as a reference for the amendments that were added, only to reappear about a century later? Why should this name, “Bill of Rights,” have such reverberations, such automatic connections in the modern mind (that is, since the late nineteenth century at least) with the uses of judicial power, and yet have lacked those connections in the mind of the late eighteenth century? Why would the participants in the founding debate on the amendments—both before and after their addition to the Constitution—not assume that all the provisions in the first ten amendments were to be judicially enforced? As Herbert Storing documented in his great collection The Complete AntiFederalist, many of the opponents of the Constitution’s ratification complained of the document’s lack of a “bill of rights.”67 But while noting this “rhetorical emphasis,” Storing concludes that “the Anti-Federalists were typically quite doubtful about the practical utility of this kind of provision in the new Constitution.”68 What they really wanted were not additions but amendments to the Constitution—changes in its structures, powers, and institutional relationships. As the Constitution’s ratification looked more and more like a foregone conclusion in 1788, they demanded that the document be amended before ratification, by a second constitutional convention (an idea fended off in the final number of the Federalist by Alexander Hamilton), or that ratification be conditioned on a binding promise of amendments afterward. They got neither one. Instead, what they got, in six of the states, were lists of proposed amendments that Federalists in the ratifying conventions agreed to include in the ratification instruments in order to throw a bone to their opponents and bring debate to a close, sometimes with larger margins of victory as a consequence.69 One cannot read those amendment proposals without being struck by how many of them—easily half, perhaps a majority depending on how one counts the provisions—have nothing of the character of “bill of rights” provisions. Robert Goldwin tells the story of how James Madison stole the Anti-Federalists’ thunder by proposing a list of amendments that did none of the things they wanted most—a list that “could win the support of those who were still

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uneasy, without making any change at all in the constitutional structure.”70 It might even be said that Madison took his opponents’ “bill of rights” rhetoric more seriously than they did themselves, since his proposals were mostly about individual liberty (as were all but the first two, and the last, of the twelve amendments finally proposed by the First Congress), while the leading AntiFederalist alternative proposal put forward in the House of Representatives was almost entirely about structural changes in the Constitution.71 But did Madison, or anyone else, regard judicial enforcement as an essential feature of the amendments that were proposed, and ten of which were ratified over the ensuing two years? Certainly Madison did not have judicial enforcement foremost in mind. In October 1788 he wrote to Jefferson (then in Paris) that while he had “never thought the omission [of a bill of rights] a material defect,” he could concede the utility of such a declaration for the following reasons: 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho’ it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.72

Jefferson, as is well known, replied to Madison thus: “In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity.”73 There is no pointed evidence that this admonition of Jefferson’s had much of an effect on Madison, who seems to have thought more carefully than his friend in Paris about what it would really mean to keep judges “strictly to their own department.” In his lengthy speech of 8 June 1789 on the floor of the House of Representatives introducing his amendment proposals—a speech that takes up more than twenty pages in the modern edition of Madison’s papers—this is the sum total of what he has to say on the subject of judicial enforcement: If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.74

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Just a moment later Madison refers to the state legislatures as “able to resist with more effect every assumption of power than any other power on earth can do” (emphasis added)—a belief on which he certainly acted in drafting the Virginia Resolution of 1798, in response to the federal Alien and Sedition Acts. But pause for a moment over this lonely but game reference to the “impenetrable bulwark” of the judiciary. Their charge will be to “resist every encroachment upon rights expressly stipulated for in the constitution.” In this way of phrasing it we see the charge of the judiciary in just the light in which we saw Marshall consider it above in the Marbury case, as “solely, to decide on the rights of individuals.” It is the way Hamilton had considered it as well in the Federalist, where he introduced the idea of courts enforcing constitutional provisions in exactly this narrow, rights-focused context: The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.75

For Hamilton, what we have come (alas) to call “judicial review” has to do with enforcing “specified exceptions to the legislative authority,” consisting of “particular rights or privileges” of the kind exemplified by the prohibitions on bills of attainder and ex post facto laws. For Madison, the charge of the judiciary is to be an “impenetrable bulwark” where “rights expressly stipulated for” are concerned. For Marshall, the province of the courts of law, in constitutional questions, is the determination of the “rights of individuals” and that is all; everything else is high constitutional politics for the other branches to settle. Whatever else these three men may have disagreed about, they seemed to share a common understanding of a rights-focused judicial function. Now look at the “Bill of Rights” proposed in 1789 and (mostly) ratified by the end of 1791. The first two of the proposed twelve are actually structural amendments, the first having to do with the proportioning of representatives to population in the House, the second (which belatedly became the Twentyseventh Amendment in 1992) to do with restructuring the incentives of Congress with regard to raising its own members’ pay. So far no “rights expressly stipulated for.” What became the Tenth Amendment has nothing whatever to do with “the rights of individuals,” and was rightly held by John Marshall in 1819 to say nothing a court could possibly enforce.76 What became the Ninth Amendment is the polar opposite of “rights expressly stipulated for,” and pres-

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ents judges who know their business with nothing whatever to do. What became the Third through the Eighth Amendments—now here we have some actual rights of individuals, of a sufficiently concrete and particularized character for judges to treat them as belonging to those individuals in the way a piece of property belongs to them. That leaves the first two ratified amendments. The Second Amendment presents an interesting problem, since it refers to a “right” but makes it a “right of the people,” which suggests it is everyone’s in general and no one’s in particular.77 Notwithstanding the recent decision of the Supreme Court in District of Columbia v. Heller (a 5-4 ruling whose obvious problems rather prove my point),78 it is extremely doubtful that anyone at the time of the founding thought of the Second Amendment as susceptible of judicial enforcement. Doubtful? It hardly bears a moment’s serious consideration as a historical matter that anyone contemplated judges deciding who would and who would not be permitted as an individual to “keep and bear Arms,” of what sort, and for what purposes. And that leaves the First Amendment. Here too we get a “right of the people,” this time “peaceably to assemble, and to petition the Government for a redress of grievances.” With respect to individual persons the amendment makes out a good ground of defense against a charge of riot, breach of the peace, or unlawful assembly, if it can be shown that the defendants were peaceably assembling. As for petitioning the government, the amendment is no guarantee that petitions will not fall on deaf ears, as when the “gag rule” was imposed by the antebellum Congress with respect to abolitionist petitions.79 And that’s it for “rights expressly stipulated for.” The remaining clauses of the First Amendment—the ones regarded nowadays as the truly great charters of our liberties—do not even use the language of “rights,” and do not convert themselves into rights that a court of law can capably adjudicate no matter how much we beam our mental rays upon the text. Leave aside the opening clause about “establishment of religion,” which is so fraught with difficulty for the judicial power that the Supreme Court has relaxed the rules of standing purely to render the clause justiciable.80 The rest consists of “freedoms”: the “free exercise” of religion, and the “freedom of speech, or of the press.” What makes anyone think these constitute rights that a court of law can adjudicate and vindicate? That will be thought simply the wrong question by anyone whose rebuttable presumption is in favor of “judicial review.” But I think we are profoundly misunderstanding the whole founding generation if we do not hold exactly the opposite as the rebuttable presumption—that politics and not adjudication is the rule, and that the burden is on the advocates of judicial power to show that the language of the Constitution is properly amenable to judicial

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enforcement. The legal mind of the eighteenth century was schooled to think of courts as the arena for the vindication of rights, and to think of a right as a kind of title deed to something to which one laid claim as to a possession. You can hold a right, so to speak, in your fist. The First Amendment’s references to “freedom” and “free exercise” are references to much larger, grander things— not in their nature insubstantial, but great political phenomena characterizing the scope of liberty for civil society as a whole, and naturally subject to expansion and contraction, debate and discussion. It is not Pontius Pilate’s world-weary “what is truth?” to ask, as Hamilton did in the Federalist, “[w]hat is the liberty of the press?” There are better and worse answers, to be sure. But Hamilton’s point is that there is a range of acceptable answers, and that this is one of those debates that a republic devoted to liberty has about itself. Why would we want to hand over such a debate to judges, for them to pretend that the Constitution rightly understood compels one particular answer, which the judges impose on us at the expense of the salutary debate among ourselves? It is not just that the judicial determination of the proper scope of the “freedom of speech” or of the press or of religion is a peculiarly difficult interpretive exercise. The point is that, for judges as judges, it is an impossible interpretive exercise. Courts exist to determine who owns what and who owes what—who has a right, who has committed an injury, what remedy the latter owes the former. But no one, under the First Amendment, has the claim of an owner on a precisely contoured instantiation of the “freedom of speech,” and sloppy locutions like “right of free speech”81 only mask the hollowness of the judicial attempt to give fixity to the fluid. The thesis that the generation of the framers thought of the “freedom” clauses of the First Amendment as embodying political commitments to be interpreted politically, not as legal rights to be enforced judicially, is strengthened by the evidence of the furious debate over the Sedition Act of 1798. As Gary Glenn (among many others) notes, “Hamilton supported and Madison opposed the constitutionality of the Sedition Act and both claimed theirs was the true meaning of the freedom of the press clause.”82 But on one thing they seemed to agree: neither Hamilton nor Madison seems to have thought for a moment that an authoritative constitutional disposition of the Sedition Act controversy could have been appropriately handed down by the courts of law. The most exhaustive history of the trials under the Sedition Act, by James Morton Smith, is practically devoid of evidence that judicial review of the Act’s constitutionality was regarded by any of the participants in the controversy as the standard method for resolving the issues between them.83 More recently, in his sweeping history of “free speech in wartime,” Geoffrey Stone concludes that, “[i]n part” because Federalist judges were to varying degrees enthusiastic in presiding over Sedition Act trials, the Republicans “opposed

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the notion that the Supreme Court is the final arbiter of the meaning of the Constitution. This helps explain the Virginia and Kentucky Resolutions . . .”84 That’s one explanation—in part, as Stone says. It is also possible that the Republicans neglected the judicial remedy because they believed as a matter of principle that the remedy lay elsewhere, in a fight at the polls. If they had believed the judiciary had a power and a duty to strike down the Sedition Act as unconstitutional, they might have mentioned it somewhere, however hopeless the prospect seemed to them in practice, when they were making so much other noise. Stone’s thesis that Virginia and Kentucky were opportunistic and tactical in their view of the role of judicial power (or lack thereof) may have equal or greater force in the case of their opponents in this debate. Seven states’ legislatures, controlled by Federalists, issued counter-resolutions denouncing those of Virginia and Kentucky on the subject of the Alien and Sedition Acts.85 Four of those state legislatures—those of Rhode Island, Massachusetts, New Hampshire, and Vermont—argued that Virginia and Kentucky had behaved improperly by presuming to opine on the federal acts’ constitutionality. All four of them, in fact, went so far as to say that authority to decide the constitutionality of a federal law rested “exclusively” with the federal judiciary. Yet there is good reason to believe that this claim of exclusivity—indeed, the claim of any authoritative power resting with the courts on constitutional questions—was opportunistic Federalist rhetoric. Three of these four states— Rhode Island, Vermont, and Massachusetts most expansively—included, in their counter-resolutions, extensive arguments defending the Alien and Sedition Acts, on constitutional grounds, as right and proper. The condemnations of Virginia and Kentucky for deploying constitutional arguments against the Sedition Act rang a little hollow when these three states deployed such arguments for it. If the Federalists had really meant all constitutional arguments to be settled in courtrooms and not “out of doors” in political and electoral debate, they should have urged that point and then . . . shut up. They did not. Now let us return to the peregrination of “Bill of Rights” language. The Anti-Federalists demanded that a “bill of rights” be added to the Constitution. Congress, led by James Madison, gave them one, though they didn’t like it much. But only some of the contents of the amendments ratified (let alone those proposed) could be said to deal directly with “rights” as that term was increasingly understood in juridical terms, especially as it was understood in the emerging new jurisprudence governed by Article III of the Constitution. And so, while popular parlance throughout the nineteenth century continued to refer to the ten amendments as the “bill of rights,” that way of referring to them dropped out of the legal vocabulary—certainly out of the judicial vocabulary on the Supreme Court. It came back again on cat’s feet in the last

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decade or so of the nineteenth century, creeping in via circumlocutions like “in the nature of a bill of rights,” or “what is commonly called the bill of rights.” The preponderance of the evidence supports a strong suspicion that this return to “bill of rights,” this enshrining of capital-letter “Bill of Rights,” in conjunction with new turns of phrase like “judicial review,” was part of a welldocumented hegemonic impulse on the Supreme Court at the turn of the last century. “Judicial review” was a strategic bombing campaign. “Bill of Rights” was a more targeted weapon—a tactical missile, if you will—aimed at bringing the First Amendment in particular within the authoritative ambit of judicial power. In the century since the first ten amendments were added to the Constitution, it had become standard legal doctrine that courts are the arena for the decision of rights questions. If the “freedoms” in the First Amendment could be reconceived as rights, they would become, for the first time in American history, the stuff of jurisprudence. Not coincidentally, they would become one of the principal vehicles for the aggrandizement of judicial power. Never mind that neither logically nor constitutionally did the case become more compelling for the judicial enforcement of “freedom of speech, or of the press” or the “free exercise” of religion. But politically, in the era of Progressivism, legal realism, and legal positivism, the case for judicialization of the newfound “Bill of Rights” became irresistible. Not least did it become irresistible to the judges themselves. And thus we were embarked on the project so searingly described by David Lowenthal, in which “certain justices became eager to invest the old texts with their own superior meanings.”86 Now it is past time for us mere citizens to reclaim from the courts, as is our right (oh that word!), the Constitution and the people’s Bill of Rights, the political Bill of Rights, for ourselves. Notes 1. George F. Will, “The Return of That ’70s Thing,” Washington Post, 1 April 2007, B7. 2. Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. J.R. Pole (Indianapolis: Hackett Publishing, 2005), No. 84, 456. Hereafter Federalist with number and page cited. 3. 551 U.S. ___ (decided 25 June 2007). 4. 393 U.S. 503 (1969). 5. Daniel Henninger, “Bong Hits 4 Jesus—Explained,” Wall Street Journal, 22 March 2007, A16. 6. Morse v. Frederick, No. 06-278, oral argument transcript, 19 March 2007, 49–50 (available online at www.supremecourtus.gov/oral_arguments/argument_transcripts.html).

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7. Robert H. Bork, “‘Thanks a Lot’: Free Speech and High Schools,” National Review 59:6 (16 April 2007), 24–25. 8. Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54 (1943), at 68 (Frankfurter, J., concurring). The expression Justice Frankfurter discussed was “assumption of risk,” a phrase having variable meaning in industrial settings. I am indebted to Richard G. Stevens for pointing me to this passage. 9. Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence, KS: University Press of Kansas, 1989) 7, citing Edward S. Corwin, “The Establishment of Judicial Review,” Michigan Law Review 9 (1910): 102–25; reprinted in Corwin on the Constitution, 3 vols., ed. Richard Loss (Ithaca, NY: Cornell University Press, 1987), 2: 41–61. 10. Corwin, “The Supreme Court and the Fourteenth Amendment,” Michigan Law Review 7 (1909): 643–72, reprinted in Corwin on the Constitution, 2: 123–48; see 123, 142, 146. Corwin never did publish a book with the title The Growth of Judicial Review, nor one including the articles he said would be part of it, but within a few years he did publish The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (Princeton: Princeton University Press, 1914). 11. McLean v. State of Arkansas, 211 U.S. 539 (1909), at 547, 552 (Day, J., for the Court). 12. Corwin, “The Supreme Court and Unconstitutional Acts of Congress,” Michigan Law Review 4 (1906): 606–30, reprinted in Corwin on the Constitution, 2: 27–40. 13. Ibid., 27. 14. Ibid., 28, 29, 30, 31–32, 33, 34 15. Ibid., 33, 37, 38. 16. William D. Guthrie, “Constitutionality of the Sherman Anti-Trust Act of 1890,” Harvard Law Review 11 (1897): 90; Benjamin S. Dean, “An Answer That Does Not Confute,” The Green Bag 11 (1899): 260; N. Matthews, Jr., and W.G. Thompson, “Public Service Company Rates and the Fourteenth Amendment,” Harvard Law Review 15 (1901): 254–55; Note, “Judicial Inquiry into the Validity of a Municipal Ordinance,” Yale Law Journal 14 (1904–05): 280. 17. See, e.g., Frank J. Goodnow, “The Administrative Law of the United States,” Political Science Quarterly 19 (1904): 115; Goodnow, “The Growth of Executive Discretion,” Proceedings of the American Political Science Association 2 (1905): 37. 18. The older, administrative-law meaning of “judicial review” persisted through this period of conceptual change; it persists even today in countless rulings about the statutory authority for actions of administrative agencies, and the phrase appeared until quite recently in the standard American law dictionary with a definition that refers only to the administrative-law context, and not at all to a constitutional-law meaning. Black’s Law Dictionary, 5th ed. (St. Paul, MN: West Publishing, 1979), gives just one brief definition for “judicial review” (p. 762), probably unaltered from the first edition of 1891: “Form of appeal from an administrative body to the courts for review of either the findings of fact, or of law, or of both. See also Appeal.” The seventh edition (1999) was the first to give as a definition of “judicial review” the meaning commonly attached to it today in constitutional law, as the editors undertook the

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first major overhaul of the dictionary. Unfortunately, Black’s is now far less useful for legal historians, as many traditional legal terms have gone missing or been redefined, and the reader cannot divine when the terms or definitions it newly contains came into use. See Bryan A. Garner, ed., Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson/West, 2004), where the original definition of “judicial review” survives (p. 864) in slightly altered form only as the third definition now, while this is the first given: “A court’s power to review the actions of other branches or levels of government; esp., the courts’ power to invalidate legislative and executive actions as being unconstitutional.” 19. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 Howard (59 U.S.) 272 (1856), at 283 (Curtis, J., for the Court). 20. For an example of the first: Wollensak v. Reiher, 115 U.S. 96 (1885), at 101 (Matthews, J., for the Court); of the second: Sparf v. United States, 156 U.S. 51 (1895), at 142 (Gray, J., dissenting); of the third: Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283 (1898), at 298 (McKenna, J., for the Court). 21. Federalist No. 78, 415. 22. William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, UK: Clarendon Press, 1765–69; facsimile reprint, Chicago: University of Chicago Press, 1979), 1: 118. 23. Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), at 170 (emphasis added). 24. Panhandle Oil Co. v. State of Mississippi ex rel. Knox, 277 U.S. 218 (1928), at 223 (Holmes, J., dissenting). 25. See Gibbons v. Ogden, 9 Wheaton (22 U.S.) 1 (1824), at 197. 26. See Matthew J. Franck, “Union, Constitutionalism, and the Judicial Defense of Rights: John Marshall,” chapter 13 of History of American Political Thought, ed. BryanPaul Frost and Jeffrey Sikkenga (Lanham, MD: Lexington Books, 2003), esp. 254–56, 262–65. 27. Marbury, 1 Cranch at 177. 28. Ibid., at 167. 29. Ibid., at 170 (emphasis added). 30. Baker v. Carr, 369 U.S. 186 (1962), at 210, 211, 215, (Brennan, J., for the Court), 251 (Clark, J., concurring), 286 (Frankfurter, J., dissenting). 31. United States v. Palmer, 3 Wheaton (16 U.S.) 610 (1818), at 634 (Marshall, C.J., for the Court). 32. Foster v. Neilson, 2 Peters (27 U.S.) 253 (1829), at 309 (Marshall, C.J., for the Court). 33. Doe ex dem. Clark v. Braden, 16 Howard (57 U.S.) 635 (1853), at 657 (Taney, C.J., for the Court). See also Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938), at 137–38 (Stone, J., for the Court). 34. Joslin Manufacturing Co. v. City of Providence, 262 U.S. 668 (1923), at 678 (Sutherland, J., for the Court). 35. Goldwater v. Carter, 444 U.S. 996 (1979), at 1003 (Rehnquist, J., concurring). 36. Coleman v. Miller, 307 U.S. 433 (1939), at 452–53 (Hughes, C.J., for the Court). In accord with this principle, the Twenty-seventh Amendment, proposed in 1789, was

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declared ratified in 1992—whether that satisfied the best understanding of “contemporaneous ratification” or not. 37. Ex parte Bollman & Swartwout, 4 Cranch (8 U.S.) 75 (1807), at 101 (Marshall, C.J., for the Court). 38. Luther v. Borden, 7 Howard (48 U.S.) 1 (1849), at 42, 47 (Taney, C.J., for the Court). 39. Nixon v. United States, 506 U.S. 224 (1993). 40. So said the opinion of the Court in Ex parte Milligan, 71 U.S. 2 (1866), at 121–22 (Davis, J., for the Court), but this was rightly held to be a political question by four members of the Court: ibid., at 136–41 (Chase, C.J., concurring). All nine members of the Court may be faulted, however, for assuming that a president may never, constitutionally, suspend habeas corpus absent a congressional authorization. Lincoln’s argument to the contrary is a compelling one; see Message to Congress in Special Session, 4 July 1861, in Roy P. Basler, ed., Collected Works of Abraham Lincoln, 9 vols. (New Brunswick: Rutgers University Press, 1953), 4: 429–31. See also Edward Bates, “Suspension of the Privilege of the Writ of Habeas Corpus,” 10 Op. Att’y Gen. 74, 5 July 1861, reprinted in H. Jefferson Powell, ed., The Constitution and the Attorneys General (Durham: Carolina Academic Press, 1999), 169–78. 41. Yet this was ruled a political question: see Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912), at 133, 146 (White, C.J., for the Court). 42. Nixon, 506 U.S., at 239, where this remote prospect was enough to convince Justice White, concurring, that Senate impeachment trial procedure was not a political question. 43. See Franck, “Union, Constitutionalism,” 254–255, discussing a speech of Representative Marshall given on 7 March 1800, appearing in The Papers of John Marshall, ed. Herbert A. Johnson et al., 12 vols. (Chapel Hill: University of North Carolina Press, 1974–2006), 4: 82–109. 44. 4 Wheaton (17 U.S.) 316, (1819), esp. at 423. 45. 6 Wheaton (19 U.S.) 264 (1821), esp. at 405. 46. 9 Wheaton (22 U.S.) 1 (1824), esp. at 197. 47. 9 Wheaton (22 U.S.) 738 (1824), esp. at 819. 48. The precedent for nonjusticiability was Colegrove v. Green, 328 U.S. 549 (1946), which concerned congressional districts rather than state legislative districts, but all members of the Court agreed on the identity of the issues under either clause of the Constitution. 49. Baker, 369 U.S., at 217. 50. Nixon v. United States, 506 U.S., at 240. 51. Baker, 369 U.S., at 211. 52. Cooper v. Aaron, 358 U.S. 1 (1958), at 18. 53. Powell v. McCormack, 395 U.S 486 (1969), at 519 (Warren, C.J., for the Court). 54. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 284. 55. See ibid., 285–88. 56. Maxwell v. Dow, 176 U.S. 581 (1900), at 607 (Harlan, J., dissenting).

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57. C.C. Langdell, “The Status of Our New Territories,” Harvard Law Review 12 (1899): 365, 384. 58. James Bradley Thayer, “Our New Possessions,” Harvard Law Review 12 (1899): 464, 478. 59. Barron v. Baltimore, 7 Peters (32 U.S.) 243 (1833), at 248 (Marshall, C.J., for the Court). 60. Gary D. Glenn, “Transformation of the ‘Articles in Addition to, and Amendment of, the Constitution’ into ‘The Bill of Rights’: Consequences for the Scope of Judicial Power,” paper presented at the annual meeting of the American Political Science Association, 1991. One detail Glenn provides that Amar omits is that Justice Henry Brown had preceded Justice Harlan by about a month in 1900, referring to “the first eight amendments containing the bill of rights” in an opinion for the Court in Bolln v. Nebraska, 176 U.S. 83 (1900), at 87. As Glenn notes at p. 5 of his paper, between them Brown and Harlan thus also inaugurated the annoying variation of referring either to the first eight or to the first ten amendments as the Bill of Rights. 61. Gary D. Glenn, “The Bill of Rights: Community Defining Declarations or Judicially Enforceable Law?”; paper presented at the annual meeting of the American Political Science Association, 1989. 62. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 and 158 U.S. 601 (1895). 63. Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897). 64. Allgeyer v. Louisiana, 165 U.S. 578 (1897); see also Lochner v. New York, 198 U.S. 45 (1905). 65. Clinton, Marbury, chapter 11, 176–91. 66. Cooper v. Aaron, 358 U.S. 1 (1958), at 18. 67. See the scores of entries under the heading “bill of rights” in the index (prepared by John Robinson) that takes up volume 7 of Herbert J. Storing, ed., The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981). 68. Storing, Complete Anti-Federalist, vol. 1, What the Anti-Federalists Were For, 67. 69. See the ratification instruments of Massachusetts, South Carolina, New Hampshire, Virginia, New York, and North Carolina, available online at www.yale.edu/lawweb/avalon/18th.htm. 70. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington: AEI Press, 1997), 73. 71. See ibid., 130–39, for a discussion of the proposals of Thomas Tudor Tucker. 72. Madison to Jefferson, 17 October 1788, in James Morton Smith, ed., The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison, 1776–1826, 3 vols. (New York: W.W. Norton, 1995), 1: 565. 73. Jefferson to Madison, 15 March 1789, in ibid., 587. 74. William T. Hutchinson, et al., eds., The Papers of James Madison, 29 vols. to date (Chicago: University of Chicago Press, vols. 1–10, 1962–77; Charlottesville: University Press of Virginia, all subsequent volumes, 1977–), 12: 206–07. 75. Federalist No. 78, 413–14 (emphasis added). 76. McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819), at 406 (Marshall, C.J., for the Court).

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77. Similar phrasing about the “right of the people” appears in the Fourth Amendment, but that is immediately followed by a concrete particularization of “persons, houses, papers, and effects,” which cannot belong to everyone in general. 78. District of Columbia v. Heller, 554 U.S. ___ (26 June 2008). 79. See William Lee Miller, Arguing About Slavery: The Great Battle in the United States Congress (New York: Knopf, 1996). 80. Flast v. Cohen, 392 U.S. 83 (1968). But see the beginnings of a return to sense in Hein v. Freedom From Religion Foundation, 551 U.S. ___ (decided 25 June 2007). 81. In a Supreme Court opinion, this phrase first appears—oh ominous location!— in the dissent of Justice Bradley in the Slaughter-House Cases, 16 Wallace (83 U.S.) 36 (1873), at 118. 82. Glenn, “The Bill of Rights,” 10. 83. James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca: Cornell University Press, 1956, 1966). Smith suggests (p. 354, n. 64) that Justice Samuel Chase, presiding over the trial of James Callender, embraced “the doctrine of judicial review” in terms that presaged Marbury v. Madison. But Chase’s refusal to permit Callender’s counsel to argue the unconstitutionality of the law to the jury hardly constituted an argument staking out an authoritative position on constitutional questions for the judges on the bench. See United States v. Callender, 25 F. Cas. 239 (1800). His point rather seemed to be that if anyone was going to claim control of constitutional questions in a courtroom, it would be the judges and not the jurors. 84. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism (New York: W.W. Norton, 2004), 68 n.*. 85. Texts available in Jonathan Elliott, ed., Debates in the Several State Conventions on the Adoption of the Federal Convention, 5 vols. (Washington, D.C.: printed for the editor, 1836), 4: 532–39. Available online at http://lcweb2.loc.gov/ammem/amlaw/ lwed.html. 86. David Lowenthal, Present Dangers: Rediscovering the First Amendment (Dallas: Spence Publishing, 2002), 276. (Originally published by Spence as No Liberty For License: The Forgotten Logic of the First Amendment, 1997.)

III LAW AND POLITICS

6 Confirmations to the Court in Times Turned Mean: A Strategy for the Hearings Hadley Arkes

EORGE SUTHERLAND, THE FORMER SENATOR FROM UTAH,

had acquired, quite justly, the reputation of a scholar in the law, with a special edge in international law. That touch and expertise, so widely noticed, had been cultivated largely through his own study, and he had only one year of law school at the University of Michigan, studying with Thomas Cooley. After leaving office he did a series of lectures at Columbia on international relations, subsequently published as a book. In 1922 he was representing his country abroad at the Hague. He was dealing with a case of arbitration: Norway was claiming compensation for certain ships that had been requisitioned or commandeered during the Great War. Sutherland was on his way home, on the U.S.S. George Washington, and he telegraphed ahead to President Harding. Mrs. Harding had fallen ill, and Sutherland was wiring his friend to express concern. When Sutherland reached his apartment in Washington, he found awaiting him a letter from Harding, in which the President thanked him for his concern. And then, as if in passing, Harding wrote, “Since your departure for Europe you have been nominated and confirmed as a Justice of the United States Supreme Court. I suppose you know all about this without me having taken the time to communicate with you.”1 When Justice Byron White resigned from the Supreme Court, it took the Clinton Administration 80 days to bring forth the name of a successor, before the hearings, as we have come to know them, had kicked in, with the coaching, the handlers, the engagement of the interest groups on both sides, the long opening statements by Senators on the Judiciary Committee, and of course a day or two of grilling the candidate with several rounds of questions. In the case of Harding and Sutherland, Justice John

G

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Clark had resigned on September 4th, 1922. President Harding sent the nomination of Sutherland in that day, and it would be greeted by acclamations throughout the political and academic world. The Senate, for its own part, saw no need to disturb the course of its affairs by troubling to hold hearings, or even schedule the meeting, of a separate committee. Sutherland was confirmed on the day he was put up. Indeed, there would not be hearings with a nominee until Franklin Roosevelt nominated Felix Frankfurter to the Court in 1939. Frankfurter did not entirely concede the propriety of calling him in for hearings, but he was willing to acquiesce. The hearings were, for the most part, a desultory affair, with a couple of people raising alarms about Frankfurter’s involvement with the American Civil Liberties Union—a concern we can now take to be prescient.2 There were also some concerns raised about Frankfurter’s leanings to the Left, in his willingness to support a more expansive government, flexing new powers in the regulating of the economy. Those charges were apt, and yet Frankfurter proved to be, in many respects, a conservative judge, especially in his reluctance to extend the reach of the Court into matters thought, quite aptly, to be political in nature—as in the question of reapportioning legislatures in the States. Frankfurter was a dissenter in the famous case of Baker v. Carr (1962), in which the Court for the first time challenged the apportionment of representatives in legislatures. Over the next ten years, nine nominees would be put up by FDR and Truman, and only two of them testified in rather perfunctory, brief hearings (Frank Murphy and Robert Jackson). William O. Douglas made himself available, but he was never called into the hearing room. And for four of the candidates there were no hearings at all—James Byrnes (1941), Wiley Rutledge (1943), Harold Burton (1945), and Fred Vinson, as Chief Justice (1946). In September 1949, President Truman appointed to the Court one of his former colleagues and friends in the Senate, Sherman Minton. Minton had served for several years as a federal judge, but there were lingering concerns about his political temperament, when he had served as the Democratic Whip in the Senate and supported FDR’s plan to “pack” the Court. Minton seemed concerned that the Republicans on the Committee were interested in churning up old controversies for the election of 1950, and so he made a rare move: he became the first nominee to the Court ever to refuse to appear before the Judiciary Committee. In his public explanation, he sounded a theme that would become quite familiar: that there was a risk of expressing his views, or indicate a certain leaning, on cases that might come before the Court. He was aware of course that there had been no firm rule on hearings, or on nominees opening themselves to questioning by the Committee. The precedents seemed to weigh then on his side, and in fact the Committee voted in favor of his nomination.3

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In 1955, John Marshall Harlan made what was regarded as a high-flown gesture of magnanimity in appearing at hearings over his nomination. The concern at the time was that Harlan had been active in the Atlantic Union (a group of so-called Atlanticists, arguing for a closer political connection for the Atlantic nations—most notably, the United States and Britain). There had been arguments, bandied about, that the Charter of the United Nations could offer a source of rights that could be asserted in federal courts, even to the point of overriding the laws and the Constitution; and that was an even more pronounced concern in those years than it has been among the political class in our own time.4 The next year, William Brennan would receive a recess appointment from President Eisenhower, and he would appear before the Judiciary Committee to assure them that he took very seriously indeed the threat of communism, and the earnest efforts of the government to bring that concern under control. But these hearings were far, of course, from the full-blown affairs of our own day, with serious arguments over the doctrines articulated in the cases, and a concern, widely expressed, to learn something more about the jurisprudence, or the principles of law, that the prospective judges might be applying. This has been a novel experience, and it probably did not show itself seriously until 1981, with the appointment of Sandra Day O’Connor. For O’Connor had been known, in the politics of Arizona, as a leader on the side of Planned Parenthood and the people who were, as they, “pro-choice” on abortion. It was a point of high awkwardness that she would be the first nominee of Ronald Reagan, who had been himself the first presidential candidate to seek the overruling of Roe v. Wade. Sandra O’Connor’s appointment had a dispiriting effect in the constituency of pro-lifers who had worked passionately for the election of Ronald Reagan, and there was even some organized opposition on that ground, manifested in the hearings. That issue was raised again during the appointment of Antonin Scalia, but the opposition now shifted for the first time to the other side. The concern now was that a serious Catholic, a fine jural mind, would be a force for cutting back Roe v. Wade or overruling altogether that landmark decision on abortion. But matters were brought of course to an entirely different plane with the nominations of Robert Bork in 1987 and Clarence Thomas in 1991. There we saw for the first time, not only impassioned hearings, but something indistinguishable from a political campaign with ads on television, something never seen before. And of course the ads did not convey, in their soundbites, the precise reasoning of Judge Bork as they offered their caricatures and produced, in effect, a campaign of vilification. If anything, the campaign against Clarence Thomas offered another magnitude of defamation, taking things onto the plane where we confront them today, with the prospect of deep, unrestricted personal attacks hovering over

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every appointment. (To a group of students from Amherst, at a meeting at the Court, Justice Thomas remarked, “They attack you and then say, ‘nothing personal.’” Believe me, it’s personal.”) What made the critical differences in these cases was that Scalia’s perspective was now more clearly known, and there was a live danger, for the partisans of abortion, that Bork and Thomas were the fifth votes to make possible the overruling of Roe. That was especially the case because they were both set to replace judges who had been part of the original majority in installing Roe in 1973 (Lewis Powell and Thurgood Marshall). During the New Deal the Court had become a center of the political controversy, as the judges managed to resist for a long while some of the constitutional novelties, and some of that resistance actually held.5 The changes wrought by the New Deal were of the kind that could mark, in other countries, a change in the regime itself. And yet the appointments to the Court were never enveloped in the kind of controversy, with the kind of bitterness, that has routinely characterized appointments to the Court in recent years, or rather, I should say, appointments to the Court that are made by Republican presidents. What is clear to anyone by now with the eyes to see is that, behind all of the rather abstract talk about jurisprudence, “philosophy,” judicial ideology, stare decisis—behind all of these things there is one concern, one issue that has become paramount and architectonic, and that is the “right to abortion.” I say it has become architectonic because it has become the central principle from which many other things radiate. For many people, it has become evident, that the freedom to order an abortion has become now, in truth, the “first freedom,” displacing even the freedom of speech and religion. And indeed when the claims of speech, on the part of pro-life demonstrators, or the claims of religion, in the claims of conscientious objectors, come into conflict with abortion, that right to abortion has been given an ascendance over virtually anything else asserted in the domain of “rights.”6 That right to abortion has become, for many people, the anchoring ground of a right to privacy, a surety of personal freedom in the things that matter for them beyond everything else. The irony of course is that this new, vaunted place for the “right to privacy” has come at a time when the claims of privacy, as traditionally understood, have never been so disrespected. It was once understood that a liberal political order drew a sharp line between the public and the private. There had been little question in the past about the rights of private businesses, corporations, colleges, private clubs, private households, to arrange their affairs according to their own, private criteria. But now we have seen those spheres of privacy routinely penetrated by laws that bar discrimination on the basis of race and gender in private business, private schools, private clubs. When people speak these days with such gravity of concern about “privacy,” they really

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mean privacy in their sexual lives. That right to contraception, articulated in Griswold v. Connecticut, was a right declared on behalf of married couples. But it was soon extended to unmarried people,7 and Roe v. Wade soon added, quite critically, the freedom to remove the natural effects of sex, the begetting of children. That was, clearly, a critical step to render sex, and sexual lives, unencumbered by the restraints of convention and law that had sought in the past to cabin sexuality within a framework of marriage. It was a framework, that is, of commitment, a framework in which people forego their freedom to quit their relation, and their obligations, as it suits their convenience. But from that premise of sexual freedom many other things radiated. Justice Thurgood Marshall invoked the deep premises of Roe when he insisted that the right to privacy must entail, not only the right to destroy the unwanted child in the womb, but the right to destroy the unwanted child who emerges from the womb. Unwanted, in the case of Baby Doe in Long Island, because she was afflicted with spina bifida and Down’s syndrome and embodied, in the judgment of the parents, a life not worth living.8 And therefore it was a life not worth saving with medical care administered to a newborn. But then the same premise has come into play at the other end of the scale of age: In the understanding of Judge Stephen Reinhardt and others, that anchoring principle of privacy entails the right of a person to end his own life for any reason he finds sufficient—but not only that, a right to command, or we might as aptly say, to commandeer the assistance of others, doctors and nurses; and command their assistance even when it means overriding the convictions that have forbidden doctors and nurses in the past from using their skills, not to heal and restore, but to kill.9 And so something is at stake here, running about as deep as anything. It runs to the core of what John Paul II called “the human person”—when that person comes into being, and what claim it has to our respect, regardless of its size or importance. It is not only, then, about the right to abortion, though a procedure that destroys 1.3 million lives in this country each year is hardly a trivial thing. But the whole ethic, or the whole story, that has been woven now around that right to abortion is indeed the center of the problem. And yet the passion surrounding that story finds its focus on the nominations to the Court, precisely because this ethic, this change in the culture, has been shaped through the power of the Court. The regime of abortion rights was installed through a flexing of power by the Court in January 1973. With that stroke, in Roe v. Wade, the Court essentially swept from the statutes of all of the States the laws that forbade abortions, restrained them, or kept them within tolerable limits. Abortion has become the dominant national issue it has become because the Court, in that move, federalized the issue. From that point forward, any government in the United States seeking to legislate on abortion

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would have to come to the federal judiciary, and ultimately to the Court, in seeking the permission to legislate. When I say it has become the dominant issue, I merely ask you to look about the political map, in the things that divide the Red State of Oklahoma from the Blue State of Connecticut. As one friend has remarked, the people of these States are hardly locked in a controversy over co-payments and deductibles on prescription drugs. It’s the culture war, stupid. And if we would seek to understand the core of the culture war, it is in that architectonic issue marked by Roe v. Wade, the right to abortion, and all of those rights of sexual liberation that have been drawn from that newly established, constitutional right. Our national politics have been engulfed in this issue, not because the President and Congress will deliberate together in working out a policy on abortion. Our presidential elections have come to be more bitter, and more freighted with a desperate passion because those issues of the culture war are now all at stake, and yet why are they are stake there? Because, as David Forte has remarked, with the line that delivers a searing truth, the President has become the Chief Elector. He and his Administration will be choosing the judges, sending up the nominees—he will be electing, that is, the persons who truly will govern us. He will be choosing the true, supreme Legislators whose decisions cannot be vetoed by the Executive, and cannnot be overturned with anything less than a constitutional amendment. With something so massively at stake, it can hardly be a wonder that nominations to the Courts have become the occasion for protracted, embittered hearings in our own day, more than they were in the days of the New Deal, where the regime itself was undergoing deep changes. The bitterness, the low dealing, the assault on reputations, we have come to know; but a lingering question is whether something redeeming might have emerged from the experience if the hearings have turned themselves into moments when the media and the public are willing to engage in a kind of seminar on constitutional law. We have Senators now primed to ask what they and their staffs consider probing questions, taken over several rounds, and two days, with the nominee. But how serious in fact is this probing, this posing of questions about the Constitution? Or is it rather an affectation of raising questions, by Senators who do not really understand their subject? Do we find here, rather than professors at a seminar, senators who may know only superficially the cases that they pose as examples in point, and know of them mainly because their questions have been written down by members of the staff? John Roberts or Samuel Alito knew more than what the outcome was in the Grutter case on racial preferences in Michigan. They knew the reasoning, or the ensembles of reasons, brought forth in the case; and they had a cultivated sense of the lines

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of reasoning that were plausible or implausible. When they began to explain to Senator Feinstein that the case at hand was a bit more complicated than she suggested, they may have looked, to the unkind, as though they were engaging in some rather stylish evasion. But the difference in performance has something precisely to do with the difference in vocations, and in the difference it makes that some men and woman, as judges and professors, spend their days quarrelling and puzzling over the reasoning in these cases. It is not clear that the Senators, even those lawyers highly placed on the Judiciary Committee, have the real learning to get into the game as plausible participants. It was clear, I think, that none of those Senators critical of John Roberts could have gone toe to toe with him in defending an argument on the Constitution. And on that, more in a moment. But that sense of the problem brings me to the scheme I’ve been trying to advance for some time, a certain strategy in dealing with the problem of the hearings. I’ve posed this scheme to friends who have been on the federal bench, and who have come through these hearings. The strategy is rather simple, really, and it works with two discrete moves. But with those moves, we can accomplish two things if this strategy works well. I think we could virtually end the caricatured arguments over Roe v. Wade—in fact, we may even close that conversation over Roe v. Wade. And as a secondary theme, we would impart the sense, subtly but surely, that the Senators are in over their heads—and that a certain prudence may counsel them to recede, to lower their voices, and perhaps back away from the kinds of hearings we’ve been seeing. I’ve posed this scheme, as I say, to friends, who have included Robert Bork and several sitting federal judges, who must go unnamed. What I can say is that Bork and the judges were rather reserved about the scheme. But what I find curious is that, among the friends I’ve canvassed, in getting reactions to my plan, the presence of political experience does not seem to control the response. Some people with ample political experience, or experience with the hearings, have thought the strategy to be something struck from a minor genius and said, “Why haven’t we tried this before?” And on the other side are those who have said, “Are you out of your [expletive deleted] mind? That is a formula for the nominee getting his head handed to him.” On these reactions, more in a moment. But here is the plan, and it arranges itself in a two-step. The two steps can move quickly, but I’ll draw out the explanation here: Step One. Senators Kennedy, Biden, Leahy, Schumer will be pressing the nominee to declare himself or herself on the standing of Roe v. Wade as “settled law.” And what they suggest has been settled in that domain of law is a “woman’s right to choose.” But if these hearings are indeed exchanges of reason, with questions begetting explanations, leading to other questions, it would be quite fair for the nominee to ask the questioner, in turn, to fill out

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his query: I imagined Joy Clement or Edith Jones sitting in that chair, and they could make this move deftly, especially as women. I could hear either one say, “Senator, I find that even lawyers give conflicting answers when asked about what the holding was in Roe v. Wade. (One survey, taken by Gallup, indicated that only one person in ten in the general public could give even a faintly accurate answer as to what the holding was.) May I ask you, Senator, to give me your own understanding of Roe v. Wade. I’d like to be clear on the holding you are asking me to affirm.” If Biden or Kennedy remarks that Roe established the right of a woman to order an abortion through the first trimester (or first 12 weeks) of pregnancy, for reasons she regards as sufficient, the nominee can point out, in a gentle way, that the doctor of laws now examining her has not given an account of Roe that is strictly accurate. When Roe v. Wade is joined to its companion case of Doe v. Bolton,10 a woman would be free to order an abortion throughout the entire length of the pregnancy—and even, as we’ve now seen, at the very point of birth—if the failure to perform that surgery would affect her “mental health.” Which is to say, she would be free to order an abortion if she thinks that the failure to have that surgery would cause her any anguish or distress. For all practical purposes, then, under the “law” handed down by the Supreme Court, that right to abortion can be performed at any time, even late in the pregnancy—or even after the pregnancy, in the case of the “live-birth abortion”—for reasons that need not rise above convenience. For no one may question the reasons for which a woman orders an abortion. And until the federal bill on partial-birth abortion was upheld in the spring of 2007, there had been are no cases, over the past 30 years, in which the Supreme Court has upheld any law that actually forbids the performance of an abortion. Now, the nominee may earnestly ask, is that the understanding that you wish me to affirm—the right to an abortion for any reason, up through the point of birth, or even after birth (as in the case of the live-birth abortion)? Even people who call themselves pro-choice do not accept that kind of a sweeping notion of the “right to abortion,” and that view of the matter has never been supported by more than 22–24 per cent of the public. That is not the way in which most people in the country understand that hazy notion of a “right to abortion,” or “the woman’s right to decide.” I find it hard to believe, then, that Kennedy and Leahy would stand there insisting, before a national audience, that the right to abortion must mean nothing less than abortion on demand, at any time, for any reason, up through the time of birth. Even people who regard themselves as pro-choice have acknowledged many instances in which they think that abortions would be unjustified and wrong, and should not be permitted. Most people think that abortions should be confined to a time early in pregnancy—well before a discernible baby is moving

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in the womb, showing up in sonograms, exhibiting the features of the families whose genes have been merged in their forming. Most people think it wrong for abortions to be performed for reasons that are less than compelling. They think that abortions find their strongest justification when the life of the pregnant woman is endangered, or when she is faced with serious, irreparable damage to her health. Most people do not think that there should be abortions performed for the sake of easing the financial condition of the family, permitting a woman to finish school, choosing the sex of the child, or destroying a child because she is afflicted with deafness or some other disability. And that sense of the matter, reflecting where most people in the country are on this matter of abortion—that sense of the matter leads directly into the second step. Step Two: Kennedy and Biden would have to hold back from insisting on this, most sweeping, most unqualified right to abortion. But in holding back they virtually invite the recognition that even many people who call themselves pro-choice think that abortions may be restricted, with justification, at many points, for many plausible reasons. As I say, most people, reached in surveys, don’t accept abortions for the sake of relieving financial strain in the family or even allowing a woman to finish school. Most people insist that something far graver must be at stake as an injury before one destroys a human life. And most women think that abortions should not be permitted without the consent of the father of the child. Now if that much is clear on the face of things, the ground is amply prepared for the nominee now to say: “Senator, even people who are pro-choice evidently see many instances in which some abortions may rightly be restrained by the law. And don’t you see: I could not pronounce today, in this hearing, on the kinds of restrictions on abortion that would justified or unjustified, without virtually inviting that legislation—and inviting in turn the litigation—that I would be asked to judge.” End of conversation. End of conversation on abortion at this hearing, or, I suspect, on any hearing to come. But then not so fast, and perhaps not ever. Theodore Olson and Robert Bork, hearing me lay out this scheme one day, laughed and said, “You’d have your head handed to you.” The nominee would never get away with anything like that. One federal judge, who went through these hearings years ago, asked, “What good would you accomplish by embarrassing Ted Kennedy before a national audience on television?” My response, of course, is that it would do a notable good and a distinct public service to show what Kennedy and Biden do not know, even as they set themselves up to be the judges of judges. It would be altogether delicious. But one friend of mine, a federal judge of long standing, pointed out that Kennedy would no doubt call other colleagues, and report that this man, this nominee, had embarrassed him—nay, maligned him

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personally. And the sense would arise at once that, as a personal favor to a colleague, one should vote against this nominee to the Court. Whether it would run in that way or not, it was clear that no nominee to the Court would come this far and then run the risk of offending members of the Senate. The hearings, as they are arranged now, have put an uncommon strain on the nominees and their families, exposing them to calumny and embarrassment on a national scale, while at the same time they have done little to instruct the public in anything more than slogans about the Constitution. And yet, no nominee would have an interest in absorbing all of the risks to himself and his family by staging even a mild resistance to the charades staged by the Committee on the Judiciary. One friend of mine, a federal judge who had been through this experience, said, “There you go: backing into the assumption that Joe Biden and the others care about the reasons. They don’t. Or they can’t understand them even when the reasons are set out before them.” He was reserved, to put it gently, that the hearings could ever turn into a seminar on the law. And as more than one observer noted, the Senators would take offense at the notion of turning the hearings into a seminar, for who is to be instructed or tested? One friend, a veteran of the Department of Justice, imagined the members of the Committee responding by saying, in effect, “Where do you get off posing questions to us? We aren’t the ones being tested here. We have been elected. But you— you are being appointed to a position in which you can serve for 30 years, a position of considerable power, and you don’t have to run for re-election. This hearing is our only chance to gauge whether you merit that kind of power over the rest of us.” Fair enough, and likely to be true. But since the days of Felix Frankfurter and Sherman Minton, the Senate has reached far higher in its pretensions. It has, after all, rejected confirmation of some of these nominations to the Supreme Court, and it has brought forth the most rigorous regime for examining the nominees and taking testimony about them. The central theme, coursing through these hearings and justifying them, is the claim that these hearings are necessary for the purpose of gauging the perspectives of the nominee on the principles and meaning of the Constitution. Senators have earnestly stated, in their opening statements and their interrogations, that it is a matter of high import for them ascertain the views of the candidate on the Constitution and the way in which he or she is likely to approach certain kinds of cases. If we take the Senators, then, by their own pretensions, and by their own lofty affectations, it is they themselves who have declared that these hearings are justified in their current form precisely because they form a seminar, or even a certain school, in teaching about the Constitution. Well, if that is the case—and the Senators have proclaimed it to be the case—then to take an old

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line from H.L. Mencken, people ought to get what they want—“good and hard.” During the hearings over John Roberts, Senator Joseph Biden suggested that the nominee was being overly discreet and guarded, and at one moment he asked, Could we not have a conversation, just man to man, so that you will tell me what you really think on these matters? Just man to man? I’d be tempted, in that chair, to ask, “Senator would you like to meet privately then in your office, man to man? Or do you mean a private conversation with a whole national audience listening in, as the conversation is played out on television?” If Biden and the others keep taunting Roberts, Alito, and others to join in a candid conversation, then I don’t see how it can be inapt to follow up or counter with this query: “Senator, is this a real conversation—an exchange in which I would be as free to pose questions to you, to get clear on what you are asking, as you are to ask questions of me, to get clear on my views? If you are serious, I’m open for that (and I’d be even more open for it if you would send home the aides now sitting behind you, supplying you with notes and questions). But even so, I’m open for that kind of conversation, in which I am as free to challenge your understanding of these cases as you are free to challenge mine. Is that not fair?” I would submit that the argument, put forth in this way, is fair on its face. My friends, experienced in politics, are quite right to doubt its prospects, but that is mainly because they have a sober reading of the deftness of any candidate in steering through a battery of about seven or eight hostile senators (to say nothing of seven or eight, fumbling senators on one’s own side, who show an odd talent at times for making things worse—as when Lindsay Graham induced Mrs. Alito to sob and leave the room of the hearings). They may also have a realistic view of the way in which people in politics now show a singular incapacity to engage in anything like a serious exchange of reasons. But my own pitch is that the prospects depend here, as elsewhere, on certain arts — not only arts of argument, but a certain art of putting things in a disarming way, or putting things in the kind of way that draws people into a discussion. Which is to say, it may depend on the kind of arts cultivated by people seasoned in teaching, or seasoned in the give and take of the bench—the kind of arts we see on display, quite often, in questioning from the bench, and in moot courts. And it may be sufficient in making the case to remind us of one or two prominent examples in which it was done. Felix Frankfurter was an accomplished professor at Harvard when he was appointed to the Court by FDR, and he was also known to a wider public in what we have come to call these days the role of a “public intellectual.” When he was called in for his hearings—the first time that a nominee to the Court had ever been summoned for hearings—he was pressed by Senator McCarran, a conservative Democrat of Nevada, on whether he rejected communism and Marxism. Frankfurter was

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utterly emphatic that he rejected communism, and he seemed even offended by the question. McCarran sought to get at the question in another way by asking Frankfurter whether he was aware of the writings of Harold Laski, a notable academic at the London School of Economics, a leading figure in the socialist Labour party, and, as it turned out, a regular correspondent with Justice Oliver Wendell Holmes. Frankfurter was well aware of Laski. McCarran then asked Frankfurter whether he had read a recent book by Laski called Communism. Frankfurter had read it. And then McCarran asked Frankfurter the pointed question, “Do you subscribe to his doctrine as expressed in that volume?” I suspect that the book had many parts, with nuances tilted here and there, and Frankfurter responded that it would be hard to give a short answer to that question without launching into a lecture about government. That response drew McCarran in, and he sought to cut to the chase: “If you have read this small volume,” he said, “you can surely answer whether you subscribe to the doctrine?” But that set him up for a fine rejoinder, as subtle as it was piercing. For Frankfurter simply asked, “Have you read the book?” From that query this exchange unfolded: Sen. MCCARRAN. I have just casually glanced at it [the book]. Dr. FRANKFURTER. What would you say is its doctrine? Sen. MCCARRAN. The doctrine is the advocacy of communism. Dr. FRANKFURTER. You see, we could debate all day on whether that is in fact the doctrine of that book. Sen. MCCARRAN. Do you believe in the doctrine set forth in this book? Dr. FRANKFURTER. I cannot answer, because I do not know what you regard as the doctrine. You have never read [this book]. I understand that it is a study of certain beliefs, of a theory called communism. So far as I know, it would be impossible for me to say whether I agree with the doctrine in that book or not because I think it is impossible to define what the doctrine is. Sen. MCCARRAN. If it advocates the doctrine of Marxism, would you agree with it? Dr. FRANKFURTER. Senator, I do not believe you have ever taken an oath to support the Constitution of the United States with fewer reservations than I have or would now, nor do I believe you are more attached to the theories and practices of Americanism than I am. I rest my answer on that statement.11

At this point, the audience in the hearing room burst into applause. In all fairness, Frankfurter was engaged in some minor evasion, for Laski truly was a Marxist, though he professed to be also a democratic socialist, committed to a regime of elections. I suppose that people could accuse Frankfurter of an-

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swering a question by posing another question, but that method is indeed quite apt, and it is often the move made by the teacher in class or the debater in a debate. At times it is indeed legitimate to respond to a question with another question, and that move is most apt when we are trying to get clear on the question being asked of us, or getting clear on what our questioner really understands about the question he is asking. To those who say that this mode of conversation or argument cannot be employed, I simply point out that it has been, by Frankfurter and others, and perhaps it has not been noticed because there is nothing on the face improper or unusual about it. I can recall, just within my own experience, one or two cases in which the same encounter took place on the floor of the House of Representatives, in the heated debate over a bill.12 My point again is that this is all quite familiar, that people recognize what is taking place when this exchange goes on, and the question then is, Why should we simply assume that this kind of exchange cannot take place in hearings for the Court, when nominees are asked questions, and have ample reason to ask questions in turn for the sake even of clarifying the question? And when they ask those questions, they accomplish far more, for they can make it as clear as Frankfurter made clear, that the questioner is not informed enough even to be asking the question—or casting a judgment. The Senator might, as we used to say, get brushed back a bit from the plate. But to be more direct, this kind of exchange would make it clear that the hearings contain dangers for the inquisitors as well as the nominee; and the prospect of that kind of danger, felt on both sides, could have the most wholesome effect on the exchanges in these hearings. It may even pose the question in a direct, sobering way as to whether the hearings should be conducted any longer in the style that has become all too familiar since the hearings over Robert Bork. During the hearings over John Roberts, Senator Edward Kennedy sought to draw out Judge Roberts to support a reading of the laws on racial discrimination that puts the decisive accent on the “effects” of discrimination, or more critically “disparate impact.” That line has been used often for the sake of attacking procedures and tests in hiring that seem quite fair on their face, with no racial bias, and reveal no intention to discriminate on the basis of race. Nevertheless, Sen. Kennedy has been part of a faction seeking to argue that employers should be held accountable for remedies or for schemes of rectification when the ratio of the races in any establishment departs in a striking way from a proportional representation of the races. During the hearings, Kennedy turned the questioning to the classic case of Brown v. Board (1954), as a notable example. And he asked Roberts whether the Court in that case did not put the accent, after all, on “effects.” Was the Court not focusing attention on the “effects” that racial segregation produced in the education of children

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in the schools? Roberts did a graceful turn around the question, which also avoided a certain embarrassment for Senator Kennedy. Had I been in his place—and may I say, that I never longed to be in his place, taking questions for 20 hours—had I been in his place, I would have been tempted to turn the matter back upon the Senator by saying, in a friendly manner to be sure, “Senator, as I recall, there was no evidence at all presented in that case about the ‘effects’ of a segregated education. Perhaps I don’t recall accurately (an intentional fib, for I do recall, with precise accuracy), but there was no evidence presented on a connection between racial segregation and the performance of children in the schools, black or white. There had been no evidence cited on the effects of segregation in general, and no evidence on the effects of segregation in the schools of Topeka or any of the other cities involved in that litigation.” The only “evidence” brought forth in the case was a set of studies carried out by the sociologist Kenneth Clark on children in schools in Springfield, Massachusetts and Little Rock, Arkansas. These were the famous experiments involving the choice of dolls, or filling in a coloring book; and what they gauged was the inclination of young black students to reject their blackness. The studies were embarrassed by the fact that the sense of belonging to a lower caste, the sense of being denigrated as a race, was much more pronounced among the children in Springfield, in the schools that were not segregated. The fact that the studies did not support the conclusion drawn by the Court in Brown v. Board of Education is one of those facts that has been curiously filtered in the understanding that has settled on that case. What the Court wished to say was that there is something wrong in principle about racial segregation; and yet the Court never did manage to explain what that principle was or how we knew it to be true of necessity, with the force of a real principle. Instead, the Court sought to show that segregation produced ill effects, that it impaired the motivation of the black child to learn. And yet, it is all the more remarkable, in the light of this argument, that there was not a single bit of evidence presented to show that the academic performance of black children in the schools was in any degree impaired.13 Now if it is true, as the Senators typically suggest, that these hearings may indeed be a kind of national seminar, or a kind of classroom on the Constitution, these are precisely the kinds of points that are likely to be found jolting, for they are quite at odds with the fuzzy impressions long conveyed about Brown v. Board. And what they reveal about the performance of the Court is quite instructive: The serious treatment of the case would show judges willing to twist evidence to suit their purposes, but even more critically, judges who were open to doing that sort of thing precisely because they had somehow lost the sense of the properties of a principled argument. The wrong of racial discrimination is a wrong, we can show, that does not depend in the least on the

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suffering of a material harm. A black family might be turned away from the purchase of their home on the basis of race and yet find a comparable home at a better price in the same area. They will not have suffered a material hurt, and yet they would nevertheless have been wronged. They would have been treated according to the maxims of an unjust principle.14 If the children were separated on the basis of race in the schools and their reading scores had gone up, would the segregation by race have been any less wrong? These are the kinds of observations that come into play only when one has the sense of the difference between something wrong in principle, and something whose wrongness is contingent on its effects in any case. That understanding was obscured by the Court, and continues to be obscured. But if we look again, with a demanding eye, at the performance of the Court, what we find is this: The Court could not find a ground for its judgment in the text of the Constitution, or in the understanding of the men who framed the Fourteenth Amendment. (And indeed the same Congress that passed the Fourteenth Amendment did not apparently think that it gave them the authority to remove segregation in the District of Columbia, where Congress had a plenary authority.)15 The Court could have sought then to make an argument from the deep principles of the law and the Fourteenth Amendment. The judges appealed instead to social science. But when the findings of that social science ran counter to the holding of the Court, the judges in effect told us that they would decide the meaning of those “scientific” studies, even when the meaning ran counter to the findings that emerged from the studies. With these moves, the judges produced a judgment utterly detached, not only from the Constitution, from the principles of moral reasoning, and from the canons of propositional logic. Now if we had the kind of questioning, in the hearings, that brings out these kinds of points, the hearings would convey things that would rightly come as news to most members of the public. The hearings then would offer no trivial moment in teaching, for lawyers, no less than ordinary folk who have not made the law into their vocation. During those disgraceful hearings over Robert Bork and Clarence Thomas, no one seemed to be a more central figure on the side of the interrogators than the Chairman of the Judiciary Committee at the time, Joseph Biden. Between the hearings on Bork and the hearings on Thomas, Biden displayed one of the most remarkable transformations seen in the law. For if we credit his own account, he had switched from an earnest devotee of natural law and turned into a lawyer with the deepest fears of anyone who professed to think that natural law had any practical bearing in the judgment of cases. But Biden’s switch cannot be explained without taking account of the political situation he was facing in either instance. Robert Bork was widely known as a legal “positivist.” His accent was on the law posited or written down, and he was quite dubious

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about the prospect of construing, with moral reasoning, the propositions that established things rightful or wrongful, if these matters had not been mentioned in the Constitution. Bork’s positivism would have led him to be the fifth vote against Roe v. Wade with a jurisprudence quite along the lines of Hugo Black’s, reflecting the jurisprudence of the New Deal: The judges would look to the explicit provisions in the positive law of the Constitution. If there was nothing in the Constitution on privacy and abortion, then the judges would not interfere with the judgments reached by legislators or officers elected by the people. But now, against a legal positivism employed in that way, Biden was drawn to a notion of the “right to abortion” as a kind of natural right. And so when Biden opened the hearings, in 1987, over Robert Bork, he began by staking out a strong “natural rights” position: As a child of God, I believe my rights are not derived from the Constitution. My rights are not derived from any government. My rights are not derived from any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our creator and they represent the essence of human dignity.16

The argument here was that we possessed rights quite apart from the rights that were “posited,” or set down, in a statute or in the Constitution. Against those claims of “positive” law, there were rights that existed before the advent of any statutes or constitutions; “rights” that simply sprung from our natures as human beings. As Chairman Biden put it, those rights of a human being would come into existence as soon as that being comes to “exist.” Cast in that form, the moral and juridical notion of rights would be anchored in an objective fact: the fact of human nature and the actual existence of a discrete, real person. But in that construction, Biden’s understanding would seem to cover the child in the womb, as soon as that being comes to “exist.” And yet, obviously, Biden could not have accepted that implication, for it would have extended the protections of natural law to the fetus, or the unborn child, and that understanding clearly would have impaired any claim of a “right to an abortion.” Biden might have averted that implication by holding that there was something more doubtful about the “facts” concerning the child in the womb: He might have professed to be agnostic on the question of whether there are indeed any facts we are obliged to respect, as “facts,” to establish just when the child has come to “exist,” and whether that being in the womb can be said yet to be human. A construction of that kind might have helped him reconcile his positions, and yet it would have marked a radical shift in the understanding of “natural rights.” Sen. Biden had declared, in explaining the logic of natural rights, that he had rights that did not depend on the will of any majority,

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rights that claimed their own, independent ground of truth. Presumably then, he would not have argued that human beings had a right not to be enslaved— and yet held, at the same time, that whether they were regarded, however, as human would depend on the opinions held by those around them. Of what sense would it be to claim that we have rights that do not depend on the sufferance of a majority, and then say that our very standing as humans—as rights-bearing beings—may itself depend on the opinions of the majority? Or even worse: could it depend on the opinions of those, like the owners of slaves, who have a direct interest in denying these rights? In that case, how could the “existence,” or the “human” standing of the child in the womb, be made any more dependent on the opinions or “beliefs” of others? And even more implausibly, how could that “existence” depend on the “opinion” of the person who may have an interest to be served by killing the child? Four years later, Biden would be faced with the nomination of Clarence Thomas: another nomination from a Republican president, and hence another danger that the new nominee would be the fifth vote to overrule Roe v. Wade. But this time the danger did not spring from a legal positivist. Clarence Thomas had been tutored on the writings of Lincoln, and the study of Lincoln had moved him to discover again, or discover anew, the doctrines of natural right. Biden had become aware of this interest on the part of Thomas in natural right and natural law, and on the eve of the hearings on confirmation, Biden (evidently with some help from members of his staff) delivered himself of a long article in the Washington Post, expressing his deep reservations about “natural law.”17 And I might add here that I was flattered by the article, for I was chosen as one of the targets in the piece. I was among the people who could be tagged with a measure of responsibility for this new danger, since I was one of those writers who had been involved in the revival of natural law in the 1980s. Biden picked up the cliches settled for many years in the law schools; he identified natural law with those reactionary judges of the 1930s, who resisted the New Deal, along with schemes of “social legislation” in the States. Those judges had to invoke principles of justice that could be posed against the votes of majorities, and so those principles had to sound like a species of natural law. The indictment then offered by Biden was that a judge who took natural law seriously would turn himself into an apostle of “laissezfaire” economics. He would be more inclined to “judicial activism” in striking down laws passed by legislatures to regulate the economy or bring about “social justice.” And of course, it went without saying that a judge who took natural law seriously might go to the rescue of the unborn child and threaten that newly established right to abortion. During the hearings on Bork I thought we could credit Biden at least in this way: that he was the only one in the room who had taken the issue of natural

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law seriously. His comments later, during the hearings on Thomas, might have altered the sense of his seriousness, but at the very least his oscillation on this matter, at the very heart of the law, offers a serious question that may ever be put to Biden in these hearings—and therefore, may be put to him even now. It must matter profoundly, after all, if there are moral truths apart from the opinions held and legislated by a majority. If the human person is the bearer of rights, then his standing as a human or a person cannot simply be swept away by a show of opinion or sentiment. And so it must always be possible to remind Senator Biden, the man who would be the judge of judges, that the judgment in any case would turn precisely on the answer that Biden finally renders to that question of whether there are in fact moral truths and real human beings, which cannot be converted into untruths or non-persons by a show of hands. By a simple shift of labels—by labeling some beings as “niggers” or “fetuses,” a whole class of human beings can be removed from the category of rights-bearing beings. That kind of shift cannot simply be posited or stipulated; it must carry a burden of justification, and it must ever be legitimate to saddle with the burden of argument the people who would carry out that shift. It cannot be unreasonable therefore to ask Senator Biden and his colleagues to carry the burden of giving reasons themselves when they would simply seek to recruit a new appointee to the Court to join them in celebrating Roe v. Wade, and the right to abortion, as a settled doctrine in the law. Senator Arlen Specter added an inadvertent comic edge to these grand pronouncements of Senators, offered as sage commentaries on the law. During the hearings over Roberts and Alito, Specter asked whether Roe v. Wade had acquired the standing now of what he called a “super duper precedent,” because it has been affirmed no less than 38 times in different cases in which the holding of Roe had come into play once again. In his zeal to secure Roe v. Wade as a precedent, Specter affects to be oblivious to the sobering side of the same figures he cites: namely, that as many as 38 cases found it necessary to seek a reading on some aspect of the right to abortion that had not been settled in Roe v. Wade. This is not something that would startle the moral philosophers, for they would recognize that these judgments in the law are moral judgments about the things that are right or wrong, just or unjust, and as the philosophers would say, these moral terms are “open textured”: They supply judgments that close off certain questions, but there will always be openings, or certain strands left dangling (if we may switch the figure), for moral experience will always be open to cases we had not anticipated. The Court installed a right to abortion, and yet several years later it would surprise many people by insisting that this right to abortion, as a private liberty, would not entail a right to an abortion funded by the general public.18 The analogy was in the right to speak: there may be a right to express one’s political views, but if one

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is incapable of hiring a hall or taking out on ad, the government is not obliged to hire the hall or pay for the ad. Does the right to abortion entail the right to destroy the child who survives the abortion—which is to say, does the right to abortion entail the right to an “effective abortion,” or a dead child? One federal judge apparently thought it did; the Congress has recently insisted that it does not.19 May a legislature respect a right to an abortion and yet insist that the abortionist use a method more likely to preserve the life of a child? May the legislature require that a woman choosing an abortion is quite clear on what she is choosing? May the legislature insist that she be given precise information on the state of the child she is carrying and its state of development—whether its heart is beating, whether it is swallowing or moving, or whether its facial features are discernible? In all strictness, no one—neither judges nor presidents nor congressmen—ever settles, in a final way, these enduring questions of moral judgment bound up with the Constitution. Those questions become indeed enduring questions. And if that kind of truth could be conveyed to Senator Specter in the hearings, with the rest of the public invited to listen, it is certainly not an overstatement to say that Specter, along with other members of the public, could learn something about the Constitution, and the judgments of the courts, that they really hadn’t known. There is no overstating the deep principles of the law that come as a surprise even to lawyers who have taken up assignments on the Committee on the Judiciary. But that is to say that lawyers and Senators, like everyone else, find certain gaps in their own basic educations. And yet apart from those omissions that afflict us all, the Senators on the committee have shown themselves at times oblivious—serenely unaware of lines of development in the cases that have marked some of the most notable changes in the understanding of the Constitution and the reach of the federal government. Once again it is that doctor of laws, Joseph Biden, who furnishes the most striking example. During the hearings over Robert Bork, the question was raised about that critical and inscrutable case of Shelley v. Kraemer in 1948.20 In that case the Court struck down the scheme of “restrictive covenants” that often attached to the purchase of houses. The buyer would contract himself not to sell to black people or Jews for the sake of preserving the character and the appeal of the neighborhood to a certain class of whites. The decision in Shelley was not without its layers of problems and confusions—Philip Kurland used to refer to it as “the Finnegan’s Wake” of American constitutional law. The courts that enforced these private covenants were not exactly enforcing a public policy. If people had a right, say, to keep uninvited people from their homes—if they had a right to engage in that private discrimination—then their right meant little if they could not call upon the police at times to uphold their private rights. I eventually worked my way around to the judgment that the Court

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had it right in Shelley, though not for the reasons that Chief Justice Vinson had been able to bring forth that day.21 The same question, with the same puzzles, surfaced during the hearings on Robert Bork, and Bork remarked that we really didn’t need Shelley v. Kraemer any longer, that a good deal of the work that Shelley could do in our law could be accomplished now in a clearer way through the holding of the Court in Runyon v. McCrary, in 1976.22 In that case a group of black parents sued two private, secondary schools that refused to accept black students. The case arose in a period in which the Supreme Court had been reviving the use of the Thirteenth Amendment, the amendment that finally forbade involuntary servitude. But there were legislators and judges who thought at the time that the meaning of the Amendment ran well beyond slavery. In the famous case of Plessy v. Ferguson, Justice Harlan thought that the Thirteenth Amendment also gave the national government the authority to deal with those lingering “badges and incidents” of slavery that endured for black people even after slavery had been abolished. With that sense of the matter, Harlan thought that the Thirteenth Amendment offered a ground quite adequate for protecting a right of black people not to be treated with contempt by being legally separated from white persons on a public train, as though black people were not fit, as a class, to be in the company of whites. He was willing to use the Thirteenth Amendment as the ground for justifying a law on public accommodations, rather like the law we would see in the Civil Rights Act of 1964. Harlan voted to uphold the Civil Rights Act of 1875, which forbade racial discrimination in private businesses that were public accommodations, business open to commerce with the public—restaurants, inns, theaters.23 And with the same understanding, he thought that the Thirteenth Amendment could supply the lever by which the Court could strike down that law of Louisiana that mandated the separation of people by race on trains. Of course, if it were a matter of striking down that law in Louisiana, the Fourteenth Amendment offered a clearer instrument, for it was addressed to the action of States (“No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) But Harlan thought that there was a right here that belonged to “persons,” and not only the citizens who were mentioned in the Fourteenth Amendment. I gather that he thought that the segregation on a train would be wrong even if the black person separated from others happened to be a visitor from abroad. But in his reliance on the 13th Amendment, he seemed to suggest that the national government could legislate against this kind of racial segregation even if the policy on segregating the races had emanated from the railroad company as a private entity.

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One of the critical features then of the Thirteenth Amendment is that the government, acting on the Thirteenth Amendment, could act directly on private persons. It would not be confined to acting upon the States, as the States enact laws that mandate racial discrimination. After years of merely lurking as possibility, that understanding was brought forth in a dramatic way by the Supreme Court in 1968 in the case of Jones v. Mayer.24 The Thirteenth Amendment was used then as a way of explaining how the federal government could act directly on private persons who were engaged in racial discrimination in the sale of housing. This was the theory that now came into play with Runyon v. McCrary. The question was whether a wholly private, secondary school, relying on no public money could be sued under the Civil Rights Act of 1866. That act had been passed before the Fourteenth Amendment, and so it had to depend on that fuller understanding of the Thirteenth Amendment, that the Amendment forbade more than slavery, that it forbade many other conventions, respected in the law, that would denigrate black people and mark them as an inferior caste. The statute had sought to vindicate for black people the same rights that whites had in making contracts to acquire and sell property, and to have the standing to defend their rights of property in a court. In the construal of the Court in Runyon, the refusal to deal with black people as clients or customers marked a refusal to accord to black people the dignity of those persons thought to have the competence and standing to engage in contracts. It marked a refusal in this case to consider black people as having the standing, as plausible clients, to engage the services of the school and have their children accepted as students, on the same plane as other students. Once again, the holding was affected with some of the problems that afflicted Shelley v. Kraemer. As Gerhard Caspar pointed out, the right to hold property, and be treated as a person competent to make contracts, could never have been understood to mean the right to compel an unwilling vendor to sell his property to a person seeking to purchase.25 Still, with all of the problems that still affect this theory of jurisprudence, Robert Bork thought the argument defensible enough that he had supported the black parents in a brief when he was in the position of Solicitor General under President Ford. That piece of intelligence should have made quite a deep impression on a panel of Senators who were all too willing to paint Bork with the caricature of a reactionary, quite insensitive to the wrongs done to black people. But the significance of Bork’s move seemed to make virtually no impression on the Democratic Senators. It is easy enough to infer that it made no impression because they would not let a minor thing like this serious bit of evidence distract them from the conclusions they were determined to reach. On the other hand, it might not have made an impression because they truly did not understand the

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layers of development, and constitutional history, that was contained in Bork’s rather compressed, unelaborated remark that we did not need Shelley v. Kraemer any longer because Runyon v. McCrary gave us something far more powerful and significant. That it was the latter—the want of understanding—was revealed in a gentle, unselfconscious way—by Senator Biden. Biden innocently asked, Judge, did that statute antecede Shelley v. Kraemer? Well, yes, Bork said, it came before Shelley, because it was the statute of 1866. Shelley v. Kraemer, again, was 1948. For those who were listening closely, that brief exchange revealed volumes. If Biden were unaware of the statute that the Court had been reviving for nearly ten years—if he didn’t know that it was the statute of 1866—he was evidently unaware also of why there had been a need to revive it: namely, that the Fourteenth Amendment, concentrated on State action, did not provide any plausible grounds on which the federal government could reach the discrimination of private developers, or private entities. The discrimination engaged in by private parties was not the discrimination that was mandated and enforced by the laws of a State. The move, over ten years, in the case law of the Supreme Court was a response to this puzzle, which has still not been exactly solved. To be unaware of that development was to be unaware of one of the most serious puzzles in American constitutional law, and not merely an academic puzzle, but a question whose answer could alter dramatically the reach of the federal government and the federal courts. Now of course many of us find it hard in our careers to stay abreast of all of the work going on in our rather large fields, with many divisions. But if some of us, in academic settings, find ourselves in the position of making decisions on tenure, or judging the quality of the work of people in fields quite out of our own, we usually show a certain sheepishness, and we look instead to the opinions rendered by those people who can read and judge the work with a professional competence. The Senators, in the Judiciary Committee, do have the advantages of staff and they can call in experts in the field to render judgments. But then they find a politicized field, with many commentators being less than judicious, and of course they find professors arrayed on either side of the case. They are thrown back then on their own judgments, and as we have seen time and time again, on the part of Senators Kennedy or Biden or others, the knowledge of the law they bring to these hearings is what we could call charitably, not up to the job. The Senators do not reveal, in their questions, that they have studied the cases closely over the years or know something about the reasoning in the cases, something that is apart from the reported outcome and the boxscore of the votes. And they reveal also that they have not exactly made it their lives’ work to reflect, in a probing way, about those enduring questions running to the root. They know that laws do not be-

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come rightful solely because they were passed by the vote of a majority; but if they appeal to standards of right and wrong apart from the vote of the majority, where do they find those standards of judgments, and what makes those standards, or those principles of judgment, true? We cannot resist the question of whether the hearings on nominations to the Court can be converted into seminars, because their very subject offers the hearings to us as moments freighted with the possibility of holding a serious discussion on matters of real consequence. But it is hard to hold a seminar without professors or teachers, without those people who know how to pose questions, because they know, indeed, what the right questions are. And that ingredient, it should be evident by now, is critically missing. Something is problematic at the outset about the prospect of holding these hearings as they have been held and touted. That some Senators want to expose a nominee to deep public embarrassment and find a pretext for rejecting him, is quite clear. But it makes a charade of the notion of a school or a seminar to offer the kinds of exchanges that we have seen. My point here is that the only way of ending the bad spectacle is to treat it seriously as a seminar, and expose the inquisitors as well as the nominee to the questioning that puts them on their mettle. If the hearings come to hold hazards for the Senators, that may offer a gentle inducement to recede from these spectacles or replace them with something that is both more civil and more instructive. But then some of us who teach also understand that we must teach in order to read those books again, or to read them in a different way, when we have to try to explore their meaning with students. And it might be, in that respect, that the hearings would serve the real purpose of hearings if it makes the questioners, the would-be teachers and judges, come to understand more fully what they themselves do not know. We arrive then at this sobering conclusion: It seems to be in the interest of no one to convert these hearings into seminars. And yet, the very nature of the project calls out for the effort. We have reason to know, from experience, that this kind of a conversation or exchange can be done; it is a question, finally, of whether the nominee has the wit and the art to draw the Senators into an earnest conversation. Most accomplished lawyers and judges I’ve seen, including John Roberts and Samuel Alito, do have that knack and that wit. What may be said then of this exercise in teaching may call back G.K. Chesterton’s line: that governing oneself is rather like writing a love letter or blowing one’s nose. It is something that a man ought to do for himself even if he does it badly. Or as we might say, this conversion of the hearings into a moment of teaching is something that ought to be done, even if we are less than artful teachers. For the occasion in itself, rather like the work of the judge itself, is sufficient to enjoin us to draw upon the best we could in those arts we have made it our career to cultivate. The hard fact is that any person who has

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come this far, to the threshold of the Supreme Court, does not want take any risk of losing this wondrous thing now placed before him. But the melancholy part may be put in this way: If John Roberts and Samuel Alito do not have the wit or the art to lure the Senators into this conversation, who would be better in doing it? And if not now, when? When would it ever be out of season to take a moment of high public attention in order to break out, to the attentive public, some lessons that the urbane should know about the character of our law?

Notes 1. The report on the letters, and the account of Sutherland’s appointment may be found in my own book, The Return of George Sutherland (Princeton: Princeton University Press, 1994), pp. 15, 18–20. 2. In my recounting of the hearings on Frankfurter, along with those of Sherman Minton, John Marshall Harlan and others, I lean on the fine thesis done by Mahesha Subbaraman as his senior honors thesis at Amherst College, The Silent Operation: Finding Judicial Meaning in the History of U.S. Supreme Court Confirmation Hearings (2006). For the passages on Frankfurter, see pp. 19–25, 43. Cited hereafter as Subbarman, History of Confirmation Hearings. 3. Ibid. Ch. 2, and especially pp. 82–83. 4. See ibid., p. 102 and passim. in Ch. 3. 5. On that point, see again my study of George Sutherland, in some of the signal cases during—and preceding—the New Deal. See supra, note 1, pp. 53–61, 83–118. 6. See, as a notable case in point, Madsen v. Women’s Health Center, 512 U.S. 753 (1994). And see also Thornburgh v. American College of Obstetricians and Gynecologists,476 U.S. 747 (1986). The latter case offered the occasion for that observation offered by Justice O’Connor in a rare, and fleeting, moment of lucidity: “that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” 476 U.S. 747. 7. Eisenstadt v. Baird, 405 U.S. 438 (1972). Griswold had been decided seven years earlier—see 381 U.S. 479 (1965). 8. See Bowen v. American Hospital Association, 476 U.S. 610 (1986). 9. See Reinhardt’s opinion in Compassion in Dying v. Glucksberg, 79 F.3d 790 (1996). 10. See 410 U.S. 179 (1973); Roe v. Wade was just ahead of it in the reports at 410 U.S. 113. 11. Subbaraman, History of Confirmation Hearings, supra, note 2, pp. 45–46, and see also pp. 48–50. 12. A telling case here may be found in the spring of 1996 when the House was considering the Defense of Marriage Act (DOMA). Congressman Moran of Virginia was resisting the bill. The manager of the bill, Henry Hyde, was the chairman of the Committee on the Judiciary. Hyde countered Moran by pointing out that the recent decision of the Supreme Court in Romer v. Evans would seem to have “vitiated” Moran’s

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argument. Indeed, it had made Moran’s argument vacuous. The exchange unfolded in this way: Mr. HYDE. Mr. Chairman, if the gentleman will continue to yield, does the gentleman know the Romer case? Because the Romer case directly vitiates what the gentleman just said. Mr. MORAN. The gentleman and I have a difference of opinion. Mr. HYDE. Mr. Chairman, is the gentleman familiar with the case? Mr. MORAN. Mr. Chairman, I do not perceive it in the same way the gentleman does. If the gentleman would like to explain why it does, then I would be happy to yield the time that I have. I do not interpret it as accomplishing what the gentleman said. Mr. HYDE. Mr. Chairman, I will send the gentleman a copy of the opinion and dissent by Justice Scalia. A former student of mine, a congressman, was on the floor at the time, and he remarked later that Moran was in a position that no one ever wished to be in. The Chairman of the Judiciary Committee, Henry Hyde, faced him directly with the question, and as my friend said, it was evident to anyone within 100 yards that Moran had been caught flat-footed. It was evident that he hadn’t read the case, and that he did not know what he was talking about. For the exchange, see Congressional Record, U.S. House of Representatives, 104th Congress, 2nd Sess., July 12, 1996, p. H7489. 13. The “evidence” cited in Brown, from Kenneth Clark’s famous study with children, using dolls and coloring books, was treated at length in my book, The Philosopher in the City (Princeton: Princeton University Press, 1981), pp. Ch. VI, and especially pp. 233–36, 240. 14. See my First Things (Princeton, 1986) for a fuller statement of the principle engaged here—and the notable case of Cecil Partee, who was barred by his race from attending law school in Arkansas. He was given a voucher and compelled to choose instead between the law schools at the University of Chicago and Northwestern. As Partee later remarked, “I laughed all the way to Chicago.” He had not suffered a material harm. But he had indeed been treated according to the maxims of an unjust principle. See First Things, pp. 92–99. 15. Professor, and now federal judge, Michael McConnell, has argued, in a substantial essay, that the Republicans in control of Congress at the time had indeed meant to reach, with the Fourteenth Amendment, to the problem of racial segregation in public schools. See McConnell, “Originalism and the Desegregation Decisions,” 81 Virginia Law Review 947 (1995). McConnell’s argument has been countered, in a respectful but pointed way, by Michael Klarman, “Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell,” 81 Va. L. Rev. 1881 (1995). And McConnell responded in turn with “The Originalist Justification for Brown: A Reply to Professor Klarman, 81 Virginia Law Review 1937 (1995). 16. Hearings on the Nomination of Robert H. Bork to the Supreme Court of the United States, Committee on the Judiciary, U.S. Senate, 100th Cong., 1st Sess. (1987), Part 1, p. 97. Italics mine—H.A.

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17. See Biden’s piece, on “Law and Natural Law,” Washington Post, Outlook Section, September 8, 1991, pp. C1, C4. In the course of his article, Chairman Biden paid me the curious compliment of taking my own writings as an example of the kind of natural law he would seek to resist. But he fell into the awkwardness of misstating my own views—and offering a mistaken account of the cases he was citing. The late Meg Greenfield offered me the privilege of replying a day later, the day that the hearings opened over Clarence Thomas. See “Sen. Biden’s Mistaken Account,” Washington Post, September 10, 1991, p. A18. 18. See Harris v. McRae, 448 U.S. 297 (1980). 19. Vide, the Born-Alive Infants’ Protection Act (2002), and cf. Floyd v. Anders, 440 F.Supp. 535 (1977). 20. See 334 U.S. 1 (1948). 21. See Arkes, The Philosopher in the City, supra, note 13, pp. 341–45. 22. See 427 U.S. 160 (1976). 23. See the Civil Rights Cases, 109 U.S. 3 (1883). Harlan’s opinion, of course, was in dissent; the Court struck down that earlier version of a law barring racial discrimination in places privately owned, but “public accommodations.” See Harlan’s dissent at 33 ff. 24. See 392 U.S. 409. 25. Gerhard Caspar, “Jones v. Mayer: clio, Bemused and Confused Muse,” in Philip B. Kurland (ed), The Supreme Court Review 1968 (Chicago: University of Chicago Press, 1969), pp. 89 ff. Still, with all of the problematic points about the case, a strong argument could finally be made, I thought, on its side. See my own extended treatment of the case in The Philosopher in the City, supra, note 13, pp. 348–60.

7 The Supreme Court and Changing Social Mores Christopher Wolfe

is a profoundly important question. It is a significant element in our understanding of the causes of social phenomena, and it also has key implications for decisions about law and public policy. The Oxford English Dictionary defines mores as “[t]he shared habits, manners, and customs of a community or social group; spec[ifically] the normative conventions and attitudes embodying the fundamental moral values of a particular society, the contravention or rejection of which by individuals or subgroups is liable to be perceived as a threat to stability.” Alexis de Tocqueville, in Democracy in America, when discussing the importance of “manners” that are “favorable to the maintenance of political institutions,” says:

T

HE RELATIONSHIP BETWEEN LAW AND MORES

I understand here the expression moeurs in the sense the ancients attached to the word mores; not only do I apply it to mores properly so-called, which one could call habits of the heart, but to the different notions that men possess, to the various opinions that are current in their midst, and to the sum of ideas of which the habits of the mind are formed. I therefore comprehend under this word the whole moral and intellectual state of a people.1

There is no doubt that there have been some profound changes in American mores over time, and especially since the 1960s. One obvious example of such change occurred in the field of race relations, with the dismantling of legal segregation and great strides (not without continuing difficulties) toward racial equality. — 153 —

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Another area of profound change has been the whole complex of issues associated with marriage and family, gender roles, and sexual mores. The older division of gender roles has been modified substantially, as women have moved into the workforce in large numbers, though women continue to play a special role in the raising of children. The age of first marriage has risen considerably, and divorce rates and non-marital childbearing have both increased dramatically. The use of contraception has become conventional, abortion has been legalized, and there has been a decrease in the average size of families (less in the United States than other Western nations, which are well below population replacement levels, but still significant). The benefits and harms of these changes have been central issues in the so-called “culture war.” I want to focus on one aspect of this overall topic, namely, the role of the Supreme Court in changing sexual mores.2 There is considerable controversy as to the magnitude of the role the Supreme Court has played in changing social mores in the United States, but few doubt that it has played some role. In this presentation I want to discuss two stories that are sometimes told to explain the relation between the Court and social mores. The first story is, in principle, ideologically neutral. The second story has two versions, one commonly told by cultural conservatives, and another more commonly told by cultural liberals. After describing these stories, I want to offer a more complex story of my own.

The First Story: The Court is Simply Confirming Social Changes The first story downplays the role of the Supreme Court in changing social mores, arguing that the Court does little more than confirm changes that have already occurred in the larger society. This is the story commonly told about Griswold v. Conn. (1965).3 It is hard to imagine that there is no relation between law and social mores. Defined as Tocqueville does it, the mores are the whole intellectual and moral state of a people, and how could that possibly fail to have some influence on the laws that a people adopts? How could a people endure for a long time a sharp disjunction between its whole intellectual and moral state and its laws? It gets more complicated, however, when one attends to the fact that both laws and mores change. There is no reason to assume that they will move exactly together. One can imagine, in principle, a change of laws that fosters a change in mores, and just as easily a change in mores that stimulates a change in laws. The story often told about Griswold is that American mores had dramatically changed in the 1950s and that the laws—in this case, the laws of Connecticut—

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had not kept up with these changes. Because there were obstacles in the ordinary legislative process that prevented it from adjusting to the new mores, it was necessary for some force outside the Connecticut legislative process to intervene and break up the logjam, and permit the realignment of the law with newer social mores. That force was the Supreme Court. The introduction of the widespread use of contraception may be one of the most profound changes in human history. Throughout history there have always been ways that people have tried to prevent conception resulting from sexual activity, but a combination of strong religious objections and doubts about the reliability of those methods prevented contraception from becoming a publicly accepted practice. The fear of pregnancy, therefore, was traditionally a serious disincentive to sexual activity, both within marriage and outside it. The twentieth century saw a growing movement to legitimize contraception. At the 1929 Lambeth Conference in England, the Anglican Church declared that, in very limited circumstances, use of contraception by married couples could be legitimate, and most Protestant denominations followed suit subsequently. Secular groups such as Planned Parenthood were founded in the early twentieth century and became increasingly respectable during the 1950s. The introduction of the oral contraceptive in the mass market, officially in 1960 (unofficially, as a way of regulating menses, in 1957), contributed to a profound change in U.S. society. One scholar points out that between 1965 and 1985 “U.S. fertility rates fell by 50 percent.” Her estimates suggest that approximately 40% of the marital fertility decline from 1955 to 1965 can be attributed to the birth control pill.4 The Supreme Court decided Griswold in 1965, striking down Connecticut’s law prohibiting the sale or use of contraceptives.5 The Court based its decision on what can be regarded as either a highly imaginative or an utterly implausible reading of the Bill of Rights (depending on one’s view of judicial “creativity”). Justice Douglas argued that the penumbras of the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments create a right to privacy. It seems likely that he took this route in order to avoid basing the argument on “substantive due process,” a doctrine that had not yet divested itself of the stigma of pre-1937 economic judicial activism (at least for people as old as Justice Douglas, a once-upon-a-time “New Dealer”). Given that it is implausible to consider Griswold a result of simply enforcing the command of the Constitution, which seems not to touch on questions of sexual morality at all, the question of its legitimacy naturally arises. An oftinvoked critique of judicial action without constitutional grounds is that it permits the least democratic branch of government to strike down the acts of

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the more democratic branches. That a branch not readily accountable to the will of the majority should have the power to strike down a law passed by a branch regularly accountable to the will of the majority seems doubtful on standard accounts of democratic theory. The common story about Griswold, though, is that this characterization of the case is wrong. It is wrong because it does not take into account the passage of time and the burdens of inertia. There is no reason to assume automatically that, just because a law is on the books, it has the support of a majority. Laws that once had such support may, over time, lose it. The evidence that the law challenged in Griswold was no longer supported by a majority of Connecticut or the nation is indisputable. The Court four years earlier in Poe v. Ullman had noted that contraceptives were widely available in the state, and used without legal consequences. If the law no longer had majority support, why was it still on the books? That is accounted for by the legislative burdens of inertia. Americans are famous for having established political systems (at both the national and state levels) that are not purely democratic, but that contain various checks and balances to prevent even ordinary (perhaps short-term or impulsive) majorities from depriving minorities of their rights. These checks include not only 1) the inter-branch checks that protect the separation of powers among the legislative, executive, and judicial branches, and 2) the checks that help to protect the division of power between federal and state governments, but also 3) intra-branch checks, especially within the legislature, such as the Senate filibuster and the House Rules Committee in the U.S. Congress. Moreover, these checks are strengthened by other, more general characteristics of democratic government, notably, 4) the enormous diversity of opinions, passions, and interests in a modern commercial republic (Madison’s famous argument in Federalist No. 10), which often requires a complicated process of bargaining, compromise, and coalition-formation in order to pass legislation, and 5) the variability in intensity of political feelings, which often gives smaller groups (even small minorities) a political strength far in excess of their numbers (not least because of the havoc a well-organized and very unhappy minority can wreak on those who hold elective office). For all these reasons, American governments often have a certain bias toward the status quo: it is typically hard to enact major legislation, and also hard to repeal it. This structural tendency toward the status quo creates “burdens of inertia” that can be difficult to overcome even when there is a clear majority sentiment in the community in favor of new legislation (or repeal of old legislation).

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So the argument regarding Griswold is fairly simple and straightforward. The Connecticut anti-contraception law—an artifact of nineteenth century social mores—had become wildly out of sync with the dramatically changed, and likely irreversible, mores that had emerged in the U.S. after the mid1950s. At the same time, however, there was still opposition to legislative change from a politically powerful minority, namely, the Roman Catholic hierarchy and those Catholics who would follow their lead. Moreover, the popular pressure for change in the law was weak because it was widely unenforced, and therefore the law did not create the animosity that would have generated political support for repeal, had it been enforced. Under these circumstances, the Supreme Court, it is argued, was eminently justified in striking down the law. And in so doing, it was not acting in a way that violated democratic theory, but rather in a way that was easily defended on democratic grounds. The Court, after all, was not setting up a barrier to majority rule, but rather it was vindicating the undeniable preferences of most people in the state. This story can be (and has been) applied to other cases. But let us turn to another story now, which attributes a somewhat different, and more influential, role to the Supreme Court.

The Second Story: The Court Displaces or Transforms Social Mores An alternative vision of the Supreme Court is that it plays a transformative role in American social mores. This story has two versions: one that resents the transformation and one that applauds it. I will focus especially on the first of these. Corrupting Traditional Social Mores Cultural conservatives sometimes tell the story of a Supreme Court that has undermined and destroyed the sound traditional mores that once were dominant in American life. This story is often told of the Supreme Court’s jurisprudence on obscenity. The first major Supreme Court obscenity case was Roth v. U.S. in 1957.6 At the time Roth was decided, American standards of public morality were rather traditional. Of course, such standards have tended to vary from time to time (as the “gay 90s” and the “roaring 20s” suggest), but this variation occurred within definite limits. Moreover, there have in every age been available discreetly activities and materials incompatible with public standards of decency.

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But that distinction between public and private was an important indication of society’s distinction between what was proper and what was base. There were strict limits on what could be portrayed on television and in movies and in books for the mass market, largely adopted by the industries themselves. In the 1950s, there were a few instances of growing public explicitness regarding sexuality, both highbrow (e.g., the growing respectability of D.H. Lawrence novels) and lowbrow (e.g., Playboy, which started publishing in December 1953), and many instances of more subtle innuendo (e.g., Cole Porter lyrics), but on the whole (certainly by today’s standards) society’s public norms were conservative. Roth reflected the traditional standards in one way, by strongly asserting that obscenity was not protected by the First Amendment. The Court relied on history and precedent, and on the idea (more asserted than argued— perhaps because, at that time, it didn’t seem to require argument) that obscenity was without “redeeming social value.” But Roth also reflected the impulse to mitigate traditional prohibitions of obscenity somewhat, in requiring that the evaluation of obscenity be based on the average man (not more susceptible groups into whose hands the book might fall, such as children) and on the predominant theme of the entire book (not merely certain passages). Moreover, the Court equated its own definition of obscenity, focused on appeal to prurient interest, with an American Law Institute definition that included both prurient interest and community standards of explicitness or candor (subtly acknowledging that community standards might accept some appeal to prurient interest). What is striking about the subsequent development of obscenity law is how quickly restrictions on obscenity collapsed. By 1966 the Court was holding (based on a plurality opinion combined with the two Court free speech absolutists, Black and Douglas) that Fanny Hill (Memoirs of a Woman of Pleasure) was not constitutionally obscene, although few people had ever doubted that it was intended to be a work in precisely that genre.7 The lawyer who won that case promptly published a book proclaiming The End of Obscenity, though the Court did maintain some limits, focusing more on the “pandering” of the publishers than the content of the book.8 One of the keenest analysts of the legal changes regarding obscenity, Harry Clor, emphasized the ambiguity of the idea of “community standards” that helped to fuel this relatively quick transformation of the law.9 Are community standards, “standards of taste” or are they standards “embodied in customs and habits of thought”? Are they short-term and more ephemeral standards, or long-term and more substantial—distinctions reflected in the differences between “fashion,” “custom,” and “conviction”? How does one discern the community standards? Are they seen in the conduct of the people of the com-

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munity, or should one look to the beliefs and convictions of the community (even where the conduct falls short of them)? And do community standards regarding obscenity concern what violates community standards of right, or what offends the average person, or what arouses the sexual desire of the average person?10 Obscenity cases after Roth increasingly gravitated toward a view of community standards that focused on “the outer limits of tolerance which the community as a whole gives to writing about sex and sex relations.”11 Since a community may tolerate much that it does not approve, the outer limits approach contrasts starkly with an approach focused on community moral standards, what it regards as right. The outer limits can be found by examining what is actually being done in society, trends in the various media and in the general climate of opinion. The implications of this approach are described well by Clor: . . . changes in community moral values are not entirely spontaneous and ungovernable developments. They are fostered by authors and judges. Authors venture into new fields of salacity on the assumption that a section of the public will be receptive and that judges will be permissive. The judges are permissive; noting an increase in the publication and consumption of such material, they conclude that community opinion is changing. Under the influence of these publications, plus their legal sanction, the climate of opinion does change. On the basis of this new opinion, authors venture farther beyond the earlier standards, carrying their publics with them. The judges, noting these changes, once again revised their conceptions of community standards. This is followed by increasingly sordid materials and further changes of opinion.12

In the end, the “outer limits of tolerance” approach “imposes upon the community standards and attitudes which the community does not really hold.”13 And how, in practice, is this approach applied? Judges have to evaluate what society “tolerates.” Does that always include “the latest trends”? Does this mean that the standards of the most permissive sections of society are applied to the whole community? And what is “tolerance”? What if large sections of the community disapprove of emerging tendencies and standards, perhaps even campaigning against them by protests and by taking legal action. If they fail to achieve their objectives, do they now “tolerate” the continuation of evils they object to? How would they indicate that they find some materials not tolerable, but unendurable? How could judges ensure that they recognize that the outer limits have been reached and exceeded? The fact soon became clear, Clor says, that “[t]his concept is evidently more serviceable for the purpose of relaxing restraints than it is for the purpose of restraining them.”14

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And that, of course, is what happened. It is true that the 1973 Court opinions in Miller v. California and Paris Adult Theatre v. Slaton seemed to call a halt to this process, and in some respects they did.15 The Court cut back on Memoirs by changing one of the requirements for obscenity from being “utterly without redeeming social value” to lacking “serious literary, artistic, political, or social value.”16 But it is also worth noticing that this reassertion of state power to regulate obscenity was by no means a return to the Roth status quo ante. The Burger Court indicated in Miller that this state power to define what was patently offensive was limited to what used to be called “hard-core pornography” —patently offensive representations or descriptions of ultimate sexual acts and organs.17 But it was too late. Even with this rather limited power, states generally did not seem to exert themselves to engage in extensive regulation of obscenity in the wake of Miller.18 Now what does this story tell us about the role of the Court in changing social mores? The Court is not simply ratifying a change that has already occurred. Nor is it—the unsophisticated form of this story—that the Court has imposed its own view of social mores on the nation. Rather, it has weighed in on one side of an important social dispute and made the views of one part of society legally authoritative. In this case, the most fundamental division in society was between elite intellectuals and ordinary (mostly middle-class) citizens. Most intellectuals in the modern world (academics, writers, artists) have tended to embrace an ideology of “expressive individualism” that places great emphasis on autonomy and unrestricted self-expression, and they have tended to oppose social regulation of “self-regarding” actions, especially laws enforcing traditional morality. Their attitudes on sexual mores are far to the left of ordinary Americans.19 Judges, even justices of the Supreme Court, are not necessarily intellectuals, but they tend to look up to and respect intellectuals, and to value their good opinion (much as most of those who work in the modern media do). They generally share a common commitment to the importance of intellectual activity and to broad notions of free speech. They often conceive of themselves as constituting a barrier between “majority opinion” and the rights of minorities, including “cutting-edge” thinkers and artists. In the case of obscenity, this took the form of an exalted estimation of the literary, social, and political value of works that challenged more conventional attitudes regarding sexuality, and a more negative view of populist hostility to avant-garde literary and artistic works.20 It is unsurprising, then, in retrospect, that judges intervened in the area of obscenity to cut back social regulation that might (and, indeed, sometimes did) jeopardize works held by experts to have great literary value. Once the judges intervened to restrict regulation of obscenity, ordinary commercial

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forces, loosed to cater to the powerful human sexual urge, led to a dramatic increase in less exalted obscene materials in society (which were often defended by modernist intellectuals as well). The increasing prevalence of those materials influenced perceptions of social norms— “normalized” attitudes toward them—and society followed the path toward increased liberalization of social attitudes toward explicit sexual materials. We can only speculate about what changes in social mores regarding obscenity would have occurred in the absence of judicial intervention to narrow the definition of obscenity and to provide legal protection to more and more sexually explicit materials. Certainly there are social and technological forces in the modern world that might well have transformed social mores in the absence of judicial protection of obscenity. But it seems clear that the speed and magnitude of the change have been greatly influenced by the changes in the law, and by the changes in society that the absence of legal restrictions made possible. Cultural conservatives argue that human beings are rational animals—animals with intellect and free will—but that they are also rational animals— with strong passions as well. These passions, properly directed, are not only not bad, but are an essential part of a healthy moral life. But the requirement of proper direction is a key one, and when men follow their passions instead of reason, the results are often catastrophic. The sexual urge is a powerful part of human nature, and it is the source of benefits to human beings that should be a source of wonder and awe. Above all, they think, it is intimately intertwined with sublime marital love and with the extraordinary experience of participating in the creation of new human beings. But in line with the old Latin motto, “the corruption of the best is the worst,” the sexual urge also leads human beings to commit acts that cause incalculable pain and degradation. From an extraordinary wealth of examples, consider Lancelot and Guinevere and the destruction of Camelot; or Anna Karenina; or King David, Bathsheba, and Uriah. The key to making sex work for human happiness, then, is channeling it constructively. But that channeling requires considerable constraints—and, given that man is a social animal, these must be social as well as personal constraints. The great channel for sex is marriage and children, and so society should strive to provide a moral ecology that will encourage people to keep a close tie between sex, marriage, and family. The Supreme Court’s decisions regarding obscenity played a major role in undermining public standards that connected sex, marriage, and family. By unleashing the dogs of uninhibited sex—sex detached from marriage, sex, and family—it played a transformative role in changing American sexual mores.

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Sexual Liberation The culturally liberal story about the Court is roughly the same story, but draws different conclusions. The Court did play the role we have just described, but, according to this alternative version of the story, that was a good role. Above all, it eliminated sexual inhibitions that have been, and are, a key obstacle to human happiness. The greater problem for human beings has not been sexual libertinism, but sexual repression. According to this story, the restraints society has imposed on the sexual impulse have not been beneficial but profoundly harmful. The specific form of this story can vary considerably, depending on where a person draws the line on ending sexual repression. The liberal reform of social mores started with a focus on sexual repression within marriage (especially the harms of having to curtail sex to avoid pregnancy in previous eras without contraception, and—for this and reasons of gender inequality—the unequal opportunity for female sexual fulfillment21). Over time it came to focus more on sexual repression prior to or apart from marriage—that is, from the confinement of sex to marriage. In more radical cases, it aims at marriage itself, as a kind of ultimate obstacle to sexual fulfillment. (This latter story is especially prominent among certain “queer theorists.”) Given the understanding of sexual repression as the great enemy of happiness, obscenity becomes a great good, and the Supreme Court, because it eliminated the legal barriers to this good, played a positive transformational role in changing social mores. So, whether as corruptor, or liberator, of sexual mores, this story attributes a central role to the Supreme Court in changing social mores. The Court’s role was not merely ratifying social change—it was participating in the initiation of widespread social change by knocking down legal barriers to the change proposed by the “new class,” who lacked sufficient political power to remove these barriers through the ordinary political process.

A Third, and More Complicated, Story: The Court Shapes Social Mores Off and On The story I want to tell about the Court is more complex, since the Court plays very different roles at different times. I want to tell this story by tracing the development of the Court’s privacy doctrine from its beginnings in 1965 into the new century. We have seen the description of Griswold as a case in which the Court merely ratifies changed social mores, rather than itself initiating them. While

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there is considerable debate as to whether the Court should have done this, there is at least a good deal of truth in the contention that that is what the Court did.22 But the subsequent evolution of privacy decisions exemplifies a variety of different roles that the Court has played in this area. In Eisenstadt v. Baird (1972), the Court used the equal protection clause to strike down a Massachusetts law that prohibited the distribution of contraceptives to unmarried people and required physicians to dispense contraceptives to married people.23 (The law, however, allowed anyone to use contraceptives for the purpose of preventing venereal disease.) Despite employing a supposedly deferential “rational basis” test, the Court argued that the law was unconstitutional. The most important part of the case, for our purposes, was Justice Brennan’s expansion of the privacy right. That right did not inhere in the marital unit, he maintained, but was an individual right, and therefore the distinction between married and unmarried people had no rational basis. This was in striking contrast to earlier cases. Griswold had given considerable weight to marriage, and only a bit earlier Justice Harlan’s dissent in Poe v. Ullman—the first opinion to argue that the Connecticut anti-contraception law was unconstitutional—was squarely grounded on it.24 (Because Harlan dissented on the standing issue in Poe, he went on to discuss the merits of the challenge against the law.) Harlan had based his argument on substantive due process, as a prohibition of arbitrary limits on fundamental rights, and the key element in our history and traditions he invoked was the sanctity of marriage. The law was unconstitutional because it struck at the institution of marriage.25 In Griswold, Douglas chose not to rely on substantive due process (because of its former association with conservative judicial activism to protect property rights) and made a supposedly more textual argument based on overlapping penumbras of Bill of Rights guarantees that protected a right to privacy. But marriage still played a central role in his argument when considering the specific confines of the privacy right, and Douglas even concluded his opinion with a lame effort to wax rhapsodic about marriage. In Eisenstadt, only eight years after Griswold, the right to privacy regarding the use of contraceptives is not only no longer based squarely on marriage, but marriage is no longer even a rational basis for distinguishing between those to whom the state could and could not forbid contraceptives. In language that seems almost deliberately to challenge the Christian notion of marriage as the two becoming one flesh, Brennan argues: It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate

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intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.26

It is difficult to say what the exact relation of Eisenstadt to contemporary sexual mores was, given the change and confusion in society in the late 60s and early 70s. I think it is pretty clear that Eisenstadt did not simply ratify a clear, already-existing change in social mores (as Griswold arguably did, especially in view of the widespread use of contraceptives and the utter lack of enforcement of the law), but nor was the Court taking the lead in transforming a stable set of traditional sexual mores. In this case, it seems that society was in the midst of social change regarding the public legitimacy of sexual activity outside of marriage, that the scope of that change was still uncertain, and that the Court weighed in on behalf of those forces arguing for broad social changes and helped to legitimize the ideology of individualistic sexual autonomy associated with it. So the Court was neither following changes in social mores, nor creating them, but rather acting in conjunction with those who were promoting them, playing a significant role in freeing such change from legal obstacles and helping to give them public legitimacy. Roe v. Wade, only one year later, was a different story.27 Here, I think it is fair to say, there is now a consensus that the Court clearly moved out in front of public opinion. The Roe opinion could have been written in a very different way, one that provided a limited range of protection to abortion, perhaps in the “hard cases” and in earlier stages of pregnancy. The Court chose, instead, to institute the broadest regime of abortion rights among industrialized Western democracies (as Mary Ann Glendon has described so well in her Abortion and Divorce in Western Law). The practical effect of Roe (and Doe v. Bolton) was to protect an almost absolute right to abortion in the first six months of pregnancy, and rather broad grounds for abortion rights (health, including mental health) even in the last trimester. While a few states had somewhat expanded abortion rights in the years prior to Roe, the Court decision went far beyond any of even these permissive abortion laws. It is plausible to speculate that the Court majority thought it was merely anticipating further changes in American social mores that it believed were in the offing. If current abortion law, even in more liberal states, was less expansive than what the Court mandated, that was because there was a time lag between changing social mores and changes in the law, and perhaps also because the logic of changing sexual mores had not quite had time to work itself out yet— but that logic would inevitably work itself out, and the Court was merely working it out at a quicker pace than society itself. It would only be a matter of time before society endorsed the social mores embraced by the Court in Roe.

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In retrospect, even backers of broad abortion rights, such as Ruth Bader Ginsburg, argued that the Court was right about the bottom line, but wrong about the way to get there. The real changes in social mores that required abortion rights were not so much the individualistic sexual autonomy ideals of Roe (following Eisenstadt), but the profound gender equality changes in society. Grounding abortion rights on the latter foundation (equal protection rather than privacy), she argued, would have made them much more acceptable in American society.28 The effect of Roe, in fact, was to “set back” the transformation of American mores that social liberals sought, because Roe, following earlier Court decisions, not only in the privacy area, but also in obscenity and ChurchState jurisprudence, became one of the great catalysts of the American “culture wars.” If the momentum in the pre-1973 years had lain with the advocates of liberalized social mores, Roe was the final straw, the fire-bell that wakened a heretofore sleeping political giant: evangelical Christians. Unlike more liberal “social gospel” Protestants, evangelicals had tended to be less politically involved in the first part of the twentieth century, but the school prayer, obscenity, and abortion decisions stimulated the political mobilization of the so-called “Moral Majority.” As Nathan Glazer argued persuasively, the rise of the Religious Right was not an offensive jihad intent on imposing its religious values on American society, but a defensive reaction against the perceived secularization of American society led by the Supreme Court.29 Of course, the rise of the Religious Right only confirmed in the minds of elite intellectuals and their allies (judges, the media) that legislation based on, and supporting, traditional morality was illegitimately based on religious ideals that contravened the separation of Church and State, and so they fought to vindicate what they considered to be the appropriate “secular” ideals. Under the new conditions of American politics, however, they operated at a serious disadvantage in the political process, since the working out of their agenda for transforming sexual mores lacked majoritarian support.30 Since 1980, after all, there has been either a Republican president, or a Republican Congress, in all but two years. Under these circumstances, recourse to the judicial branch was especially important for social liberals. But new judicial appointments to the Supreme Court (as well as lower courts) made such recourse problematic. If the Court showed no inclination to assist the Religious Right and little inclination to roll back earlier decisions, it began to have second thoughts about taking the lead in opening the way for new social mores. These new attitudes manifested themselves in a number of Court decisions in the late 80s. In Bowers v. Hardwick (1986), the Court refused to extend the privacy right to include homosexual activity.31 The Court did not do so out of any preference

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for traditional sexual mores—there was no suggestion that homosexuality was morally or socially problematic, for example. Rather, White’s opinion, while holding on to modern substantive due process, argued for a much greater degree of caution in its exercise, on majoritarian grounds. If the Georgia statute’s prohibition of homosexual acts (as the Court characterized it) was rational, that was because of the majority’s presumed opposition to homosexual sex. Of course, as the dissents noted (especially Stevens’), the law itself did not discuss homosexuality. It effectively prohibited oral and anal sex, whether heterosexual or homosexual. The Court majority had to ignore this fact, because Court privacy decisions seemed to indicate that such heterosexual sexual activity—certainly married, very possibly unmarried—was protected. Acting on its new-found caution about finding new rights in substantive due process, however, the Court ignored this problem and simply left the question of homosexual activity to be resolved by the state political process. In 1989, in Webster v. Reproductive Health Services, the Court seemed to take a giant step toward undermining Roe v. Wade.32 The Court opinion clearly undermined the doctrinal foundations of Roe, but, in deference to O’Connor, the swing vote, it upheld the challenged Missouri laws without overruling Roe itself, appearing to leave that to another day. Perhaps, it appeared, the fact that the Court was not speaking for the nation in the matter of abortion had come home to the Court, and it might choose to back away from Roe (or at least most of it) and return the issue, for the most part, to the political process. A few years later (after events in the abortion area described next), the Court similarly refused to find a general right to physician-assisted suicide in substantive due process, in Washington v. Glucksberg and Vacco v. Quill (1997).33 While by no means closing the door entirely (five members of the Court suggested in different ways the possibility that a narrower right to physician-assisted suicide under certain circumstances might be considered), the Court did unanimously reject the broad claim to such a right, leaving that issue too, at least for the time being, to the ordinary political process. On the basis of Bowers, Webster, and these later euthanasia cases, one might have wondered whether the Court had decided to forego the role of providing leadership for change in social mores. But, already in 1992, the Court had acted in a way that disproved such speculation. To the amazement of most Court observers, in Planned Parenthood v. Casey, the Court reaffirmed the central holding of Roe.34 Justice O’Connor was not willing to strike down abortion rights, and Justice Kennedy had been flipped. What could have been an occasion for the Court to turn this political hot-potato back over to the political process—which presumably would have led to a patchwork quilt of different legislation in various states, with some sort of compromise legislation in most, reflecting popular ambivalence on the subject of abortion—turned

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out to be a reaffirmation of judicial dominance regarding the subject. In what appeared to be almost a perverse argument, the Court maintained that it should not change precedent in this area precisely because of the enormous political controversy over its decision. The Casey plurality argued that the Court’s legitimacy would be undermined if it seemed to be pulling back in the face of political opposition, without appearing to consider that a change-offace might actually buttress its position, by showing that extreme Court decisions could indeed be rolled back. The decision in Casey was a prelude to other assertions of Court power in the privacy area. In respect to abortion, the Court reprised its assertion of power in the absence of public support, a la Roe, in Stenberg v. Carhart (2000), striking down a Nebraska statute that prohibited, as the media describes it today, a certain form of late-term abortion (or D&X). The term used by the law’s supporters was “partial-birth abortion,” since the abortion was performed by delivering part of the child (all but the head), then inserting an instrument to pierce the head and suck out its contents.35 Though they would hardly agree, the term “partial-birth abortion” was already something of a boon to proponents of the procedure, given the ready availability of a simpler and more direct alternative term, namely, “infanticide.” Insisting on a latitudinarian reading of the statute that its proponents denied—one which would have extended the prohibition beyond D&X abortions to other, more standard forms of abortion (D&E)—and insisting on the availability of a maternal health exception that would have negated the effect of the law, the Court struck down the statute. There was a certain logic in this picked up on by a federal appeals court judge: sure, partial-birth abortions are gruesome—but then lots of different forms of abortion are gruesome.36 Some people might use this argument to tighten the limits on abortion, but federal judges have used it to broaden abortion rights. Since 1996 the Court has turned its attention back to the issue of homosexuality, and assumed once more the role of discerning the direction of, and enforcing its view of, evolving social mores. In Romer v. Evans, the Court, relying on the equal protection clause, struck down a Colorado amendment that would have prohibited state laws or local ordinances that established rights based on sexual orientation. The exact purpose of the amendment was a matter of some dispute on the Court—the majority, through Justice Kennedy, even giving countenance to the unlikely possibility that it was intended to deprive homosexuals of the benefits of ordinary, generally-applicable laws. The Court simply ignored its precedent in Bowers (which suggested that its pious invocation of precedent in Casey was a bit selective), and indulged in blustery rhetoric about the inadmissibility of laws singling out groups for such disabilities. (It prudently downplayed, but not so prudently did not abandon, the

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Court of Appeals ground for striking down the law, which was that the amendment put a group at a special disadvantage in the political process. This argument has to be ranked among the most absurd in constitutional history, and Scalia’s dissent demolishes it, showing that it would effectively prevent the working of any constitutional or multi-level democracy.) Scalia’s dissent contains something close to the final word on the relation of the contemporary Court to social mores in its privacy jurisprudence, and this insightful passage deserves to be quoted at length: When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins—and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court’s Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals. . . This law-school view of what “prejudices” must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws . . .37

Once Romer was decided, it could not come as a surprise that the Court would overrule Bowers and extend the substantive due process privacy right to homosexual activity, which it did in Lawrence v. Texas (2003).38 One of Lawrence’s contributions was to legitimate invocations of laws in other (presumably more enlightened) countries to sustain the Court’s preferred social mores. The limited popular support for protection of homosexual activity in American states could be mitigated by invoking the greater support for it in Western European nations (and better to do it now, while there still is a Western Europe that has not succumbed to demographic suicide). So, it appears, the second thoughts about Court activism on behalf of the social mores of elite intellectuals and those who take their bearings by them turned out to be a brief respite, and those second thoughts seem to have dissipated. Whether the Court will intervene in the near future to guarantee a right to same-sex marriage is unclear.39 The Court does have some concern for

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self-preservation, and even the support of significant segments of society might not be enough to prevent the Court’s capital from being severely depleted by such a decision. But anyone who would bet against a Court decision effectively constitutionalizing the right to same-sex marriage would clearly be engaging in some risky gambling.

Some Observations on Court Power to Shape Social Mores Let me conclude this chapter with a few general observations about the line of cases in which the Supreme Court has influenced the development of contemporary sexual mores. First, the Court’s foray into changing social mores has helped to contribute to an intensification of the culture wars. The reason for this is simple. If one side feels that the political-legal deck is stacked against it, this is likely to increase its frustration. Culturally conservative forces in our society must run the gamut of all the checks built into our political process, and then, having achieved a limited measure of their goals at great cost, they can expect to see legislation they have achieved struck down by judges over whom they have little or no political control, because the judges are supported by intense minorities committed to culturally liberal mores. Second, the current form of the culture wars in the judicial arena is marked by a significant asymmetry.40 It is not a question of culturally liberal and culturally conservative judges engaging in debate. There are virtually no judges who, whatever their personal opinions on social mores, would enforce culturally conservative mores on sexual and related (especially “life”) issues in their opinions. There has never been an opinion by any Supreme Court justice arguing that laws permitting abortion are a denial of the equal protection of the law to unborn children, or arguing that state laws against homosexual acts, for example, are rational because heterosexuality is normative and homosexuality is a psychological pathology. Rather, we have seen debate between cultural liberals and anti-judicial activists, who oppose judicial decisionmaking on issues not plausibly governed by the Constitution.41 This is not necessarily a criticism of those anti-judicial activists, since that might be the most appropriate kind of opinion for judges to write. But even if this is so, it does not eliminate the fact that cultural conservatives are harmed by the absence of anyone to represent their views in one of the major arenas in which these issues are being debated. Third, in light of intensified culture wars, we should expect judicial nomination battles to become more and more flatly political in a partisan sense—especially ideological parties. Even when cultural liberals phrase

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their arguments in terms of constitutional rights, the constitutional rights derive not from the Constitution, but from socially liberal judges who consider it appropriate for courts to play a role in directing the evolution of social mores, largely on the basis of the judges’ superior ideological values. And social liberals will accuse nominees who wish to leave questions of social mores to the political process of having a political agenda of their own, especially where public opinion will support less liberal social policies. Unfortunately, the public generally seems to feel unable to evaluate constitutional arguments (even more unfortunately, probably with good reason), and so it tends to regard both sides as equally “political,” and, in the absence of an understanding of the constitutional issues, tends to fall back on the likely political effects of judicial decisions as their standard of judgment, thereby reinforcing the increasingly partisan character of the debate. Fourth, the assertion of judicial power to decide questions of social mores not determined by the Constitution itself was made easier by one aspect of the founding. The original Constitution itself deals with social mores hardly at all, because 1) under the original Constitution, such matters were left to states and 2) Americans originally had a great deal of consensus on moral issues, based on their common (Protestant) religion, as Tocqueville emphasizes in his Democracy in America. This significant cultural consensus (though it was not complete, of course, slavery being the deepest source of divisions) could be taken for granted by the founders, and there was no need consciously to provide supports for it. The upshot was that the Constitution did not provide ready affirmative textual handles for cultural conservatives to appeal to, in order to resist efforts by judicial liberals to read their liberal social values into the supposed “majestic generalities” of the Constitution, such as the due process and equal protection clauses. Resisting judicial imposition of social values by relying simply on the absence of such social values in the document provides a less effective barrier than a positive statement of traditional social values would have provided. Again, this is not a criticism of the founders, whom we have no grounds to criticize for not anticipating cultural changes so far in the future and by no means inevitable. It’s just a simple fact that explains why it has not been harder for social liberals to accomplish their project of using the judiciary to obtain their goals. Fifth, and finally, the contemporary power of judges to influence the evolution of social mores represents a striking reversal of the framers’ overall constitutional design. Let me point out two ways in which this is the case. The founders had a healthy fear of government action based on something less than broad majority support. Their majoritarianism, therefore, was qual-

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ified and supplemented by limits on majoritarian power. The result was a bias toward the status quo, which, whatever its defects, they considered preferable to radical change in the absence of broad popular support. The modern shift from legislative power to judicial power, especially on many questions regarding liberty and equality (which are central to many political issues), has reversed this constitutional design. Rather than 1) the original design, in which the burdens of political inertia were on those who wished to change the status quo by legislation, because of the many built-in checks of the political process, we now have 2) a situation in which relatively unconstrained judges (neither elected nor subject to reelection) have broad discretion to develop legal rules that will advance their preferred vision of social mores, with relatively weak constraints on them from a legislative process whose checks now inhibit efforts to preserve the status quo against judicial revision. Moreover, over time, the judicial power to determine legal rules regarding social mores tends to build up its own political support.42 The original design of the Constitution was to allow checks to prevent short-term political action by transient majorities, though in the long run a stable and permanent majority would likely get its way. Under the new judicial dispensation, the Court’s legal rules determine what is permissible activity in society (even in the face of majority preferences), thereby increasing the likelihood that larger numbers of people will engage in formerly controversial activities, which will tend to “normalize” the activity for those raised under the new legal rules, thereby providing a pool of future citizens more likely to endorse and support the Court’s decisions over time. Opponents of the new social mores supported by the Court will act under the burden of trying to maintain a sense that certain activities are illegitimate, in a society where such activities, protected by law, become more commonplace, more normal, more taken for granted by those who are used to seeing them. But why, it should be asked, should the Court be given the opportunity to shape the future, rather than current political majorities? The answer given by social liberals is fairly simple and straightforward: they should have that power because the judges are more thoughtful and have sounder social values, which tend to be those of society’s more thoughtful and progressive part, that is, intellectuals, who are disproportionately strong social liberals. In the end, then, the issue I have been considering points beyond itself to a larger question, then, namely: “why is it that the general trend among intellectuals, for such a long time, has been toward social liberalism?” And that is certainly a question for another time and place.

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Notes 1. Alexis de Tocqueville, Democracy in America trans. Harvey Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), p. 275. 2. I do not claim that the role the Court plays in this area is representative of its action in all areas, but it certainly is a significant aspect of the modern Court’s activity. 3. 381 U.S. 479. 4. Martha J. Bailey “‘Momma’s Got the Pill’: How Anthony Comstock and Griswold v. Connecticut Shaped U.S. Childbearing” http://www-personal.umich.edu/~baileymj/ Bailey_Griswold.pdf. 5. This was not the first time that Connecticut birth control law had reached the Court. Twice before, the Court had avoided decisions on “case and controversy” grounds, in Tileston v. Ullman (1943) and in Poe v. Ullman (1961). In the latter, the Court had avoided reaching the case on the grounds that the state had never tried to enforce the law (except in one “test case,” in which the state dropped the case after getting a judgment upholding the law). 6. 354 U.S. 476, with companion case Alberts v. California U.S. (1957). 7. Memoirs v. Massachusetts 383 U.S. 413 (1966). 8. Charles Rembar The End of Obscenity (New York: Random House, 1968). The Court upheld a pandering conviction in Ginzburg v. U.S. 383 U.S. 463 (1966). 9. Harry Clor Obscenity and Public Morality (Chicago: University of Chicago Press, 1970). 10. Clor, pp. 36–38. 11. Judge F. Bryan in Grove Press v. Christenberry, (striking down Post Office censorship of Lady Chatterley’s Lover), quoted in Clor, p. 56. 12. Clor, p. 57, following the analysis of Judge L. Moore in the Court of Appeals decision in Grove Press v. Christenberry. 13. Clor, p. 59. 14. Clor, p. 60. 15. 413 U.S. 15 and 413 U.S. 49. 16. 413 U.S. 24. 17. “Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” 413 U.S. 27. See also David Lowenthal Present Dangers (Dallas: Spence Publishing Co., 2002), pp. 138–40. 18. Donald Downs The New Politics of Pornography (Chicago: University of Chicago Press, 1989), pp. 18–22. 19. Robert Lerner, Althea K. Nagai, Stanley Rothman American Elites (New Haven: Yale University Press, 1996). 20. This paragraph’s line of analysis was prominent in discussion of the “new class” in sociological and political literature. See, for example, John McAdams “Testing the Theory of the New Class” Sociological Quarterly Volume 28, pp. 23–49. 21. See, for example, Marie Stopes’ Married Love (London: A.C. Fifield, 1918).

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22. See the dissents by Justices Black and Stewart, which embrace the policy objectives of the majority opinion, while denying its legitimacy as a judicial act. 23. 405 U.S. 438. 24. 367 U.S. 497 (1961), at 522. 25. “Of this whole ‘private realm of family life’ it is difficult to imagine what is more private or more intimate than a husband and wife’s marital relations. Of course, . . . ‘The family . . . is not beyond regulation,’ . . . and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State’s rightful concern for its people’s moral welfare . . . But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made. . . . Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy, is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection” Poe v. Ullman 367 U.S. 552–53 (1961). 26. 405 U.S. 453 (1972). 27. 410 U.S. 113 (1973). 28. “Some Thoughts on Autonomy and Equality In Relation to Roe v. Wade” North Carolina Law Review Volume 63 (1985). 29. Nathan Glazer “Toward a New Concordate?” This World Number Two (Summer, 1982), p. 109. 30. For the record, the Religious Right—despite considerable support for many of its positions in polls—also often lacked the political support necessary to attain much of its agenda in the ordinary legislative process, such as the sharp curtailment of abortion rights and obscenity, especially given checks within the legislative process (the burden of inertia), the lack of commitment of political conservative elites to that agenda, and growing ambivalence among Americans about legal enforcement of morality.

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31. 478 U.S. 186. 32. 492 U.S. 490. 33. 521 U.S. 702 and 521 U.S. 793. 34. 505 U.S. 833. 35. 530 U.S. 914. 36. From Justice Ginsberg’s concurrence in Stenberg: “Moreover, as JUSTICE STEVENS points out . . . the most common method of performing previability second trimester abortions is no less distressing or susceptible to gruesome description. Seventh Circuit Chief Judge Posner correspondingly observed, regarding similar bans in Wisconsin and Illinois, that the law prohibits the D&X procedure ‘not because the procedure kills the fetus, not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy’. . . Rather, Chief Judge Posner commented, the law prohibits the procedure because the State legislators seek to chip away at the private choice shielded by Roe v. Wade, even as modified by Casey. 195 F.3d at 880–882.” 530 U.S. 951–52. 37. 517 U.S. 652 (1996). 38. 539 U.S. 558. 39. Massachusetts’ Supreme Judicial Court did so, in Goodridge v. Dept. of Public Health, 798 N.E. 2d 941 (Mass. 2003). 40. I develop this point in “Public Morality and the Modern Supreme Court” American Journal of Jurisprudence Volume 45 (2000), pp. 88–91. 41. Some might argue that cultural liberals are not advocating a specific position on sexual morality, but are simply arguing that the decision making should be left to individuals. While it is true that there is a difference between individualistic sexual autonomy and radical sexual liberationism, it is still a mistake to think that the argument for sexual autonomy is “neutral,” rather than a substantive moral position. (Think of the implications of the federal government being “neutral” on slavery, leaving the question to states—an issue on which Lincoln rightly criticized Douglas.) 42. I draw this argument from my Judicial Activism, rev. ed. (Lanham, Md.: Rowman and Littlefield, 1997), pp. 60–61.

IV ORIGINALISM AND POLITICAL THOUGHT

8 The Devil’s Pitchfork: Scientism, Human Nature, and Modern Constitutional Thought Robert Lowry Clinton

Any object, in principle, might materialize briefly in the vacuum—even a refrigerator or a pocket calculator. (Alan Guth, The Inflationary Universe: The Quest for a New Theory of Cosmic Origins. Reading, Mass.: Helix Books, p. 272.) But if the universe is really completely self-contained, having no boundary or edge, it would have neither beginning nor end; it would simply be. What place, then, for a creator? (Stephen W. Hawking, A Brief History of Time: From the Big Bang to Black Holes. New York: Bantam Books, 1988, pp. 140–41.) If it is true that our Universe has a zero net value for all conserved quantities, then it may simply be a fluctuation of the vacuum, the vacuum of some larger space in which our Universe is imbedded. In answer to the question of why it happened, I offer the modest proposal that our Universe is simply one of those things which happen from time to time. (Edward P. Tryon, “Is the Universe a Vacuum Fluctuation?” Nature 246 (1973), pp. 396–397.) Explain mountains and valleys, not by original creation, but by the long accumulation of gradual changes? . . . . We know how it appealed to Darwin. Was it surprising that he went on to find the secret of man’s origin? . . . . How marvelous this explanation of the complexity of nature from simple causes! Why look for an origin any more wonderful! (John A. Wheeler, At Home in the Universe. Woodbury, NY: AIP Press, 1994, p. 21.)

The Origins Controversy SUSTAINED EFFORT BY POPULARIZERS OF SCIENCE for the past quarter-century,

A

coupled with recent advances in science and technology, has brought into — 177 —

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clear focus an issue that has been debated for centuries. The issue is the most important of all, because it is about what is. The issue is philosophical because it has to do with existence itself. What is, or is not, in being? What things are, or are not, in the world? Traditionally, since meta means “above” or “beyond,” and physis means “nature” or the world of matter, such questions have been referred to as metaphysical, because they have been regarded as “beyond” the field of scientific explanation and thus best left to philosophers. More recently, however, such questions have been addressed by scientists and propagandists of science—men such as Stephen Hawking, Roger Penrose, John Wheeler, Paul Davies, Carl Sagan, Alan Guth, Frank J. Tipler, Fred Alan Wolf, John Maynard Smith, Richard Dawkins, and Stephen J. Gould.1 Some of these writers have even claimed or suggested that modern science is now capable of answering them. This claim is both presumptuous and incorrect. By strict definition, nothing beyond physics (i.e., nothing metaphysical) can be explained by physics. To claim that physical science can answer such questions is to claim that physical science can answer all questions. Further, to claim that physical science can answer all questions is to claim that there is nothing beyond the physical or material world. The former claim is positivism. The latter is materialism. The two taken together (as they usually are) I shall refer to as “scientism” in this essay. In the contemporary controversy, sometimes referred to as the “origins debate,” one side holds that the universe was created by a conscious, intelligent force that most people refer to as “God”—a prime mover who imparted to that creation existence, structure, and meaning that may be discerned by the conscious beings that were deliberately and graciously included in it. This position is called “intelligent design.” On the other side, the propagandists of scientism argue that the universe accidentally created itself out of nothing—a fortuitous “happening” brought about by random fluctuations of energy particles in space-time; and life, too, accidentally and fortuitously organized itself into existence out of an energetic “prebiotic soup.” Thus the universe and our world must be regarded as ultimately purposeless and fundamentally devoid of inherent meaning. This position is often called “scientific naturalism,” though I prefer to call it “scientism,” since the word “nature” is malappropriated for this use. I shall also refer to the two variants of contemporary scientism just noted as cosmological accidentalism and biological accidentalism respectively. The former denotes the fortuitous “happening” of the universe as a whole. The latter denotes the fortuitous emergence of life. Cosmological and biological accidentalism have risen to prominence, especially in the academic world and in the broader society of intellectual elites in recent years, largely because of the influence of the works noted above and others like them. These works claim to do nothing more than explain “how

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science works” to lay audiences, but as the quotations at the head of this essay suggest, that claim is not altogether true. To be sure, microevolutionary biology and some aspects of evolutionary cosmology are indeed science. But this is not what the controversy is about. What is controversial are the claims of some evolutionary biologists and popular science writers that life originated by accident in some “warm little pond’ and then developed from a common ancestor by a random process.2 As to cosmology, it is not controversial that the universe has “evolved” since its beginning from a tiny hot fireball to the cooler, spacious habitat of today. What is controversial are the claims of some inflationary cosmologists and popular science writers that the universe “popped” into being ex nihilo, by accident, as a result of some kind of random quantum fluctuation in a vacuum.3 These notions are controversial both because they are unproved,4 and because they concern our origins. Consequently, they go to the heart of what kind of beings we are. No one questions whether the universe and its life “evolves”—in the sense of changing according to some pattern(s). But how something changes does not determine its nature (what it is). Rather, a thing’s nature (what it is) determines how it changes. The issue is not whether there is patterned change. The issue is about the origin of the pattern. Is the pattern a result of a conscious design? Or is it an accident? The answer to these questions depends upon whether everything in being is being driven or is being drawn. If the pattern is an accident, if it is only apparent and not real, then the present state of any changing thing is fully determined by the past states that have brought the thing to its present condition. We shall then have to accept Richard Feynman’s picture of the universe, in which every particle of matter is fully determined by its past states,5 and we shall have to accept Bertrand Russell’s picture of the scientific enterprise, that “in science it is the past that determines the future, not the future the past.”6 If, on the other hand, the pattern is a conscious design—in other words, is real and not merely apparent, then the present state of any changing thing is conditioned (though not exactly determined) by the future states that are possible for it and that it is changing into. Those familiar with the Western philosophical tradition will recognize that this issue is about the status of teleology, the science of ends. If there is no design, then there are no ends toward which existing things are moving, and the cosmos—in other words, everything that exists—is without inherent meaning. The issue is thus joined between those who believe that the universe and life were intelligently designed and those who believe that it came into being and developed solely by undirected natural processes. It is a considerable understatement to suggest that the consequences of accepting one or the other of these alternatives are important. On the answer to this question depends our conception of the nature of reality and the character of the beings and

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things that are in it. Since we humans are among the beings in this reality, also at stake is our individual and collective self-image—what kind of beings we think we are. And since the human or social sciences are about human beings and human institutions, the way we do social science is critically dependent upon which of the alternatives we adopt. Finally, because constitutions are among the institutions that human beings establish and study, the character of our constitutional theory will depend vitally upon whether we regard the makers and subjects of these constitutional establishments as naturally ordered and drawn to a given end, or merely as driven blindly by mindless external forces governed by chance and necessity. Either the universe was designed, or it wasn’t. If it was designed, then it was designed by a designer. Since design presupposes the application of mind to matter, if the universe was designed, then it was designed by something intelligent. Designing something intelligently means giving form to something previously unformed for some reason. Reasons in act are conscious purposes. Thus it follows that if the universe was designed, then it was designed for a reason, is purposeful, and is infused with meaning that must be drawn from that purpose. On the other hand, if the universe was not designed, then there is no designer. Thus there is no intelligence in the organization of the materials and forces in the universe. Rather, whatever intelligence and form exists in the world must have arisen blindly, randomly, and accidentally from those materials and forces that only appear to be intelligently organized. Whenever we encounter such appearances, they must be regarded as illusory. For if the universe was not designed, there is nothing to inform it, there are no conscious reasons for it, it has no purpose, and it is inherently meaningless. So are we. And so is our world. It is only wishful thinking, parochialism, and an exaggerated sense of our own self-importance that prompts us to think of ourselves as intelligently organized, informed, rational beings with special or inherent value. Carl Sagan proclaims that “Our planet is a lonely speck in the great enveloping cosmic dark.”7 And Richard Dawkins writes: “The universe that we observe has precisely the properties we should expect if there is at bottom no design, no purpose, no evil and no good, nothing but pointless indifference.”8 We cannot avoid an ultimate decision between these two stark alternatives, between viewing the cosmos and the beings in it as intelligently designed and thus purposeful or as accidental and thus purposeless. Each of us needs to make this decision existentially as an individual, and all of us need to make it constitutionally as a society. What we think we are is of the highest importance in determining the social and political arrangements of our age, and some of the social consequences of regarding human beings and everything else in the

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universe as reasonless, purposeless, and essentially meaningless are already apparent. Is it coincidence that the late twentieth century became the age of the serial killer, that sociopathic freak of nature who, by his random homicidal acts, appears to be the self-appointed reminder of the meaninglessness of human life? Is it coincidence that the early twenty-first century seems to have become the age of the terrorist, whose random acts of “political” violence proclaim the insignificance of individual human beings in the face of larger social forces? Or the mass-murderer who walks into classrooms and randomly guns down whoever happens to be present? Is it coincidence that the middle and later twentieth century is the age of genocide, the attempted systematic extermination of entire nations? Is it coincidence that the early-twentieth century became the age of world war, the trenches, and the “wasteland” made famous in the poetry of T. S. Eliot? Perhaps; but one can’t help but notice the close fit between accidents and coincidences. I think that Richard Weaver was right. Ideas really do have consequences. If so, then it is worth considering whether the groundwork for these trends has been laid by our society’s half-conscious, half-hearted drift toward scientism—science conceived as religion or ideology, or as replacement for religion—during the past century-and-a-half. Beginning with the Gilded Age of the late-nineteenth century, which witnessed the triumph of a materialist philosophy that had been developing in Europe for at least two centuries and in America for at least one century before, we are now witnessing the fulfillment of that philosophy and the possible unraveling of our society in its wake. Some people would even say that many (or even most) of the disagreeable changes have already advanced so far as to be irreversible. Others would say that, now that materialism has done its work, the worldview that supports it should be regarded as a fait accompli. Thus the economic prosperity of the material utopia seems to balance, however precariously, its spiritual and moral ruin. I do not mean to devalue scientific, technological, or any other kind of material progress. I am fully aware that I would probably not be around to write this essay—and that you would probably not be around to read it—were it not for the discovery of germs and the manufacture of the antibiotics that defeat them. Nor would I be free to write it—or you to read it—were it not for the scientific and technological breakthroughs that allowed the allies to stay a step ahead of the Nazis in the Second World War. And yet, the last-mentioned example should be quite enough to give one pause. Science and its fruits can be put both to good and to evil uses. That is why the story of Adam and Eve in the Garden of Eden should be taken seriously, most of all by scientists and other persons in the knowledge business. My target here is not science, but a worldview based on science; and a “worldview based on science” is not the same thing as “science.”

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Nor do I mean to devalue the strictly scientific accomplishments of the scientists noted and quoted above. These achievements seem beyond dispute; and in any case, they can only be fairly judged by those with the required expertise in the relevant fields of inquiry. But the promotion of scientism and accidentalism is essentially ideological, not scientific. It is also sophistic, because it includes knowledge claims that are not fully supported by evidence or reason. The claim that science is the only source of genuine knowledge goes well beyond science into the realms of philosophy and theology. So does the claim that the universe and its life are the product of mindless forces acting upon purely material entities. Perhaps that is why more than 700 scientists have publicly endorsed the following statement questioning biological accidentalism, despite the fact that the public “has been assured that all known evidence supports Darwinism and that virtually every scientist in the world believes the theory to be true”: “We are skeptical of claims for the ability of random mutation and natural selection to account for the complexity of life. Careful examination of the evidence for Darwinian theory should be encouraged.”9 Scientists who make claims that go beyond empirical evidence travel into areas in which they have little competence and can claim no special knowledge or expertise. Yet, due to their scientific eminence, they appear to expect their readers to adopt their philosophical and theological positions as well. Why would they expect this? And more important, why would we take their claims seriously? It is because, for at least the past four centuries, scientism has been one of the central projects of modern philosophy. One of the most important effects of its ongoing advance has been to make biological and cosmological accidentalism seem plausible. It has done this by attempting to discredit teleological views of the cosmos and humanity, substituting reductive accounts in their place. Materialism, though an ancient worldview against which Socrates and his disciples effectively argued nearly two and a half millenia ago, was powerfully advanced by Thomas Hobbes, one of the founders of modern political thought, in the seventeenth century. Hobbes’s reduction of mind to matter was advanced further in the eighteenth century by David Hume, who attempted to reduce all human thought to sense perception. The influence of Hume’s skeptical epistemology, coupled with that of Immanuel Kant’s rationalistic ethics and his conception of religion “within the limits of reason alone,” solidified an emerging vision of a cosmos without a Creator. When Charles Darwin wrote in the mid-nineteenth century, scientism was already thoroughly embedded in the consciousness of the intelligentsia in Western culture. Darwin’s signal contribution was to make good Hobbes’s promise of a mechanistic social science by specifying the mechanism of natu-

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ral selection accompanied by random variation to account for the rise and development of biological organisms. Much as Hobbes had tried to account for the movements of the human psyche by positing a random motion of particles in the brain, Darwin tried to account for biological diversity by positing undirected natural physical processes as the basis for evolutionary change. Since human beings are biological organisms, it is a short step from the evolution of individual organisms to the evolution of human societies—Hobbes’s primary concern. In the twentieth century, Stephen Hawking advanced the notion that whatever is not measurable by the physicist does not exist, thus reducing being itself to that which is discoverable by the methods of physical science. Before, during, and after Darwin’s triumph, naturalism enjoyed support from other branches of learning—particularly from the social sciences and humanities. Philosophy contributed materialism itself (metaphysics), skepticism and logical positivism (epistemology), and utilitarianism (ethics). Literary criticism contributed structuralism and deconstruction. Law contributed legal positivism. Political science contributed social contractarianism, egalitarianism and libertarianism. History contributed progressivism and historicism. Psychology contributed Freudian psychoanalysis and much more. Social science generally contributed behavioralism. As to public policy, even the United States Supreme Court and some lower federal courts have by now constitutionalized some features of the neo-Darwinian worldview and some of the intellectual supports listed above as well, and this list is hardly complete.10 Lending further support to the continuing dominance of scientism is the contemporary balkanization of modern academic life, a situation that has gotten so bad that it has become difficult for specialists in particular disciplines even to understand what their colleagues in the same disciplines are doing unless those colleagues happen to be doing research in the same subfield of the discipline. Going along with this trend toward specialism—perhaps the cause of it—is the demise of liberal (classical) education that has occurred during the last half-century.11 Together these trends entail that most scientists (and, increasingly, everyone else as well) are very narrowly-trained specialists in the subjects of their teaching and research. They do not possess the larger view that they might have if they were more broadly educated in the Western philosophical tradition from which modern science springs. It is almost inevitable that they will attempt to extrapolate from their narrow learning to larger fields in which they have little or no competence. A microbiologist doing, say, bacteriological research sees that bacteria develop resistance to certain antibiotics and undergo structural changes as a result. After a while, it is easy to see how such a scientist might begin to think that all organisms may develop in this particular way—and in no other. Pretty soon, it begins to seem that even the

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origin of life itself must be a result of a similar kind of transformation from inorganic substances, and so on. This is a familiar pattern even outside the scientific and educational establishments. I have encountered musicians who think that everything is music, and automobile mechanics who think that the entire universe works like a car. Whatever the explanation as to why we take so seriously the philosophical and theological speculations of leading scientists, it is obvious that inflationary cosmology and evolutionary biology are not only about discovery and understanding of the physical world. They are also about God and Man. This means that they are not merely science. They are also theology and social science. They are also political science, because vested interests are involved in perpetuating the underlying world view that supports the enterprise. That world view is based on the belief that both humanity and the cosmos are accidents. To put the matter more sharply: inflationary cosmology and neo-Darwinian biology are inextricably linked. If the cosmos is not accidental, it is unlikely that life is accidental either. Conversely, if life is not accidental, it is a virtual certainty that the cosmos isn’t either. If neither cosmological nor biological accidentalism has been proved, yet is being pressed upon society and its educational institutions as “science,” then accidentalism—whether cosmological or biological—is a political ideology. A political ideology is a system of beliefs that is propagated for the purpose of establishing and maintaining a particular order in society. The study of political ideology is a province of political science. Political science is based upon political philosophy. Political philosophy is an enquiry into the nature and sources of authoritative social order and the proper ends of political life. Since human beings comprise political societies, enquiry into the nature of authoritative social order requires enquiry into the nature of human beings. Neo-Darwinian evolutionary biology is a theory of human nature. It holds that the common ancestor of human beings originated spontaneously in a prebiotic soup and then evolved through a series of macro-level transformations by a combination of law (selection) and chance (mutation). Inflationary cosmology is the required theological foundation of evolutionary biology. It holds that the universe sprung into being spontaneously and then evolved according to a combination of law (general relativity) and chance (quantum mechanics). What the two theories have in common is the absence of intelligent design, and thus the absence of God. The prior commitments to metaphysical materialism and epistemological positivism in the minds of many leading scientists, as well as the acute awareness of theological dimensions in the controversy, are illustrated well in the following remarks of geneticist Richard Lewontin:

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Our willingness to accept scientific claims that are against common sense is the key to an understanding of the real struggle between science and the supernatural. We take the side of science in spite of its failure to fulfill many of its extravagant promises of health and life, in spite of the tolerance of the scientific community of unsubstantiated just-so stories, because we have a prior commitment to materialism. It is not that the methods and institutions of science somehow compel us to accept a material explanation of the phenomenal world, but on the contrary, that we are forced by our a priori adherence to material causes to create an apparatus of investigation and a set of concepts that produce material explanations, no matter how counterintuitive, no matter how mystifying to the uninitiated. Moreover, that Materialism is absolute, for we cannot allow a Divine Foot in the door.12

All this helps to explain why Stephen Hawking, Carl Sagan, Richard Dawkins and others feel entitled to pontificate on subjects in which they apparently have no expertise in the very sense that they themselves intend when speaking of themselves as scientists. These and other scientists rely continually upon their expertise when urging non-scientists to accept their view of the world just because only scientific experts like themselves know “how science works.” Very well, but if they expect others to defer to their expertise on scientific questions, then why should they not be willing to defer to philosophers and theologians in exactly the same way on philosophical or theological questions? Fear of the Divine Foot, coupled with the belief that they know a lot more about philosophy and theology than they really do, is one compelling answer. Another is that they do not think that philosophical or theological knowledge is real knowledge at all, so they believe that they are as entitled as anyone else to pontificate on it. I think that both these answers are partially correct, and I want to focus on the second one in the next section of this essay.

Positivism and the Birth of Secular Humanism Leading scientists are willing to pontificate on philosophical and theological questions even though they have little or no expertise in those subjects in part because they don’t really think that philosophy or theology gives rise to genuine knowledge at all. To them, philosophy is just a collection of more-or-less unfounded opinions. So why shouldn’t they pontificate on it just like everybody else does? Mortimer Adler notes this tendency in the following comment on Stephen Hawking’s Brief History of Time: We should be shocked by Stephen Hawking’s bold as well as erroneous statement that what is not measurable by the physicist has no existence in reality. In the

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same book in which Professor Hawking makes that statement, he also frequently refers to the mind of God, which is certainly not measurable by the physicist. Either he is referring to something that has no reality, or he is wrong in saying that those aspects of time which are not measurable by the physicist have no reality.13

This is a familiar pattern in the popularizing literature of the accidentalist movement. A scientist like Hawking feigns skepticism about things that are beyond the reach of science. Yet, in the end, he pontificates on such things anyway when he feels like it. One is put in mind of G. K. Chesterton’s remark about skeptics: it isn’t that they are too skeptical; it’s that they almost never turn out to be skeptical enough. They are only really skeptical about everyone else’s beliefs; they are almost never really skeptical about their own. As in so many other things, there is a wide and interesting difference here between the ancients and the moderns. The hallmark of ancient skepticism—as may be easily discovered if one attends to the writings of such thinkers as Sextus Empiricus—is its uncompromising insistence on subjecting literally everything, including one’s belief in skepticism, to the skeptical critique. More recently, while arguing against David Hume’s skeptical epistemology, Immanuel Kant echoed this concern, urging scientists to avoid committing an “error of intemperance” by asserting that, since science knows only phenomena, only phenomenal reality exists: [I]f—as often happens—empiricism, in relation to ideas, becomes itself dogmatic, and boldly denies that which is above the sphere of its phenomenal cognition, it falls itself into the error of intemperance—an error which is here all the more reprehensible, as thereby the practical interest of reason [its interest in principles of conduct] receives an irreparable injury.14

All that said, it remains true that if accidentalism is true, then philosophy can be no source of genuine knowledge. If accidentalism is true, then there is only matter and the forces that act upon it, and the forces that act upon matter must themselves be emergent properties of matter. This includes mind, which is that by which anything whatever can be known. This means that everything that can be truly known is that which scientific investigation can discover, and finally that the only genuine source of knowledge is science. The idea that the only genuine source of knowledge is science has roots in eighteenth-century enlightenment rationalism. Its most complete expression as a philosophy of history and a social science was given in six volumes published between 1830 and 1842 by the founder of sociology, French philosopher Auguste Comte. In the first two chapters of the first volume, Comte lays out the overall thesis and plan of the work, which was intended to be nothing less than a complete “survey of the progressive growth of the human mind

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viewed as a whole; for no idea can be properly understood apart from its history.”15 The entire project is based upon Comte’s self-proclaimed “discovery” of “a great fundamental law, to which the mind is subjected by an invariable necessity.” According to Comte, This law consists in the fact that each of our principal conceptions, each branch of our knowledge, passes in succession through three different theoretical states: the theological or fictitious state, the metaphysical or abstract state, and the scientific or positive state. In other words, the human mind—by its very nature— makes use successively in each of its researches of three methods of philosophizing, whose characters are essentially different and even radically opposed to each other. We have first the theological method, then the metaphysical method, and finally the positive method. Hence, there are three kinds of philosophy or general systems of conceptions on the aggregate of phenomena which are mutually exclusive of each other. The first is the necessary starting point of human intelligence; the third represents its fixed and definitive state; the second is destined to serve only as a transitional method.16

Note Comte’s conception of philosophy in the paragraph quoted above. First, for Comte, “philosophy” is not a singular pursuit in its own right. There is no “philosophy” as such. Rather, there are only “philosophies,” or “general systems of conceptions on the aggregate of phenomena which are mutually exclusive of each other.” Second, the three “general systems” are conceived entirely in terms of method. Third, the sole object of each system is “phenomena.” Fourth, the hierarchical arrangement of the three systems is such that only the third, the “positive” system, is “fixed and definitive.” All these statements are different ways of saying the same thing: that philosophy is not—and cannot be—a source of genuine knowledge. Consider the first and second points together. If there is no “philosophy” as such, but only mutually exclusive “general systems” or approaches that are really just methodologies, then there can be only provisional knowledge of anything. Methods are means, not ends, but knowledge is an end; so if philosophy is a merely a congeries of methods, then whatever knowledge we have in the end will have to come from somewhere else. Consider next the third and fourth points together. If the sole object of the “method” is phenomena, then it follows that phenomena are the only things we can have real knowledge about. But phenomena are appearances, so it also follows that the only things we can have knowledge about are appearances. We can have no knowledge of reality as such. The domain of appearances is the domain of investigative or observational science. And this means, in the end, that empirical science—or “positive philosophy,” as Comte names it—is the only source of knowledge.

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All this is made clear in Comte’s assertion(s) that all of the history of human knowledge moves from a “primitive” state in which everything is explained as a production of “the direct and continuous action of more or less numerous supernatural agents,” through a “transitional” state in which “the supernatural agents are replaced by abstract forces, real entities or personified abstractions, inherent in the different beings of the world,” to a “final” state in which “the human mind, recognizing the impossibility of obtaining absolute truth, gives up the search after the original and hidden causes of the universe and a knowledge of the final causes of phenomena,” contenting itself with the “explanation of facts” and “their invariable relations of succession and likeness.”17 What is true for the education of “the race” is also true for the education of the individual. Comte asks rhetorically, “does not each of us in contemplating his own history recollect that he has been successively—as regards the most important ideas—a theologian in childhood, a metaphysician in youth, and a natural philosopher [i.e., a scientist] in manhood?”18 Importantly, Comte does not think it necessary to “argue for” his newly discovered “law.” Rather, it is “sufficient merely to enunciate such a law for its accuracy to be immediately verified by all those who are fairly well acquainted with the general history of the sciences.”19 Indeed, throughout his work, he shows manifest impatience with those not in full agreement with his views. Such statements as this are typical: “All competent thinkers agree . . . that there can be no real knowledge except that which rests upon observed facts.”20 In another place Comte tells his readers that theological and metaphysical methods are felt to be insufficient “by all good minds.”21 Speaking later of his classification of the “positive sciences” (see paragraph quoted immediately below), Comte declares its goodness “superfluous to prove.”22 In a style that would make Richard Dawkins proud, Comte continually ridicules and dismisses those who hold different views as incompetent, ignorant, and unworthy of attention. After announcing his psycho-historical law, Comte proceeds to divide the “positive sciences” into four areas, proceeding from the more simple to the more complex: astronomical, physical, chemical, and physiological.23 The “mental revolution” that transformed these sciences from metaphysical into positive sciences is said to have begun with Bacon, Descartes, and Galileo, and is conceived by Comte in his own time as virtually complete. At this point Comte reveals his real objective: The whole thing reduces itself . . . to a simple question of fact: Does the positive philosophy, which during to last two centuries has gradually acquired so great an extension, embrace at the present day all classes of phenomena? It is evident that it does not; therefore, a great scientific work still remains to be executed in order to give the positive philosophy that universal character indispensable for

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its final constitution. In the four principal categories of natural phenomena enumerated above—astronomical, physical, chemical, and physiological—we notice an important omission relating to social phenomena. Although these are implicitly comprised among physiological phenomena, yet, owing to their importance and the inherent difficulties of their study, they deserve to form a distinct class. This last order of ideas is concerned with the most special, most complicated, and most dependent of all phenomena; it has, therefore, necessarily progressed more slowly than all the preceding orders, even if we do not take into account the more special obstacles to its study which we shall consider later on. However that may be, it is evident that it has not yet been included within the domain of positive philosophy. . . . Here, then, is the great, but evidently the only, gap that has to be filled in order to finish the construction of the positive philosophy. Now that the human mind has founded celestial physics, terrestrial physics (mechanical and chemical), and organic physics (vegetable and animal), it only remains to complete the system of observational sciences by the foundation of social physics. This is at the present time, under several important aspects, the greatest and most pressing of our cognitive needs, and to meet this need is, I make bold to say, the first purpose of this work, its special object. . . . If this condition is once really fulfilled, the philosophical system of the modern world will be founded at last in its entirety; for there is no observable fact that would not then be included in one or another of the five great categories of astronomical, physical, chemical, physiological, and social phenomena. All our fundamental conceptions having thus been rendered homogeneous, philosophy will be constituted finally in the positive state. Its character will be henceforth unchangeable, and it will then have only to develop itself indefinitely, by incorporating the constantly increasing knowledge that inevitably results from new observations or more profound meditations. Having by this means acquired the character of universality which as yet it lacks, the positive philosophy, with all its natural superiority, will be able to displace entirely the theological and metaphysical philosophies. The only real property possessed by theology and metaphysics at the present day is their character of universality, and when deprived of this motive for preference they will have for our successors only a historical interest.24

Thus it turns out that the main interest of one of the most articulate spokesmen for the view that science is the only reliable source of knowledge, and who made that view the basis for one of the most influential philosophies of history in modern times—at least in modern academic life in the English-speaking world, was not physical science, but social science. Comte’s main objective was to establish social science along the lines that had been drawn by Bacon, Descartes, and Galileo for the study of physical science. As Frederick Ferre points out, “Comte invented the term ‘sociology,’ meant to designate the rigorous study of social phenomena according to the precepts of positive philosophy.”25 Comte’s motive for the project is made clear in the

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closing pages of the first chapter of his Introduction. It is to form the basis for a “social reorganization that must terminate the crisis in which the most civilized nations have found themselves for so long.”26 The “crisis” referred to by Comte is conceived as stemming from a “confusion of men’s minds” due to “the simultaneous employment of three radically incompatible philosophies—the theological, the metaphysical, and the positive,” the simultaneous existence of which, in the social sphere, “prevents all agreement on any essential point.”27 Since metaphysics and theology are “in a state of decay,” the positive philosophy is “destined to prevail henceforth,” and so it is declared the duty of all reasonable men to “work for the triumph of that philosophy.”28 Let’s pause for a moment to reflect on one of the important implications of the long quotation above. Note that Comte said that social phenomena are “implicitly comprised among physiological phenomena,” and that the knowledge of social phenomena has “progressed more slowly than all the preceding orders” of knowledge. This means that we know less about ourselves and our societies than we know about the material world, and this is because our accumulation of knowledge about the material world began earlier than our accumulation of knowledge about ourselves and our societies. Since the accumulation of knowledge about the material world began, in Comte’s view, in modern times, this can only mean that all the knowledge of ancient and medieval philosophers, scientists, and scholars is essentially worthless. But this is an untenable position unless one already has a prior commitment to materialism and positivism—to the view that the only things knowable about human beings and human societies are physiological things, and that the only way of knowing these things is via application of the methods of the physical sciences. In truth, unless one has a prior commitment to materialism and positivism, it is exactly the other way around. Our knowledge of human beings and human societies came early; knowledge of the physical world came much later. Mortimer Adler explains why: The outstanding achievement and intellectual glory of modern times has been empirical science and the mathematics that it has put to such good use. The progress it has made in the last three centuries, together with the technological advances that have resulted therefrom, are breathtaking. The equally great achievement and intellectual glory of Greek antiquity and of the Middle Ages was philosophy. We have inherited from those epochs a fund of accumulated wisdom. That, too, is breathtaking, especially when one considers how little philosophical progress has been made in modern times . . . . Precisely because

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science is investigative and philosophy is not, one should not be surprised by the remarkable progress in science and by the equally remarkable lack of it in philosophy. Precisely because philosophy is based upon the common experience of mankind and is a refinement and elaboration of the common-sense knowledge and understanding that derives from reflection on that common experience, philosophy came to maturity early and developed beyond that point only slightly and slowly. Scientific knowledge changes, grows, improves, expands, as a result of refinements in and accretions to the special experience—the observational data—on which science as an investigative mode of inquiry must rely. Philosophical knowledge is not subject to the same conditions of change or growth. Common experience, or more precisely, the general lineaments or common core of that experience, which suffices for the philosopher, remains relatively constant over the ages. Descartes and Hobbes in the seventeenth century, Locke, Hume, and Kant in the eighteenth century, and Alfred North Whitehead and Bertrand Russell in the twentieth century enjoy no greater advantages in this respect than Plato and Aristotle in antiquity or than Thomas Aquinas, Duns Scotus, and Roger Bacon in the Middle Ages.29

Acceptance of Comte’s view of the progress and development of human knowledge is an absolutely critical foundation for any scientistic or accidentalist metaphysics. Any such metaphysics must, above all, deny the wisdom of the ancients about man and society. In other words, scientism and accidentalism can be true only if introspective philosophy is deemed not to be a source of genuine knowledge from the outset. Comtean positivism, predating Darwinian biology by at least a generation, is one of several ideologies that gained prominence in the nineteenth and twentieth centuries and continue to lend powerful support to biological and cosmological accidentalism. Its reductive character is suggested in the quotations above, which show that Comte regards “social physics” or “sociology” as ultimately reducible to physiology, physiology to chemistry, chemistry to physics, and perhaps physics to astronomy. It sees traditional philosophy as a method of introspection that is utterly incapable of generating reliable knowledge of any kind. Thus it turns to external phenomena as the only objects of which anything can be known. Since the external phenomena of sociology is human behavior, Comte’s “social physics” is necessarily behavioral science. Under Comte’s strictures, one no longer can know (or even fruitfully think about) what a human being is, only how human beings behave—much as physical science can only tell us how matter behaves, not what matter is. In the second chapter of his Introduction, Comte spells out the most important implication of the modern behavioralism in the social sciences that he launched. This implication is that there is no knowable human nature. Speaking of the

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division of the “aggregate of natural phenomena” into inorganic bodies and organic bodies, Comte says this: There is no need to ask if the two classes of bodies are, or are not, of the same Nature—that is an insoluble question which is still too much debated in our time owing to the lingering influence of theological and metaphysical habits. Such a question does not enter into the domain of the positive philosophy, which formally declares its absolute ignorance as to the ultimate nature of any body whatsoever.30

If philosophy is necessarily ignorant of the nature of any body whatsoever (and remember, for Comte, the only things knowable are phenomena, and all phenomena are bodies), then it follows that human beings possess no determinate nature that is knowable; there is no “human nature” that can form the basis for reflection and study and thus no social, moral, or political philosophy in the traditional sense. There is only the observation and collection of data about human behavior and the analysis of that behavior via use of the mathematical and statistical methods and tools of the physical sciences. And it is a short step from denying the knowability of human nature to denying human nature itself, a step that would be taken by Darwin and his followers not long after Comte’s death in 1857. It cannot be coincidental that the behavioral revolution in the social sciences commenced about the same time as the promulgation of the neo-Darwinian “Modern Synthesis” in the mid-twentieth century.31 Ever since that time, there has been a rapid rise in the number of narrowly-trained specialists in social science departments, where small groups of experts in, say, health care policy, or the economics of the trucking industry, or the social adjustment of fourth-graders of different races in some small Mississippi town, develop entire academic careers studying and writing about human behavior in some such narrow field. It is hard not to be struck with Comte’s almost prophetic description and approval of the modern university and its central feature: the predominance of academic specialism and “expertise” in narrow fields of enquiry. Interestingly, Comte identifies this feature—much less advanced in his time than in ours—as the main cause of progress in the positive sciences, yet a “problem” that can only be solved by the creation of another specialized field, “one more great specialty, consisting in the study of general scientific traits.”32 In the end, this admission is fatal to the Comtean educational program, since the specialist in general scientific traits (presumably Comte himself) would have to be a philosopher, and thus could not lay claim to genuine knowledge. By viewing theology as infantile and metaphysics as adolescent, Comtean positivism clears the way for modern pundits like Hawking, Sagan, Dawkins and Gould to proclaim themselves the only true philosophers. By its reductive

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foray into academic specialism, it turns the modern university into a multiversity, degrading general education and generating large numbers of “experts” who haven’t the good sense to refrain from extending their expertise beyond their true competence. In the end, society is affected far beyond the confines of academia, and we get movie stars who feel perfectly adequate pontificating on international affairs and a public that hasn’t the good sense not to listen. By its denial of a knowable and determinate human nature, Comtism paves the way to the neo-Darwinian denial of the very existence of a determinate human nature. By its reduction of sociology to physiology, it creates a void that only biological accidentalism can fill as the basis of social science. By its materialism, it guarantees that cosmological accidentalism will be the basis of evolutionary biology. Without the positivist philosophy of history to devalue metaphysics and theology, without the reductionism and specialism to fragment the mind, its knowledge, and the institutions that sustain it, modern scientism in all its forms would tread on much shakier ground. Conversely, without the support of modern scientism, it is doubtful that Comtean positivism would have sustained its own influence nearly so well. Before bringing this review of Comtean positivism to a close, one of its least well-known features should be noted, because of its clear relevance to modern constitutional theory. Comte was cognizant both of the negative religious implications of his positivist philosophy and of the strong religious impulses of his fellow human beings. In order to resolve this obvious problem, Comte and John Stuart Mill devised an approach that they called the “religion of humanity,” conceived as a long-range plan to enlist the trappings of traditional religion (vestments, liturgies, music, incense, priests, etc.) and divert these trappings from the worship of God to the worship of Man. Mill summed up the motivation for this approach in his final work, the Three Essays on Religion. These essays were published separately between 1850 and 1870, and as a single volume in 1874, a decade-and-a-half after the publication of Darwin’s Origin of Species. In Three Essays, all the traditional arguments for God’s existence are trashed, nature is excoriated as the cruelest of tyrants, and an audacious (and prophetic) program is established for “secularizing” religious sentiments.33 This is the birth of socalled “secular humanism;” not the pious humanism of Erasmus and his followers, but instead the agnostic, “new age,” “man-worshipping” humanism of the twentieth century—Hollywood style. Though Mill ultimately broke with Comte over the outward trappings of the Religion of Humanity, he remained firm in his atheistic humanism until the end of his life, and this humanism survived and became the basis of the secular humanism of the twentieth century. Three Essays is important because it indicates the severe animus against traditional religion that existed among many English intellectuals during Darwin’s time, thus accounting in part for Darwinism’s rapid success in that milieu.

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Mill’s views on religion may seem benign (and even peripheral) at first blush, especially given his well-known stances on freedom of thought and discussion and separation of church and state, but a careful reading of the work that contains his most fully developed ideas on religion reveals that it is not religious freedom, traditionally understood, that Mill is zealous to defend. Rather, the Three Essays show that religion is central, not peripheral, to his project, and that its thrust is to divide the spiritual from the temporal not, as is so often thought, to free religion from the fetters of secular control, but to make possible a transformation of religious sentiment in such a way as to get rid of God. In order to accomplish this transformation, Mill asserts two principles. The first is found in the second of the three essays, and holds that since traditional religious doctrine is not true (a notion that Mill attempts—and fails—to prove in the third essay), the value of religion must be calculated in terms of its “utility,” or “usefulness.” In answer to the question “usefulness for what,” Mill asserts a second principle in the final pages of the third essay. This principle holds that if religious sentiment is to be fostered, it must be placed in the service of a generalized, altruistic “love of mankind,” nurtured and developed into a full-fledged “Religion of Humanity.”34 After concluding that the evidence supporting supernatural religion is insufficient, Mill concedes that religious “feeling” can be an inducement “for cultivating a religious devotion to the welfare of our fellow-creatures as an obligatory limit to every selfish aim, and an end for the direct promotion of which no sacrifice can be too great.”35 The final flourish that brings the volume to a close is revealing: The conditions of human existence are highly favourable to the growth of such a feeling inasmuch as a battle is constantly going on, in which the humblest human creature is not incapable of taking some part, between the powers of good and those of evil, and in which every even the smallest help to the right side has its value in promoting the very slow and often almost insensible progress by which good is gradually gaining ground from evil, yet gaining it so visibly at considerable intervals as to promise the very distant but not uncertain final victory of Good. To do something during life, on even the humblest scale if nothing more is within reach, towards bringing this consummation ever so little nearer, is the most animating and invigorating thought which can inspire a human creature; and that it is destined, with or without supernatural sanctions, to be the religion of the Future I cannot entertain a doubt. But it appears to me that supernatural hopes, in the degree and kind in which what I have called rational skepticism does not refuse to sanction them, may still contribute not a little to give to this religion its due ascendancy over the human mind.36

This passage is astonishing, coming as it does from the pen of a writer who is generally hailed as a champion of freedom, equality, and democracy. In

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Mill’s apocalyptic progressivism, Good (Altruism) is inevitably to triumph over Evil (Selfishness), in part because the natural religious “feelings” of humble (stupid or ignorant) people, their devotion to God, can be diverted to the worship of Mankind. Since supernatural religion is false, the humble folk may have to be deceived a little in the beginning about the nonexistence of the God they think they are devoted to, but in the end the true religion, the worship of Man, will have its “due ascendancy” (i.e., we will all become altruistic atheists). For Mill, the supernaturally hoped for but secularly inevitable final victory of good over evil, the triumph of altruism over selfishness, will require nothing less than a transformation of human nature itself, and probably a transformation of mother nature as well—which, by the way, Mill is no fan of. In the first of the Three Essays, Mill levels an attack on Nature and Nature’s God that is pretty much unrivalled in the history of philosophy, so far as I can tell: Nature impales men, breaks them as if on the wheel, casts them to be devoured by wild beasts, burns them to death, crushes them with stones like the first Christian martyr, starves them with hunger, freezes them with cold, poisons them by the quick or slow venom of her exhalation, and has hundreds of other hideous deaths in reserve, such as the ingenious cruelty of a Nabis or a Domitian never surpassed.37

Mill, hypersensitive to the suffering he witnessed and experienced in the world, concluded that no all-powerful deity could allow such suffering and that, if a god exists at all, then that god is either limited in power or malevolent. Eugene August vividly describes Mill’s “outrage” at “Nature’s appalling atrocities,” likening them to the “terrifying images . . . that sweep across the canvases of J. M. W. Turner.” Nature’s God, if he is omnipotent, is described as “that most hated of Millian villains—a despot who delights in inflicting pain . . . a murderer slaying everyone, sometimes with the most horrifying torments.”38 These passages make clear why nothing less than a new religion is demanded by Mill. Nothing short of the power of a spiritual force is sufficient to accomplish the transformation of nature and human nature that Mill desires. The old religion will not do, for it teaches that gratitude is the proper attitude toward what is given and that freedom, not nature, is the cause of evil in the world. Mill confirms this observation in a passage taken from the first of the three essays. After a “brief survey” of phenomena that are supposed to indicate the relation between man and nature, Mill states that “this brief survey is amply sufficient to prove that the duty of man is the same in respect to his own nature as in respect to the nature of all other things, namely not to follow but to amend it.”39 The hatred of God (and the Man that is made in his image), palpable in the thought of Comte, Mill, Nietzsche, and other leading thinkers of the nineteenth

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century is an important part of the philosophical foundation of biological and cosmological accidentalism. That is why contemporary accidentalism justly may be regarded as the scientific prong of a larger project that is both religious and philosophic in nature. Its aim is to abolish God by abolishing his Image— the Man who regards himself as God’s special creature, who has a “nature” because of his special creation, and who is thus under a strict duty of gratitude for the cosmos and for his life. In place of this Man, the accidentalists wish to put the animal man who has no god, is a mere biological machine, the product of an unimaginably long series of fortunate (or perhaps unfortunate) circumstances that “did not have him in mind,” who has no real “nature” or essence that is not shared with a slug and thus has nothing to be grateful for, and no one to be grateful to.

Modern Social Science and Constitutional Theory Scientism has affected not only physical science, but the human or social sciences even more profoundly, largely due to the absence of a consensual paradigm to guide research. We must remember that the theory of evolution in biology and its counterparts in other scientific fields, however flawed their more extreme assumptions may be, at least have provided some fundamental organizing principles on the basis of which research in those fields can proceed. On the other hand, because of the demise of classical philosophy and the rise of materialism and positivism in the modern era, social science has had to do without a generally agreed-upon organizing principle that is fruitful for guiding research. Materialism in all its manifestations is self-defeating for the human sciences. The reason for this is that human beings are not like material objects, which are completely compelled and determined by their prior states and the external forces that affect them. Rather, we are voluntary agents who act with conscious purpose under moral laws, or in Kantian language, under “laws of freedom.” The result of all this has been an unhealthy fragmentation of academic disciplines and a confusion of the research enterprise in the social sciences and humanities. For example, political science is a discipline founded by Plato and Aristotle roughly 2500 years ago on the basis of their realization that human beings are “zoon politikon,” social or political animals who by nature, or in their essence, cannot flourish outside the polis. Political science, as established and defined by the Greek philosophers, is wisdom or knowledge about anything pertaining to life in the polis—a kind of life made necessary by the requirements of human nature, according to which human beings are teleologically inclined to seek happiness under the guidance of reason and under the control of the

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virtues that reason dictates. The rise of scientism in modern times eroded the idea of a common human nature—and in the end, threatens to abolish the very idea of human nature itself. Once that is accomplished, there will no longer be anything real or substantial to build a political science upon. Consequently political science has gone adrift. Some would even say that contemporary political science has become no “discipline” at all, but is rather a congeries of “subfields” that are regularly being increased in number by further subdivisions, each of which is racked continually by substantive and methodological controversy. What I am getting at is this: physical science is doable, at least up to a point, even if scientists hold an erroneous view of human nature, because human beings and their behavior are not the primary objects of enquiry. On the other hand, an erroneous view of human nature—or a denial of it—effectively paralyzes social enquiry, because human beings build the societies that social scientists investigate on the foundation of that very human nature that has been misconceived. If, as Aristotle held, human nature itself is essentially “social,” “political,” and oriented to seek the Good according to reason, then a mistaken view of human nature that denies these facts will yield a perverse social science that misconceives the meaning and purpose of all existing social institutions. One of the results of this mistake has been the triumph of what is usually termed “behavioralism” in the social sciences during the past half-century. Behavioralism, in its most extreme form, is a reductionist enterprise that attempts to understand human activity via observation, quantification, and aggregation of discrete instances of “behavior” without reference to the presumed ends or purposes of such behavior. Ostensibly appropriating both the methods and the naturalistic assumptions of the hard sciences in order to create a “value-free” social science, the behavioralist carves up social reality and examines it in a piecemeal, but somewhat directionless, fashion. Research is conducted in the blind hope that something important will turn up of its own accord from the data that is being examined. But the record of behavioral research during the past half-century suggests to many that things don’t usually “turn up” unless someone happens to be looking for them, and how can we know what we are looking for unless we know what the creatures we are studying are trying to do? Observing this record, critics of behavioralism sometimes argue that the failure is due to social science’s attempt to appropriate the methods of the natural sciences. Is this really true? Surely there is nothing inherently wrong with collecting, aggregating, and analyzing data. Perhaps instead the problem is our importation of the naturalistic metaphysics—the idea that what an empirical social scientist is trying to explain is an undirected natural process. Edward O. Wilson, a committed evolutionist, compares the natural and social sciences,

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observing that the natural sciences possess a high degree of “consilience,” a common basis of foundational principles which imparts focus to the research enterprise.40 Wilson complains that the social sciences, on the other hand, have no common foundational principles and thus no shared research enterprise; hence the fragmentation problems alluded to above. Yet Wilson does not seem to understand that the very foundational principles that physical science now proceeds upon, the ones he wants us to adopt, the ones Comte wanted us to adopt, and the ones many social scientists have adopted during the past fifty years—namely, materialism and positivism, are exactly the ones that render social science impossible by denying humanity one of its most essential characteristics: its freedom to pursue ends that transcend the purely physical. Since our freedom to transcend the physical is the very thing that materialism cannot allow, scientism is ultimately fatal to the human sciences. The problem here is metaphysics, not methodology. Metaphysics has always grounded scientific research whether physical or social, and whether its practitioners acknowledge the fact or not, simply because empirical investigation cannot avoid proceeding on the basis of some presupposed conception of the real. Our presupposed conception of the real must accurately take into account the essential features of human nature. If these features are misconceived or denied, social science in general, and constitutional theory in particular, will suffer, as will the political and legal institutions established on their foundations. Let me summarize briefly some of the essential features of human nature, the denial of which can be expected to affect constitutional theory in destructive ways. First is our inherent sociality. As noted above, following Aristotle, we are social animals that cannot thrive apart from society. The reason this is so is that, in order to live good human lives we must develop our highest faculty, which is intellect and the use of reason.41 The full development of intellect requires the cultivation of intellectual virtues such as speculative and practical wisdom, and this can only be done to the maximum extent in the presence of well-constituted social institutions such as schools, learned societies, book clubs, and the like. Cultivation of intellectual virtue also requires cultivation of moral virtues such as courage, temperance, and justice, because it is impossible to exercise intellect to the fullest if one is under the control of appetites and emotions, or in continual fear of mistreatment by others. Cultivation of moral virtue in turn requires social institutions such as laws, churches, and governments. Second, we are not merely social; we are also political. By this I mean we are not like other social animals, who are driven entirely by instinct to form the societies that they form. Take bees or ants, for instance, who live in perfectly

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organized and stratified societies in which all individuals are fully subordinated to the general good. Much the same is true of higher social animals like wolves, lions, or hyenas. Human beings, on the other hand, even though we are social beings who by nature cannot flourish apart from the society of our fellow humans, are nonetheless not predetermined biologically or in any other way to form any particular kind of society or polity. We are thus forced to choose or design the kind of society or polity we want to live in. In the words of Rousseau, we are “forced to be free.”42 Indeed, it is this simple fact—that we are not driven to form any particular kind of polity—that motivates the whole enterprise of constitutional theory. And the very fact that we are not so driven is itself an essential facet of human nature. Third, though we are by nature oriented to seek the Good under the guidance of reason and under the control of the virtues that reason dictates, we are not predetermined biologically or in any other way to pursue any particular good. We can freely choose to be governed by our appetites and emotions instead of reason if we prefer. We can even choose evil if we like. In sum, we operate not merely under laws of physical nature, but under laws of moral freedom as well, and these laws are laws of our common human nature. Mortimer Adler expresses this last-mentioned facet of human nature by the phrase “species-specific potentialities.”43 The reason that we cannot fully account for human behavior in strictly physiological terms is that human beings are utterly distinct from lower animals in this one crucial respect: while the behavior of lower animals can be viewed as fully determined by external stimuli plus the animal’s genetic or biological predispositions to respond to them, human beings—who have biological predispositions just like other animals— can refuse to act upon their predispositions if they so choose, or even act against those predispositions. This is what we call “free will.” It is not a predisposition; it is a faculty, a species-specific potentiality that is incompatible with any materialist metaphysic. Adler produces the following kind of example to clarify the point.44 Suppose you could live for a day in all the beehives, anthills, and wolf packs on the earth. You would undoubtedly be impressed with the sameness of each anthill, beehive, and wolf pack. Suppose now that you could live for a day among every human society on earth. You would come away with exactly the opposite impression. You would be struck with the diversity of languages, manners, dress, music, and many other facets of these societies. You might even come away with the idea that there is no common human nature. But that conclusion would be mistaken. Whereas we do not share a common nature in exactly the same way as bees or wolves, we do share a common nature in another way. Since the behavior of lower animals is, to a nearly perfect extent, biologically driven, the behavior of one subgroup of a species is virtually identical with that of every other subgroup. Because

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human behavior is not biologically driven in the manner of lower animals, but includes the aspect of free choice, the behavior of one human subgroup can and will differ remarkably from that of another. This, however, does not mean that we have no common nature. It just means that that nature is constituted, in its most important or distinctive respects, by a set of potentialities that are found nowhere else in the animal world. Adler uses the example of language to drive his point home.45 Even though there is an almost incredible array of human languages in the world, place a human child in any human society and he will learn the language of that society. Even though he will have only one “native” language, his potential allows him easily to learn any human language that turns out to be “native” for him. And it is the same for all the other diverse features of human society. This means that the differences of language, culture, manners, and the like, that are observable among human societies, are superficial, not essential. It is our species-specific potentialities that are essential, and thus it is these potentialities, and the freedom that is their complement, that constitute our common human nature. In addition to free choice and the ability to learn language, another of these species-specific potentialities is our ability to use reason, which led Aristotle to define the human being as the “rational animal.” The philosophical foundations for this view of human nature were laid by Aristotle and Thomas Aquinas long ago. Both Aristotle and Aquinas viewed human nature as a composite of immaterial soul and material body, with the former given precedence over the latter. In the Metaphysics, Aristotle holds that matter as such, or hyle, the primordial “stuff ” of which a thing is made, and which can neither be observed or experienced unless “informed,” is the “potential” for receiving “form.”46 Form, “idea,” or eidos, on the other hand, is the immaterial substance or “specifying principle” that determines the outward shape and internal structure of a thing, thus rendering it accessible to sense perception.47 It is also that which makes a thing what it is, what it’s for, and what it’s capable of becoming. It is the “essence” or “nature” of the thing.48 For Aristotle, that which makes a human being what s/he is, what s/he is for, and what s/he is capable of becoming, is the immaterial intellect, the psyche, or the soul—conceived by Aristotle in De Anima as the “form” of the body.49 In this treatise on the psyche, Aristotle says that knowledge of the soul has primacy over other kinds of knowledge because it is “more exact” or because its object is “better and more wonderful” than the others.50 According to Thomas Aquinas in his Commentary on De Anima, knowledge of the soul is better and more wonderful than other forms of knowledge because such knowledge is a knowledge of “noble and exalted things” of which our desire to know even in a “conjectural and probable” way is greater than our desire for more exacting knowledge of “inferior things.”51 Since it is immaterial form, soul, or psyche

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that constitutes matter—not the other way around, it follows that the essence of a human being, or “human nature,” for Aristotle, cannot be material and thus cannot be biological in the sense of being derived from bodily inclinations or appetites. What, then, is human nature, for Aristotle? This question is answered plainly in Nicomachean Ethics, where Aristotle describes the “contemplative life” as the highest end for which human beings are constituted and to which human beings are attuned.52 Though such “inferior goods” as health, wealth, and honor are important, it is the habitual exercise of the moral and intellectual virtues that makes a human being happy and whole; and it is the exercise of the immaterial intellect that crowns a human life, well-lived. In the Politics, Aristotle completes this picture in his analysis of the polis, which is asserted to be prior both to the individual and to the family in the order of nature, because human nature inclines to the good life which is possible only in community.53 Thus the polis is the highest form of community because it aims at the highest good and embraces such lesser forms of community as the household or the village. The healthy polis, in turn, is that polity whose constitution establishes and maintains the conditions required for the development of human character and the pursuit of virtue. In short, “human nature,” or that to which human beings “naturally” incline, is, for Aristotle, a virtuous and contemplative life lived in community with others who are similarly inclined. Thomas Aquinas adopted the Aristotelian ideas summarized in the discussion above, adding at least two significant features. The first of these Thomistic addenda concerns the separability of the soul from the body at death—and thus its personal immortality. For both Aquinas and Aristotle, the intellectual soul is the immaterial and defining substance that constitutes human nature. Understanding is the distinctive activity of humans. The understanding requires that “intelligible species,” “phantasms,” or “objects of thought” be presented to the mind by the body in order that the mind may think. For Aristotle, though the soul be “immortal” in the sense that nothing non-material can really “die,” forms (of which the human soul is one) cannot subsist independently of the matter they inform, and so the soul does not survive the death of the body in the sense of retaining personal identity.54 For Aquinas, however, if the body is only needed to provide the object of thought for the mind, then the soul must operate independently and thus may subsist on its own.55 The second of the Thomistic addenda concerns the imago dei, the idea that human nature has the image of its divine source impressed upon it. A brief digression into Thomistic jurisprudence will help to clarify the meaning of this image. In the Treatise on Law, Aquinas presents a comprehensive theory of the structure of law and its relation to human nature.56 This relation is constituted

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by the fact that people experience legal obligation not merely as the imposition of force but also as a moral bond. The moral bond of law is experienced as proceeding both from within and beyond the experiencing individual. Thus the essence of law, as a component in the structure of being, points beyond itself to a transcendent source. For Thomas, this source is the lex aeterna, or “eternal law.” Eternal law is defined by Aquinas as God’s government of the universe via divine providence, an ordinance of divine reason directing “all the actions and movements of created things.”57 Thomas then identifies three additional kinds of law: natural law, divine law, and human or “positive” law. Natural law is defined as the special government of rational creatures by divine providence, the imprint of eternal law on rational creatures directing natural inclination to its proper end. It is an irruption of the eternal in time, the telos, or end of which is “happiness” or “beatitude,” a mode of participation in divine reality, “the imprint of God’s light in us.”58 Divine law is an ordinance of grace due to sin, since man’s ability to reach his natural end is beyond his power. The foundation of this “revealed” law is the pervasive experience of human inability to conceptualize the natural law fully and adequately in the ongoing effort to establish positive law in accordance with it.59 Finally, human or positive law—which is, as a matter of right, derived from natural law—consists of our attempts to translate natural law into the positive commands characteristic of modern legislative codes.60 We are now in a position to examine the content of the imago dei of Thomistic natural law. Since eternal law is God’s government of the universe in providence or foresight (Latin: pro + video), and since natural law is the imprint of that providential foresight upon rational creatures, it follows that the imago dei stamped on human nature is reason itself, the rational order of nature imposed upon Creation by God. In the words of Eric Voegelin, “Thomas understands natural law as the insights into right order that are possible to man by virtue of his participation in the lex aeterna.”61 These observations point to a radical distinction between the respective natures of human beings and other animals; a distinction that must be thought of as one of kind and not of degree. G. K. Chesterton, who thought of God’s gift of understanding as most clearly revealed in Art—the unique “signature of man,” tells the story of a young boy who has been taught to “simplify the relation of men and beasts to a mere evolutionary variation,” and to think of himself as “roughly indistinguishable” from the beasts “save by a relative and recent variation.” The boy is standing in a cave looking at the drawing of a reindeer done by a prehistoric caveman: What would be for him the simplest lesson of that strange stone picture-book? After all, it would come back to this: that he had dug very deep and found the

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place where a man had drawn the picture of a reindeer. But he would dig a good deal deeper before he found a place where a reindeer had drawn a picture of a man. . . . It is the simple truth that man does differ from the brutes in kind and not in degree; and the proof of it is here; that it sounds like a truism to say that the most primitive man drew a picture of a monkey and that it sounds like a joke to say that the most intelligent monkey drew a picture of a man.62

Whether one views the understanding of nature’s form in artistic or scientific terms, for Aristotle and Thomas Aquinas, the human being is preeminently and exclusively the “rational animal;” and the rational animal is the only animal in possession of insight into the rational order of nature. For Aquinas, to be “rational” is to be “of God.” Thus Thomistic law, just like Thomistic and Aristotelian metaphysics, is strictly hierarchical and teleological. The proper end, or telos, of human nature, that to which our inclinations as rational creatures are naturally and properly directed by the image of divine reason stamped on the human mind, is for Thomas and Aristotle, the contemplative life lived in community with others of a similar stamp. Only there is this difference: whereas for Aristotle, ultimate contemplation is for its own sake—“thought thinking itself,” as the saying goes, producing happiness in the sense of eudaimonia; for Thomas, ultimate contemplation is contemplation of God, producing happiness in the sense of beatitudo, or “beatitude.” This distinction marks and measures the distance between classical Greek and medieval Christian philosophy. And it is worth remarking that, as against the modern reductionists, the distance is not very great. Returning now to constitutional theory, which is one of the human sciences, what follows from the denial of the species-specific potentialities that constitute our common humanity? Or, to put the question the other way, what follows from regarding human behavior as determined solely by the combination of external stimuli and biological predispositions, as in the case of lower animals? First, the denial of human freedom as an essential feature of human nature renders futile any attempt to develop political institutions based on choice. It is obvious that, if human behavior is strictly determined by external stimuli and biological predispositions, freedom is an illusion. In the materialist’s world, we may appear to make choices that are free of external determinants, but this appearance is not a reality. When we think we are making free choices, we are merely following our biological predispositions to respond to external stimuli in ways we do not yet understand. This lack of understanding tricks us into thinking that the choices we appear to be making are undetermined. A voter, for instance, thinks that she is making a free choice at the polling place on election day, but this cannot be true if her voting behavior can be fully accounted for by external forces and physiological dispositions. Since any kind

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of democratic process must involve an effort to convert public opinion into public policy (i.e., must involve some kind of voter choice), and since public opinion is generally regarded as a summation of individual opinions, it is difficult to see how constitutional democracy can exist if voters are not making free decisions when they express those opinions. In truth, the denial of our common human nature as an array of potentialities is itself a denial of human freedom, for to say that something is potential is to say that its development is free in the sense that it may develop in one way or another. If political development cannot be a matter of choice, then democratic institutions are useless endeavors. Second, denial of our common human nature robs the idea of equality of any adequate theoretical foundation. If, as Thomas Jefferson said in the Declaration of Independence, all men are created equal, such equality can exist only in respect of those features that are common to us all. Only if the differences of race, ethnicity, nationality, gender, class, and culture that divide us are regarded as superficial in relation to an underlying common human nature, are we entitled to regard human beings as essentially equal. The denial of such an underlying essential nature necessarily entails the belief that such differences are not superficial, and thus entails a belief in fundamental inequality. Third, absent an egalitarian foundation, there is absolutely no way to justify a belief in universal human rights, or for that matter, any “rights” at all—as distinct from “privileges.” If human rights are universal, such rights can only be rights to those real or essential goods that enable all human beings, as such, to live good human lives. Such goods must be “needs,” not merely “wants.” They must be real, not merely apparent. But if there is no common human nature, then there is really no such thing as a “good human life,” a life that is good, per se, for each and every human being. Nor are there any real goods to which all human beings are entitled regardless of race, nationality, class, or gender. Fourth, under scientism, there is no solid foundation for morality, and the idea of individual moral responsibility is crucial for constitutional democracy. If individuals cannot be regarded as free, responsible moral agents, there can be no justification for the wide political participation called for by proponents of democratic institutions. Traditionally understood, morality refers to a system of expected behaviors based on ideas of right and wrong, or good and bad. But under materialism, all ideas are the consequence of strictly determined motions of matter and physical forces in the brain, and all behaviors are the consequence of external stimuli and biological predisposition. To attribute the modifiers “right,” “wrong,” “good,” or “bad” to the strictly determined motions of material objects and biological predispositions is absurd.

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Morality requires praiseworthiness and blameworthiness arising from the voluntary choices of free moral agents. There are no such choices under materialism. Nor is there any law, apart from the laws of physics and biology which govern the movements and relations of material objects and living things in the universe. As traditionally understood and experienced, law is rooted in the idea of justice, which is in turn rooted in the principles of right, wrong, good, and bad. There are no such principles under materialism. Finally, the legal theory that emerges from the scientistic worldview and which lays the foundation for modern constitutional jurisprudence is the legal positivism of John Austin and his contemporary disciples. In marked contrast with Thomistic jurisprudence, Austin claims in his famous first lecture that the proper subject, or “province,” of jurisprudence is “positive law,” described as proceeding from the “positional” relation between political “superiors” and “inferiors.” Austin’s category of positive law is roughly equivalent to Aquinas’s category of “human law,” an “aggregate of rules” set “by men to men” in “independent political societies.”63 For Austin, the key element in positive law is the superior’s ability to enforce his commands upon the inferior by visitation of some “pain” or “evil.” When the element of enforceability is present, the law “obliges,” or creates a “duty of obedience” in the inferior that is directly correlative with the “command” (i.e., not with the “right”) of the superior (the “sovereign”).64 By assimilating obligation to enforceability in this manner, Austin is able to subordinate fully the intrinsic to the extrinsic legal bond, and therewith morality and law to political power. In his fifth lecture, Austin clarifies further the definition of positive law, asserting that “law” is “a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author.”65 In the sixth lecture, an analysis of the concept of sovereignty, Austin defines an “independent political society” in terms of habitual obedience to a sovereign, and then declares that the true sovereign “is he, not by whose authority the law was first made, but by whose authority it continues to be a law.”66 Austin is thus able to divorce the essence of law from its origin, completing the separation of positive law from divine, eternal, and natural law. Dismissal of the Thomistic categories effectively dethrones God from rulership of the legal cosmos. It is this move that allows Austin to establish the modern preoccupation with “human law,” and legal positivism as the epistemology of this “province of jurisprudence determined.” In the twentieth century, the underlying interpretive logic of legal positivism worked itself out in two different directions. One of these strands is found in the linguistic philosophy of postmodern deconstructionism, which

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denies that written texts have any meaning at all save that which interpreters read into them. This view has been influential in contemporary debates over the appropriate way to interpret the Constitution. The other strand has taken the form of legal pragmatism, or “instrumentalism.” Eric Voegelin describes this strand of “analytical legal positivism” that he finds embedded in the “pure theory” of his teacher (and Austin’s disciple) Hans Kelsen, in which The lawmaking process acquires the monopoly of the title “law.” Kelsen’s hierarchy culminates in a hypothetical basic norm that orders the members of society to behave in conformity with the norms deriving ultimately from the Constitution. The power structure articulated in the constitution is the origin of the legal order. . . . The law and the state, then . . . are two aspects of the same normative reality. . . . Whatever power establishes itself effectively in a society is the lawmaking power . . . whatever rules it makes are the law. The classic questions of true and untrue, of just and unjust order do not belong in the science of law or, for that matter, in any science at all.67

By evicting from jurisprudence any rules except those “posited” as commands of a temporal sovereign with power to visit evil upon disobedient subjects, Austinian positivism overturns the declaratory theory of law, in which the function of courts is to find and declare the “reason of the law.” Under classical jurisprudence, the reason of the law is conceived as the object of an ongoing quest for social order rooted in human nature, and legal interpretation is viewed as a process of discovery. The elaborate interpretive approaches of the great jurisprudential exponents of the law of nations and modern natural law were all developed in order to aid courts in the discovery of this objective reason. But since positivism denies the existence of an objective reason of the law, because it denies that human nature is constituted by a reason that points to a divine source, it must also deny the existence of an essential legal reality that points to a source beyond the law. In the context of a thoroughly judicialized American constitutionalism, this legal epistemology leads straightforwardly to judicial supremacy. If the true sovereign is he, “not by whose authority the law was first made,” but he “by whose authority it continues to be a law,” then it is inevitable that the organ of government possessing “final” interpretive authority (in the sense both of “ultimate” and of “last”) will determine the substance of the fundamental law. Under legal positivism, the Constitution is divorced from the will of its makers, the law is divorced from the will of the lawgiver, and the distinction between Constitution and constitutional law is collapsed. We land squarely in Chief Justice Hughes’ dictum that the Constitution is what the Court says it is. And from this conclusion there is no escape.

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The Devil’s Pitchfork The materialism and positivism that have been so detrimental to modern social science, to modern constitutional theory, and to moral philosophy are part of a larger complex of ideological doctrines that has arisen in modern times as a philosophical foundation for biological and cosmological accidentalism. Several of these ideologies arose in the nineteenth century as accompaniments to, and contemporaries of, Darwinian biology. Each of them, in one way or another, reinforces accidentalism; indeed, each of them is required by an accidentalist worldview. These ideologies dominate modern academic life, and together they comprise the reductionist intellectual framework in which current research takes place, and in which knowledge is transmitted to each new generation of students. To be fully understood, this intellectual framework must be regarded as a coherent whole, just as, to be fully understood, a human being must be regarded as a coherent whole. Many have questioned why the neo-Darwinian worldview rose to prominence so quickly in the late nineteenth century and remains dominant in the modern academy despite much counterevidence. The answer is here. If the neo-Darwinian paradigm is seriously questioned, then all the facets of this ideological complex would have to be questioned, since none of them could stand in the absence of the others. One of the most important common features of these ideologies is that they all lead to a denial of the free choice and moral responsibility that are essential features of the common human nature discussed above. In the closing section of the essay, I will briefly suggest the relations between some of the doctrines in the complex. I call the social science that results from this complex of doctrines the “Devil’s Pitchfork,” because all the doctrines, in one way or another, regard human character and human behavior as a function of forces beyond our control. These forces “prod” us or drive us from behind, beneath, or below—rather than enticing us from beyond, thereby destroying our freedom and our moral accountability. In this respect, they may be regarded properly as works of evil. Taken together, these ideologies comprise a fantasy world created by modern intellectuals, a “virtual reality,” or a “second reality” of the kind critiqued by Eric Voegelin in Hitler and the Germans.68 The intellectual corruption that led to the rise of Hitlerism in Europe during the early twentieth century is the same corruption that has led to the demise of the modern academy. Voegelin’s use of the concept of “second reality” is intended to describe the situation of German culture in the nineteenth and twentieth centuries that provided the groundwork for the rise of national socialism and the systematic extermination of the Jewish people by the Nazi regime. In a series of lectures given by Voegelin in Munich in 1964, Voegelin laid the blame for the atrocities

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of the Nazis squarely upon the shoulders of the morally decadent condition of German society and the intellectually bankrupt condition of German philosophy, theology, and political science. Moreover, Voegelin suggested that the conditions that had led to the rise of Hitler in the first place had not abated, and that the German people—and German intellectuals particularly—were in something like a state of “denial” with respect to the whole business, even as late as the 1960s. This state of denial manifested itself after World War II in an unwillingness to face what had happened on the part of leading German intellectuals, church leaders both Protestant and Catholic, periodic outbreaks of anti-Semitic violence, and the like. According to Voegelin, Hitlerism was the manifestation of a loss of contact with reality on the part of German—and more broadly, European—intellectuals in the nineteenth and early twentieth century, a loss of contact with the transcendent orientation of human nature toward the divine, a “de-divinization” of man that led inevitably to his “de-humanization” as well. Importantly, a major ideational element in this dedivinizing, dehumanizing enterprise was the rise of biological and social Darwinism, and a major figure in the effort was Ernst Haeckel, whose faked embryos are well-known to evolutionary biologists. Haeckel, however, did a great deal more than draw fake embryos. Like Comte and Mill, he also attempted to found a new religion, which he called “monism.” Haeckel described his “monistic church” in the following passage: The religious service of the Sunday, which will continue as the ancient day of rest, of edification and relaxation that follows the six workdays of the working week, will undergo an essential improvement in the monistic church. The mystical belief in supernatural miracles will be replaced by clear knowledge of the true miracles of nature. The temples of God as places of devotion will not be adorned with images of saints and crucifixes, but with richly artistic representations from the inexhaustible realms of beauty of natural and human life. Between the high columns of the Gothic cathedrals, which have climbing plants winding around them, slender palms and tree-ferns, graceful banana trees and bamboos, will remind us of the creative power of the tropics. In great aquaria below the church windows, delightful jellyfish and siphonophores, brightly colored corals and starfish, will elucidate the art-forms of marine life. In place of the high altar there will be a statue of Urania, which will represent the omnipotence of the law of matter through the movements of the planets.69

Our particular interest is not in Haeckel, however, but in the broader implications of Voegelin’s critique. Each of the philosophical positions listed above as critical supports for accidentalism in cosmology, biology, and social science can be viewed as aspects of a second reality constructed by modern philosophers during the past three or four centuries. As I have already suggested, pos-

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itivism, scientism, materialism, and behavioralism are contrary to logic, common sense, and reason. Together with some other complementary ideologies they form a modern “worldview,” a closed, ideological system that seems impermeable to serious questioning and that must therefore be defended by sophistry. They constitute a “virtual reality,” a second reality made up by Man in order to get rid of God—the first reality. Positivism, in its logical form, denies the meaningfulness of any statement other than mathematical tautologies (which are true by definition) and empirical observations. In its legal form, positivism denies any basis for law other than force. Scientism denies that anything can be really known except by the methods of experimental science. Inductive skepticism, the epistemological foundation of positivism, denies that anything can be really known even by those methods, or that we can know anything about cause and effect, or that we have any real grounds for our belief that the sun will rise tomorrow. Materialism denies that anything exists apart from matter and the physical forces that act upon it. All this is fantasy. Perhaps the most striking example is that of David Hume, the original inductive skeptic. Hume’s theory of the mind entails the conclusion that there are no abstract ideas—which in turn entails the further conclusion that the structure of human thinking is essentially identical with the structure of canine thought. All of the doctrines listed above entail such conclusions—conclusions that no reasonable person would believe if they were presented straightforwardly. Chesterton’s assessment of modern philosophy is appropriate: Since the modern world began in the sixteenth century, nobody’s system of philosophy has really corresponded to everybody’s sense of reality; to what, if left to themselves, common men would call common sense. Each started with a paradox; a peculiar point of view demanding the sacrifice of what they would call a sane point of view. This is the one thing common to Hobbes and Hegel, to Kant and Bergson, to Berkeley and William James. A man had to believe something that no normal man would believe, if it were suddenly propounded to his simplicity; as that law is above right, or right is outside reason, or things are only as we think them, or everything is relative to a reality that is not there. The modern philosopher claims, like a sort of confidence man, that if once we will grant him this, the rest will be easy; he will straighten out the world, if once he is allowed to give this one twist to the mind.70

Unfortunately, the little twists of mind that Chesterton refers to are almost never presented straightforwardly, and certainly not as a whole. They are presented one-at-a-time, in piecemeal fashion, not as the complex that they really are, and so their full implications are never really and fully explored. This is exactly the Comtean program discussed above in the second section of this essay. The academic specialism advocated in Comte’s program leads inevitably

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to the construction of a second reality, a fantasy world. The world of the modern academy is an artificial world, because reality never comes piecemeal, but is a whole, and it is always experienced as such. Likewise, all these ideologies entail a denial of the traditional, classical-Christian view of Man as a special creature in the order of being—a creature fashioned by a Creator in the image of that Creator, thus reducing Man’s significance and centrality in the cosmos. Viewed from the classical and Judeo-Christian perspective, academic balkanization contributes to the de-humanization of man, because the full humanization of man is grounded upon his divinization, and his divinization can only be based upon a conception of the whole of man—just as the concept of man in classical thought was based on the whole. The reductionist view of man takes him apart and puts in place of the whole a virtual reality which is a congeries of particles, organs, systems and subsystems that in truth have no meaningful existence at all apart from the whole that is the real human being. Here may be found the ultimate answer to the question as to why Darwinism triumphed so easily in the late nineteenth and early twentieth centuries. When Darwin’s theory first appeared, modern intellectuals had been constructing this virtual reality, this fantasy world, for at least two or three centuries, and it is likely that, had Darwinian biology not been fully in sync with the these developments, it would have fallen on deaf ears. One of the most important precursors of evolutionary biology was the philosophy of social Darwinism, a social philosophy that predates Darwinian biology by at least a generation. Fred Hoyle has argued that scientists adopted Darwin’s theory of natural selection in the nineteenth century largely because it was consistent with prevailing theories of commercial and economic development, not because it was good science: The modern point of view that survival is all has its roots in Darwin’s theory of biological evolution through natural selection . . . . By the 1860s, the industrial scene had burgeoned. Companies were competing fiercely in the production of similar products, railways were competing for traffic, nations were competing for Lebensraum. While the latter was not particularly new, the cut-and-thrust of commerce with its threat of ruin on a grand scale certainly was. Improvement of products was the key to survival. From practical experience in commerce it was then a short step to the concept of an improvement of species through natural selection—the Darwinian theory.71

The social science that arose in the nineteenth century and its supporting philosophical foundation allowed Darwinian biology to rise to prominence in the first place, and since has provided the required intellectual foundation for the “modern synthesis” of neo-Darwinian theory in the twentieth century. As noted above, I view the elements of this foundation as “prongs” or “prods” on

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a pitchfork, since they all are about what spurs human beings to action in the world. Since they all conceive human character as (in)formed by “dark” forces, and since “dark” forces are traditionally viewed as diabolical, I call the pitchfork the “devil’s pitchfork.” The prongs on the pitchfork have their unity in that they each represent and depict fundamental human motivation as proceeding from “behind,” “beneath,” or “below” the surface of actual behavior. They are critically important because twentieth-century social science is largely based upon this nineteenth century pitchfork. Let me close this essay with a brief illustration that considers how two of the main concepts of twentieth-century thought about human motivation have arisen from the thought of three of the most important thinkers of the nineteenth century. These three thinkers have arguably had the greatest impact on our current understanding of what human beings are. First consider Charles Darwin, who held that human beings are most powerfully motivated by the drive to survive and reproduce, and that humankind has evolved from simpler organisms by an essentially random process (ergo, Darwinian evolutionary “biology”). Second, consider Sigmund Freud, the most influential late-nineteenth century psychologist, who taught that human beings are most powerfully motivated by deep, unconscious or semi-conscious drives and desires that stem from unremembered (or half-remembered) childhood traumas and other early experiences (ergo, Freudian “psychology” and modern psychoanalysis). These experiences, at least unless and until purged by psychoanalysis, determine the shape of the adult lives of human beings and, indeed, in the end the fate of entire societies. Third, consider Karl Marx, who many regard as the most influential social and economic thinker of the nineteenth century, and who taught that human beings are most powerfully motivated by their social and economic status and their position in an historically-determined sequence of class antagonisms over which they have no control and, in most instances, no awareness (ergo, Marxian “sociology”). The two most significant common features shared by both Freudian psychoanalytic theory and Marxian sociological theory are both attributable to Darwinian biology. First, just as Darwinism conceives human nature entirely in terms of origins rather than ends, both Freudianism and Marxism conceive human motivation entirely in terms of origins rather than ends. In other words, Darwinism, Freudianism and Marxism all look to the past for their clues to the development of the human sciences of biology, psychology and sociology. All rule out teleology, and thus are all, in an important sense, “reactionary” ideologies. Second, all three ideologies conceive human motivation entirely in terms of unconscious (or semi-conscious) drives. In other words, they all view the underlying source of human motivation as a force (or forces) over which we have little or no control, a force that is essentially “irrational”

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and yet utterly compelling, a force that is impermeable to the influence of mind or reason, and against which we are powerless to assert our freedom. Returning for a moment to the origins controversy discussed in the first section of this essay: the accidentalists are writing their books for general public consumption because they want us to adopt their worldview, and this means that they want us to give up a worldview that they think we have. They also want us to give up a particular view of ourselves, the view that we human beings are “special” creatures made in God’s image. This view in turn entails that human beings have souls, immaterial intellects that are necessarily immortal. The accidentalists, especially the neo-Darwinians, want us to give up this idea and substitute for it the idea that we are merely complicated biological machines. They also want us to believe that their view stems exclusively from a science that has emerged only recently, in the past century or so. In other words, they want us to believe that pure science—and only pure science—is the basis of their view. But this is not true. As Fred Hoyle’s comments have suggested, much of the science was based initially on social science, and as I am now suggesting, the social science was based initially on philosophy. The origins controversy is not a contest between philosophy and science any more than it is a contest between religion and science. It is a contest between two philosophical worldviews, each of which comes with a complete metaphysics, epistemology, psychology, sociology, normative ethics, political science, and constitutional theory. If we adopt one part of the package, we will be forced to adopt the other parts as well. In the last analysis, this is how we know that scientism cannot be true. The scientistic world view in cosmology and biology fails not only because it runs afoul of experience, common sense, and logic, but also because it runs afoul of what we can and do know with certainty about ourselves, about our common human nature. Borrowing a phrase from Jay Budsisziewski, it runs afoul of “what we can’t not know.”72

Notes 1. Stephen W. Hawking, A Brief History of Time: From the Big Bang to Black Holes (New York: Bantam Books, 1988); Richard Dawkins, The Blind Watchmaker: Why the Evidence of Evolution Reveals a Universe Without Design (New York: W.W. Norton & Company, 1987); Carl Sagan, The Dragons of Eden: Speculations on the Evolution of Human Intelligence (New York: Random House, 1977); Paul Davies, The Last Three Minutes: Conjectures about the Ultimate Fate of the Universe (New York: Basic Books, 1994); Paul Davies, The Mind of God: The Scientific Basis for a Rational World (New York: Simon & Schuster, 1992); Stephen Jay Gould, Dinosaur in a Haystack: Reflections in Natural History (New York: Harmony Books, 1995); Alan H. Guth, The Inflationary Universe: The Quest for a New Theory of Cosmic Origins (Reading, Mass.: Helix Books,

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1997); Roger Penrose, Shadows of the Mind: A Search for the Missing Science of Consciousness (Oxford, UK: Oxford University Press, 1994); John Maynard Smith and Eors Szathmary, The Origins of Life: From the Birth of Life to the Origin of Language (Oxford, U.K.: Oxford University Press, 1999); Frank J. Tipler, The Physics of Immortality: Modern Cosmology, God and the Resurrection of the Dead (New York: Doubleday, 1994); John A. Wheeler, At Home in the Universe (Woodbury, NY: AIP Press, 1994); Fred Alan Wolf, Taking the Quantum Leap: The New Physics for Nonscientists (New York: Harper and Row, 1981). 2. Tipler, Physics of Immortality, p. 68 (“We now know that we are the descendants of one-celled organisms. . . .”); Penrose, Shadows of the Mind, pp. 373–74 (“The distant descendants of these cell-creatures—today’s parameciums and amoebas, and also our ants, trees, frogs, buttercups, and human beings. . . .”). 3. Tryon, “Vacuum Fluctuation?”, pp. 396–97 (“our Universe is simply one of those things which happen from time to time.”); Guth, Inflationary Universe, p. 272 (“Any object, in principle, might materialize briefly in the vacuum—even a refrigerator or a pocket calculator.”). 4. See Fred Hoyle, The Intelligent Universe (London: Michael Joseph, 1983), p. 23: “[T]here is not a shred of objective evidence to support the hypothesis that life began in an organic soup here on the Earth. Indeed, Francis Crick, who shared a Nobel prize for the discovery of the structure of DNA, is one biophysicist who finds this theory unconvincing. So why do biologists indulge in unsubstantiated fantasies in order to deny what is so patently obvious, that the 200,000 amino acid chains, and hence life, did not appear by chance? The answer lies in a theory developed over a century ago, which sought to explain the development of life as an inevitable product of the purely local natural processes. Its author, Charles Darwin, hesitated to challenge the church’s doctrine on the creation, and publicly at least did not trace the implications of his ideas back to their bearing on the origin of life. However, he privately suggested that life itself may have been produced in “some warm little pond”, and to this day his followers have sought to explain the origin of terrestrial life in terms of a process of chemical evolution from the primordial soup.” 5. See Hawking, History of Time, pp. 133–41. 6. Reported in Charles de Koninck, “Natural Science as Philosophy,” Quebec: 1959, p. 18. 7. Carl Sagan, Pale Blue Dot, quoted in Nota Bene, Vol. II, Issue 4, May 6, 2004. 8. Richard Dawkins, in Science 277 (1997): p. 892; quoted in Michael Behe, “Darwin’s Breakdown: Irreducible Complexity & Design at the Foundation of Life,” Touchstone 12 (1999): pp. 39–43, at p. 40. 9. “A Scientific Dissent From Darwinism.” Discovery Institute: Center for Science & Culture, Seattle, Washington. To access the statement and list of signatories, go to http://www.dissentfromdarwin.org/. 10. See, e.g., Kitzmiller et al. v. Dover Area School Board, No. 04cv2688, 2005 WL 3465563, 26 (M. D. Pa. Dec. 20, 2005). For a thorough review of this case and its background, see David K. DeWolf, John G. West, Casey Luskin, and Jonathan Witt, Traipsing Into Evolution: Intelligent Design and the Kitzmiller v. Dover Decision (Seattle: Discovery Institute Press, 2006).

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11. See the excellent article by Jude P. Dougherty, “Using the Past to Rescue the Future,” Modern Age 49 (no. 1): 3–11 (2007). 12. Richard Lewontin, quoted in Jay Wesley Richards, “Proud Obstacles & a Reasonable Hope: The Apologetic Value of Intelligent Design,” in Touchstone 12 (1999): pp. 29–32, at p. 32 (emphasis added). 13. Mortimer J. Adler, Adler’s Philosophical Dictionary (New York: Scribner, 1995), p. 46. 14. Immanuel Kant, Critique of Pure Reason, trans. J.M.D. Meiklejohn, 2d ed. (London: J.M. Dent and Sons, 1934), o. 286. 15. Auguste Comte, Introduction to Positive Philosophy, trans. Frederick Ferre (Indianapolis: Hackett Publishing Co., 1988), p.1. 16. Ibid., pp. 1–2. 17. Ibid., p. 2. 18. Ibid., p. 4. 19. Ibid., p. 3. 20. Ibid., p. 4. 21. Ibid., p. 12. 22. Ibid., p. 58. 23. Ibid., pp. 10–14. 24. Ibid., pp. 12–14. 25. Ibid., p. 13, n. 9. 26. Ibid., p. 28. 27. Ibid., p. 29. 28. Ibid., pp. 29–30. 29. Mortimer J. Adler, Ten Philosophical Mistakes (New York: Macmillan, 1985), pp. 191–93. 30. Comte, Positive Philosophy, p. 53. 31. The Modern Synthesis is a modern version of Darwin’s theory that originated at a meeting of the American Geological Society in 1941 and ultimately resulted from a collaboration of scientists from several different fields of study. Because of widespread dissatisfaction with Darwin’s own version of his theory—which had never been universally accepted by biologists, these scientists were asked to rebuild the theory using the latest findings from the fields of genetics, paleontology, zoology, morphology, taxonomy, and mathematics. See Lee M. Spetner, Not By Chance: Shattering the Modern Theory of Evolution (Brooklyn, NY: Judaica Press, 1997), pp. 20–21. 32. Comte, Positive Philosophy, pp. 17. 33. John Stuart Mill, Three Essays on Religion: Nature, The Utility of Religion, Theism (Amherst, NY: Prometheus Books, 1998) (originally published 1874). 34. Ibid., pp. 242–57, esp. 256. 35. Ibid., p. 256. 36. Ibid., pp. 256–57. 37. Ibid., p. 29. 38. Eugene August, John Stuart Mill: A Mind at Large (New York: Charles Scribner’s Sons, 1975), p. 248. 39. Ibid., p. 54.

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40. Edward O. Wilson, Consilience: The Unity of Knowledge (New York: Alfred A. Knopf), chap. 9. 41. Aristotle, Nicomachean Ethics, Bk. X; Politics, Bk. I. 42. Jean-Jacques Rousseau, The Social Contract, Bk. I, chap. 7. Here I have borrowed Rousseau’s phrase, but not his meaning. 43. Adler, Ten Philosophical Mistakes, p. 162. 44. Ibid., pp. 158–164. 45. Ibid., p. 161. 46. Aristotle, Metaphysics VIII, 1, in Aristotle, Introductory Readings, trans. Terence Irwin and Gail Fine (Indianapolis: Hackett Publishing Co., 1996) p. 175. 47. Aristotle, Metaphysics VII, 3, in Aristotle, Introductory Readings, p. 152. 48. Aristotle, Metaphysics VII, 7, in Great Books of the Western World, ed. Robert Maynard Hutchins (Chicago: Encyclopaedia Britannica, Inc., 1952), vol. 8: Aristotle: I, pp. 555–56. 49. Aristotle, De Anima II, 1, in Aristotle, Introductory Readings, p. 80. 50. Aristotle, De Anima I, 1, in Aristotle, Introductory Readings, p. 76. 51. Thomas Aquinas, Commentary on Aristotle’s De Anima, trans. Kenelm Foster and Silvester Humphries, in Thomas Aquinas, On Human Nature, ed. Thomas S. Hibbs (Indianapolis: Hackett Publishing Co. 1999), p. 4. 52. Aristotle, Nicomachean Ethics, trans. D.P. Chase (Mineola, N.Y.: Dover Publications, Inc., 1998), Book X. 53. Aristotle, Politics, trans. Benjamin Jowett (Mineola, N.Y.: Dover Publications, Inc., 2000, Book I. 54. Aristotle, De Anima III, 5, in Aristotle, Introductory Readings, p. 100. 55. Aquinas, Commentary on De Anima, in Human Nature, pp. 55–59. 56. Thomas Aquinas, Summa Theologica, Questions 90–97. 57. Thomas Aquinas, Treatise on Law, trans. Richard J. Regan (Indianapolis: Hackett Publishing Co., 2000), p. 23. 58. Ibid., p. 9. 59. Ibid., pp. 11–13. 60. Ibid., pp. 9–11. 61. Eric Voegelin, The Nature of the Law and Related Legal Writings, in The Collected Works of Eric Voegelin, vol. 27, ed. Robert A. Pascal, James L. Babin, and John W. Corrington (Baton Rouge: Louisiana State University Press, 1991), p. 81. 62. G. K. Chesterton, The Everlasting Man (New York: Dodd, Mead & Company, 1926), pp. 15–16. 63. John Austin, The Province of Jurisprudence Determined, Lecture 1, in The Nature of Law: Readings in Legal Philosophy, ed. M. P. Golding (New York: Random House, 1966), pp. 77–78. 64. Austin, Lecture 1, in Golding, Nature of Law, p. 81. 65. Austin, Lecture 5, in Golding, Nature of Law, p. 89. 66. Austin, Lecture 6, in Golding, Nature of Law, p. 93. 67. Voegelin, Nature of the Law, in Collected Works, vol. 27, p. 28. 68. Eric Voegelin, Hitler and the Germans (Columbia: University of Missouri Press, 1999). On the “second reality,” see chap. 7, esp. pp. 244–45.

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69. Ernst Haeckel, Die Weltratsel (Bonn: Emil Strauss Verlag, 1901), pp. 462–63; quoted in ibid., p. 126 (emphasis added). 70. G. K. Chesterton, Saint Thomas Aquinas (New York: Doubleday, 1956), pp. 145–46. 71. Hoyle, Intelligent Universe, pp. 7–8. 72. Jay Budzisziewski, What We Can’t Not Know (Dallas: Spence Publishing Co., 2003).

9 A Constitution to Die For? Congressional Authority to Raise an Army Stanley C. Brubaker

F YOU PICK UP A CONTEMPORARY TEXT on constitutional law, you will find hun-

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dreds of pages purporting to find in the text of the Constitution the answer to many of life’s questions, from when life begins to when it may be ended and myriad issues in between, whether the matter concerns contoured mudflaps on trucks1 or pasties and G-Strings on strippers.2 But on the authority of the state to wrest young men from their homes, to deny them liberties enjoyed in civilian life, to subject them to hard labor and little sleep in the course of rigorous training with minimal compensation, and to ship them perhaps across rough waters to disembark under the onslaught of barricaded machine guns—on that question, you’ll find almost nothing.3 For this anomaly, the editors of our texts in constitutional law are only partially responsible, for they take their cue from the Supreme Court. And from the Court’s perspective, the constitutionality of the draft has warranted attention only as it appears obliquely in the context of other concerns, such as religious freedom and the claims of conscientious objectors4 or gender equality and whether the government, if it registers men for the draft, must also register women.5 But on the direct question of whether Congress may conscript individuals into military service, the Justices have never questioned the Selective Draft Law Cases of 1918.6 In his opinion for the unanimous Court, Chief Justice Edward Douglass White, noting the plain words of Art I, Sec. 8,—“Congress shall have Power . . . to raise and support armies”—opined that the argument against the draft is almost “too frivolous for further notice.” “[T]he mind cannot conceive an army without the men to compose it.” He did, however, condescend to brush aside the — 217 —

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petitioners’ claims. To their argument that the Constitution only authorized Congress to raise an army through volunteers, he said “a governmental power which has no sanction to it . . . is in no substantial sense a power.” And to their argument that a volunteer army was more consonant with the Constitution’s guarantees of individual liberty, he responded that “the premise of the proposition is so devoid of foundation that it leaves not even a shadow of ground upon which to base the conclusion.” The power to conscript, after all, was a fundamental attribute of a sovereign and just state, an abstract principle made concrete from the days of the Norman Conquest, through the principles of Blackstone and Vattel, our colonial experience, Revolution, and Civil War. White’s opinion, I would submit, is a curious amalgam of bad logic and half-baked history, which nonetheless comes to the correct conclusion. Logically, the authority to raise an army no more implies a power to conscript soldiers than the authority to establish post offices implies a power to conscript postal workers. And historically, as a matter of original understanding, the evidence is much more ambiguous than White allows. Standing legal doctrine at the time of the American founding did hold that every able-bodied male citizen had an obligation to come to the service of his country, or to provide a substitute.7 The important point, lost on the Court, however, was that this obligation was considered fully met in the context of the militia. On the authority to raise an army, however, the totality of evidence is strong that the Framers and Ratifiers of the Constitution envisioned this to be raised through patriotism and purchase, not conscription. The difference is significant, for the militia is to be used for only three purposes: “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”8 To understand their reluctance to extend conscription from the militia to the army, one should recall the historical legacy the Framers and Ratifiers carried into their conventions. An army, as dictionaries of the time would confirm, was synonymous with a “standing army,” a body of professionals, or mercenaries; conscription en mass for an army did not really begin in Western experience until the Napoleonic Wars. And as the history of Cromwell, Charles II and James II (as well as the writings of John Trenchard and James Burgh) had taught the founding generation, a large standing army was the enemy of liberty. A militia, by contrast, synonymous with “the people”—that is, all citizens capable of bearing arms—could only serve the cause of liberty. One’s obligation to the militia was probably firmer in theory than practice, and the sharp distinction between a volunteer army and an obligatory militia blurred at times under the exigencies of armed conflict.9 Thus, during the American revolution, when recruitment efforts into the Continental Army faltered, the Continental Congress, prompted by General Washington, urged states to meet their quotas by a “draft from their militia.” These drafts—which

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never constituted more than a fraction of the forces—were typically only for one year, and were from previously formed militia units. So most conceived of it as an extension of militia obligations rather than a draft into the army.10 In any case, at the federal convention, despite considerable attention to the issue of defense, nothing was said to bring into question the traditional distinction between a volunteer army and an obligatory militia. At the outset, in presenting the Virginia Plan, Edmund Randolph bemoaned the difficulty of keeping the typically short term militia in the field and urged the necessity of a standing army. Such an army, he argued, could only be raised with money, as “[d]raughts stretch the strings of government too violently to be adopted.”11 This is the only direct reference we have to the draft at the convention; everything else must be inferred. Yet when we look at the structure of the debate, the inference from silence speaks strongly. The Federalists made the case effectively for some sort of standing army. During the Revolution, the bulk of the force had come from militia enrolled for short term and predominantly local service. Such a force had its moments of valor, but it also suffered from inexperience, incompetence, and unreliability. An army had proved vital to the success of the Revolution and doubtless would prove essential as the backbone of any defense effort; further, they argued, an army would be better suited than the militia for the extended tours of duty required for garrisoning forts and patrolling the borders. Virtually all delegates to the federal convention, however, regarded a large standing army as a threat to liberty. The obvious solution was to allow the federal government to rely on the militia.12 That, however, excited the jealousies of the states and produced a set of compromises. Thus, we find the federal government has authority to call out the militia in Clause 15, but only for the restricted traditional purposes of a militia13—“to execute the laws of the Union, suppress Insurrections and repel Invasions.” And in Clause 16, we find federal power “to provide for organizing, arming, and disciplining the militia, and for governing such Part of them as may be employed in the Service of the United States,” but we find reserved to the states respectively, “the Appointment of the Officers, and the Authority of training the Militia” (“according to the discipline prescribed by Congress”). Although no limits were placed on the purposes to which the federal government could use the army, and efforts to limit its size were fended off, appropriations to it were limited to two years. Now, Anti-Federalists could hardly have been mollified by such concessions, if they also thought the Federal government could draft their militia into the army, there to be used for unlimited purposes. Nor could such a momentous change from traditional understandings of army and militia have passed without remark.

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The ratification debates tell the same story. Although there were heated arguments and proposed amendments concerning the size of the army, its presence in peacetime, the sort of majority necessary to call it into being, the need for an annual rather than biannual appropriation to it—we find no proposals concerning a draft.14 Prudence certainly may have counseled quiet on the part of the Federalists, for authority to conscript an army would not have been the strongest selling point for the Constitution. But the Anti-Federalists had no reason for reticence; if there were any possibility of a conscripted army under the proposed constitution, they surely would have wanted the public to know. Certainly one should not doubt the liveliness of the Anti-Federalists’ imagination. They argued, for instance, that the Federal government would impose a discipline so horrendous upon the militia that the people would long for a standing army—which the Federalists could then use to destroy the people’s liberty.15 They claimed that the federal government would impose martial law upon the militia, that is, all male citizens, in peacetime and thus destroy liberty. And they fancied that the Federal government, in the guise of regulating the militia, would actually disarm it, thus rendering the people defenseless against a standing army. The latter concern of course produced the Second Amendment, the original draft of which also offers further instruction. It read as follows: “the right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” Note that this limitation on conscription is only in the context of the militia and all debate on the question assumed it to be such.16 There was no effort to extend such limitation to the army, one must assume, because no one thought that the army could conscript. What is to be said on the other side? That the authority of the federal government to conscript into the army was so deeply accepted that no one thought to question it? That in the face of an authority so augustly settled, the religiously scrupulous hushed his conscience and the Anti-Federalist stilled his ardor for state sovereignty? Doubtful. What can be said is that we have no strong statement of principle against an army draft. We have instead a rather deep presumption about the “customary and ordinary mode” of how an army is to be raised.17 So on the basis of the historical record, the complaisance of the federal judiciary and the text editors seems unwarranted. It is also unfortunate, for the question of the draft provides an illuminating perspective from which to consider the nature of constitutional interpretation and the moral foundations of the Constitution.

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Modes of Originalism So far, I have employed the sort of generalized originalism that Chief Justice White seemed to think he was employing, but since such a version does not support the conclusion he claims and America has long relied upon, we need to consider more closely how we should conceive originalism. First, we might conceive of it as the “Framers’ Intent.” This approach looks very carefully at the reasoning of the person or persons most responsible for the crafting of provision of the Constitution—Madison on the First Amendment or John Bingham on the Fourteenth Amendment, for instance—and seeks to understand that provision as did its author. This method is familiar to readers of philosophic texts and well suited to that endeavor. It also provides a definite criterion of what is a “true” interpretation—is the mind of the interpreter congruent with that of the author?18 In constitutional as well as philosophic interpretation, the approach often yields a richness and depth of meaning. But in itself as an approach to constitutional interpretation, it seems misplaced. It confuses authorship with authority. The Constitution, after all, does not merely say something, as does a philosophic text; it claims to do things—to establish, form, and limit government. We need to understand the Constitution as a sort of speech act, a deed done with words, a claim of authority. So, we might remedy that problem with a second form, what we might call Public Intent Originalism. This approach looks not to the understanding of the person most responsible for writing the Constitution, but the much larger set of minds responsible for its ratification, for giving it authority. It was the ratifying conventions, after all, acting on behalf of the people of the States, who determined whether the text that emerged from the Philadelphia Convention, would actually become “The Constitution of the United States.”19 The problem with this form of originalism is nearly a mirror image of that of Framer’s Intent. Where that approach yielded a richness of meaning, but poverty of authority, this seems to yield a richness of authority, but a poverty of meaning. After all, if we are to look to the public at large, or even those responsible for ratifying the Constitution or its amendments, we lose the depth of understanding and reflection that came from those most responsible for setting pen to paper. Especially if we confine ourselves to where there was a constitutional majority behind a particular range of meaning, we’re likely to end up with only a rather thin and basic intent. Justice Antonin Scalia has suggested a third approach, which might seem to combine the first two in a manner that combines the virtues of both while avoiding the vices of each. We should understand the Constitution, he argues,

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according to “the intent that a reasonable person would gather from the text” at the time of enactment.20 This approach focuses attention on the text as it authoritatively became “The Constitution,” but it also allows the interpreter to go beyond the thin intent held by the general public. Instead, employing the perspective of the “reasonable person” as a legal construct—not the average Joe on the street—one could consult the writings, for instance, of the Federalist Papers, not because Hamilton and Madison were framers, but because their writings are indicative of how “intelligent and informed people of the time” understood the text.21 In that sense as well, one could consult the writings of Jefferson and Adams, though they were not technically “framers.” And similarly, one could consider the larger legal tradition from which the Constitution springs.22 To gather an intent from the text in this way implies not only the construct of a “reasonable person” who interprets the text, but also the construct of a person who intends the text. That is, the reasonable person will be interpreting the text “as if ” there were an intelligible mind behind it, a mind that intended some meanings and excluded others, as if, in short, the text were personified.23 Reasonable Person Originalism, as we might call this, also permits a restatement of the idea of a “true” or “valid” interpretation found in Framer’s Intent. An interpretation is true if it is congruent with the intent of the personified text, or alternatively stated, congruent with the mind of the “reasonable person” who gathers from the text a sort of “ ‘objectified’ intent.”24 Indeed this possibility of truth, or objectivity, is the first ground on which Justice Scalia recommends this version of originalism, and he is no doubt right that it would help judges distinguish their own idea of right from what the Constitution means. But just how objective is it? Of course, it would be a caricature in the extreme to say that Reasonable Person Originalism provides obvious meanings or does not allow for a considerable range of what would be “reasonable” interpretations. Objectivity is a matter of degree and on that ground, the claim is simply that this originalism is more objective than the alternatives.25 But is it? If we assess objectivity simply in terms of the range left open to substantive judgments, why should we think that the range of “reasonable” interpretations at time of ratification would be narrower than the range of “reasonable” interpretations today? The content of that range would surely differ. The constitutionality of seditious libel law was a controversial subject in 1791, but few would think such laws constitutional today. That a state could require strippers to wear G-strings and pasties is controversial today, but would not have been in 1791. Or to think about the matter in a related way, why should the range of how a reasonable person would interpret the First Amendment, if

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were enacted today, be narrower than when it was enacted in 1791? Is Reasonable Person Originalism then necessarily more objective than Reasonable Person Modernism? Or indeed at any given moment in American history, Reasonable Person 50ism or 60ism? Of course what would be included in that range would differ, but there seems no obvious reason why the range itself should be broader or narrower. If that is so, then the case for originalism has to be made in terms of authority rather than objectivity. But if we seek its authority simply in democracy, that is, the will of the people, Reasonable Person Originalism doesn’t have an obvious case over Reasonable Person Modernism. Perhaps it could be said that the Originalism trumps Modernism because the will of the people then was more formal and focused, more concrete, more explicitly expressed, than the amorphous, unfocused, and abstract will that one might infer now; the voice of the people was more authentic then.26 Or perhaps it could be said, as Justice Scalia has argued, that the clearly understood point of a constitution is to “embed certain rights in such a manner that future generations cannot readily take them away.”27 But if these are grounds for preferring Reasonable Person Originalism over Reasonable Person Modernism, they are also grounds for preferring Public Understanding Originalism over Reasonable Person Originalism, since the former is a more concrete expression of the will of the people. But perhaps the ground of constitutional authority should not be sought in democracy alone, but democracy enlightened by wisdom. That at least was the chief reason in the first place for turning to Reasonable Person Originalism over Public Understanding Originalism. But if it is wisdom we seek, shouldn’t we seek the insight of a reasonable person not at any particular time in history, but whenever and wherever insight is available? Why should the reasonable person not be able to consult later reflections on the meaning of the Constitution and its terms, later but sound inferences from its structures, lessons from its subsequent history, settled expectation of its traditions—insights that would not be available if the reasonable person were left simply with what had been thought at the time of enactment? Similarly, why should the reasonable person not consult wisdom of the past that has been obscured by contemporary exigencies or passing intellectual fashions? What we would then seek is not exactly what the Constitution originally meant or currently means, but what is the best meaning of the Constitution. It’s the meaning we might imagine our personified text saying, and thus our reasonable person inferring—after learning and reflecting more about freedom of speech or the enumerated powers in the constitutional system—”Ah, yes, that’s what I really meant.” Note that we are still interpreting the text, not rewriting it. We might imagine the personified text to become deeply disappointed in realizing the lack of wisdom of limiting the presidency to citizens

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who are native born. Still, he is bound to what he said, not what he wished he had said. I wish to style this approach, somewhat presumptuously, “Real Meaning Originalism.” This approach understands the terms of the Constitution to refer, not (as Locke would say) to “Ideas in the Mind of him that uses them” or simply to “usages” in a “language game” as Wittgenstein would say, but to phenomena, things, and functions that have some degree of reality independent of our ideas or usages. In this approach the “object” of our interpretation becomes not exactly what is in the mind of a reasonable person or the text personified, but that of which these persons are thinking. A true interpretation then is congruent not with another mind but with what it is that this mind is thinking of. So in this approach, while the ratifiers supply us with the authoritative text and a basic understanding of its meaning, and those we call framers, by virtue of their wisdom and reflection supply us with deeper insights into meaning, there remains a constitutional reality independent of these sources. Perhaps a Real Meaning approach to the Constitution will sound less strange if we note that in fact it seems closely akin to the approach employed by key framers, including James Madison, and allowed them to change their minds about what the Constitution means. Consider, for example, whether the President has power to remove senior officials in the government. To the extent that it was considered, it seems that framers and ratifiers assumed that just as the Senate must approve appointments, so must it approve removals. In Federalist no. 65, Hamilton wrote of the virtues of such a provision, as aiding the stability of the government.28 Joseph Story in his Commentaries confirms that this was the ratifiers understanding as well.29 Yet following thorough deliberation and reflection on the principles of separation of powers, the First Congress concluded that the President should have the sole power of removal. As Madison wrote to Jefferson, the House decided in favor of executive removal authority as the principle “most consonant to the text of the Constitution, to the policy of mixing the Legislative and Executive Departments as little as possible, and to the requisite responsibility and harmony in the Executive Department.”30 Or consider Madison’s opposition to the Alien and Sedition Act as an infringement of the First Amendment. As Leonard Levy has maintained, the original understanding of freedom of the press, to the extent that the subject was given much attention, was almost certainly limited to the common law notion of no prior restraints.31 Yet in opposition to the Alien and Sedition law, Madison argued forcefully, that the freedom of the press “under the common law . . . cannot be the standard of its freedom in the United States.” His argument here was based not on the original public understanding or the argu-

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ment of any particular framer, but on the place of a free press understood in light of the “nature of governments elective, limited, and responsible.”32 Finally, consider Madison’s change of mind on the constitutionality of a national bank. Though he had opposed the establishment of the First National Bank in 1791,33 a quarter century later and four years following the lapse of the Bank, during which time the federal government had been seriously handicapped by the need to rely on state banks and private lenders, Madison changed his mind, arguing that the question had now been settled in the Bank’s favor, by “repeated recognitions, under varied circumstances, of the validity of such an institution.”34 We should note also that when Chief Justice Marshall affirmed the authority of the federal government to charter a bank in McCulloch v. Maryland, he did so not because this was a power specifically and affirmatively contemplated by the framers or ratifiers, but because of the “nature of things” to which the Constitution refers: A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those object be deduced from the nature of the objects themselves.35

In like manner, one might argue that the power to raise an army, even though this was not the original understanding, must include a power to conscript. The draft in the twentieth century has proved itself vital to the fighting of two major wars and at least highly useful in two minor ones, as well as the Cold War. There have been “repeated recognitions, under varied circumstances, of the validity of such an institution.” And there is the nature and function of national defense itself and its imperative for success.36 But the question of a draft, and thus of putting a person’s life on the line, presses the question of authority further than does the establishment of a national bank or the president’s removal of officers. Assuming that we have good reason to understand the power to “raise an army” to encompass conscription for that end, what authority would that presuppose to rest upon? Or alternatively stated, if we can not find that power in the authority on which the Constitution rests, perhaps we need to revisit the assumption that Congress has the authority to conscript despite the longstanding reliance on it. To consider these questions, we must consider more closely the twin ideas of reasonable person and the personified text. As noted above, in gathering an intent from the text of the Constitution, the reasonable person attributes an intent as if the text were personified. Thus far, I have treated that personified

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text simply as an intelligible mind. But exactly because the Constitution is not simply an expression of meaning, but a claim of authority, we should consider further the nature or moral character of this person. The Constitution is “ordained and established” in the name of “we the people” and it is perpetuated only by a succession of persons who swear allegiance to “this Constitution.”37 So we might ask, what does this Constitution presuppose about the people that they could grant and perpetuate the various claims of authority in the Constitution? Does the concept of personality underlying the Constitution support the authority to put a citizen’s life on the line in its defense? Once again, though this approach to constitutional interpretation may sound unusual, it is one firmly grounded in precedent. In McCulloch v. Maryland, as his first step in considering how to interpret the enumerated powers, Chief Justice Marshall considered from whom the Constitution emanates. At first blush, this inquiry might seem a pointless diversion, as the question at hand concerned the meaning of the text, not who were parties to it. But in fact, upon whose authority the Constitution was made, Marshall understood, would influence the meaning of the text. Maryland had argued that the Constitution was made through the authority of sovereign and independent states, and as a creation of such entities, its powers must be understood narrowly. In fact, Marshall allowed, “[m]uch more might the legitimacy of the general government be doubted had it been created by the States.” Indeed, echoing the maxim, “delegata potestas non potest delegari,” Marshall argued that the states as states could only form a sort of league, for “the powers delegated [by the people] to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves.”38 Thus, he argued, it is of crucial importance to realize that the Constitution emanated not from the States, but from “we the people,” that is, the people acting in conventions, who then delegated power to the federal government and re-delegated it, under the new terms and limitations of the Constitution, to their states. This understanding of the authority on which the Constitution rests—the authority of the people to alter and establish governments—helps to fix for Marshall his broad construction of the “nature of the objects” of the Constitution. Of course, how we understand the authority underlying the Constitution is not free from substantive judgments about history and political philosophy. Although Marshall in construing the authority of congress to charter a national bank could refer to the fact that the Constitution emerged from “the people” rather than the “state governments,” Madison, both in initially opposing the national bank and in rejecting the authority of Congress to enact the Alien and Sedition laws of 1798, could refer to the fact that the Constitution was ratified by the people “of the states.”39

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Also, there’s the apparent problem of self-referential circularity: we infer the personification authorizing the Constitution from its text, but then we use that personification to interpret the text. Indeed, looking at the Constitution in this way seems to exacerbate the usual hermeneutical problem of understanding the parts and the whole when each must be understood by reference to the other. For this approach asks that we understand the parts, the whole, and their relation to each other in relation to the authority on which they rest. It is technically true, that introducing the dimension of authority would multiply factorially the range of mathematical possibilities. But if we assume coherence—that the Constitution does not contradict itself—and if we assume that not all interpretations of the parts, the whole, and authorizations are equal, that instead we know some interpretations with greater certainty than others, then the additional dimension actually limits the possibilities. If we can demonstrate, for instance, that the Constitution in several parts clearly presupposes as its ground of authority Theory A, or something close to it, then we could rule out interpretations of other parts that depend on an incompatible Theory B; if that is, there were available other interpretations that did not entail Theory B and were also compatible with Theory A. (If such interpretations were not available, we might have to give up on the assumption of a coherent constitution.) With these B dependent interpretations ruled out, we would then limit the relation of the possible theories of the whole inferred from the parts. And perhaps in doing so, we would diminish the claims of a Theory C, which, while not incompatible with A, did depend vitally on the relationship of Theory B dependent interpretation of a part to the whole. To work through all the possibilities would indeed be a “Herculean” task,40 but it should result in a sort of “interpretive equilibrium.”41 What follows then is one step in this direction by considering the ability of four theories to explain the authority of an interpretation that would encompass conscription in the congressional power to raise an army and to send this army on a mission such as that of D-Day, and how such a claim of authority comports with other claims to ground authority implicit in the Constitution. Assuming that ours is a constitution of self-government, we seek an understanding of the “self ” that constitutes—gives authority to—the Constitution. We seek an understanding of what might be called “constitutional personality.”

Moral Foundations of the Constitution 1) The Natural Rights Constitution For present purposes, I want to take it more or less for granted that the Constitution presupposes the doctrine of natural rights, as articulated by John

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Locke, or at least something very close to it, in its foundations. According to this theory, man possesses rights in the state of nature—life, liberty, and property—and establishes government by consent to secure these rights. Government is thus not the source of these rights, but merely recognizes these rights one already has. In the establishment of government, one surrenders not one’s rights, but one’s “executive power”—a power that unfolds over the exposition of Locke’s Second Treatise to encompass a legislative, executive, and judicial power. Although Locke speaks of a trilogy of life, liberty, and property, he often uses the term “property” to subsume the others, indicating thereby the grounding of natural rights in the idea that one owns oneself, that one is “absolute lord of his own person.”42 Here, I will only note in passing some features of the Constitution apparently grounded in the Lockean concept of natural rights. “We the People,” invoked at the outset of the Constitution came into being with the Declaration of Independence, the Lockean character of which is manifest. The concept of natural rights also justifies and gives the rationale for many constitutional features, including the concept of delegated and retained powers, the public/private distinction, and the state action concept, as well as the takings, contract, and privileges and immunities clauses. Perhaps, the most celebrated explication of our constitutional structures, Madison’s Federalist no. 10, depends significantly on a Lockean understanding that the protection of each individual’s diverse faculties, “from which the rights of property originate,” constitutes the “first object” of government. As I have already noted, Marshall in McCulloch identified constitutional authority as emanating from “we the People.” In other cases, he made clear that the people were further defined in terms of their natural rights, echoing the right to establish government under the Lockean doctrine of the Declaration of Independence and emphasizing the rights of property as antecedent to government.43 But can the Lockean theory of the person, defined by his natural rights, fully provide our constitutional personality? Can it account for the authority to conscript into an army and to put one’s life on the line? On the one hand, Locke seems to give a straightforward affirmation. According to his Second Treatise, as part of the consent which creates political authority and with which one “resigns” his executive power, each individual gives to the community “a right . . . to employ his force, for the execution of the judgments of the common-wealth, whenever he shall be called to it.”44 And, Locke seems squarely to face the harsh claim of political authority and individual obligation required by national defense, as when he writes that “the preservation of the army, and in it of the whole common-wealth, requires an absolute obedience to the command of every superior officer, and it is justly death to disobey or dispute the most dangerous or unreasonable of them.” This officer can

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“even command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish.”45 On the other hand, upon closer examination Locke’s argument starts to look more equivocal. In the First Treatise, Locke had asserted that man’s strongest desire is for self-preservation (I 88). In the Second Treatise, this powerful desire emerges as an unalienable, natural right, a right with which one cannot part.46 Man thus lacks a “power” over his life, and lacking that power himself, he cannot give it to another. Or to quote Locke: “no man can, by agreement, pass over to another that which he hath not in himself, a power over his own life.” This is a claim that Locke makes at least five other times, in virtually the same form.47 A man may forfeit this right to life as well as his other rights, Locke argues, by violating the natural rights of another, and thus render himself eligible for punishment.48 But punishment of the guilty is quite different from sacrifice of the innocent. Thus, when the sergeant orders a soldier to march up to the mouth of the cannon, we have to wonder why the soldier could not turn and say, “That’s not in the contract. I don’t even have the power to make such a contract.” How are we to reconcile this tension between the sergeant’s authority to compel obedience in the name of the “resigned” executive power and soldier’s retained, because inalienable, right to life? To some extent the question seems a matter of degree. Any use of a member’s “executive power” entails some risk to his life. And the alternative, not fighting is hardly free of risk. Risk will vary considerably with the circumstances—whether one is acting as part of a posse comitatus after a local brigand (which seems to be what Locke is most often considering) or storming the beaches at Normandy. How much risk can we expect of the Lockean member of the community? To assess the level of risk obliged, we must first consider what is meant by a “member” of the Lockean community. Locke distinguishes between tacit and express consent, and it is only express consent that makes one a “perfect member” of the polity. Those rendering tacit consent—by enjoying property in the community or even passing through it—are obliged to obey the laws.49 But there is this difference: the express consenter, the citizen, “is perpetually and indispensably obliged to be, and remain unalterably a subject to [the polity], and can never be again in the liberty of the state of nature; unless, by any calamity, the government he was under comes to be dissolved.50 The tacit consenter retains the right of exit.51 Thus the baseline of risk and obligation would seem to be quite different. For the tacit consenter, the question is one of available alternatives. Can he move to another country posing fewer risks upon himself? For the express consenter, the baseline seems to be the state of nature itself. Has the government imposed upon him a risk higher than what he would face in the state of nature, or than he would confront by not facing

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the enemy? To impose higher levels of risk seems to dissolve the social compact, for as Locke writes, one enters the contract “only with an intention . . . the better to preserve himself, his liberty, and his property.”52 Since we deal with complex questions of degrees of risk, we can only draw rough lines between a person’s obligation to defend his country and his right to save himself.53 But at best, Locke leaves the morality of conscription, and certainly of the hazards it often entails, on a questionable basis.54 2) The Constitution of Horizontal Republicanism Modern “republican” theorists such as Cass Sunstein55 and Bruce Ackerman56 have attempted to restate constitutional foundations in terms that reject the Lockean premise of natural rights antecedent to government, and indeed any concept of nature as the standard of right. I call their approach “horizontal” republicanism, because its morality derives from the expression of the people as a whole without reference to any higher standard. No contemporary republican theorist to my knowledge, however, has attempted to address the constitutional question of conscription. And in any case, we can pursue the question most profitably by considering the strongest case ever made for horizontal republicanism, that of Jean-Jacques Rousseau.57 If we are to make the chains, or obligations, of political society legitimate, according to Rousseau, we will not find the answer in any claim of hierarchy, either natural or divinely sanctioned. Instead, we can find it only in a convention, a compact, among people who are naturally free and equal. But it cannot be just any sort of compact; in fact there is only one compact that does not reduce its members to slavery. That is the Social Contract, the articles of which Rousseau tells us all reduce to one: “the total alienation by each associate of himself and all his rights to the whole community.” “ ‘Each one of us puts into the community his person and all his powers under the supreme direction of the general will; and as a body, we incorporate every member as an indivisible part of the whole.’ ” 58 This new whole is a “Public Person,” whose will, the General Will, expresses itself in law. A state ruled by such law, Rousseau says, is a “republic” and all legitimate government is “republican.”59 Is this Public Person our constitutional personality? With direct political participation in which each member utterly subordinates his interest to the General Will of the Public Person, one is able to realize a new form of freedom. This freedom is no longer understood as it is in Locke, the absence of restraint and a “fence” to self preservation. Instead it is a “moral freedom” which alone, Rousseau tells us, “makes man the master of himself; for to be governed by appetite alone is slavery, while obedience to a law one prescribes to oneself is freedom.” Now if freedom is obedience to selfmade law, it becomes possible for one to be “forced to be free,” that is, to be obliged to follow his own laws. And in this way alone can the chains of soci-

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ety be made legitimate, for these become, in Rousseau’s analysis, chains of moral freedom. This logic has no trouble accounting for political obligation to the point of self-sacrifice in defense of the polity: Whoever wishes to preserve his own life at the expense of others must give his life for them when it is necessary. Now as a citizen, no man is judge any longer of the danger to which the law requires him to expose himself, and when the prince says to him: ‘It is expedient for the state that you should die,’ then he should die, because it is only on such terms that he has lived in security as long as he has and also because his life is no longer the bounty of nature but a gift he has received conditionally from the state.60

We might extend, or complete, Rousseau’s logic by saying that in putting one’s life on the line, exactly because one does rise above the merely natural self and its “strongest desire,” for life, one most fully realizes moral freedom. Rousseau’s logic is certainly sound—if we accept the premise. But the premise of the Social Contract—total alienation of the natural self and rights—is utterly incompatible with that of natural rights, that is, their inalienability. So, we must either rework on a massive scale the natural rights understanding of the Constitution or stretch thin the republican principles of the Social Contract. Neither option seems promising. The natural rights elements are deeply woven in our constitutional system and Rousseau says that “the articles of this contract are so precisely determined by the nature of the act, that the slightest modification must render them null and void.”61 3) The Neo-Kantian Constitution Perhaps the theoretical alternative to natural rights liberalism most commonly invoked among constitutional commentators is neo-Kantian liberalism, as articulated most influentially in the work of John Rawls.62 Rawls works from an understanding of “moral personality” as constituted primarily by two powers: the capacity for a sense of justice and the capacity for a conception of the good.63 His conception of justice as fairness is generated from a situation said to represent our conceptions of such persons—free (in the sense of having these moral powers) and equal (in having them to the requisite minimal extent). In A Theory of Justice he described this situation as “the original position” from which we are to choose principles of justice for a society that we are to inhabit for the duration of our lives, but behind a veil of ignorance such that we would not know our social position in the society, our native talents or other physical features, the generation in which we’d live, or our conception of the good. We are shielded from knowledge of these things because, Rawls had argued, they are all “arbitrary from a moral point of view.”64

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When A Theory of Justice was published in 1971, it seemed that Rawls wished to state eternal principles of justice as embodied in this theory of “moral personality.” In later years, he came to state his ambition more modestly. “Justice as fairness,” as he called this theory, is “political” not metaphysical. The original position requires no commitment to any, what he came to call, “comprehensive” doctrine—first principle commitments of philosophy or religion. It seeks instead to represent the understanding of moral personality “implicitly affirmed in . . . the public culture of a [contemporary] democratic society”65 a culture that, he says, is characterized by a plurality of reasonable but incompatible “comprehensive” doctrines. The change, or clarification, of ground, however, appears to have made no substantial difference in the principles of justice that a rational person would choose from the original position. One would choose the principle of “equal liberty”: that is, “each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value. And one would choose the “difference principle”: that is, “social and economic inequalities are to satisfy the conditions: first, they are to be attached to positions and offices open to all under conditions of fair equal opportunity; and second they are to be to the greatest benefit of the least advantaged members of society.”66 Is this the moral personality underlying the Constitution? In particular, how well does it explain the authority to conscript and put one’s life on the line? Rawls does treat the latter question, but briefly. His argument is simply this: even though the draft imposes a drastic restriction on liberty, as long as it is imposed only as necessary for the defense of the society, the draft is a “fair way of sharing the burdens of national defense.”67 The argument seems internally coherent. Since there is no exit from the society, Rawls closes off the questions posed in Locke’s work—for the resident alien, what are my prospects here compared to other societies?, or for the citizen, what are my prospects compared to the state of nature? If defense is necessary the only question that seems to remain is whether the distribution is fair. But this way of constructing the situation elides the more fundamental question of whether this burden is worth it? One might imagine circumstances under which it would be necessary to pay a horrendous price in order to continue a trivial game. In order to continue playing shuffleboard on a ship-deck, we might hypothesize that it’s necessary for one third of the participants be thrown overboard. It might be “fair” that those to be tossed are selected by lottery, but it is hardly just. Rawls indicates, again briefly, that conscription—“as a drastic interference with the basic liberties of equal citizenship”—can be justified as worth it, but only in defense of “these equal liberties themselves.”68 Are these liberties and

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the notion of moral personality behind them sufficient to generate the obligation to put one’s life on the line? As we look more closely at the original position, we might doubt the strength of the obligations it would generate— were one not a captive member of the society. First, consider that you must determine the principles of justice wholly apart from your understanding of what is good.69 But how can we be just to someone unless we first know what is good for him? Further, to require that we detach ourselves from our fundamental religious or philosophical commitments, means that we enter as less than fully human, at least if we understand our purpose as essential to our identity. It becomes hard to take an interest in or to regard as fully binding, the obligations that this rather desiccated representation of ourselves might set forth.70 Second, consider that you must set aside not only your social circumstances, but your natural skills and talents and your efforts to develop them. From the perspective of the original position, no one deserves his native endowments; nor does one deserve the character that enables him to develop these endowments. According to Rawls, it follows that no one can claim to deserve the rewards that might accrue to a developed talent. So instead of distribution according to merit or desert, we have the difference principle. We allow some to have more only so far as that is needed to provide incentives and to cover the cost of development, so that we’ll have more to distribute to the least advantaged.71 Desert, Rawls confesses, has no place in justice as fairness.72 Denuded of a concept of the good and bereft of the foundations for desert, the moral personality of Rawls’s original position even in 1971 seemed incapable of going beyond the “fairness” of conscription to answer the question of its justice.73 Repositioned as implicit in our contemporary cultural circumstance at a particular point in human history, this moral personality seems even less capable. When one’s life is on the line, it hardly seems sufficient to explain the need to go forward by saying that this is one of the customs in our culture.74 In addition to its weakness in explaining the level of risk entailed in conscription, the moral personality of Rawls’s theory of justice, like that of Rousseau’s general will, comports poorly with the Natural Rights Constitution. The concept of “nature” itself, of rights prior to the entrance into society, and of self-possession as the “first object” of government all seem antithetical to justice as fairness. 4) The Constitution of Vertical Republicanism A fourth understanding of constitutional personality may be found in “vertical republicanism,” or an Aristotelian understanding of the human soul. Like Locke and Rousseau, Aristotle holds that the polity comes into being “for the sake of mere life.” But unlike Locke, Aristotle holds the purpose of the polity does not end with the securing of this life. And unlike Rousseau, he holds that

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the polity does not require the complete transformation, the “total alienation” of man’s nature. Instead the polity effects a fulfillment, or a completion, of man’s natural self. Thus, though the polity comes into being for the sake of life, “it exists for the sake of a good life.”75 That is, a way of life that was not yet visible in a pre-political existence comes into view; as the polity matures, it becomes more evident that “the main concern of politics is to engender a certain character in the citizens and to make them good and disposed to perform noble deeds.”76 Given the premium our constitutional text and tradition place on human freedom—as do each of the three preceding theories of its ground and meaning—Aristotle’s emphasis on the human good, human excellence, or human virtue, and the role of the polity in “making men good” and the “engendering” of such character, may seem to render his theory an unlikely place to find our constitutional personality. To get a better understanding of Aristotle’s meaning, his distance from our other theorists, and the possible grounds for reconciliation with the text and synthesis with the Lockean tradition, we should consider his concept of “choice,” as parallel to, but distinct from, freedom. Action cannot be considered human action, unless the initiative comes from within. If we are simply propelled by forces outside us, we can neither claim credit nor receive blame, for the action then is really not “ours.” But that the initiative comes from within only makes the action “voluntary,” and many animals and immature humans are capable of this. Choice involves voluntariness, but it also requires deliberation. The Greek term, “proairesis,” translated as choice, is helpful in this regard, as it suggests a sort of “pre-choice” and thus harkens to something more deeply “us,” more fully human from which the action springs. And it this fully human element that responds through deliberation. “For every man stops inquiring how he is to act when he has traced the initiative of action back to himself and to the dominant part of himself.”77 Now the dominant part of oneself is largely determined by one’s character, and one’s character is determined by how we are “disposed” to act through practice, or “training.” The character of the regime will inevitably tend to engender a certain character in its citizens. Yet because each of us has the capacity to act or to refrain from acting and thus to dispose our characters in certain ways, we are ultimately responsible for our own character.78 It is on that ground that we can say that someone, through the actions of his own choice, can earn praise or blame. Desert here, in contrast to Rawls’s theory, has a central place. One might think that Aristotle’s training in character thwarts human freedom, that it is in fact a sort of “horticulture,” a science of cultivating vegetables, as Ackerman in his neo-Kantian moment styled it.79 But that is far from the way that Aristotle presents it. Just as an athlete must train rigorously to

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perform difficult tasks gracefully, so must a person train, Aristotle argues, if he is to learn to choose well and to lead a flourishing life. He must develop the dominant part of himself in accord with what is best in himself, with the part of himself with which he most firmly and fully identifies. In this sense, since identity and character precede and ground choice, the cultivation of character marks an enhancement of human capacity. In fact this way of understanding choice is not altogether dissimilar from Locke’s portrayal of human freedom in his Essay Concerning Human Understanding. There, Locke considers the capacity of the human mind to “suspend the execution and satisfaction of any of its desires . . . to consider the object of them; examine them on all sides; and weigh them with others.”“In this,” he argues, “lies the liberty Man has,” and he argues against those who would see in this weighing or judgment “a restraint or diminution of Freedom.”80 “[W]hen, upon Examination, we have judg’d, we have done our duty, all we that can, or ought to do, in pursuit of our happiness; and ‘tis not a fault, but a perfection of our nature to desire, will, and act according to the last result of a fair Examination.” The architecture of Locke’s freedom and Aristotle’s choice are remarkably similar; what sets them apart is the standard of “examination” or “deliberation.” For Aristotle, there is a standard of right by nature, a highest good, to which the man in training aspires: happiness, or human flourishing. For Locke, happiness can only be a subjective “pursuit,” ultimately a matter of taste: The Mind has a different relish, as well as the Palate; and you will as fruitlessly endeavor to delight all Men with Riches or Glory . . . as you would to satisfy all Men’s Hunger with Cheese or Lobsters. . . . Hence it was, I think, that the Philosophers of old did in vain enquire, whether Summun bonum consisted in Riches, or bodily Delights, or Virtue, or Contemplation: And they might have as reasonably disputed, whether the best Relish were to be found in Apples, Plums, or Nuts; and have divided themselves into Sects upon it.81

Accordingly, freedom obtains a heightened status in Locke; something is good because it has been freely chosen. For Aristotle, by contrast something is worthy of choice because it is good. Choice, resulting as it does from deliberation, is a distinctly human and therefore estimable capacity, but its importance is subordinated to just what is that “dominant part” of the person— what one has made of himself—and whether he has disposed himself to act in accord with human excellence, human virtue. It is of no small significance that the first virtue Aristotle considers in the Ethics is courage, the disposition to chose to hold one’s ground fearlessly in battle even at the risk of death. For without courage, or qualities akin to it, the polity cannot exist; given the plurality of states and the ever present possibility

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of war, courage is the pre-condition for the cultivation of all of the other virtues and the possibility of the good life. But courage in turn is conceivable only with a view to the good life; only from that vantage point can one see that mere life, if gained at the price of cowardice, is not worth living, and only from that vantage point can one understand the profound obligation one owes the polity which renders this life possible. It is not simply obligation, but also patriotism, love of one’s country and its way of life, that gives reason for self-sacrifice. The good life, rendered visible as the polity develops, incorporates moral virtue, but also intellectual virtue, and even more, as complementing both, friendship. In its highest form, friendship is a mutual love of what is good in one another—as opposed to what is merely useful or pleasant—and Aristotle suggests that such friendship is even higher than justice, for “[w]hen people are friends, they have no need of justice.” Even more than justice, “friendship seems to hold states together.”82 Love of one’s country, love of one’s own, has come under attack as parochial of late,83 but Aristotle defends a kind of parochialism, even to the point of selflove—if done properly. For if one knows how to love properly, he will love what is highest in himself, that is, he will seek to make the “dominant” part of himself that which is best and most noble. And correspondingly, when one loves one’s country properly one seeks to make dominant in it what is best and most noble. Indeed here Aristotle suggests the way in which the good of man and the good of the polity can be reconciled: “if all men were to compete for what is noble and put all their efforts into the performance of the noblest actions, all the needs of the community will have been met, and each individual will have the greatest of goods, since that is what virtue is.”84 In exchange for nobility, the good man will give his life for his country and friends. If such an account of man and the polity can account for conscription and the risks entailed, can it be reconciled with the Lockean premise of the Natural Rights Constitution? At first blush, the possibility seems unlikely, especially as Locke is part of the self-conscious revolt against Aristotle. But where Rousseau and Rawls present contradictions with Locke, Aristotle presents tensions. And perhaps they are bridgeable ones. Locke and Aristotle do both share the ground of “nature,” though their conceptions of it differ markedly. Aristotle certainly appreciates the importance of private property for the good regime, indeed, its naturalness; private property connects reward and effort, reduces friction among citizens, allows an appropriate arena for human pride and pleasure, and provides the equipment for generosity, magnificence, and other aspects of the good life.85 Further, although Aristotle considers the best regime to be an aristocracy which gives pre-eminent attention to the moral environment, the moral education of its citizens, he recognizes that the probabilities for this regime’s ac-

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tualization are remote. In the Ethics, he indicates that Sparta is the “only state in which the lawgiver seems to have paid attention to upbringing and pursuits,” yet we know from the Politics that he thinks Sparta has done a poor job of cultivating virtue.86 Though the greater part of the Ethics and the Politics are devoted to the best life and the best regime, Aristotle is eminently appreciative of politics as the art of the possible. Thus in the Ethics, he defends what resembles a regime of liberty, if not liberalism, where the cultivation of virtue is primarily the province of family and friends, though surely assisted by the polity’s surrounding culture of decency.87 Yet to effect a reconciliation with the Natural Rights Constitution, Aristotelianism must be diluted further to neo-Aristotelianism. Virtue, or the human good, must be understood as more heterogeneous, more manifold, more elusive of reason, and incapable of complete realization in any single human being.88 And accordingly, without accepting Locke’s rendition of the human good as a matter of taste, freedom rather than choice seems the appropriate term, and should be understood as a constitutive element of the human good.89 Happiness, or activity in accord with virtue, must concern our work as well as our leisure.90 The human good must also be rendered compatible with the democratic claims of self-government and moral equality.91 And it must allow a larger role for religious faith.92 Important work has been done on each of these dimensions that I cannot explore here other than to indicate the promise. But in this mild neo-Aristotelian form, virtue seems not only reconcilable in theory with natural rights liberalism but long reconciled in practice. Moral decency has always been considered part of the police powers that delimit property rights. Even with its exuberant protection of property rights in the latter part of the nineteenth and early twentieth century, the Court held firm to the idea that a state may not contract away its power to protect the public morals.93 Similarly, with its hierarchical structure of the human soul, neoAristotelianism provides a better explanation than do its competitors for the implicit hierarchy of speech that, despite growing protestations to the contrary, has always characterized First Amendment jurisprudence.94 At the conclusion of Saving Private Ryan, Captain Miller, mortally wounded in the successful repulse of a German tank brigade, turns to the rescued Private Ryan and says, “Earn this.” Returning decades later to the graves at Normandy with his wife, children, and grandchildren, a tremulous Ryan asks his wife, “Have I led a good life? Am I a good man?” That is the right question for citizens, who, like Private Ryan, live because of the sacrifice of others. It also suggests the right questions for affirming the congressional authority to conscript. Does the Constitution provide the opportunity to earn what it costs to defend it? Does the Constitution foster a good way of life? That we can answer

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those questions affirmatively provides the reason we have a constitution worth fighting for and, if necessary, dying for.

Notes 1. Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959). 2. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). 3. I state the authority harshly not to deny it, but to emphasize what it entails. 4. United States v. Seeger, 380 U.S. 163 (1965), Welsh v. United States, 298 U.S. 333 (1970), Gillette v. United States, 401 U.S. 437 (1971). 5. Rostker v. Goldberg, 453 U.S. 57 (1981). 6. Only Justice William O. Douglas, and in a more qualified manner, Justice Potter Stewart, thought it even worth considering whether the authority of the Selective Draft Law Cases should be confined to periods of declared war. Holmes v. U.S., 391 U.S. 936, 936–949 (1968), Douglas, dissenting from the denial of certiorari. 7. Thus, we find in the Pennsylvania Constitution of 1776 “That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto,” a provision echoed through several of the state constitutions. 8. U.S. Const. Art I, sec. 8. 9. Although able-bodied males throughout the colonial era had a legal obligation to serve in the militia, that obligation had been only lightly enforced in 1750s and 60s and training duty consisted of only a few training days a year. John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 14 (1987). And according to Leon Friedman, “Conscription and the Constitution: The Original Understanding,” 67 Mich. L. Rev. 1493 (1969) nine of the states even dropped the compulsory requirements in the 1750s and 1760s. 10. Charles A. Lofgren, Government by Reflection and Choice 78–79 (1986). Don Higginbotham, The War of American Independence 392 (1971). 11. 1 Max Farrand (ed)., Records of the Federal Convention of 1787 25 (1937). 12. See Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (ed. by Clinton Rossiter; intro. and notes by Charles R. Kesler) #29 (2003). 13. See the English Agreement of the People 1648: We do not empower [Parliament] to impress or constrain any person to serve in foreign war, either by sea or land, nor for any military service within the kingdom; save that they may take order for the forming, training and exercising of the people in a military way, to be in readiness for resisting of foreign invasions, suppressing of sudden insurrections, or for assisting in execution of the laws; and may take order for the employing and conducting of them for those ends; provided that even in such cases, none be compellable to go out of the county he lives in, if he procure another to serve in his room.” Quoted in Friedman, “Conscription and the Constitution” 67 Mich. L. Rev. 1493 ((1969).

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14. In fact, Herbert Storing’s The Complete Anti Federalist (1981) records only one comment, that from Brutus, vol. 2, 9. But Brutus merely floats the spectre of a federal draft into the army to let it pass into his larger thesis that the federal government is actually one of unlimited powers and never develops it as a focused charge. 15. Lofgren, Government by Reflection and Choice 75 (1986), quoting George Mason, in 3 Jonathan Elliot, ed. Debates in the Several State Conventions on the Adoption of the Federal Constitution 402 (1876). 16. Lofgren Government by Reflection and Choice 83 (1986). Akhil Amar, “The Bill of Rights as a Constitution,” 100 Yale L. J. 1131 (1991). 17. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (ed. by Clinton Rossiter; intro. and notes by Charles R. Kesler) #23, 150 (2003). 18. See E. D. Hirsch, Validity in Interpretation (1967), for a parallel argument concerning the reading of literary texts. 19. “The ratification of the conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying it.” U.S. Const. art. VII. 20. Matter of Interpretation 17 (1997). Justice Scalia here recommends this approach for the reading of statutes, but later in the work applies it to the reading the Constitution, 37ff. 21. Matter of Interpretation 38 (1997). 22. “the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.” Matter of Interpretation 17 (1997). 23. See Dworkin’s argument regarding that such a personification is entailed in Scalia’s concept of the interpretation of a reasonable person, Matter of Interpretation 115–118, and Scalia’s general accord with this portion of Dworkin’s statement, Matter of Interpretation 144. 24. Matter of Interpretation 17 (1997). 25. See, Scalia, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849 (1989). 26. See Keith E. Whittington, Constitutional Interpretation: Original Intent and Judicial Review (1999). Cf. 1 Bruce Ackerman, We the People: Foundations (1991). Ackerman famously contends that We the People have truly spoken, not just at the Founding and then more quietly for 27 Amendments, but at three profound moments in American history: Founding, Reconstruction, and most controversially, the New Deal. 27. Scalia, Matter of Interpretation 40 (1997). 28. “[I]t has been mentioned as one of the advantages to be expected from the cooperation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate therefore would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices.” 29. Joseph Story, 3 Commentaries on the Constitution sec. 1533 (1833), reports that this understanding of the removal power “had a most material tendency to quiet the just alarms of the overwhelming influence, and arbitrary exercise of this prerogative of the executive.” See Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (ed. by Clinton Rossiter; intro. and notes by Charles R. Kesler) #77 (2003).

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30. James Madison to Thomas Jefferson, 30 June 1789, in 4 The Founders’ Constitution 105 (Philip Kurland and Ralph Lerner eds., 1987). Madison reported the arguments against a Senate role as follows: “[I]t was said that the Senate, being a Legislative body, could not be considered in an Executive light farther than was expressly declared; that such a construction would transfer the trust of seeing the laws duly executed from the President, the most responsible, to the Senate, the least responsible branch of the Government; that officers would intrench themselves behind a party in the Senate, bid defiance to the President, and introduce anarchy and discord into the Executive Department; that the Senate were to be Judges in case of impeachment, and ought not, therefore, to be previously called on for a summary opinion on questions of removal; that in their Legislative character they ought to be kept as cool and unbiased as possible, as the constitutional check on the passions and parties of the other House, and should, for that reason also, be as little concerned as possible in those personal matters, which are the great source of factious animosities.” 31. Following the separation from England, twelve of the thirteen states “expressly adopted the common-law system after separating from England.” And “[n]o state abolished or altered the common law of criminal defamation in general or seditious libel in particular, and no state court ruled that the free press clause of its state constitution rendered void the prosecution of a libel.” Leonard Levy, Emergence of a Free Press 183 (1985). 32. For more on Madison’s change of mind on the meaning of the First Amendment, see Stanley C. Brubaker, “Original Intent and the Free Speech Clause,” in The Bill of Rights: Original Meaning and Current Understanding 82–93 (Eugene W. Hickok, Jr. ed., 1991) and Vincent Blasi, inaugural lecture as James Madison Distinguished Professor, University of Virginia, March 2, 2004, summary available at http://www.law.vir ginia.edu/home2002/html/news/2004_spr/blasi.htm. 33. Speech to the House of Representatives, February 2, 1791, available at http://www.jmu.edu/madison/gpos225-madison2/madonbanks1.htm (1791). 34. Cited in Bray Hammond, Banks and Politics in America from the Revolution to the Civil War 233 (1957). Madison later elaborated his reasons for signing the 1817 bill authorizing the Second National Bank, adding that the Bank had proven its “expediency, and almost necessity.” Letter to Jared Ingersoll. 4 Letters and Other Writings of James Madison, Published by order of Congress (Philip R. Fendall ed) 183–187 (1865). This is not to say, of course, that he approved of the far ranging implications of Marshall’s manner of upholding the bank in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1816), see his letter to Spencer Roane, 2 Sept. 1819, in 3 Founders’ Constitution 259–61 (Philip Kurland and Ralph Lerner eds., 1987). 35. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (emphasis added). 36. In the Federalist Papers, Hamilton had forcefully argued against limitations to the power to raise armies and other defense powers writing: “These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them” (emphasis in original). Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (ed. by Clinton Rossiter; intro. and notes by Charles R. Kesler) #23, 149 (2003). The limitations Hamilton had in mind were al-

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most certainly those previously mentioned—prohibition on peacetime armies, the size of the army, the sort of majority necessary for the creation of an army in peacetime and so forth. But given the end or function involved, the national defense, the need to consider the means used by other nations, the argument would seem to extend easily to the use of conscription in the raising of a national army. 37. U.S. Const. art. VI, cl.3. 38. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404 (1819). 39. See also his argument in Federalist 39 on the federalist foundation of the Constitution. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (ed. by Clinton Rossiter; intro. and notes by Charles R. Kesler) 239–240 (2003). 40. Apologies to Ronald Dworkin, Taking Rights Seriously 105–107 (1978). 41. Apologies to John Rawls, A Theory of Justice 20 (1971). 42. Locke, Second Treatise of Government sec. 123 (Thomas Peardon ed. BobbsMerrill 1952) (1690). This foundational concept, of course, is at odds with Locke’s preliminary statement that men are all “the workmanship of one omnipotent and infinitely wise Maker—all servants of one sovereign master” (sec. 6). He replaces the “servant” concept with that of “absolute lord” in the course of his argument concerning property, Chapter V. 43. Marbury v. Madison, 5 U.S. 137 (1803) and Fletcher v. Peck, 10 U.S. 87 (1810). See especially, Ogden v. Saunders, 25 U.S. 213, 346 (1827): “[I]ndividuals do not derive from government their right to contract, but bring that right with them into society.” 44. Locke, Second Treatise of Government secs. 87–88 (Thomas Peardon ed. BobbsMerrill 1952) (1690) (emphasis added), “which indeed are his own judgments, they being made by himself, or his representative.” Though Locke writes of the individual’s force being employed in the domestic enforcement of the laws, the claim to employ his force seems to extend as well to national defense. Locke seems to acknowledge the sacrifices that would inevitably be entailed in national defense, as when he writes, “as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it” (sec. 134). See also sec. 171. 45. Sec. 139. Locke’s larger point here is that although this power is absolute, it is not arbitrary. For “neither the sergeant, that could command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can yet, with all his absolute power of life and death, dispose of one farthing of that soldier’s estate, or seize one jot of his goods; whom yet he can command any thing, and hang for the least disobedience. Because such a blind obedience is necessary to that end, for which the commander has his power, viz., the preservation of the rest; but the disposing of his goods has nothing to do with it.” Though his point on political obligation is made incidental to that on the limits of authority, we have no reason to doubt that Locke took full measure of the claim he was making. 46. In the early chapters of the Second Treatise, he treats this desire piously, our selfpreservation being a duty owed to God, as we are his “workmanship” and “sent into the world by his order. . . [and] made to last during his, not one another’s, pleasure” (sec.

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6). Later, following his transformative treatment of property, revelation gives way to enlightened reason, as man is said rather to be “master of himself and proprietor of his person” (sec. 44). Man then has a right to life, rather than a duty. Yet it is an unalienable right, a right with which he cannot part. 47. See Second Treatise, sec. 24; also secs. 23, 135, 149,164, 168, 171, and 172. Locke does state that one has no “arbitrary” power over himself in sec. 172 and no absolute and arbitrary power in secs. 149, 135, leaving open the possibility that one may have a non-arbitrary power over himself to transfer to another; and it is possibly significant that these passages occur after the “duty” has given way to the “right” to life. But in sec. 168, the claim remains unqualified. It is also worth noting Locke’s statements of the inalienability to the right to life remain unaltered as Locke shifts the premise of his argument from man as servant of God to man as absolute lord of himself. 48. Forfeiture as well seems to account for Locke’s elliptical suggestion that a slave may be permitted or at least has it “in his power” to bring on his own death. Sec. 23. For a contrary argument concerning this passage, see Michael Zuckert, Natural Rights and the New Republicanism 240–246 (1994). 49. Sec. 119. Locke says the tacit consenter is “as far forth obliged to obedience to the laws of that government during such enjoyment as anyone under it. . . . [I]t reaches as far as the very being of anyone within the territories of that government.” 50. Sec. 121. 51. Indeed one must wonder why one would become a “perfect member” of the community. It would seem that he has little to gain but his chains. 52. Sec. 131. (emphasis added). 53. One possibility would be to say that the line corresponds roughly to where it was drawn in the Constitution’s original understanding. In the case of the militia, one’s duties are limited to situations where there is violation of the law, insurrection, or invasion. Not always, to be sure, but usually the risk posed in law enforcement and defense by the militia in these situations will be less than nonenforcement and less than one might face in the state of nature. In the case of the army, particularly in fighting abroad, the risks posed in battle may well exceed the remote and uncertain threat to one’s life at home, as well as the risks posed by the state of nature. A more refined tool of analysis would limit defense and law enforcement efforts to those operations that do not impose greater risks than in the state of nature. 54. Locke could hardly demand of our soldiers what was in fact demanded of them on D-Day. The level of obligation Locke himself describes in the army seems impossible to justify. And in fact one should wonder whether Locke himself thought it fully justified. In the passage, which I have quoted above, where Locke most directly faces the question of risking one’s life for one’s country, he describes it as a matter of “absolute power.” Now the question of absolute authority is a matter of no small concern for Locke. He discusses or refers to claims of it, by my count, 59 times in the First and Second Treatises, and in all other references in all other situations, save where one has forfeited his rights, Locke denounces absolute authority as unjustified, for absolute government not only returns one to the state of nature, but puts one in far worse situation than normal as one confronts not a solitary individual without recourse to higher authority, but an organized force of thousands. Such authority as there is in this

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situation seems to derive all of its force from the perspective of the community as a whole, as Locke writes, “standing upon its own basis and acting according to its own nature, that is, acting for the preservation of the community” (sec. 149). But from the perspective of the individual Lockean soldier, one must see himself obliged less by the social compact than by the fact that if he disobeys, he faces a more certain death at the hands of his commander. Nor does a volunteer army alleviate the moral situation entirely, for in the terms of enlistment, one must face again the limits of one’s obligation by contract. Nor could we reasonably hope for superogatory heroic actions from the Lockean citizen, for such risk taking would be irrational. For arguments purporting to find a more powerful case for conscription in Locke, see Richard H. Cox, Locke on War and Peace 149 (1960) and Ruth Grant, John Locke’s Liberalism 133 (1987). For an argument in general accord with the one presented here, see Gary D. Glenn, “Inalienable Rights and Locke’s Argument for Limited Government: Political Implications of a Right to Suicide,” 46 Journal of Politics 80–104 (1984). Following the misapprehension encouraged by Willmoore Kendall that Locke endorses a sort of majority tyranny, one might argue that the people as a whole or at least a majority—and not the individual—must decide when resistance may be justified. But indeed this is a misapprehension. Locke never argues that the individual may not resist exertions of political power that go beyond the terms of the social compact; he merely notes that it would be imprudent for one to do so. See for example: Sec. 208. 55. See especially, The Partial Constitution (1993). 56. We the People (in two of a projected three volumes) (1991 and 1998). 57. The Social Contract (Maurice Cranston trans. and ed. 1968). 58. The Social Contract 60 (Maurice Cranston trans. and ed. 1968). 59. The Social Contract 82 (Maurice Cranston trans. and ed. 1968). 60. The Social Contract 78–79 (Maurice Cranston trans. and ed. 1968). 61. The Social Contract 60 (Maurice Cranston trans. and ed. 1968). One must wonder also if Rousseau found his premise and thus his argument fully rational. Elsewhere he writes: “In every State that can require its members to sacrifice their lives, anyone who does not believe in the afterlife is necessarily a coward or a madman.” Rousseau, Geneva Manuscript bk. III chpt. 2 in Rousseau, On the Social Contract with Geneva Manuscript and Political Economy (Judith R. Masters trans., Roger D. Masters ed., 1978). 62. As testament to his influence, see “Symposium: Rawls and the Law” in 72 Fordham Law Review 1381–2175 (2004). 63. Theory of Justice secs. 3 and 4 (1971); Political Liberalism 18–20 (1996). Rawls later adds as “companion powers” to these two powers and as “required for their exercise” the powers of “reason, inference, and judgment.” Justice as Fairness: A Restatement 24 (2001). 64. Theory of Justice 15 (1971). 65. Political Liberalism (1996). 66. Political Liberalism 5–6 (1996); cf. Theory of Justice 301 (1971). The only difference of note is the requirement in the first principle that political liberties be guaranteed their “fair value.” 67. Theory of Justice 380–81 (1971).

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68. Justice as Fairness: A Restatement 46 (2001); Theory of Justice 302 (1971). 69. “The self is prior to the ends which are affirmed by it,” Theory of Justice 560 (1971). If stringently applied, you probably could not come up with any principle at all, since you can’t be just to someone without knowing how to be good to them. Rawls dealt with this problem by the idea of universal goods, i.e., good for any purpose—liberty, income, wealth, self-respect. 70. William A. Galston, Liberal Purposes 127 (1991); Michael J. Sandel, Liberalism and the Limits of Justice 15–24, 161–68 (1982). 71. And even this unequal distribution might have to be curtailed if it threatens the equal-respect or self-esteem of citizens. Theory of Justice 534 (1971). 72. Theory of Justice 104 (1971). One must ask, can a polity congenitally incapable of giving us what we deserve claim our allegiance? 73. Rawls has said that it is an end in itself to exercise the powers characteristic of moral personality, which the original position is supposed to model. So in meeting one’s military obligation, and facing the possibility of death, might one realize his moral power for an effective sense of justice? This effective sense of justice is not altogether different from Rousseau’s concept of moral freedom, obedience to self-made law. But for Rousseau the ability to realize moral freedom depends on being born to a people of a certain character, molded by a Lawgiver backed by a claim of divine wisdom, becoming reborn from a natural individual to a partial member of a new whole. It requires a polity whose citizens are tutored from a young age under the supervision of the laws and whose mores are maintained with the assistance of censors. It requires a profession of faith in God, the sanctity of the social compact, and divine reward and punishment. Rousseau could look to the Spartans of Thermopylae as an expression of this ideal, but as he surveyed the contemporary world for a people who could achieve moral freedom, he thought he saw potential in Corsica, and perhaps Geneva or Poland—though all would need a lot of work. To find such extraordinary capacity, as Rawls claims, implicit in today’s democratic culture, following the rapid forward march of the commercial life that Rousseau feared, over the course of more than two centuries, would surely have struck Rousseau as bizarre. 74. And for those who do step forward, medals of honor, would be appropriate, not in the sense that the soldier deserves such honor, but only to provide incentives to cover the costs of acquiring the skills and character displayed in such acts. Theory of Justice 310–314 (1971). Justice as Fairness 72–79 (2001). 75. Aristotle, Politics 1252b28–30 (Ernest Barker trans. and ed., 1958). 76. Aristotle, Ethics 1099b30 (Martin Ostwald trans. and ed., 1962). 77. Aristotle, Ethics 1113a5–7 (Ostwald trans.). 78. Aristotle, Ethics 1113b3–1115a6 (Ostwald trans.). 79. Bruce Ackerman, Social Justice in the Liberal State 139 (1980). 80. John Locke, Essay Concerning Human Understanding Bk. II chpt. 21 sec. 47–48 (Peter H. Niddich trans. and ed., 1975). 81. Bk. II chpt. 21 sec. 55. 82. Aristotle, Ethics 1155a22-32 (Ostwald trans.). Note also that Aristotle’s analysis of regimes in the Ethics is done from the perspective of friendship rather than justice, 1159b25–1161b11.

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83. Martha Nussbaum, “Patriotism and Cosmopolitanism,” in For Love of Country (Joshua Cohen ed., 1996). 84. Ethics 1169a7–10 (Ostwald trans.). 85. Politics 1263a7–1263b13 (Barker trans.). 86. Politics 1271a42–1271b18 (Barker trans.). 87. Ethics 1180a25–b13 (Ostwald trans.). 88. William Galston, Justice and the Human Good 55–99 (1980); Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (1969). 89. Thomas Spragens, Civic Liberalism 124–126 (1999). 90. Jean M. Yarbrough, American Virtues 55–101 (1998). 91. Robert P. George, Making Men Moral 37–42 (1993); William Galston, Justice and the Human Good 159–162 (1980). 92. Robert P. George, Making Men Moral 219–228 (1993); William Galston, Liberal Purposes 257–289 (1991). 93. Stone v. Mississippi, 101 U.S. 814 (1879); Mugler v. Kansas, 123 U.S. 623 (1887); Douglas v. Kentucky, 168 U.S. 488 (1897). 94. According to this hierarchy, political and academic speech stand at the core of First Amendment protection, with social and cultural speech nearby, commercial speech a step removed, indecent and “adult” speech at the periphery, obscenity just beyond the shadow, and criminal solicitation well beyond the pale. For an analysis of First Amendment doctrine in terms similar to these, see William W. Van Alstyne, First Amendment: Cases and Materials (2nd ed. 1995). Among the protestations, see, Justice Potter Stewart’s claim that such hierarchy is “wholly alien to the First Amendment,” Young v. American Mini Theaters, 427 U.S. 50, 86 (1976) dissenting, and Justice William Brennan, “completely antithetical to basic First Amendment values,” in FCC v. Pacifica Foundation 438 U.S. 726, 762 (1978) dissenting.

10 Neoconservatives and the Courts: The Public Interest, 1965–1980 Ken I. Kersch

INCE THE 1980S, CONSERVATIVE APPROACHES to questions of the interpretation of legal texts (including the Constitution) and the appropriate role for judges (including U.S. Supreme Court justices) in our constitutional system have settled into a set of relatively fixed precepts. Where liberal judges are ostensibly committed to ruling in ways that allow a legal text to “live”—that is, to interpreting the text in ways aimed at advancing contemporary social purposes—conservative judges are ostensibly committed to reading a text in light, not of contemporary purposes, but of its original meaning. Such an interpretive posture stems from a prior commitment to the understanding that in the American constitutional system, the role of the judge is advisedly limited. That role entails an obligation to find and apply preexisting law rather than making new law, a task entrusted not to the courts but to legislators. Over time, both the “originalist” interpretative posture and the ostensible commitment to a limited role for the federal judiciary have become associated with a set of outcomes (or tendencies toward outcomes) in cases arising in specific issue areas frequently addressed by the Supreme Court and other federal courts. Legal conservatism, for example, is deeply suspicious of “unenumerated rights,” like the right to privacy, to the pronouncement that the First Amendment compels a “strict separation” of church and state, and of readings of the federal commerce power in ways that give, in effect, plenary regulatory authority to the national government. Since the Reagan administration, these conservative commitments concerning courts and judges have been ceaselessly reiterated. They have been articulated as standards to be applied to questions concerning the appointment of federal judges. And attacks on “activist

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judges” who depart from them have become a core component of the electoral politics of the modern Republican Party. Like any political platform announcing a slate of commitments to principles and polices, and holding the latter to be the natural implication of the former, the conservative understanding of proper interpretive posture and judicial role, and the conservative position on particular constitutional issues, was not fully formed, but made. Contemporary conservative positions on these matters were forged gradually through coalition politics, both within the Republican Party, and outside it. Some came to them through a pre-existing commitment to political conservatism. Others, on the other hand, became identified as political conservatives in part because they arrived at this particular set of commitments. Some deduced these commitments from a set of first principles. Others arrived at them reluctantly in reaction to events unfolding around them. Post-New Deal conservative constitutional thought in the wilderness years from 1937–1980, has been much more varied and interesting than a narrow focus on originalist interpretive outlooks would suggest. In conservative thought more generally in these years, political traditionalists (including southern agrarians) vied for intellectual influence with Chicago School libertarians, radical Ayn Randian objectivists, Roman Catholic Thomists, Straussians, country-club business Republicans, and liberal anti-communists. All of these perspectives—and some more than others— entailed views about the role of law and courts, and visions of the U.S. Constitution. It was only in the 1980s that the conservative position coalesced around the reasonably cohesive originalist posture that is generally identified as the conservative interpretive philosophy today. In this chapter, I provide an overview of one strain of conservative thinking about law and the courts that ultimately fed into this broader stream: that of the neoconservatives—liberals who, by the time of Ronald Reagan’s election, had become highly critical of the direction taken by the Democratic Party beginning in the late 1960s and early 1970s—to the point that many (but certainly not all) would become Republicans. Although it has been common recently, in the context of the Iraq War, to assume that the neoconservative outlook chiefly involves matters of foreign policy, neoconservatives were initially concerned largely with matters of domestic policy, including constitutional and judicial questions. It has also been common recently, in the age of an ironclad conservative commitment to the idea of originalism, that all conservatives are originalists. But, prior to their merger with the general conservative movement, neoconservatives had distinctive views on legal and judicial questions. My purpose here is to describe these views, and their evolution. I do this by surveying the articles on law, the courts, and constitutional mean-

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ing published between 1965 and 1980 in what is generally regarded as one of the two seminal intellectual journals in which neoconservative understandings were forged: The Public Interest (“PI”).1 PI was founded in 1965 by Irving Kristol (soon to be joined by Daniel Bell, and, upon Bell’s resignation in 1973, by Nathan Glazer) to reflect critically, but broadly supportively, the raft of policy innovations launched by Lyndon Johnson’s Great Society. PI was a small circulation magazine that, although written accessibly, was meant to be read by a small circle of policy elites, and to help them in their work by providing what was understood to be fully-informed, value-free, non-ideological, apolitical counsel on the appropriate design for an effective modern administrative state serving liberal policy objectives: poverty relief, social welfare guarantees, and civil rights. PI’s contributors were, for the most part, Ph.D.-holding social scientists—economists, sociologists, and political scientists—though some of its writers (including Kristol) did not hold advanced degrees. That said, all felt free to draw from, and expand outwards from, the narrow boundaries of their professional disciplines. The journal’s title was taken from definition proffered by Walter Lippmann: “The public interest may be presumed to be what men would choose if they saw clearly, thought rationally, acted disinterestedly and benevolently.”2 It was, as such, a journal designed to offer informed, technical, social scientific advice to the policymakers in an ostensibly new, post-ideological era.3 PI (and neoconservatism more generally), however, soon coalesced around a certain identifiable sensibility. That sensibility—skeptical, and determinedly non-idealistic—emphasized (as Nathan Glazer put it) “the limits of social policy,” or what happens when good intentions lead policymakers committed to social engineering to disregard the complex institutional and cultural environment in which public policies are inevitably implemented.4 The results are unintended consequences, perverse, and counterproductive effects that end up thwarting the policymakers’ objectives. These effects, it was repeatedly observed, while not advancing the interests of either the target of the policies— the poor, blacks, the elderly—or the larger public, clearly advanced the status and power of the policymaking elites themselves.5 In their orientation toward these matters, the neoconservatives were questioning and critical liberals in dialogue with liberal policy initiatives and liberal thought: in its formative years, neoconservatism had almost no engagement with, or affinity for, conservatives or conservatism. Irving Kristol, for instance, dismissed the thought showcased in post-War America’s leading conservative magazine, William F. Buckley, Jr.’s National Review, for its reactionary rejection of the modern social welfare state, and for its stridency, and its want of “analytical” and “intellectual” sophistication.6 As he explained in PI’s twentieth anniversary issue, “[O]nly a minority of Public Interest contributors have ever

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been conservatives, or even ‘neoconservatives.’ But there is no doubt that if you go around constantly chastening utopian enthusiasm, or offering reasons for curbing reformist enthusiasm, you are bound to find yourself regarded as a conservative element.”7

The Legalization of Public Policy PI was a domestic public policy journal, launched in the mid-1960s to analyze and assess the cascade of ambitious new policy initiatives issuing from Washington under President Lyndon Johnson’s Great Society. This timing and emphasis lent PI a distinctive point of entry for the consideration of legal and constitutional questions. The social scientists and other scholars writing for PI confronted the rights revolution as it happened. From the beginning, PI contributors manifested a pronounced skepticism about that revolution—or at least nagging worries and concerns about it—not on grounds of principle, or on grounds that they disagreed with the Great Society’s ultimate objectives, but on the basis of their empirical observations of how likely the specific rights policies adopted, through the establishment of new institutions and methods of administration, were likely to achieve those objectives and realize those principles. The paradigmatic PI article undertook a sustained critique of rights rhetorics in a particular area of public policy through a detailed demonstration of how the formulation of policy through rights claims structured the politics and procedures of administration within that area. This approach was distinctive from other (sometimes conservative) critiques of rights rhetorics and the expansion of rights rooted in a communitarian vision, or a preoccupation of the “anti-democratic” cast to rights claims, particularly as adopted by courts. The neoconservative claim, broadly speaking, was that an overemphasis on rights claims distorted the processes of rational policymaking. Neoconservatives understood many of the new rights claims associated with the Rights Revolution as siren songs that, dispassionate policy analysis seemed to confirm, were leading the polity down the path of the increasing legalization of public policy. However much this trend towards increased legalization appealed to the sensibilities of legalist elites—and its appeal to legalist elites was the primary engine driving these developments—it was, ultimately, a disastrous way of formulating sound public policy that advanced the broader public interest. Many of PI’s, articles on legal topics took up legal subjects through thick descriptions of the operation of pubic policy programs on the ground. In these descriptions, the legal dimensions of the policy program are considered as integral strands of complex skeins of a goal-oriented administrative appa-

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ratus.8 The typical PI policy article spotlighted the disconnect between the purported objective of the liberal policy objective (with which PI authors frequently expressed sympathy) and the means that liberals—or simply administrators—had alighted upon to achieve them. An article by Martin Mayer on the legal services newly provided to the poor by the Legal Aid Society’s Ford Foundation-funded neighborhood law offices is characteristic. In this article, Mayer worries that “the advocates of vastly extended legal services for the poor [have] become trapped in a rhetoric of ‘rights,’ most of which is inapplicable to the problem.”9 To demonstrate this, Mayer considers the provision of these services in consumer rights cases, including landlord-tenant disputes. Mayer chastises the Great Society liberals for their reflexive (and highly ideological) assumption that, if the poor are doing less well in the consumer marketplace, or in dealing with their landlords, it must be because they are being systematically deprived of their legal rights. The simple, empirically demonstrable fact is that poor people are systematically different from wealthier people in the way they engage in consumer transactions. “Statistically,” Mayer notes, “the poor are more likely to behave stupidly in the marketplace—that’s what we mean, ultimately, when we use the word ‘ignorance’ ” (108). But there is no need to rely on statistics alone: the Legal Aid Society’s lawyers know it from their own experience. ‘Most consumer matters are not fraud,’ says Washington [neighborhood law office attorney] Henry Jones glumly. ‘They’re a lack of intelligence, a lack of a sense of proportion in buying’ ” (108). The ones who seem not to appreciate this are the law professors. “Observing from afar and wanting to help,” Jones says, “the professors denounce a deprivation of rights.” A real problem, that is, exists. But its character is systematically misdiagnosed by a distant out-oftouch, morally-motivated elite. “The false emphasis on ‘rights,’ which is merely self-confusing in the private sector, becomes a handicap to rational planning when the OEO-sponsored lawyers come to deal with the public agencies. Led by Professor Charles Reich of Yale, they tend to assert that the poor have “rights” in public assistance, and that the goal must be the recognition of these rights” (109). But, Mayer notes, someone with a less uni-dimensional understanding of the political system would appreciate that “What a court cannot do is compel a legislature to appropriate money” (109). “What the argument of rights ignores in all contexts,” Mayer explains, “is the question of the social policy which presumably the law is to serve; there is not much point in encouraging ‘the legal approach to problems’ if the problems are not legal. In the private arena, emphasis on rights has kept the theoreticians of the movement from exploring the economic realities of the present situation and best directions to follow in seeking a less unfair result” (110).10

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Not surprisingly, many in the neighborhood law offices viewed these developments positively. But lawyers will apprehend the situation through a lawyer’s prism. One poverty assistance agency he studied, he reports, “noted with sardonic pleasure that its neighborhood law office is well regarded by local lawyers, because it has forced landlords to hire lawyers of their own . . . ” “But,” Mayer observed, “if the profits of the enterprise are not high enough to absorb such added costs of legal representation, then the poor will simply have to pay more rent so their landlords can fight back” (110). On the cusp of the decline of American cities in the late 1960s and 1970s, Mayer observed presciently that “To deprive a landlord of the opportunity to evict the really undesirable tenant (the prostitute, the drug-supply house, the gang headquarters) doesn’t help the other tenants in the building. Decent housing for the poor requires major government subsidy, but does it really hasten government subsidy to drive out the better landlords (always the people reached first by any campaign) and keep out (because the atmosphere is uncomfortably heavy with conflict) people who might be prepared to invest private money in the slums?” (110). “Such questions have not even been asked—let alone answered—by the leaders of the OEO legal services programs. They are lawyers: they want to assert ‘rights.’ But rights, like everything else, can be very expensive for poor people” (111). “The disabilities of the poor are not fundamentally legal disabilities; the law problem is simply one of the bumps in the pie plate; push it down here and it comes up somewhere else. What the poor really require is not greater involvement with that corner of the law that might be construed as ‘on their side,’ but less involvement with the law altogether.” What needs to be changed to effectively serve the poor are “institutional structures” (113). Like many neoconservatives, Mayer detects a class and elite bias operating in the way that detached policymaking elites see the policy landscape. He finds that many lawyers on ground in the Bronx and Brooklyn understand these matters quite well, as do “Negro and Puerto Rican lawyers.” Not so the publicspirited white-shoe Wall Street firms determined to serve the poor through affiliating themselves with the OEO. “Unless carefully supervised, some of the lawyers in the OEO offices will use the compulsory processes of law not for their clients, but to express their own compulsions, to ‘punish’ a society they regard as corrupt, from which they feel alienated” (114). Mayer concludes, ultimately, that “The battle to improve the condition of the poor as a group . . . must be won in the legislature, not in the courts, and it is confusing and cruel to the poor to pretend otherwise” (115). A subsequent article by Harry Brill again took up the topic of the OEO.11 Like most neoconservatives, Brill goes on record as being deeply committed to the creation of effective government programs aimed at poverty relief (his ar-

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ticle opens with the declaration that “Those of us who subscribe to the ideal of equal treatment under law for all citizens must agree that public money is well spent when it effectively reduces the disadvantages that the poor suffer under our present legal arrangements” (38). He concludes, moreover, that by these standards, OEO has been a success. At the same time, though, Brill homes in on the controversy concerning a key part of its portfolio: class action lawsuits. He offers PI readers an account of the use of such suits by the OEO’s office in San Francisco, its second largest—The San Francisco Legal Assistance Foundation. (Brill, a Great Society insider, was that office’s former research director). Brill wants to think critically about the office’s operation. But, in doing so, he recognizes that he risks being attacked as a right-winger: “To raise a serious criticism of any of the Foundation’s activities has been taboo for anyone who does not wish to be labeled an arch-conservative. In this atmosphere—the atmosphere of many other cities as well—it has been virtually impossible for reform-minded citizens to consider the dark side of class action suits” (40–41).12 Brill is convinced that effects of these suits have been “minimal or even harmful” (41). The puzzle is “why the organization has pursued these actions nonetheless” (41). Brill first sets out the case for the ineffectiveness of class action lawsuits in achieving their objectives. He begins by observing that, while the Foundation won seventy-five percent of its individual cases, it actually won very few of its class actions. And, in a subsection entitled “Hollow Victories,” he makes the further assessment that, even when these battles are won in court, “a very large proportion of class action legal victories do not in fact lead to actual social and economic gains . . . ” —they are “paper victories” (43). Crucial is the willingness to assess the effects of legal ruling in their entirety, across governmental institutions. For example, Brill notes that in one such class action case (the defeat of a one-year residency requirement for welfare), the “ ‘victory,’ along with other developments in California, triggered austerity measures by the legislative and executive branches. Eligibility requirements were more vigorously enforced and tightened to exclude many poor people who had formerly been eligible . . . [and] the total number collecting welfare in California actually dropped.” (43–44). “Curiously,” he observes, “the lawyers had never considered this possibility” (44). In addition, in a section entitled “A one-track commitment,” Brill observes that the lawyers’ preoccupation with class actions has led them “to divert resources from other, probably superior ways of attacking the problems at hand” (44). One such way was through lobbying, and legislation. “Instead of filing a class action suit, the main office lawyers could have assisted community groups to prepare a bill and advised them on lobbying strategies” (45). But

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“Issues were translated into class action suits even when there were strong indications that a bill introduced into the state legislature, and supported by a minimal amount of lobbying would have accomplished the same end more swiftly and directly” (45). Indeed, “The lawyers on several occasions convinced community organizations to drop their lobbying plans in favor of court action. Yet it is almost axiomatic that legislative action offers a more enduring basis for reforms, since they are written into the law and marked with a clear stamp of public acceptance, rather than left to court interpretation” (45). The problem is that “In general, the main office lawyers proceeded as if class action were always the best vehicle and sometimes the only one for improving the social and economic conditions of the poor” (44). The origin of the main office’s decision to focus on class actions was “ideological” (47). The “class action was eulogized and idealized by [Foundation’s main office] with as much enthusiasm as direct action evokes among militants” (46). This ideological commitment trumped many of the organization’s other political commitments. It, for example, jeopardized “the specific goals and the autonomy of the community organizations they presumed to serve” (45). Brill explores not only the ideological roots of the class-action obsession, but also the web of organizational and bureaucratic incentives that reinforced it. He concludes that the focus on filing class actions enabled the Foundation “to meet the various expectations of four different audiences— their client organization, the Establishment, their professional colleagues, and the liberal middle-class public” (47). “[T]he lawyers [at the Foundation] possessed a great desire to develop their reputations” (52). “The middle-class public, who were neither directly affected by the outcome of the Foundation’s class action suits nor knowledgeable about legal issues, were readily impressed by the visible and superficial. The mere fact that the Foundation filed a class action suit on behalf of the poor, along with the strong tone and content of its public statements, was sufficient to win their enthusiasm and unqualified support” (53). Brill concluded that “For the main office lawyers, image making had a top priority, and it consumed a disproportionate amount of their energies. During the aftermath of press conferences, meetings, and other public encounters, the lawyers talked among themselves not about the issues they had addressed but almost solely about the impressions they had created. Whether they believed each other to be persuasive, sufficiently dramatic, or clever—these were more often the topics of discussion than the substantive issues they were being persuasive, dramatic, or clever about. In fact their vanity was so routinized that the lawyers were unaware of anything unusual about their behavior” (53). These incentives and dynamics ultimately shaped the Foundation’s entire organizational structure. In time, the main office—comprised of those fur-

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thest removed from the local community whose interests it was the Foundation’s ostensible purpose to serve—came to specialize in “organizational advocacy,” a “euphemism for class actions,” while the neighborhood offices focus on case services to poor individuals (41). In turn, “The local branches’ obvious lack of interest in class actions convinced main office staff that their colleagues were legally provincial and that a few might even be committed to the status quo” (42). In the end, Brill concludes, “the Foundation itself became a barrier to social change” (46). “The lawyers believed that they had a mission—to devote themselves to bettering the conditions of the poor not only locally but across the state and nation” (55). But, ultimately, the Foundation’s actions “victimized . . . the poor” (55). Brill distills a lesson from his case study: “the poor and their representatives, who often tend to regard any attack on existing social programs as an attack on themselves, should realize that, just because something describes itself as a service to the poor, it doesn’t follow that, in actuality, it is” (55). In an early scathing critique of affirmative action published in PI, the economist Thomas Sowell focused not on the ostensible “reverse discrimination” that it occasioned (as other sorts of conservatives would, emphasizing the departure from the principle of equality, or the dictates of the Constitution’s equal protection clause), but rather on the ineffectiveness of affirmative action as a purportedly goal-directed public policy initiative. While noble intentions are worth something, so far as they go, Sowell noted that “despite an abundance of horror stories, there has been pathetically little analysis establishing the general conditions in the academic world before or after “‘affirmative action’” (47).13 Indeed, in an inversion of the usual policymaking process, the “affirmative action programs were going full blast for years before anyone knew the dimensions of the problem to be solved” (52). Neither “affirmative action” itself, nor the “equality of opportunity” it was ostensibly directed at advancing was defined, or even thought through. Nor was the relationship, as a matter of goal-directed public policy, between the ends and means (49). As Sowell saw it, “the crucial question [is] what to do when the effects of past discrimination are incorporated in the current capabilities of individuals” (49). No one thought seriously about this, and the results have not been pretty. “Despite the clear Congressional intent, expressed by both supporters and opponents of the Civil Rights Act of 1964,” Sowell observed, “the actual administration of that law has led precisely in the direction which its sponsors considered impossible. The burden of proof has been put on those employers whose proportional representation of employees by race or sex is not satisfactory to federal agencies administering that law” (50). Anyone who wants to think seriously about affirmative action, Sowell urged, needs to be serious about untangling causal forces, something that

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liberal ideology has seemed to preclude. Liberals reflexively trumpet the ostensibly obvious positive effects of these programs. But “The situation that existed just before ‘affirmative action’ was the result of more than a decade of civil-rights legislation, demonstrations, and changes in American public opinion” (54). The effects of affirmative action, on the other hand, “must be judged against the background of the situation that actually existed when numerical goals and timetables’ were applied to colleges and universities in 1971, not against the background of virtually total exclusion of blacks from leading academic institutions a generation earlier.” He complains that “Some proponents of ‘affirmative action’ persistently make comparisons with that earlier era, as if all the anti-discrimination forces of the 1960s had never existed” (54). And there are other problems that have stemmed from ideology: “Although minorities and women are often lumped together, it is very questionable to lump even minorities together . . . .” “The crucial variable for academic women’s careers is marriage,” Sowell noted, citing a raft of social scientific data (55–56). In place of asking the relevant questions, and gathering the relevant data, liberal ideology has spurred the creation of entirely new datasets on the workplace’s racial and sexual composition. This data is, in turn, accorded bureaucratic significance, and then employed as tool to re-order incentives. Sowell chastises the federal government for initiating a “charade” involving an academic institution’s ability to tap into federal money. “This need not involve hiring a minority or female faculty member—and usually does not, as the statistics indicate— but does involve a legalistic and bureaucratic manner of recruiting, screening, and evaluating candidates in order to generate enough paperwork to show “good faith efforts” to meet numerous “goals and timetables” for minority and female employment (58). Who has benefited from affirmative action? Politically, probably the Nixon administration, which has used the programs to successfully split the Democratic political coalition. That said, though, “Certainly, the clearest continuing beneficiaries are the bureaucrats who acquired power, appropriations, and publicity from their activities, and who have stretched the law far beyond any Congressional intent” (64). What of affirmative action’s black beneficiaries? Sowell demonstrates that, in fact, black income as a percentage of white income reached its peak in 1970— before affirmative action goals and timetables. “If the ‘affirmative action’ program were merely inane, futile, and costly, it might deserve no more attention than other government programs of the same description. But it has side effects which are negative in the short run and perhaps poisonous in the long run. While doing little or nothing to advance the position of minorities and fe-

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males, it creates the impression that the hard-won achievements of these groups are conferred benefits” (63). “What ‘affirmative action’ has done,” Sowell concludes, “is to destroy the legitimacy of what had already been achieved, by making all black achievements look like questionable accomplishments, or even outright gifts” (64). “Especially in the case of blacks, this means perpetuating racism instead of allowing it to die a natural death . . . .” (63). Sowell observed that, at the time he was writing, “The courts have not gone so far as the administrative agencies in forcing numerical ‘goals and timetables’ on employers” (51). But they were far ahead in this regard in their school desegregation decisions, public policy scholar David Kirp observed in a PI essay on these cases. Indeed, Kirp notes that, “[t]he courts today are almost alone in making and implementing school desegregation policy.”14 This meant that the problems of school desegregation would be approached in a distinctively court-like way—that is, as primarily “a matter of rule-mindedness, obedience to (or defiance of) court decisions” (101). “To make desegregation a matter of obeying rules, as both sides do,” however, Kirp worried, “reflects at best only a partial understanding of the dilemma” (118). “[U]niform rules have only a marginal place. There is just no way for the federal government to bring about by any single dictate what the Civil Rights Commission, in its cumbersome prose, calls ‘a quality of educational and interpersonal interaction based on the positive acceptance of individual and group differences as well as similarities.’ There exists no single formula, legal or otherwise, for successfully linking integration to the overall educational enterprise” (119). For this reason, Kirp pronounced himself an opponent of the “rule-mindedness and uniformity” that the courts have artificially imposed on this area (118). Where a rule-like clarity on the matter of segregation made sense initially, it soon yielded only confusion. The principle of equal protection as applied to de jure school segregation was clear. In Brown’s progeny, the federal courts were engaging in “ostensible elaborations of the equal protection clause” (102). But soon “The vigor of court action has outstripped the judiciary’s willingness to offer principled justifications for its rulings” (101). In time, “the federal enforcement agencies . . . abandoned the field to private litigants and the courts” (103). The results were increasingly passing strange. For instance, “In 1957, the superintendent of the San Francisco public schools called a press conference to deplore the lawlessness of Little Rock. Ten years later, he retired amid charges of ‘racism.’ Shortly thereafter, a federal trial court found that San Francisco had ‘deliberately’ segregated black students and ordered the district to desegregate its public schools” (103). Obviously, somewhere along the way, as they worked their way through cases, the courts had transformed the objectives of desegregation policies—arriving at an entirely “new definition of segregation,” and those with long track records of

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civil rights commitments were, in an ever shifting context, transmogrified from heroes into goats (107). This denouement was hardly inexplicable. “At few other points in our history,” Kirp observed, “has a moral vision been so tightly fused with a sense of the politically possible. This quite special circumstance enabled the federal government to ignore the competing claims of federalism and localism, and impose desegregation as an act of national will” (122). Freedom of choice plans had proved feckless in altering de facto segregation. Over time, new groups (like women, the disabled, and other racial and ethnic minorities) had come forward with additional claims that had altered both the policy landscape and the definition of the policy problem. “Their claims were scarcely baseless,” Kirp concedes (107). Nevertheless, the consequences were often perverse. In the face of these developments, the initial framework for dealing with these matters fell apart. “In the minds of those who had drafted the Civil Rights Act, the courts were supposed to define discrimination, and HEW, with its substantially greater manpower, to enforce the judicial standards. In actuality, the process worked in almost precisely the reverse fashion” (107). This had political consequences: “Because this policy was refined by low visibility executive agencies and the courts without formal Congressional or Presidential approval, and because it went beyond the delicate consensus that produced the 1964 Civil Rights Act, it was vulnerable to subsequent political attack . . .” (107–108). “As the nature of the desegregation issue changed profoundly between 1964–1969, so too did the character of the political opposition” (109). In classic neoconservative fashion, Kirp struggled to articulate a sensible middle way: “To imagine that the federal role in desegregation can only be understood in terms of either enforcement or abdication betrays a dearth of imagination; yet such are the exclusive choices that are too often offered by partisans on either side of the question” (116). “A vision more complicated and more circumspect is called for,” he insisted (122). In an area like this, at this time, “the stern command of law” is precisely what wasn’t needed (126). A sensible and effective school desegregation policy would involve minimum national standards and local variance, tempered by a case-by-case pragmatism. Such a policy could be implemented effectively only if it were undertaken, and shared, by several branches and levels of government, and not confined to the courts. In 1976, PI published an extensive consideration by Irving Welfeld of the U.S. Supreme Court’s recent ruling in Hills v. Gautreaux holding that when the federal government is guilty of race discrimination with regard to the siting of municipal public housing projects, it can be ordered to adopt a housing assistance plan that ignores municipal boundaries.15 With a sensibility similar to Kirp’s, Welfeld began with the observation that “When good inten-

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tions go awry, the results usually land in the lap of the judiciary” (127). “With this decision,” Welfeld wrote, “the Court has moved into an area where politicians fear to tread; to many, its action seems imperial and intemperate. Perhaps so—but I would like to suggest that the real problem is that the decision will surely be ineffectual, that the Court cannot act constructively in this area” (123) [emphasis in original]. Welfeld’s point of entry for assessing the Court’s Gautreaux ruling was the social science evidence concerning the effects on race prejudice of individuals living in integrated public housing (125). He notes that the Court (and the litigants) transposed a complicated policy question into a one-dimensional legal question involving the fundamental rights of the black underprivileged. “A more charitable view, however, can be taken. After all, what was involved was integrating people not merely of different races, but of widely varying socioeconomic status. In truth, the CHA [Chicago Housing Authority] was being asked to achieve a level of racial, economic, and sociocultural integration that has never been achieved in this country—or even on this continent” (129). Indeed, social scientists who canvassed the country for empirical evidence, “were unable to find a single one that would have met the criteria of the judicial decree” (129) [emphasis in original]. This cast serious doubt upon the feasibility of the “principled” remedy that had been insisted upon by the Court (129). In light of this evidence, the ruling’s real world implications, Welfeld concluded, are likely to be minimal, if not counterproductive. As written, the ruling “puts the Court in the position of trying to draw the line between non-enthusiastic non-cooperation and actual discrimination. It is worth recalling that the absence of kindness can kill when it comes to the exercise of the police and taxing power. A literal interpretation of subdivision control, a failure to extend a sewer or rezone, a high tax assessment, or strict enforcement of building and housing codes can kill an otherwise feasible project” (131). In the end, “The Gautreaux decision then simply adds another burden to an already overburdened housing policy. Its consequences for racial integration are predictable—there won’t be many. It will, however, have the certain result of making our public-housing program even more controversial and ineffectual than it has been. This controversy and this ineffectuality arise from the reluctance of Congress—and, one suspects, all of us—to make clear but difficult choices . . . . [It] is a policy that tries to hit two targets with one arrow. It cannot be done” (134).“Now the Supreme Court insists that this housing program, which has not succeeded in either increasing the housing supply or housing the poor, also achieve an unprecedented degree of racial and socioeconomic integration in residential areas. The luckless administrators of HUD will duly try—but they will end up tying themselves and our housing program into knots” (135).

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“One of these days,” Welfeld ended ruefully, “Congress and the courts and the public may come to realize that just because a goal is desirable, it does not follow that the job can be done if the programs are ineffectual. Why the programs have been so ineffectual for so long, in spite of the presence in Washington—contrary to public opinion—of executives and legislators of good intelligence and intentions, is another story for another article” (135). The 1970s heyday of public law litigation witnessed a cascade of “right to treatment” claims on behalf of the mentally ill, criminals, and juvenile delinquents.16 Assessing this situation, Harry Miller noticed that the attack on state institutions launched in the name of these people was premised in significant part on the quasi-ideological “romance with the community” favored by the community mental health movement. It was aided and abetted by “an assortment of activist groups committed to the basic beliefs of upper-middle-class radicalism: the sanctity of the individual, the absolute priority of the needs of minorities and the poor, and a distrust of institutional ways of dealing with social issues” (96). Significantly, it was “fueled with federal grants from a variety of agencies” (96). “[I]n states that have refused to accept the revealed truth of reform, advocacy groups have adopted a strategy of using the courts as a major instrument to restructure existing institutions” (97). Like many PI contributors, Miller declared his liberal sympathies, and acknowledged that the turn to the judiciary as an instrument of reform had been motivated by genuine, and serious, problems: “State institutions vary from the horrifying to the superb, and a movement aimed at improving the lives of those compelled to live in the bad ones deserves sympathy and support” (97). Nevertheless, caution, and sober reflection, are in order, because “the unrestrained appeal to a ‘right to treatment,’ by an ‘imperial judiciary’ may have unintended consequences that outweigh the modes improvement that can be gained” (97). “Others have taken the opportunity afforded by class action suits based on very broad treatment claims to assume effective control of state facilities by meticulously examining the smallest details of institutional life, issuing lengthy orders covering every feature of daily operation, and creating a variety of supra-administrative mechanisms to enforce them” (105–106). Pioneering public law litigation suits in this area occasioned judicial micro-managing— often down to the number of sheets of toilet paper per resident, with judges, in effect, one-size fits all national standards (106). These judicial diktats failed to take any account of budgetary restrictions, and the countervailing claims for resources in other policy areas. As such, they worked a “distortion of the states’ allocation mechanism” (107). “The court examines only one area of need at a time,” Miller explained, noting that “advocates who come before it demanding increased resources for state hospitals are not accompanied by advocates for in-

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creased expenditures on police, or health, or education, or any of the other needs met by the states” (107). “Judicial intervention in the process, through setting fiscal priorities on the basis of whatever demand happens to come to a court’s attention, is difficult to justify in a representative democracy—or, indeed, in any other rational political order” (108). Such allocative decisions, Miller concluded, are best made in the political, and not the judicial, realm. Writing for PI, Yale Law professor Peter Schuck was less than celebratory about the ostensible civil rights triumph of the Age Discrimination Act of 1975 (referred to at the time by the acronym ADA) 17 “[L]ike all broad-ranging civil rights statutes,” this law was sure to “generate much uncertainty and litigation” (70). But the real problem here was an inclination of those who wrote the law to base the legislation on a morally-motivated, but strained, analogy between age discrimination and race discrimination—a strain apparent immediately in the law’s lengthy list of exceptions, exemptions, and exclusions. Civil rights homilies aside, Schuck noted, existing—and utterly legitimate—law was far from age-blind. For this reason, over time, Schuck predicted, the courts would become preoccupied with the endless task of separating sensible, and legal, age discrimination from invidious and impermissible age discrimination. “While little else may be certain about the ADA,” Schuck predicted, “it is clear that it will spawn a great deal of litigation. Several aspects of the ADA invite efforts to test its limits and meaning: the programmatic breadth of its coverage, which includes virtually all federally assisted activities; the sweeping nature of its prohibitory language; its ambiguous exceptions and exclusions; its unusually sparse legislative history; the manner in which HEW interpreted the reasonableness exceptions in its government-wide regulations; and the continuing (indeed, after the Committee report, growing) uncertainty concerning the nature, meaning, and extent of age discrimination” (83). Schuck undertook a detailed analysis of the law’s shortcomings: The ADA’s core provisions raise three critical policy issues that, astonishingly, were not considered by its authors: 1) the ways in which decision makers use age to distinguish between people and the reasonableness of those uses in light of their consequences and the social values they implicate; 2) the reasonableness of the use of ostensibly neutral factors other than age when those factors affect different age groups differently; and 3) the burden of justification to which society is prepared to hold age distinctions and uses of non-age factors that affect different age groups differently (71).

Schuck sought to distill what he saw as the profound conceptual confusion behind the legislation. At the core of this confusion was the apparently inadvertent decision of its authors to combine the non-discrimination model of public

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policy (based on civil rights laws) with an allocative model that has countenanced the widespread use of age as a criterion for distributing government resources (86). These elements were combined without any consideration of how the different models might relate and apply in diverse circumstances. “[T]he nondiscrimination model creates a legal right formulated as an abstract rule: No person shall be subjected to discrimination on the basis of age. At least in its pure form, the rule brooks neither qualification nor compromise. Because it is usually linked to notions of fundamental human dignity, a right to be free of discrimination evokes powerful convictions of an entitlement immune to limitation at the instance of anyone other than its possessor” (86). By contrast, “the allocative model rarely creates legal entitlements in individuals. Instead, it shapes the exercise of bureaucratic discretion by prescribing criteria to be applied by officials. Where the nondiscrimination model seeks primarily to vindicate abstract principles resistant to compromise or piecemeal implementation, the allocative model concerns itself primarily with the distribution of resources according to criteria that, by often permitting flexibility and judgment in their application, encourage bargained and incremental solutions” (87). In framing the legislation in this way, Congress “performed few of the conventional policy-making functions for which it is thought to be admirably designed: It failed to specify the problem; it gathered little information; it failed to articulate and weigh competing values or reduce them to operational terms; it considered no alternatives; and it declined to make hard choices” (84). A number of ingredients combined in the case of the ADA to yield a formidable, indeed, irresistible, political offering. It promised benefits to a visible, politically influential group that all Americans hoped someday to join; its sponsors argued that it could confer these benefits at no additional cost; its redistributional implications were not clear, or at least were not noticed; and it was a small and inconspicuous part of a large omnibus bill that both Congress and the Administration supported. Perhaps most important, it drew strength from the moral legitimacy and rhetorical force of the civil rights movement of the 1960s and early 1970s, a provenance that is critical to understanding how Congress conceptualized and responded to the problem of age discrimination (75).

To be sure, the ADA is likely to provide some net benefits for the elderly. But, as was the case with the “right to treatment,” it is not clear that those who formulated the new right considered its likely allocative effects across the political system. “[T]he ADA is likely to increase the proportion of total program resources allocated to the elderly . . . . [W]hatever redistribution occurs between age groups as a result of the ADA is likely to be relatively random compared to that effected through allocative law. Redistribution through nondiscrimination laws is not the result of affirmative, problem-oriented, visible

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choices by Congress or agencies. Rather it is a consequence of relatively lowvisibility actions reflecting decisions not to consider certain factors. In the case of the ADA, such actions generally will be taken by bureaucrats and by courts in spasmodic fashion as groups challenge particular uses of age or particular distributional patterns induced by non-age factors” (91). “[O]ne can anticipate that the cost-effectiveness of some social programs will decline as program managers feel obligated to serve more elderly and fewer young people in situations in which the former are more costly to serve” (91). In this regard, the ADA’s problems are likely to only be exacerbated as courts become increasingly involved in interpreting it. “By encouraging courts to resolve such problems, we invite failure,” Schuck warned: Without decision rules to look to, without methodology for identifying suitable criteria or assigning them appropriate weights, courts will be cast adrift in a sea of discretion. Constrained by procedural norms that hobble their ability to trace out the effects of interdependencies, to adjust to changes in the environment, or to develop political consensus on behalf of a solution, their decisions are unlikely to constitute sound policy . . . . Lacking the tools to perform the task at hand, a court may simply transform the problem into one that it can handle by radically simplifying the reality in which the problem is rooted and redefining it as one that can be resolved by recourse to a pre-existing rule. The nondiscrimination model encourages the search for such a rule . . . . Alternatively, courts may abandon their adjudicatory life jackets and plunge heroically into the rising waters of allocative problem-solving (92–93).

“For Congress to enact a law based largely upon conflicting premises, and then to refuse to define or even guide its policy except through broad intimations of sentiment, is to require other institutions to fill this void. For the executive branch first to abdicate its policy-shaping role in the legislative process, and then effectively to delegate the hard discretionary choices to courts, is not merely to invite judicial policy making, but to compel it.” (93).

Nathan Glazer’s Imperial Judiciary The nature and consequences of the legalization of public policy was the major theme of neoconservative writing on law and courts in PI prior to 1980. As we have seen in the discussion above, many PI articles involved the intricate parsing of discrete policy areas. Probably the most prominent and influential general overview of the problem—the classic neoconservative text on the legalization of public policy—was Nathan Glazer’s “Towards an Imperial Judiciary,” published in PI in 1975.18

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It is significant that Glazer approached the problem not as an expert in law and courts but as a generalist who insisted that these developments could only be assessed properly by considering the courts as part of a broader, multi-institutional political system. Glazer began the article from an outsider’s perspective: A non-lawyer who considers the remarkable role of courts in the interpretation of the Constitution and the laws in the United States finds himself in a nevernever land—one in which questions he never dreamed of raising are discussed at incredible length, while questions that would appear to be the first to come to mind are hardly ever raised. This is particularly the case when the concern of the non-professional observer is with social policy rather than with constitutional law as such. (104).

There is a sociology of knowledge behind why those most directly involved in the legal system don’t see what seems obvious to him: [J]udges and lawyers are trained to see continuity in the development of constitutional law. However far-reaching the actions the courts take, the lawyers who propose such actions and the judges who rule on them are committed by the logic of legal reasoning to insist that they are only unveiling a rule that existed all along in the recesses of the Constitution or the bowels of legislation: Nothing new has been added, they say, even though great consequences follow from their decisions. Political scientists are somewhat freer to see truly original developments in the constitutional law, but they generally do not go beyond interpreting these developments as part of a cycle . . . in which periods of activism symmetrically contrast with periods of quietism . . . . To the political scientist, the court follows not only its own logic but the logic of public opinion . . . . This is a reasonable description of the pattern of judicial interpretation, supported by history and by American constitutional arrangements, and this is as far as one of our best-known analysts of the Supreme Court, Robert McCloskey, went (105).

There is another way of looking at things, however. The trend towards judicial activism is not just another tick upwards in a regular cycle of peaks and valleys, but represents a sea change: Today, “The courts truly have changed their role in American life” (106). “[C]ourts, through interpretation of the Constitution and the laws, now reach into the lives of the people, against the will of the people, deeper than they ever have in American history” (106).19 This was evident in the transition from the liberal Warren Court to what most would have predicted would be a more conservative Burger Court. “I believe all agree that the Burger Court has been surprisingly like the Warren Court,” Glazer announced, citing prominent high court desegregation and race and ethnic quotas cases, student rights decisions, and Roe v. Wade. This trend,

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to be sure, was tempered by a few “common sense” limitations (such as Milliken v. Bradley and San Antonio School District v. Rodriguez), and some trimming around the edges of constitutional doctrine concerning the rights of criminal defendants (108). The tendency nevertheless was clear. “[T]his raises the question of why the expected turn has not yet taken place—seven years after Nixon was elected, and after four of his appointees were on the court” (108). To answer this question, we must understand the nature of the revolutionary changes that had taken place in the courts in the mid-twentieth century. Previously, periods of Court activism had been undertaken by conservative courts working to restrict liberal congresses, Presidents, or state governments. “In the past the role of activist courts was to restrict the executive and legislature in what they could do” (109). This made a certain amount of sense, since the courts had been designed by the nation’s founders as a conservative institution (108). The arrival of an activist liberal court worked a reversal of this founding order (109). “The distinctive characteristic of more recent activist courts has been to extend the role of what the government could do, even when the government did not want to do it” (109) [emphasis in original]. Frequently, today,“government is required to do what the Congress did not order it to do and may well oppose, what the executive does not feel it wise to do, and most important what it does not know how to do.” Cases in point were Judge Jack Weinstein’s orders in a recent New York City school desegregation case requiring the city government to racially balance the city’s schools, judicial orders to correctional institutions to rehabilitate prisoners, and to mental health professionals to treat mental patients effectively (109). “Like Canute,” Glazer lamented, “the Judges decree the sea must not advance, and weary administrators—hectored by enthusiastic, if ignorant, lawyers for public advocacy centers—must go through the motions to show the courts they are trying” (110). These new judicial departures might have triggered a powerful political counter-reaction by the people or their elected representatives. But they haven’t. “The power of the Court has been exercised so often and so successfully over the last 20 years, and the ability to restrict or control it by either new legislation, constitutional amendment, or new appointments has met with such uniform failure, that the Court, and the subordinate courts, are now seen as forces of nature, difficult to predict and impossible to control” (110). Glazer contrasted “the outburst over the school prayer decisions of 1962–1963 with the relative quietude of response to the abortion decisions of 1973, or contrast the effort to adopt a constitutional amendment to control the sweep of reapportionment decisions in 1964–1966 with the general view in Congress today that any effort to control the Court on busing by means of a constitutional amendment has no chance of succeeding” (110). “This is, of course, not necessarily witness to the strength of the Court as such: What it reflects, in addition, is the agreement of

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large sectors of opinion—even if it is still minority opinion—with the Court’s actions” (110). Glazer suggested that the growing power of the Court, and the judiciary more generally, was sustained by support from the mass media, newspapers, the informed electorate, and key opinion leaders. This had been abetted by the LBJ landslide in the mid-1960s, and liberal democratic sweep of Congress in 1974 in the aftermath of the Watergate scandal (110). The Court’s power was now no longer effectively cabined by public opinion. This power now “transcend[s] . . . the question of the individual outlooks and philosophies of the present Justices or their potential successors,” though, of course, it will continue to be important in those areas where there is a 5-4 split (111). A number of factors suggested that this new state of affairs would not likely be waning any time soon. First, it isn’t easy for the Court to withdraw from positions that it has publicly taken because it is the institutional responsibility of the Court to trace out the logics of those positions. “We might envisage this . . . working out the logic of positions already taken . . . as a kind of indigestion, in which a boa constrictor, having swallowed a goat, must allow it to go through its entire length to be absorbed. So must these new expansions in ‘standing,’ due process, equal protection, and the like work their way through the entire system. They are far from having done so” (115). The Court, moreover, cannot lightly discard precedent (112–113). Its actions have spurred a raft of new litigation, which further enhances the Court’s status as an arbiter of public policy. The legislature and executive have done their parts to sustain the Court’s power as well. The expansion of court power is, in significant part, a function of the expansion of government power more generally. As government power was expanded, the Court was called upon to “consider issues of equity and due process and equal protection in all the varied areas of education, health care, housing, and access to government services of all types. It must consider the varied impact of new subsidies, and controls and restrictions based on safety or environmental consideration” (116). Glazer was famously—and influentially—critical of the trends he was describing. “The expanded reach of government not only explains a more activist Court; in the minds of many analysts, it also justifies it,” he wrote. “Perhaps it does. But one reason it does is that courts are dissatisfied with how legislatures and executives run their respective spheres, and while they do not egregiously reach out to express their dissatisfaction—courts, after all, must wait for cases to come to them—when the cases do come to them, they stretch their hands out very far indeed to make corrections” (117). He concedes “There is much justice here” (117). But he worried that the courts seem very heavy handed indeed in ordering government officials about, to the point of micro-managing public policy details to a startling degree. This raised serious

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questions of institutional competence. “The legislature and executive,” he wrote, “have far more resources than the courts to determine how best to act. If they don’t, it is because no one knows how to, or there is not enough money to cover everything, or because the people simply don’t want it. These strike me as valid considerations in a democracy, but they are not considered valid considerations when issues of social policy come up as court cases for judgment” (118). “Having decided that the other two branches won’t act, judges decide to act on their own, and increasingly are intrigued by the opportunity to go to the root of the problem” (118). But “Unfortunately in many of these areas of social policy there is no clear knowledge of what the root of the problem is, though an expert can always be found who will oblige a judge with an appropriate program” (118). Judges seemed not to recognize the complexity of the policy landscape into which they had wandered. Someone with a broader perspective would appreciate that “A public health specialist will oblige the judge with a program for medical care that follows the standards of his professional association, standards that hardly any public body may be able to afford to meet or is interested to meet. And so with a psychiatrist, social work specialist, or school specialist. Clearly, if the judge has decided that the services in question are inadequate, or that they violate the constitution, or the laws, or the health code, or equal treatment, or whatever, he will find some expert who agrees with him” (119). Activist judicial decisions have spurred the creation of their own support structures. “The courts will not be allowed to withdraw from the broadened positions they have seized, or have been forced to move into,” Glazer observed, “because of the creation of new and powerful interests, chief among them the public advocacy law centers. It can hardly be an accident that the failure of the expected conservative cycle to succeed the activist cycle of 1954–1968 occurred at the same time that many new centers were established for the promotion of social change through litigation,” he noted (119). 20 Such centers were founded during the 1960s in virtually every area of public policy. “Of course, this revolutionary change in the landscape of the practice of law itself reflected broader changes: a rising critical attitude toward government, a widespread belief among many sectors of the population in the unfairness and unjustness of government, the widespread legitimation among the youth and minorities of an adversary posture and denunciatory rhetoric—which all complemented nicely the standard practices of litigation” (120). The result of all this is that “Law . . . became enormously popular,” as is evidenced by the radical expansion Glazer witnessed in the number of law students and lawyers. As a cause and concomitant, a “guardian ethic” has developed amongst judges (quoting Ward Elliot’s study of reapportionment decisions).21

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In the end, Glazer noted, “It is not easy to disentangle the complex web of elements that has created the powerful and permanent interests engaged in constitutional litigation to expand the scope and power of government; that these interests have been created, and have replaced those powerful business interest of the 1930s and 1940s that engaged in constitutional litigation to restrict the power of government, is not to be denied.” (120). In many of these cases that came before the Court, the role of the interests had extended so far that it was not even clear that a real plaintiff existed in the case. Real interests implicated by the cases did exist, of course. But philanthropic foundations, in effect, had either created or subsidized these ostensibly legal grievances. “Moral fervor and outrage, properly aroused by great inequalities in American life—in particular the legal and extra-legal subordination of Negroes— were transferred in the course of the 1960s to practices that most citizens did not think iniquitous or outrageous or improper at all” (121). Of course, people will disagree where iniquity ends and when moral outrage is unjustified. Some will be satisfied when the right to vote is guaranteed, others only when literacy laws are suspended, electoral literature is translated into any language a voter may know, and voters form a perfect statistical cross section, by race and ethnicity and age, of the population. Some will be satisfied when discrimination is outlawed, others only when quotas by ethnicity and sex are set for every job. Some will be satisfied when prisoners and mental patients are not abused, others only when the procedures that they think will lead to rehabilitation or cure are imposed by the courts. The law, generally made by judges but with the assistance also of legislatures and administrators, has moved insensibly from the first of each of these alternatives, which is as far as anyone wanted to go 10 years ago, to the second (121). Glazer concludes his article critically: “We may debate whether we have a better society or commonwealth or a worse one as a result. I believe we have a considerably worse one, because a free people feels itself increasingly under the arbitrary rule of unreachable authorities, and that cannot be good for the future of the state.” Citing the moral beacon of Brown, he warned that “even heroes may overreach themselves. It is now time for the Court to act with the prudence that it must in a free society be the more regular accompaniment of its actions” (123). In a subsequent article on the courts, Glazer asked “What role should the judiciary play in overseeing, correcting, setting standards for, and directly administering social services?” 22 The question must be raised, because, in recent years, (as he pointed out for the first time in “Towards an Imperial Judiciary”) judges have played an ever larger part in administering schools, mental hospitals, prisons, and other institutions” (64).

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In this second article, Glazer limned the nature of the newly extensive judicial involvement in the nitty-gritty of administration, observing that many court decisions of major impact—for example, those involving prayer in schools, abortion, capital punishment, and the admissibility of testimony—did not involve judges in the details of administration in the way these new types of lawsuits did (64). The model for this new departure was the school desegregation lawsuit, which called for “a very different kind of judicial intervention”— from “the rights-pronouncing decree” to “the administrative-intervention decree” (65). Citing Donald Horowitz’s The Courts and Social Policy, a book that became a touchstone (along with “Towards an Imperial Judiciary”) for many neoconservatives thinking about law, the Constitution, and the courts, Glazer noted that “From the point of view of a constitutional lawyer—or a judge—this distinction may be hard to make, for the judge is simply proceeding along the chain of decisions required to vindicate a right. From the perspective of the administrator, or the executive, or the legislator, however, and from the point of view of the analyst of social policy, something quite new and radically different is taking place” (66). This latter perspective defined the preferred vantage point for the neoconservative analyst considering the place of law and courts in the broader policy and political landscape. Legalists looking at the question, Glazer insisted, have sight-lines that are too limited. “This kind of concern has, on the whole, received less attention than some other kinds of questions—for example, regarding the legitimacy and constitutional basis of this expansion of judicial power—because up to now it has been lawyers rather than policy analysts who have dealt with the topic. This is understandable, since lawyers have long been used to dealing with the courts as a central institution, while policy analysts have not be so accustomed” (67). “Down at the working level of social policy,” however, “the judicial order is fitted into the body of regulations and guidelines, just as legislation and executive orders are, and merges into the general system of rules under which an agency operates. To the working official, it may not be easy or useful to separate the components of the system or rules under which he operates into legislation, executive orders, and court orders” (67). The way that law and courts work in society, however, cannot be understood or appreciated unless one is willing to assume the position of the working official, operating at social policy’s working level. Today, “judicial decisions, remedies, and interventions are beginning to shape the entire structure of social policy. They are determining which of the factions disputing policies and their implementation are to be strengthened, and which weakened. They are determining which professional groups active in social policy are to be favored, and which neglected. They are significantly determining how resources

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within any given branch of social policy are to be distributed, and how they are to be distributed among the several branches of social policy” (67) Yet, oddly, “questions about the larger impact of a decision rarely come up in court. The judge is constrained to see or to assert continuity in the protection of constitutional rights, for he operates under the same unchanging provisions of the same constitution. He sees himself as responding to plaintiffs whose rights have been unrecognized, as simply perfecting the system of rights. This pleasing illusion permits him to ignore the impact of his decisions and interventions upon the structure of policy. If we were to tell a judge that his decision means that one of the various professions involved in social policy should have greater power than another, he would undoubtedly deny that this was his intention, and perhaps assert that such a result is irrelevant when it comes to determining whether there has been a violation of rights and how it should be remedied. But it is not irrelevant to the policy analyst” (67). Judges have a marked predisposition towards legalism and moralism that blinds them to the implications of this type of ruling. In considering the forces behind these new assertions of judicial power, Glazer drew a clear distinction between the moral and political realms of politics (69). It is morally wrong to violate rights and mistreat inmates. “The fact that the state did not know how to rehabilitate prisoners, or cure the mentally ill, or run a good housing project, or ensure that parents receiving money for the care of children raised them properly,” however, “became associated, in the minds of judges, with resistance” (69)—an association that did not follow logically, given the nature of the policy landscape in which they were operating. Judges—aided and abetted by the legal profession and legal academics—did not appreciate this. And the consequences for the successful implementation of social policy, Glazer concluded, would be baleful.

Daniel Patrick Moynihan’s Social Science and the Courts One of the great themes of neoconservative writing on the law, the Constitution, and the Courts in PI was the ways in which misuses of social science would—in a modern legal system—tend to infect judicial attempts to resolve vexed legal and constitutional questions. In “Towards an Imperial Judiciary?” Nathan Glazer had observed that “One murky realm opened up by [the] new complexity [imported into law by the new public law litigation] is the use of social science data—or perhaps some might say its misuse—as one side or another believes the research findings of the moment support its position”

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(116). The tendency would naturally be towards variability: “Since the pattern of development in the social sciences is such that a set of findings is not established for long, social science may “require” new laws when the findings which support old laws are overturned” (116–117). A significant amount of space in PI in the period under study was devoted to reporting and reflecting upon contemporary social science research and upon assessing the implications for that research addressing a broad array of contemporary policy problems. The classic PI article devoted sustained attention to questions of research design such as correlation and causation. But, in doing so, it took a characteristically broad, and deep, perspective on these matters, looking not simply to the internal logic of the social scientific study itself, but also to the ways that the ideology and professional sociology of social science as a social practice may have affected—and, indeed, contaminated—the research. Unlike many conservative critics of this new social scientific research (and, for that matter, contemporary analysts who are popularly known as “neoconservatives”), the earlier group of neoconservatives writing for PI were modernists, and champions of social science. But they insisted that social scientific research be approached responsibly, with a critical eye, and used thoughtfully and intelligently when it was directed towards the formulation and assessment of real world public policy. One of the main pitfalls of the use of social science in making policy was that many policymakers took an idolatrous and worshipful attitude toward social science. They had tipped towards a kind of ideology of scientism. This inclined them to be systematically too trustful of the latest pronouncements by researchers. Such pronouncements, of course, were flowing in cascades in the Great Society’s golden age of policy and the heyday of the modern (federally-funded, post-War) research university. This climate would inevitably have consequences for the courts that, at least since the time of the sociological jurisprudence and legal realism in the early twentieth century, had their eyes fixed as much on developments in social science as in law. The classic diagnosis of the problem was set out by Daniel Patrick Moynihan, in his PI article “Social Science and the Courts.” Moynihan warned that “If it is quite clear that the courts employ social science with considerable deftness on some occasions, then it must be allowed that on other occasions the courts have got themselves into difficult situations by being too casual, even trusting, about the ‘truths presented to them by way of research on individual and group behavior’” (15). He noted that observers with a wider purview than that of judges would appreciate that most of the social scientific work cited in judicial opinions has been sharply challenged in other social scientific studies.

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What is the nature of social science, and what are the implications of that for its possible uses by judges? Law and social science, Moynihan argued, were aimed at very different objectives: [S]ocial science is basically concerned to predict future events, whereas the purpose of the law is to order them . . . . [W]here social science seeks to establish a fixity of relationships such that the consequences of behavior can be know in advance —or, rather, narrowed to a manageable range of possibilities—law seeks to dictate future performance on the basis of past agreements. It is the business of law, as it were, to order alimony payments; it is the business of social science to try to estimate the likelihood of their being paid, or their effect on work behavior and remarriage in male and female parties, or similar probabilities” (16) . . . . [As such], “[t]he primary social function of the courts is to preserve the social peace embodied in such past settlements, and to do this by establishing a competent, disinterested forum to which parties in dispute can come, ask, and be told what it was we agreed to (16).

This, of course, is a backwards looking, functionally conservative, conception of the judicial role. On this point, though—and unlike many later conservative originalists—Moynihan, though sober, is not doctrinaire. Moynihan recognized that “It is a living past, and clearly enough it changes, but only the courts can make these changes” (16). He acknowledged that “[W]hat the court decrees to be the past . . . has the consequence of being the past” (17). But he warned, nevertheless, that “when the courts get into the business of predicting the future by the use of various social-science techniques for doing this, then others, who need not be lawyers even, much less judges, can readily dispute them, and events will tell who is right and who is wrong” (17). From this vantage point, the judiciary’s turn to social science as part of its turn towards a “living constitutionalism” opens the court to the possible countercharge not simply that it is being unfaithful, and not appropriately backward-looking, but that, in its attempt to set policy for the future, it is not adequately weighing the ostensibly relevant social scientific evidence. Social science purports to be predictive, Moynihan explained. But there are many notable weaknesses in predicative capacities of modern social science. “What is thought to be settled in one decade is as often as not unsettled in the very next” (17). Indeed, social science can be quite trendy, and subject to all sorts of enthusiasms that alter sharply over time, he argued, citing as a case in point the shifting fashions for the institutionalization versus the reintegration into communities of those with behavioral disorders. “[I]t is a melancholy fact,” Moynihan lamented, “that, recurrently, even the most rigorous efforts in social science come up with devastatingly imprecise stuff.” (18). “The explanatory powers of the various disciplines is limited. Few serious permanen-

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cies are ever established.” (20). Unfortunately, “[t]o the degree that it strives for the rigor of the physical sciences, its characteristic product is the null hypothesis, i.e. the discovery that two social phenomenon are not causally related.” (20). Social science is also political. “[S]ocial science is rarely dispassionate,” Moynihan insisted, “and social scientists are frequently caught up in the politics which their work necessarily involves” (19). He elaborated: The social scientists are, and have always been, much involved with problemsolving and, while there is often much effort to disguise this, the assertion that a ‘problem’ exists is usually a political statement that implies a proposition as to who should do what for (or to) whom . . . . Social scientists are never more revealing of themselves than when challenging the objectivity of one another’s work. In some fields, almost any study is assumed to have a more-or-less discoverable political purpose (19).23

This, Moynihan notes, is tied to the forward-looking orientation of the social sciences: “It has to do, one suspects, with the orientation of the discipline toward the future: It attracts persons whose interests are in shaping the future rather than preserving the past” (19). Social science is, thus, inherently, progressive, rather than conservative: “The pronounced ‘liberal’ orientation of sociology, psychology, and similar fields is well established” (20). “The political orientation of the social sciences has been particularly evident (and, I believe, is the least objectionable) in the shifting fashions in research topics” (20). But we would do well to recognize that all of these fields are characterized by “a somewhat-too-ardent searching for evidence that will help sustain a hopedfor conclusion” (21). For this reason, their research findings need to be taken with a grain of salt, particularly if they are going to be drafted quickly into service as the springboard for new public policy. Moynihan was far from being in total flight from his profession as a social scientist. What he insisted upon was that we learn the real, deeper lessons of social scientific research, and not be distracted by ephemera. That lesson was that “while social scientists tend to be liberal, the tendencies of social-science findings must be judged conservative, in that they rarely point to possibilities of much more than incremental change” (20). The prospects for the sober use of social science right now, though, did not seem good. At the time he was writing, the ambitions of the social sciences seemed “truly imperial” (22). “As a result, there are fewer and fewer areas of social behavior for which traditional or ‘common-sense’ explanations will any longer suffice in serious argument” (22–23). This had implications for law and judging. For, now, “the range of what is material in lawsuits is now

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greatly expanded—or will be as the courts submit to the logic, or perhaps it may be better to speak of the spirit, of the social sciences” (23). Interestingly enough, the politics trumped the imperialism in significant cases—or, rather, the politics of fixing the problem to be solved often dictated when social scientific evidence would be introduced in an imperialistic way, and when the effort to gather relevant evidence would be sidestepped altogether. Moynihan insisted that in this atmosphere, social science evidence was just as likely to be missing at key moments of judicial decision making, as it was likely to be introduced. As a case in point, Moynihan considered a Harvard Law Review article by law professor Paul Freund supporting the Court’s strict separationist establishment clause decisions involving the public aid to religious institutions, and approving of the constitutionality of judicial distinctions drawn in such cases between public aid church-related institutions of higher learning, and of elementary and secondary schools. “And what does Professor Freund report?,” Moynihan recounts. “He reports that ‘institutions of higher learning present quite a different question, mainly because church support is less likely to involve indoctrination and conformity at that level of instruction.’ The argument grows tautological. What is Freund’s evidence? What studies? What survey data? None. No evidence of any kind. Freund is among the most distinguished legal scholars of the age. But it is not for anyone to describe the pedagogical practices of a group of colleges and universities without having inquired into the matter, preferably in accordance with reasonably well-established methodological rules” (29). Other PI articles took up general questions of the legal uses of social science in the context of specific policy areas, such as crime and desegregation. Martin Levin, for instance, analyzed the evidence for alternative hypotheses for the causes of, and indicators of the likelihood of, criminal recidivism.24 At the time he was writing, Levin said, most social scientific studies in the field were finding lower recidivism amongst probationers (as opposed to those sent to do time in prison). But Levin wondered whether this correlation was causal, as the studies had seemed to assume (98). Levin concluded his article with a general reflection on the uses of social science in this policy area, in a sub-section entitled “The limits of social science” (101). Noting that “ ‘[p]ure’ social science and ‘policy’ social science are different enterprises with different requirements . . . .” (101). “[W]hat are serious problems to the former need not be such serious problems to the latter” (101). He cautioned that “there is a crucial limitation on the kinds of conclusions that can be drawn from the social science findings I have summarized” (102). These limitations stem not from any flaws inherent in the social science itself, taken on its own terms, but rather from the way in which it is used to

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inform the making of public policy. The problem is that social science usually considers a problem in an articificially simplified policy environment, where the focus on a single dependent variable—here, criminal recidivism. But, Levin insisted: reducing recidivism is not the only goal of the criminal courts. We also expect courts to maintain order and stability in society, to maintain individual liberties, to satisfy a common notion of justice in the sense of equal and consistent treatment, to maintain an image of “fair” institutions, to maintain the declarative and condemnatory functions of the criminal law, and to perform their tasks in a way that is reasonably cost effective. Many of these goals are by no means fully consistent with the goal of reducing recidivism (102). [emphasis in original].

This fact of governance means, ultimately, that, while it can inform public policy, if used judiciously, it can rarely dictate a particular policy direction— though it is very commonly hawked as if it could. Ultimately, public policy judgments will rest in considered judgments about values: the tension among these goals cannot be resolved on utilitarian grounds; one reason is that the punishment of criminals is, in part, a symbolic activity that expresses our ultimate values. Social science cannot prescribe these values for us. What it does seem able to do—for better or worse—is to reveal to us the practical incompatibilities between the many values we accept (103).

Levin ended with a quintessentially neoconservative flourish, concluding “This is a thankless task—but not, perhaps, entirely useless” (103).25 In 1976, PI published the research findings of sociologist Eleanor Wolff on the “quality and comprehensiveness” of the social science evidence used in a recent, and prominent, school desegregation case in Detroit.26 The goal of this Ford Foundation sponsored research was “to learn whether there were crucial omissions of evidence that otherwise might have supported, contradicted, or modified the testimony that was introduced” in court (102–103). Wolff’s objective was “to discover how the court dealt with the considerable and sometimes conflicting array of demographic data presented and to evaluate the extent to which the judicial decisions, at various levels, accurately reflected the weight of the social-science evidence that had been offered” (102–103). The hope was that this research would “indicate some possible avenues for improvement” (103). As such, Wolff’s study was a classic neoconservative foray into the on-the-ground effects, and methods of, the legalization of public policy—in this case with a focus on the evidentiary uses in court of social scientific evidence. In her article, Wolff delineated the degree to which the idiosyncracies of the adversary method, particularly as that method was adapted to serve the purpose

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of policy-directed public law litigation, shaped the contents of the evidentiary record that came before the judge. She observes the degree to which public relations imperatives seems to have structured the testimony of the school board staff in the case, as did fact of their close ties to litigants (NAACP). That testimony, she observed, displayed a troubling lack of candor. It was also riddled with “(ill-defined) concepts and assumptions from the social sciences.” Wolff found that many of the social scientific assertions advanced over the course of the trial were made without supporting evidence. When expert testimony by social scientists was offered in the case, it was marred by a “failure of the experts to convey to the judge the basic logic of scientific inquiry” (112). The procedural posture of the case had a definitive effect on the nature of the social science entered into evidence. In the Detroit schools case, the defendants took the position that testimony about housing segregation was irrelevant to the charge that the schools were segregated de jure. This meant, in effect, that all witnesses in the case testifying about housing segregation were selected by one side—the plaintiffs. The implications of this procedural quirk had implications that were profound at both the trial and remedial stage of the case (104). It meant that the court’s review of available social scientific evidence on the problem was artificially constricted. “[T]here was no testimony that reflected the studies of scholars who attribute greater importance to the economic ability of blacks or who stress the significance of the social class distribution of blacks in accounting for the residential preferences of whites” (104). It also meant that witnesses offering social scientific evidence came from one corner of the profession—“from social action agencies rather than the academic disciplines” (104). In the end, Wolff concluded, “the expert testimony about education was characterized by a number of serious omissions. There were no references to the differences in educational achievement between ethnic groups at similar income levels” (106). “[T]here was no serious challenge to the exaggerated claims, made by expert witnesses on both sides, of the power of racial and social-class mixture of classmates to improve the educational performance of low-achieving students” (107). “The general import of the testimony on education was such as to persuade a reasonable man without research training or academic background that the proper kind of race-class mix in the classroom would heighten aspirations, improve motivation, raise self-esteems, and improve the academic performance of lowachieving black children” (107). The problem, for Wolff, was not with social science per se, or even with, at an abstract level, its introduction in court. It was that the potential insights of that research, when considered more fully, had been effectively ruined in the course of their transition into admissible evidence in this type of institution confronting this type of case.

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“Many pages of the transcript in the Detroit case,” the sociologist lamented, “read like a one-student-seminar session. The expert-witness/teacher instructs and explains; the judge/student asks a question, and verifies his understanding by a comment or example; the teacher then assesses and indicates (much too timidly) the accuracy of his pupil’s understanding” (114). There was an “absence of direct confrontation between experts who offer contradictory evidence, especially concerning the nature of the factual material; [there was] extreme deference shown to the court’s remarks, which allows halftruths to stand uncorrected . . . . ” (104). All this shows “the extent to which the adversary system controls the production of evidence” (114). “The court is a poor classroom,” Wolff explained. “It is the only place where we can decide if a man is guilty of murder, but it is not a good place to study the causes of homicide. The source of some of these problems is in the very nature of the adversary system, and this raises the question whether matters of educational policy are appropriately handled by judicial proceedings” (114). Quoting the Harvard sociologist Barrington Moore, she noted that “If a defense lawyer is suddenly surprised by a piece of evidence as an argument turned up by the prosecution, he is never supposed to say: ‘My, I had never thought of that! It’s a good point and my client must be guilty.’ On the other hand, that is exactly what an intellectually honest scholar is supposed to do under the circumstances” (114). What were the policy implications of these conclusions? “In the future new knowledge may support, question, or reverse earlier findings. Social-science testimony performs a useful and necessary function when . . . such material reveals erroneous assumptions and conclusions by ‘disclosing the inadequacies or insufficiencies in method, looseness in reasoning, or paucity of evidence relied upon to construct the causal model upon which a policy rests’ ” (113). “The removal of these insubstantial foundations,” Wolff concludes, arriving at a position many other types of conservatives hold—but via a radically different intellectual path—“should compel greater judicial reliance upon clear constitutional principles” (113).

Morals and Constitutional Law Neoconservatives repeatedly explored the moral dimensions of public policy. They did so, however, in a manner, and via an intellectual route, that was quite distinctive from that of devoutly religious Christian conservatives. Neoconservatives did not emphasize duty to the dictates of moral laws, but rather the baneful, empirically demonstrable effects of a seemingly endless deconstruction of

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the authority of civil society’s traditional governing institutions, including the family, and religion. Neoconservatives were typically Dewey-esqe in the way that they talked about traditional institutions, patterns of behavior, and morals: values and morals were important because they “worked.” To be sure, as described in this way, the dichotomy can be artificial: many traditionalist conservatives, after all, found it highly significant as well that traditional morals “worked.” But their inclination to wax incantatory about why they worked—that they embodied a set of bedrock transcendent truths, which led ineluctably to a set of highly specific conclusions about right-thinking public policy—distinguished their work on policy issues from those of the neoconservatives. The traditionalists moved quickly from timeless truth to necessary rule. For the neoconservatives, by contrast, the issue was typically more complicated. Neoconservatives were open to change and modernization in light of new conditions and understandings, provided they were undertaken sensibly. They insisted that modernization and change be undertaken with a due recognition of the individual and social virtues that traditional morals had worked to advance. One of the major reasons many moved from liberalism to neoconservatism was their growing conviction that, in their turn leftward in the 1960s and 1970s, their fellow liberals had all but dispensed with this recognition in favor of a socially destructive liberationism and romanticism. The consequences—for crime, for public order, for marriage, for children, for minorities, for the poor, for education, and for the economy—would not be pretty. In the winter of 1971, PI devoted a significant amount of space to a symposium on one of the most importunate public policy and (and constitutional) questions of the 1970s: the regulation of pornography. In doing so, the journal presented a spectrum of opinion, along with an array of different approaches to the question.27 The issue left neoconservatives—after all, not “real” conservatives at all, but modern liberals—conflicted. Writing in the pages of PI, the eminent constitutional scholar Alexander Bickel was himself conflicted. For him, the question of the “tone of society” was a real one, and not to be scoffed at (25). But Bickel noted that “to identify the problem of obscenity truly is to expose its intractability” (25). “[T]o lapse into total permissiveness about obscenity, to equate it with smoking and drinking [!] and the miniskirt, is not the sole option left to us” (25). To fully legalize it, as he quietly suggests society might do for marijuana, would probably not be a good idea (27). The courts have not been thinking consistently about these questions. “[T]he same Supreme Court which during the past decade has decreed virtually unlimited permissiveness with regard to obscenity has not construed the Constitution so as to forbid the placing of legal restraints on architectural designs, for example, or on indecencies of public behavior, and is not likely to do

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so. Nor is the Court very likely to tell us that fostering heterosexual marriage while not countenancing homosexual unions—which is what the legal order does, of course—is unconstitutional” (26). Bickel noted that “Law which attempts to come to grips with the problem of obscenity . . . is a different kind of instrument, running greater risks and expectations to attain a rather more remote approximation of its ends, than the law which forbids murder and theft, or defines the rights and obligations of a property-owner, or governs the relations between General Motors and the United Automobile Workers of America” (27). “It must avoid tyrannical enforcement of supposed majority tastes, while providing visible support for the diffuse private endeavors of an overwhelming majority of people to sustain the style and quality of life minimally congenial to them” (27). He ultimately decided that the best way to approach the problem was to afford a fair amount of leeway to state and local governments to regulate in this area. Doubtless, if we do so, a certain amount of idiotic censorship will occur (some schools may ban Chaucer). But that is the price one must pay in a self-governing society such as ours (28). When PI took up the question of abortion in these years—and what have become known as “the culture wars”—it did so chiefly (and characteristically) through the prism, not of constitutional interpretation, but of social science. Surveying the contemporaneous polling data on abortion rights, political scientist Peter Skerry predicted that the Supreme Court’s recent ruling on abortion in Roe v. Wade would spark the ascendancy of a vigorous pro-life movement likely in the years to come to re-shape party alignments and American politics more generally.28 Skerry was critical of the inclination of many “to dismiss anti-abortion sentiment as nothing but the view of few well-financed zealots” (69). It would be “a serious mistake to underestimate the strength of the anti-abortion movement,” Skerry warned (69). “Abortion on demand [as embodied in a string of Supreme Court opinions in the preceding years] stands in stark contrast to prevailing public attitudes” (70). Yet “[a]nother common mistake is to identify the Catholic Church as the instigator of opposition to abortion reform” (69). Skerry’s reading of the data showed only a slight difference between Catholics and Protestants in their views towards abortion (74). “[T]he preoccupation with the religious aspect of anti-abortion sentiment,” he noted, predicting the “culture wars” of the 1980s and 1990s, and the rise of Reagan Republicanism: has diverted attention from cleavages along social-class lines. There is much evidence to suggest that abortion is part of a network of cultural issues—including gay rights, pornography, and sex education—that threatens to divide further the traditionally Democratic working and lower-middle classes from the reform

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wing of the party and perhaps from the mainstream of American politics. Abortion is part of a larger cultural conflict between certain strata of the upper-middle class—the highly educated professionals, scientists, and intellectuals—and the mass of Americans who comprise the working and lower-middle classes. In its rhetoric, abortion reform has reflected the upper-middle-class bias of the women’s movement from which it emerged (70).

Skerry goes on to critique a series of social scientific studies that purport to show support for Roe, providing an abundance of evidence that these studies misinterpreted and overextended the data at hand (72). That evidence, Skerry concluded, supported the finding only that “a majority of Americans approves of abortion under specific circumstances . . . [when] a woman’s health is endangered, or the pregnancy results from rape, or there is a possibility of a deformed baby” (72). Like Daniel Patrick Moynihan, Skerry took painstaking care to demonstrate the political and class biases buried in the research design of the ostensibly neutral social science that liberal policymakers were using to inform their political and policy conclusions. He noted, for instance, the biases inherent in questions that social science surveys asked. Key surveys on attitudes towards abortion at the time, for instance, assumed that a hypothetical couple contemplating abortion was married, and that they were not in conflict over the decision. The surveys, in other words, asked questions that were skewed to the ideal case, systematically biasing the approval numbers upwards. Contemporary conservative traditionalism has a strong populist strain, reflected in its persistent harangues against out-of-touch, urban, liberal elites. Neoconservatives often made similar points, but in a characteristically dispassionate, and data-driven way. Skerry observed, with sociological detachment, “the sharply divergent attitudes among social classes towards the family,” and posited that the new departures in abortion policy reflected this (76). “[W]hat underlies recent critiques of the family,” he wrote: is the assumption that its few remaining functions should be assumed, as much as possible, by less “antiquated” institutions. This notion reflects the ideology of professionals, who tend to exaggerate the deficiencies of institutions to which they administer expert advice, or the bias of highly mobile and achievement-oriented individuals, who view the family as an obstacle to their own development and advancement. In any event, the increasing disaffection with the family among the upper-middle class contrasts sharply with developments among the working and lower-middle classes (76).

Skerry—a Harvard-trained political scientist (where he studied with Nathan Glazer, Edward Banfield, and James Q. Wilson)—thought it appro-

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priate, in considering the likely politics of abortion rights, to take due account of “the intense family life of the working class” (76), and to distinguish the “careers” upper middle class professionals (like himself) from the mere “jobs” of the working class (78). This sociology of work and family would have serious implications for the politics of abortion rights. Skerry concluded that “many working-class couples are participants in an unconscious drama of using pregnancy as an excuse to get married” (80). “[T]he failure to address the issue of consent by spouses or parents suggested to many that the Supreme Court was sanctioning the anti-family bias of the reform movement” (81). Moreover, “the Court clearly views [parental consent situations] as fundamentally involving a conflict among the rights of individuals, quite apart from their rights and obligations as family members. Yet such an atomistic view of society conflicts with the way most people see the world” (81). In the end, “the doctrine of individual rights elaborated by the Court is more akin to the ethos of upper-middle-class professionals, scientists, and intellectuals. The emphasis is less on family stability and integrity than on individual achievement” (82). Despite the social science he adduces, the abortion issue is, for Skerry, fundamentally about values—not about who has them, and who doesn’t (as conservative traditionalists would have it), but about the social class biases that lead policymakers—typically unwittingly—to give preference to certain values over others. Skerry adopted a sociological take on that matter as well: Daniel Bell has written that the prototypical conflict of post-industrial society is between the professional and the populace—between the increasing power of the new knowledge class and the rights of the layman and citizen. The controversy over abortion may be viewed in this light as a debate, largely between these groups, over the definition of abortion. Is abortion an abstruse technical-medical procedure that only doctors and medical scientists can understand and make decisions about? Or is it something that everyone can understand but that raises questions of morality, of values? The Supreme court has clearly chosen the former definition (82).

Along these lines, “One of the more interesting aspects of its various abortion decisions is the explicit deference to professional and scientific expertise” (82). A major flaw in the Court’s decision was that it “resorted to a naïve view of science as capable of not only transcending, but deciding moral and ethical dilemmas” (83). “A corollary to the Court’s reliance on the authority of science,” he observed, “is the authority it grants to the professional expertise of the individual physician in the decision to abort” (83).

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The members of the knowledge class (and the rest of the upper-middle-class to which they belong) are thereby really not any better equipped to deal with the matter of abortion than are the members of any other group. Indeed, when they argue for abortion, what they are doing is no different from what those opposed to abortion are doing. They are defending a set of values grown out of their common life experiences, opportunities, and beliefs—defending, in short, a moral decision about the symbolic meaning that abortion has for their particular culture. (84).

Interpretive Methods/Theories Prior to 1980, relatively little space was devoted in PI to questions of the proper way to interpret the constitutional text. The neoconservatives were concerned primarily with questions of policy implementation, and not with interpretive theory. Fidelity ranked relatively low on their list of important constitutional values (though, as we have seen above, Moynihan did discuss the duty of fidelity as inherent in the nature of law). That said, even during these earlier years, some significant articles were published in PI that were supportive of the constitutional understandings of the Framers, of the commitment to natural law under-girding those understandings, and of the Constitution’s original meaning. The support for “original meanings” advanced in these articles was sometimes oblique, and manifested both affinities for, and differences from, later forms of constitutional originalism. Daniel Patrick Moynihan—not someone high on most lists of prominent proponents of natural law—defended it in the pages of PI as part of the process of discussing the limitations of the understanding of law as a science propounded by the early twentieth century “progressive realists.”29 In his article on social science and the courts, Moynihan “wonder[ed] at the legal realists’ seeming perception of ‘natural law’ as pre-scientific” (13). As Moynihan understood, it, the idea of natural law was perfectly consistent with science— as, he noted, anyone who had studied the American founding would recognize. It was only through some commitment to natural law, Moynihan insisted, that Americans could arrive at a bedrock commitment to liberty. In the article, Moynihan praised Martin Diamond—a contributor of several articles on the Constitution to PI (about which more below) for reminding us that “the framers’ respect for human rights, which constituted liberty as they understood it, was not an idiosyncratic ‘value’ of a remote culture. Rather, liberty was seen as the primary political good, of whose goodness any intelligent man would convince himself if he knew enough history, philosophy, and science” (13) [emphasis in original]. He was writing, that is, against the idea that science, morals, and religion—and America’s commitments to foundational freedoms—are antagonists.

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Moynihan was no fire-and-brimstone originalist: the label “pragmatic originalist” would probably be a better fit. For him, determining the implications of the original meaning of the constitutional text to contemporary problems and questions was no easy task. After all, “Here was a common enough situation for the courts. They were asked to determine what it is the Constitution decrees with respect to matters that clearly were remote from the thoughts of those who drafted the document, including its various amendments . . . . Hence judges have had to interpret as best they could” (24). That said, an interpretive nihilism, through which difficulty was transmogrified into impossibility, and, from there, into dismissal, could unmoor judges in dangerous ways, cutting them off from important—and relevant— constitutional meanings and commitments. Put otherwise, careless or insouciant judges could get their history woefully wrong, to serious effect. A case in point was the Court’s recent establishment clause jurisprudence, and its developing commitment to what became known as “strict separationism.” In his discussion of the Court’s interpretations of the Establishment Clause, Moynihan cites (and agrees with) Walter Berns, Michael Malbin, Antonin Scalia, and Philip Kurland, who argued that the Supreme Court’s interpretation of the Establishment Clause had been “non-historical” (24). But he advances this critique in classically neoconservative form, not by insisting that the judge’s chief duty is fidelity, but rather by undertaking a historicist account—a genealogy—of the liberal understandings that fed into the Court’s formulation of its strict separationist standards. “[T]he establishment clause had been held to prevent legislatures from providing various forms of assistance to church-related schools, albeit that the establishment clause had the plain and unambiguous meaning—reflecting the Founders’ intention—that Congress will not establish a national religion,” Moynihan wrote, fixing the original understanding (25). But he added that, in time, “It will come to be seen that the Court’s rulings on aid to private schools merely reflected a particular religious point of view—i.e., that there is no public interest in the promotion of religion—which reached its peak of intellectual respectability in the 1920s and 1930s, the period in which most of the judges who made the decisions were educated”.30 The result has been clear: “The establishmentclause decisions are an intellectual scandal. Without intending to do so, the courts in the school-aid cases have been imposing on the country their own religious views” (25). Echoing the kind of argument made by Peter Skerry in his article on abortion, although with a constitutional history twist, Moynihan analogizes his diagnosis to Justice Oliver Wendell Holmes’s famed diagnosis of the Supreme Court’s 1905 decision in Lochner v. New York—that is, as a clear case of the Court’s reading its own social theory into law (24–25).

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Evincing the paradigmatic non-perfectionism of the neoconservatives, he concluded by writing that “[I]n the end, law is after all only long established precedent, codified opinion. When Pound and Cardozo and Holmes began talking of the ‘science of law,’ perhaps they, too, were mostly trying to impose a different set of opinions from those then prevailing. But at least they were doing so in an effort to get the bench back to the business of interpreting opinion as embodied in legislation, rather than as embodied in the education and social-class preference of a particular body of judges.” (31). He closes with quote from Robert Bolt, in A Man for All Seasons, projecting the voice of Sir Thomas More: “The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal . . . I’m not God” (31). Moynihan put the problem of interpretation at the center of his 1979 article “What Do You Do When the Supreme Court is Wrong?”31 There, he explicitly took up the problem of “judicial supremacy”—or the claim that the Supreme Court’s interpretation of constitutional questions is both final and (by virtue of its position in our constitutional system) right (the article’s target, again, is the Supreme Court’s Establishment Clause decisions). Moynihan first considered what the views expressed in the Federalist Papers might contribute to possible answers to this question, but comes up short. “[I]f the Court were wrong, what—short of impeaching its members—would be the remedy? The Federalist does not say,” he laments (6). Nevertheless, there is considerable practical experience in the American constitutional tradition to guide us on the matter. He considers the response to the Court’s Lochner era jurisprudence instructive. “As a beginning contribution I would offer a simple hierarchy of response which in one or another combination has commonly led the Court to change its position in those instances in which it has been wrong. In ascending order: Debate, Litigate, Legislate” (8). First, re-debate. Here, it is imperative, he insisted, for those who think the Court is wrong to say so (here, as precedent, Moynihan cited Lincoln’s response to Dred Scott). Second, re-litigate. Here, Moynihan cited as a model the NAACP’s sustained project to overturn the Supreme Court’s 1896 segregation ruling in Plessy v. Ferguson, and suggested ways those sympathetic to overturning the Court’s misinterpretation of Establishment Clause might move step by step as part of litigation campaign (21–22). And, third, legislate. In both of these articles, Moynihan writes as a clear partisan, not of original intent, but original meaning: “The question is not what Madison or Jefferson may have thought; the question is what the Congress did” (17). On the Establishment Clause question he concluded that “The constitutional facts are obvious enough. The state, at any level, is allowed to cooperate with religious groups in a non-discriminatory manner in the furtherance of acceptable secular purposes” (18).

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As noted above, some of the most prominent appeals to the principles of the American Founders in the pages of PI were penned by the Straussian political philosopher Martin Diamond.32 Indeed, one of the earliest numbers of PI opened with the declaration that: “The Constitution of 1787 is still the fundamental document of the American polity, it is still the source of its basic institutions and principles, and the Constitution and its law persistently affect the style and substance of American politics. “Both Conservatives and Liberals, who stand at the two poles of contemporary American politics, are obliged to come to terms with the Constitution. How each understands it reveals certain peculiarities of contemporary Conservatism and Liberalism.”33 His task in the article is to critique the ways that both liberals and conservatives have understood the Constitution, and to suggest ways to re-orient both of those (mistaken) understandings in a way that would do justice to Founders’ vision. In doing so, Diamond gave “primary attention to the Liberal view, suggesting the Conservative view by way of contrast” (96). “The Liberal view,” he explained, “deserves the greater attention because it has, for some time, been by far the dominant view in the academy; it is closely linked to basic currents in academic, political and social science generally; and it has, on the whole, received far more extensive scholarly formulation than the Conservative view” (96). At the time that Diamond was writing, and unlike today, a commitment to originalism was as much a liberal as a conservative commitment. “For all their difference,” he wrote, “Liberals and Conservatives tend surprisingly to agree on the original intention of the Constitution and on the nature of the original institutions it established. Indeed, the more liberal or conservative the writer, the likelier and fuller the agreement” (96). This commitment to originalism, however, did not mean that either was necessarily correct in the original meaning they had imputed to the Constitution. Diamond argued that the key division between Liberals and Conservatives derived from the divergent emphases they place on a crucial element of the Madisonian constitutional understanding—which both consider important. Here, the key passage is from the famous Federalist 51: “In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” [Diamond’s italics]. “Liberals and Conservatives,” Diamond observed, “separate the two elements which, in Madison, form a consistent whole” (97). “Of the two elements in Madison’s scheme, Liberals unqualifiedly prefer ‘dependence on the people’ and are suspicious of or hostile to the ‘precautions.’ On the other hand, Conservatives,” Diamond

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wrote in the age prior to the ascendancy of a more populist brand of conservative, “ambiguously accept the ‘dependence’ but they vastly esteem ‘auxiliary precautions.’ That is, Liberals are anxious for a certain kind of fulfillment of the popular will which is their understanding of ‘dependence upon the people,’ while Conservatives tend to conceive the Constitution primarily as a set of absolute restraints upon majority rule” (97). Diamond argued against both the Liberal and the Conservative approaches, arguing that both “fundamentally misconstrue the nature of the Constitution” (97). “[B]oth err in failing to recognize the truth of what Madison repeatedly claimed—the fundamental compatibility of the Constitution’s restraining devices with a system of majority rule” (97). He criticized “[t]he view of the Constitution as decisively undemocratic” as arising out of the work of the progressive historians like Parrington and Beard, who, he writes sympathetically, were “[u]nderstandably outraged by late-nineteenth century scholarship and statesmanship that tended to convert the Constitution into a fixed and immutable code enshrining liberty of contract” (98). There was little difference between the liberals holding this view, like James McGregor Burns, Henry Steele Commager, and Richard Hofstadter, Diamond opined, and those of conservatives holding the same, like Russell Kirk. Looking to the world of contemporaneous political science, Diamond noted further that it was a view shared by (pluralist) Robert Dahl and Charles Lindblom as well. The problem is that they were reading the document politically, and not as genuine constitutionalists. Liberals scorned the ostensible lack of democracy in the Constitution because the Constitution “frustrate[d] Liberal hopes” (106). “The Liberal complaint that majorities cannot act has no foundation; the real complaint is that majorities simply do not act as Liberals want them to act” (106–107). “What Liberals object to, and rightly from their point of view, is the character of the majorities that result from the constitutionally generated process of majority coalition” (107). Here, Diamond quoted James McGregor Burns as complaining that “To act, American leaders have had to gain the concurrence not simply of a majority of the voters, but of majorities of different sets of voters organized around leaders in mutually checking and foot-dragging sectors of government” (107). “This is what produces the ‘deadlock’ of which Burns complains,” Diamond observed (107). “In short, the problem is that coalition majorities do not want what Liberals want” (107). “The majorities generated by the constitutional system reject or insufficiently accept the substantive politics and goals of Liberalism. This is the Liberal’s deepest charge. And it is his most accurate charge” (108). Diamond observed that Liberals have turned to political parties as a way to make the necessary changes (108). Conservatives seem to agree with the Liberals on the centrality of parties to a workable constitutional order, although

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they disagree normatively with the Liberals. Conservatives hold, by contrast, that the parties and the underlying political processes have subverted the original constitutional order (108). “The Liberal aim is thus clear. In order to transform the human condition, which is his deepest aim the Liberal seeks to make the political order fully dependent upon a transformed people. To achieve this transformation, he seeks the right kind of constitutional institutions to produce the right kind of party to produce the right kind of majority” (109). “The Liberal dislikes the Constitution for what at bottom are correct reasons. The Conservative likes the Constitution for what at bottom are wrong reasons. In a sense the Liberal is the intelligent foe of the Constitution and the Conservative its foolish partisan. Given the dominance of either, the Constitution would perish” (109). Fortunately, however, Diamond concluded, “not everyone is either a Liberal or a Conservative, Gilbert and Sullivan to the contrary notwithstanding. In the vast majority of Americans the tendencies of Liberalism and Conservatism are hopelessly intermixed. This may be wretched from the point of view of clarity, but it is surely indispensable to the political health of the country” (109). Diamond’s most important constitutional cri de coeur, “The Declaration and the Constitution: Liberty, Democracy, and the Founders,” was published in PI’s bicentennial edition, bearing the title (borrowed from Bryce) The American Commonwealth.34 Opening with an account of a 1911 speech by Henry Cabot Lodge, Sr. lamenting the fading away of the once “universally held . . . conviction . . . by Americans of the original and continuing excellence of their Constitution,” Diamond’s purpose was to trace the sources of this decline (39). He found them in the sources he had identified in his earlier article in PI’s first number, in “Populist and Progressive Demands for the Democratization of the Constitution,” which entailed a sustained attack on nature of the original constitutional design as “the handiwork of a reactionary oligarchy” (40, 42). By the time Lodge was speaking, this progressive reading of American constitutional history—cemented by the work of Progressive historians and writers like Charles Beard, Vernon Parrington, and J. Allen Smith, and (later) liberal historians like Henry Steele Commager and Richard Hofstadter—had become “the conventional wisdom of those who give academic and intellectual opinion to the nation” (40, 42–45). “The spirit in which we celebrate the Bicentennial,” Diamond warned, “will . . . in considerable degree depend upon our understanding of the founding” (45). If we continue to view it as fundamentally flawed—that is, as characterized by an improperly resolved by question regarding the relationship of democracy and liberty—then we should unhesitatingly seize upon the Bicentennial as the occasion for new beginnings, as an opportunity to rally the nation toward a

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proper reconstituting of democracy. But if that view of the founding is false, in both history and political philosophy, then we ought, equally unhesitatingly, to make the Bicentennial the occasion for renewed appreciation of our fundamentalinstitutions and rededication to their perpetuation (45). “[F]or the founding generation,” Diamond insisted, “it was liberty that was the comprehensive good, the end against which political things had to be measured; and democracy was only a form of government which, like any other form of government, had to prove itself adequately instrumental to the securing of liberty” (47) [italicized in the original]. Diamond argued that the evidence for this reading was plain in The Federalist Papers, as well as in the opening paragraph of the Declaration of Independence itself, which “does not mean by ‘equal’ anything at all like the general human equality which so many now make their political standard,” but rather “equal political liberty” (48–49). As the progressives and liberals alleged, it was certainly true that “the Framers delivered themselves of very sharp criticism of the defects and dangers of democracy” (51). But these criticisms had to be understood in context. “[T]he American Founders, like all sensible men before them, regarded every form of government as problematic, in the sense of having a peculiar liability to corruption, and accepted the necessity to cope with the problematics peculiar to their own form of government,” he explained (51). [emphasis in original]. “Of course, the Founders criticized the defects and dangers of democracy and did not waste much breath on the defects and dangers of the other forms of government. For a very good reason. They were not founding any other kind of government; they were establishing a democratic form, and it was the dangers peculiar to it against which all their efforts had to be bent” (52). Beginning in the early twentieth century, progressives and then liberals again and again insisted upon “imprudent democratizing reforms” to the American constitutional order, many of which posed serious potential threats to American liberty. In the 1960s and 1970s, however, there was new threat to the constitutional order, Diamond observed in the article’s concluding paragraphs: “a vast inflation of the idea of equality, a conversion of the idea of equal political liberty into an ideology of equality” (55). This has amounted to “a critique of the entire regime in the name of a demand for equality in every aspect of human life. It is a demand which consists in a kind of absolutization of a single principle, the principle of equality, and at the same time absolutization of the democratic form of government understood as the vehicle for that complete equality” (55). “This,” Diamond insisted, throwing down the gauntlet, “is a different posture toward democracy . . . than that embodied in the American founding” (55). There are those who would “[deny] democratic credentials to the traditional American posture toward democracy and

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thereby [tilt] the scales in favor of egalitarian claims against the present constitutional order. The Bicentennial is a good occasion for the restoration of those credentials” (55). In advancing this argument, Diamond made a clear case for an originalist constitutional posture on grounds that resonated clearly with neoconservative policy analysis themes: the perils of ideology, the dangers of populist, egalitarian, and (more generally) utopian excesses, the key role of intellectual elites as conduits of ideological outlooks, and the imperative of recognizing that sound political institutions are commonly designed to serve diverse (and sometimes conflicting) goals in a complex political and policy environment. Diamond’s argument offered itself as a constitutional common ground upon which, in the years to come, neoconservatives and traditionalist conservatives could meet.35

Conclusion Since the 1980s, constitutional conservatism came to be defined by the adherence of political conservatives to a single theory of how the constitutional text should be interpreted—originalism. The neoconservatives writing about law and courts before the Reagan years, however, engaged in relatively little theorizing about the proper way to interpret the constitutional text. Given who they were, this is not, perhaps, surprising: neoconservatives, after all, were primarily scholars of public policy and administration. As such, their primary concerns were institutional. And their yardstick was not fidelity, but effectiveness. In this, they were modernists and liberals. The neoconservatives who wrote for The Public Interest were preoccupied with the same broad policy imperatives that liberals were—urban renewal, the alleviation of poverty, civil rights—imperatives with which they repeatedly expressed sympathy. In their own way, they were as much partisans of expert, modern administrative state as were liberals. They were supporters of the New Deal, and the modern social welfare state. The neoconservatives were not populists. They were typically highly-educated, urban, elite (and, often, Jewish) intellectuals who were self-conscious about their intellectualism, and their status as an intellectual and public policy elite. The neoconservatives accepted the core of the legal pragmatist and realist argument that the best interpretation of the Constitution is one that solves problems and “works.” Their primary challenge to liberal interpretations of the constitutional text, and to liberal judicial activism, was that the “living constitutionalism” that had been fashioned as liberals systematically failed to achieve the functional objectives that it has imagined itself to be serving. Put otherwise, constitutional liberalism had failed on its own terms.

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As befits a group of intellectuals focused on the question of what works, neoconservatives, in their heyday, did not have party line positions on any policy issues. Rather, they shared sensibilities. Put otherwise, they had preoccupations, rather than positions. They believed in experimentation in public policy. But they sensed strongly that many of the experiments of the Lyndon Johnson’s Great Society had been motivated less by grounded sense of what works, but rather by ideology. This encouraged an increasing imperviousness to evidence, and a growing obliviousness to matters of cause and effect. By background and training—and unlike traditional conservatives—the neoconservatives had been steeped in liberalism, and in the training and mindset of the elite modern policymaker, administrator, and intellectual. For whatever reason, the neoconservatives developed—and insisted upon—a heightened (and, indeed, sociological) self-consciousness about the policymaker, administrator, and intellectual as a social type. Where others saw a new, disinterested official, freed from the ideological dogmas of laissez-faire capitalism, and the yoke of the special interests, the neoconservatives saw an official laboring under the simplifications of new ideologies, and a new group of self-seeking special interests (often flying under the protective banner of “the public interest”). What others saw as an admirable public-spiritedness, the neoconservatives saw as a high-mindedness trending towards moral vanity and zealotry. In this regard, where the liberals prided themselves on their secularism, the neoconservatives spied a religion. And it was a religion that offered its preachers a decidedly comfortable living. Neoconservatives were perpetually peeling back veneer of liberal dogoodism. They went deeply into the details of policy administration to illuminate for their readers the pay-offs to liberal elites built into the administrative apparatus of policies designed ostensibly to advance the broader public interest, or to advance the supposed interests of historically oppressed groups. For neoconservatives, a consequences-be-damned moral vanity had hijacked the more sober liberalism of their formative years. They considered victories in principle to be worth very little, without concrete consequential success. They had reached the point where, they believed, liberalism, as practiced in the late 1960s and the 1970s, was worse than ineffective: it was actually making things worse—for students, for urbanites, for the poor, and for racial minorities. The neoconservatives writing in PI insisted that a corrective was to be found only in a non-ideological, non-idealist, non-perfectionist approach opposed to social engineering, and cognizant, given the very real complexity of the world, of the limits of public policy. The neoconservatives writing about law, the courts, and the Constitution in PI during the period in question insisted, distinctively, that legal and consti-

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tutional issues be considered only when situated in the broader policy landscape. They insisted, that is, that legal questions be analyzed within the concrete, complex, and multi-dimensional, institutional, ideational, and political environment in which they lived. To take a narrower focus than this—and taking a narrower focus was business-as-usual for the highly-specialized academics who typically opined about these matters—was to invite repeated misapprehensions and misjudgments about the likely real-world consequences of any new legal initiative. Policy objectives, after all, can only be achieved through the operation of real political institutions, staffed by administrators with particular types of training, class backgrounds and prejudices, and institutional incentives. To appreciate policy as it actually works, including matters of law and constitutional interpretation, we must approach law as it operates in context— through the medium of ideas, in institutions, via certain forms of proof, epistemologies, and traditions of intellectual inquiry. Only broadly educated intellectuals, who are most at home in moving across disciplines, can appreciate this context. For the neoconservatives, the question came first, over method, scholarly discipline, or rarified expertise. Expertise, of course, is essential. But when it comes to law and policy, it must know its place. Those seeking to shape public policy for the better must stand ready and willing to draw from whatever materials necessary to answer the question. Neoconservatives were plainly skeptics about judicial power. But they were skeptics not on the grounds of principle, or on the grounds of the democratic bona fides of the legislature (as opposed to an appointed, life-tenured federal judiciary). Given their preoccupation with the achievement of concrete objectives, their chief concern was with institutional competence. The neoconservatives tended to favor legislatures over courts not on majoritarian or populist grounds, but because their decisions would, over the long term, lead to more rational public policy.36 So far, my objective in this chapter has been to describe and delineate neoconservatism as if it were a fixed outlook. But, of course, neoconservatives changed their views over time in light of their re-thinkings and readings of new evidence, and new experiences. This study ends in 1980 in part because, at this point—the moment of conservatism’s triumph in the election of Ronald Reagan —it becomes harder to separate neoconservatism from conservatism more generally. Particularly in its earlier years, neoconservatives (and PI) were almost exclusively engaged, politically and intellectually, with other liberals. Conservatives, for many of them, were from another planet. Beginning around 1980, however, the engagements with other conservatives, while not by any means exclusive, became more sustained. This, naturally, affected the trajectory of neoconservative thinking. Whether neoconservatism

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still exists today as a distinctive strain of political thought remains an open question.37 Many neoconservative themes, both generally, and as applied to law, courts, and the Constitution, are apparent in contemporary conservatism. But they have been distorted, co-opted, or (more charitably) deepened, and developed. The focus on the biases of policy elites is still there, but it seems, within contemporary conservatism, to have a much more aggressively populist tinge. The focus on the self-interest of ostensibly public-spirited bureaucrats is, of course, a major theme of the (libertarian) public choice literature.38 But, in the heyday of neoconservatism, it was never taken down all the way towards libertarianism, or to the point of a profound skepticism about the possibility of disinterestedness held today by the strident adherents of contemporary public choice theory. Contemporary conservatism is profoundly skeptical of social science and its uses in the formulation of public policy—and particularly about its ability to serve as a substitute for moral judgment. But, under the aegis of Straussian political thought, this critique of positivistic social science has also been taken down much deeper, to the root, than most neoconservatives would have originally taken it (they were, after all, unlike the Straussian philosophers, card carrying social scientists). And one wonders the degree to which traditionalist (and Straussian) conservatives have emphasized the moral and religious foundations of a good society—a theme that, in their own way, neoconservatives repeatedly emphasized themselves—would be viewed by the old neoconservatives as amounting to a new dogma. As contemporary conservatism has become more ideological, more formulaic, and, indeed, more dogmatic, it has, it appears, moved further away from the spirit of the initial neoconservatism of the 1960s and 1970s. Straussian Martin Diamond’s constitutional originalism provided a well-travelled bridge between the original neoconservative outlook on law, courts and the Constitution and the thinking of traditional conservatives on the same issues. But, in time, this marriage within the coalition took on more of the attributes of the traditionalists and the philosophically-oriented Straussians, and less of the pre-1980s neoconservatives. Today, the focus is largely on truth, natural law, morality, the duty of fidelity, and the veneration of the American Founders—all of which many of the original neoconservatives probably would have signed onto from the beginning as important but, clearly—as seems hard to deny from the writings in PI surveyed above—in a spirit that is remarkably different from that of today’s committed “movement” conservatives. The reasons behind the dissolution of the distinctive neoconservative legal vision, and its merger into constitutional traditionalism, is one of the more interesting puzzles for students of contemporary conservatism, and for students of modern American political thought.

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Notes 1. My overview of the writings on law and courts from the other journal, Commentary, is the subject of a paper I delivered in the fall of 2006 at Legal History Colloquium at the University of Virginia Law School. On the similarities and differences between these two journals, see John Ehrman, “Commentary, The Public Interest, and the Problem of Jewish Conservatism,” American Jewish History 87: 159–181 (June/September 1999). 2. Irving Kristol and Daniel Bell, “What is the Public Interest?” The Public Interest (Fall 1965): 4. See Murray Friedman, The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy (New York: Cambridge University Press, 2005), 118; Mark Gerson, The Neoconservative Vision: From the Cold War to the Culture Wars (Lanham, MD: Madison Books, 1997), 94. 3. It is notable that the editor of the other leading neoconservative journal, Norman Podhoretz of Commentary, was, from the outset, skeptical of PIs ostensible conviction that the age of ideological politics was over, and that technical solutions would serve to solve the society’s most importunate problems. Given that, unlike PI, Commentary devoted significant space to foreign policy at the height of the Cold War—and during a dangerous time for Israel—Podhoretz’s perspective on these matters would understandably have been different. See Peter Steinfels, The Neoconservatives: The Men Who Are Changing America’s Politics (New York: Touchstone Books, 1979), 280. 4. Nathan Glazer, “The Limits of Social Policy,” Commentary (September 1971). 5. See Daniel Patrick Moynihan, “The Professionalization of Reform,” The Public Interest 1: 6–16 (Fall 1965). 6. Friedman, Neoconservative Revolution, 116. 7. Irving Kristol, “Skepticism, Meliorism, and The Public Interest,” The Public Interest (Fall 1985): 32. 8. See, e.g., Macklin Fleming, “The Law’s Delay: The Dragon Slain Friday Breathes Fire Again Monday,” The Public Interest 32: 13–33 (Summer 1973); Jeffrey O’Connell, “Extending the ‘No-Fault’ Idea,” The Public Interest 36: 112–119 (Summer 1974); Louise Weinberg, “The Photocopying Revolution and the Copyright Crisis,” The Public Interest 28: 99–118 (Winter 1975). 9. Martin Mayer, “The Idea of Justice and the Poor,” The Public Interest 8: 96–115 (Summer 1967), 108. 10. Mayer’s stated objective of a “less unfair” result is a classic illustration of the non-perfectionist, anti-utopian strain of neoconservative policy analysis. 11. Harry Brill, “The Uses and Abuses of Legal Assistance,” The Public Interest 31: 38–55 (Spring 1973). 12. In this prediction, Brill was prescient: In a colloquy responding to Brill’s article in a subsequent edition of The Public Interest itself, Jerome Carlin placed significant emphasis on the odd company Brill seemed to be keeping by making the claims that he did about the OEO: “One of the strongest indications of the overall impact of class litigation is the very controversy it has generated and the relentless and determined efforts to restrict this type of litigation by such critics as Governor Reagan, Vice President Agnew, and President Nixon. It is curious to find Brill in such company and using

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many of the same arguments which these opponents have advanced.”Jerome E. Carlin, Harry Brill “The Poverty Lawyers,” The Public Interest 33: 128–131, 129 (Fall 1973). 13. Thomas Sowell, “Affirmative Action Reconsidered,” The Public Interest 42: 47–65 (Winter 1976). 14. David L. Kirp, “School Desegregation and the Limits of Legalism,” The Public Interest 47: 101–127 (Spring 1977), 101. 15. Irving Welfeld, “The Courts and Desegregated Housing: The Meaning (if any) of the Gautreaux Case,” The Public Interest, 45: 123–135 (Fall 1976). 16. Harry L. Miller, “The ‘Right to Treatment’: Can the Courts Rehabilitate and Cure?” The Public Interest, 46: 96–118 (Winter 1977). 17. Peter H. Schuck, “The Graying of Civil Rights Law,” The Public Interest 60: 69–93 (Summer 1980). 18. Nathan Glazer, “Towards an Imperial Judiciary?” The Public Interest 41: 104–123 (Fall 1975). 19. This argument adumbrates the arguments of later institutionalist political scientists, who came to emphasize “state development,” and autonomy, the operation of “secular time” in the accumulation of power by political institutions (in contrast to cyclical “political time”), and the rise of “judicial supremacy.” See Peter B. Evans, Dietrich Rueschemayer, Theda Skocpol, eds., Bringing the State Back In (New York: Cambridge University Press, 1985); Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambidge, MA: Belknap Press of Harvard University Press, 1997); Keith E. Whittington, The Political Foundations of Judicial Supremacy: the President, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007). 20. See Stephen M. Teles, The Rise of the Conservative Legal Movement: The Battle for the Control of the Law (Princeton: Princeton University Press, 2008) on Ford Foundation, 30–31, 34–41, 46–52. 21. Ward E.Y. Elliot, The Rise of Guardian Democracy: The Supreme Court’s Role in Voting Rights Disputes, 1845–1969 (Cambridge, MA: Harvard University Press, 1974). 22. Nathan Glazer, “Should Judges Administer Social Services?” The Public Interest 50: 64–80 (Winter 1978). 23. In the omitted portion of this passage, Moynihan wrote self-reflexively (and parenthetically) that “This essay, for example, which suggest that there are limits to the value which social science can have for the courts, will almost certainly be searched for clues as to whether its implications are politically liberal, or conservative, or whatever.” (19). 24. Martin A. Levin, “Crime and Punishment and Social Science,” The Public Interest 27: 96–103 (Spring 1972). 25. For illustrative use of social scientific evidence in the pages of PI to critique the rationality of the contemporary juvenile justice system, see Barbara Boland and James Q. Wilson, “Age, Crime, and Punishment,” The Public Interest 51: 22–34 (Spring 1978). 26. Eleanor P. Wolf, “Social Science and the Courts: The Detroit Schools Case,” The Public Interest 42: 102–120 (Winter 1976). 27. Walter Berns, “Pornography vs. Democracy—A Case for Censorship,” The Public Interest 22 (Winter 1971); James Q. Wilson, “Violence, Pornography and Social Sci-

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ence,” The Public Interest 22 (Winter 1971); Alexander Bickel, Stanley Kaufmann, Wilson Carey McWilliams, Marshall Cohen, “Concurring and Dissenting Opinions,” The Public Interest (Winter 1971). 28. Peter Skerry, “The Class Conflict Over Abortion,” The Public Interest 52: 69–84 (Summer 1978). 29. Daniel Patrick Moynihan, “Social Science and the Courts,” The Public Interest 54: 12–31 (Winter 1979), 13. The phrase is borrowed from Bickel. 30. See also Daniel Patrick Moynihan, “What Do You Do When the Supreme Court is Wrong?” The Public Interest 57: 3–24 (Fall 1979), at 13–17, providing an account of the original meaning of the establishment clause, as well as of the historical genesis of the movement away for that meaning. See generally, Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (New York: Cambridge University Press, 2004), 235–325. 31. Daniel Patrick Moynihan, “What Do You Do When the Supreme Court is Wrong?” The Public Interest 57: 3–24 (Fall 1979). 32. Straussians did appear in The Public Interest from the outset, although (in the years under study) not frequently. In addition to Diamond and Walter Berns, see, e.g., Nathan Tarcov, “The Last Four Years at Cornell,” The Public Interest 13: 122–138 (Fall 1968); Leon R. Kass, “Making Babies—the New Biology and the ‘Old’ Morality,” The Public Interest 26: 18–56 (Winter 1972); Leon R. Kass, “The Pursuit of Health,” The Public Interest 40: 11–42 (Summer 1975); Leon R. Kass, “’Making Babies’ Revisited,” The Public Interest 54: 32–60 (Winter 1979). The many PI contributors who were the Ph.D. students of political scientists James Q. Wilson and Edward Banfield in Harvard University’s Government Department (and of sociologist Nathan Glazer in Harvard’s Graduate School of Education) also studied with Harvard’s Harvey Mansfield, one of the preeminent “east coast” Straussians. Most of the core Straussians were trained at (pre-1969) Cornell, the University of Chicago, and the Claremont Graduate School. A number of Straussians whose work focuses on constitutional issues and the American founding studied under Martin Diamond at Northern Illinois University. 33. Martin Diamond, “Conservatives, Liberals, and the Constitution,” The Public Interest 1: 96–109 (Fall 1965). 34. Martin Diamond, “The Declaration and the Constitution: Liberty, Democracy, and the Founders” The Public Interest 41: 39–55 (Fall 1975). This edition of The Public Interest was published as well as a book. Nathan Glazer and Irving Kristol, editors, The American Commonwealth, 1976 (New York: Basic Books, 1976). 35. For a more comprehensive (but short) overview of Diamond’s thought—including his argument that the Constitution was designed, in part, to re-enforce the bourgeois virtues, which the Founders, as moderns, believed essential to advancement of broader public good, and the inevitability of commitments to values as part of the policy process (arguments that would also resonate strongly with neoconservative policy analysts), see William A. Schambra, “Martin Diamond’s Doctrine of the American Regime,” Publius 8: 213–218 (Summer 1978). See also Martin Diamond, As Far as Republican Principles Will Admit (Washington DC: AEI Press, 1992)(William A. Schambra, editor). 36. This is a concern that they shared with Legal Process scholars—some of whom (like Alexander Bickel, who wrote frequently for Commentary) acquired reputations as

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conservatives, or mentors to scholars who later become conservatives. The affinities between, and differences from, Legal Process thought on the courts is a complicated subject well worth considering, but beyond the scope of this chapter. 37. Contemporary hysterics notwithstanding, it was never clear that it existed as a distinctive foreign policy outlook. As noted above, PI did not typically publish articles on foreign policy: those appeared in Commentary. 38. Public choice writing appeared in PI relatively early—though it never predominated. See, e.g., Gordon Tullock, “Does Punishment Deter Crime?” The Public Interest 36: 103–111 (Summer 1974).

Index

A Matter of Interpretation (Scalia), 23, 25, 26 abortion, 14–16, 130–31, 142, 145, 164–67, 279–82 Abortion and Divorce in Western Law (Glendon), 164 Ackerman, Bruce, 230, 234 Adams, John, 222 Adler, Mortimer, 185–186, 190, 199–200 affirmative action, 255–57 Age Discrimination Act (1975), 261-63 Alien and Sedition Acts (1798), 114, 116–17, 224, 226 Alito, Samuel, 20, 21, 23–40, 132–33, 144, 149 Allard, Wayne, 57 Amar, Akhil Reed, 110 American Civil Liberties Union, 128 American Trucking Association v. Smith, 28 Anti-Federalists, 112, 117, 219–20 Aquinas, Thomas, 200–203, 205 Aristotle, 196–98, 200–203, 233–37 August, Eugene, 195 Austin, John, 205–206

Babbitt, Bruce, 20 Baker v. Carr (1962), 104, 107–110, 128 Barnett, Randy, 5–6 Bell, Daniel, 249 Bendix Autolite Corp. v. Midwesco Enterprise (1988), 28 Berns, Walter, 283 Biden, Joseph, 137, 141–45, 148 Bickel, Alexander, 278 Bill of Rights, 52, 97–99, 110–118, 163 Bingham, John, 110–11, 221 Black, Hugo, 158; dissent in Griswold, 62–63, 65, 66, 142 Blackmun, Harry, in Roe v. Wade, 14, 53–54 Blackstone, William, 102 Board of County Commissioners, Wabaunsee County v. Umbehr (1996), 24 Bork, Robert, 11, 19, 99, 129–30, 135, 139, 141–42, 145–48 Bowers v. Hardwick (1986), 54, 165–67 Brady Handgun Violence Prevention Act, 32–33 Brandeis, Louis, 99

— 297 —

298

Index

Brandenburg v. Ohio (1969), 99 Brennan, William, 129; in Baker, 107–110; in Eisenstadt, 13–14, 163; in Young, 36–37 Breyer, Stephen, 19–20, 23, 35 Brill, Harry, 252–55 Brown v. Board of Education of Topeka (1954), 9–11, 51, 56, 139–40, 257, 268 Buckley, William F., Jr., 249 Burger, Warren, 38, 160, 264 Burns, James McGregor, 286 Burton, Harold, 128 Bush, George W., 20 Bush v. Gore (2000), 17–18 Byrnes, James, 128 Caspar, Gerhard, 147 Chesterton, G. K., 149, 186, 202, 209 Civil Rights Act (1866), 147 Civil Rights Act (1964), 255, 258 Clark, John, 127–28 Clark, Kenneth B., 10, 140 Clinton, Robert Lowry, 50, 99, 103 Clinton, William J., 20, 21 Clor, Harry, 158 Cohens v. Virginia (1821), 107 Commentaries on the Constitution of the United States (Story), 24, 74, 224 Commentary on De Anima (Aquinas), 200 Complete Anti-Federalist, The (Storing), 112 Comte, Auguste, 186–193, 195, 198, 208209 confirmations, judicial. See judicial confirmation process conscription, 217–38 Constitution, U.S.: Article I of, 27, 28, 33, 102–103, 106, 109, 111; Article II of, 4, 31; Article III of, 34, 37, 38-39, 43n63, 50, 102, 117; Article IV, 106–7; Article VI of, 28. See also Bill of Rights contraception, 12–14, 131, 155, 157, 173n25

Cooper v. Aaron (1958), 11–12 Corwin, Edward S., 100 Courts and Social Policy, The (Horowitz), 269 Coy v. Iowa (1988), 27 Cuomo, Mario, 20 Darwin, Charles, 182–183, 192–93, 207–212 Darwinian theory. See Darwin Daschle, Thomas, 19 Dawkins, Richard, 178, 180, 185, 192 Day, William, 100 Declaration of Independence, 51, 204, 228, 288 Defense of Marriage Act, 56 Democracy in America (Tocqueville), 153, 170 desegregation of public schools, 10–12 Diamond, Martin, 282, 285–89, 292 Doe v. Bolton (1973), 14, 134, 164 Douglas, William O., 128, 158; in Griswold, 12–14, 52–53, 155 Dred Scott v. Stanford (1856), 50–53, 284 Eighth Amendment, 11, 26 Eisenhower, Dwight, 129 Eisenstadt v. Baird (1972), 12–14, 53, 163–65 Eliot, T. S., 181 Employment Division, Department of Human Resources of Oregon v. Smith (1990), 27 Endangered Species Act (1973), 38–39 Equal Rights Amendment, 97 Erie R. Co. v. Tompkins (1938), 87 Essay Concerning Human Understanding (Locke), 235 Establishment Clause, 27, 274, 283–84 Ethics in Government Act (1978), 29 Fallon, Richard, 76 Federalist, 284, 288; no. 10, 156, 228; no. 49, 30; no. 51, 285; no. 65, 224; no.

Index

78, 37, 92n67, 102, 114; no. 84, 97–98; no. 85, 112 Federalists, 112, 117, 219–20 Federal Marriage Amendment, 57–58 Feinstein, Dianne, 133 Ferre, Frederick, 189 Feynman, Richard, 179 Fifth Amendment, 28 Finnis, John, 63 First Amendment, 24, 27, 54, 97–99, 115, 116, 118, 158, 221–24, 237, 245n94. See also Bill of Rights First Treatise of Government (Locke), 229 Flash v. Cohen (1968), 38 The Ford Foundation, 251–55, 275 Forte, David, 132 Founders, 31, 32, 33, 37, 170–71, 218, 221-222, 225, 282–283, 285, 288, 292 Fourteenth Amendment, 9–11, 24, 28, 51, 52, 54, 100, 107–111, 141, 146–47, 221 Fourth Amendment, 53 Framers: see Founders Frankfurter, Felix, 11, 99, 128, 137–39 freedom of speech, 24 Freud, Sigmund, 211–12 Freund, Paul, 274 Frost, Robert, 35 Gibbons v. Ogden (1824), 103–104, 107 Ginsburg, Ruth Bader, 19-20, 165 Glazer, Nathan, 165, 249, 263–70, 280 Glendon, Mary Ann, 164 Glenn, Gary, 111–12, 116 Goldwin, Robert, 112–13 Goodridge v. Massachusetts Department of Public Health (2003), 55–56 Graham, Lindsay, 137 Griswold v. Connecticut (1965), 12–14, 52–53, 62–63, 65, 66, 131, 154–57, 162–64 The Growth of Judicial Review (Corwin), 100

299

Haeckel, Ernst, 208 Hamilton, Alexander, 97–98, 102, 112, 114, 116, 222, 224 Harding, Warren G., 127–28 Harlan, John Marshall, 51, 129, 146, 163 Harmelin v. Michigan (1991), 26 Hatch, Orin, 20 Hawking, Stephen, 177, 178, 183, 185–86, 192 Hills v. Gautreaux (1976), 258–260 Hobbes, Thomas, 182–183, 191 Holmes Jr., Oliver Wendell, 99, 103, 283 homosexual conduct, 54–55, 167–68 Horowitz, Donald, 269 Hoyle, Fred, 210 Hughes, Charles Evans, 206 Hume, David, 182, 186, 191, 209 intelligent design, 178–181, 184 Jackson, Robert, 128 James B. Beam Distilling Company v. Georgia (1991), 29 Jefferson, Thomas, 6, 49-50, 59n2, 113, 204, 222, 224 John Paul II, 131 Johnson, Lyndon, 250 Jones v. Mayer (1968), 147 Judiciary Act (1789), 50 judicial activism, 11, 17–21, 66–67, 84, 87n21, 169–70, 264–70 judicial confirmation process, 17–21, 127–50, 169–70 judicial restraint, 7, 62–63, 66–68 judicial review, 99–104, 114–15, 118, 119n18 judicial supremacy, 12–17, 62–65, 68–78, 100, 107, 206–207, 284 Kant, Immanuel, 182, 186, 191, 196, 234 Kelsen, Hans, 206 Kennedy, Anthony, 54–55, 166–67 Kennedy, Edward, 139–40, 148 Kirp, David, 257–58 Kristol, Irving, 249–50

300

Index

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson (1991), 33–34 Langdell, Christopher Columbus, 110–11 Laski, Harold, 138 Lawrence v. Texas (2003), 4, 54–56, 168 Levin, Martin, 274–75 Levy, Leonard, 224 Lewontin, Richard, 184–185 Lincoln, Abraham, 8, 12, 58, 64, 71, 91n60, 143, 284 Lippmann, Walter, 249 living Constitution, 8 Lochner v. New York (1905), 51–54, 283–84 Locke, John, 224, 227–30, 232–37, 242n54 Lodge, Henry Cabot, Sr., 287 Loving v. Virginia (1964), 56 Lowenthal, David, 118 Low-Level Radioactive Waste Policy Amendments Act (1985), 32 Lujan v. Defenders of Wildlife (1992), 38 Madison, James, 30, 112–14, 116, 117, 156, 221–26, 228, 285–86 Marbury v. Madison (1803), 5, 12, 49–50, 70, 102–104, 107, 111, 114 Marbury v. Madison and Judicial Review (Clinton), 99-100 marriage, 54–58, 161–63, 173n25, 280–81 Marshall, John, 39, 49–50, 100, 102, 103–104, 106, 107, 111, 114, 225–26, 228 Marshall, Thurgood, 130, 131 Martineau, Harriet, 39 Marx, Karl, 211–12 A Matter of Interpretation, (Scalia), 39–40, 41n14, 89n33 Mayer, Martin, 251–52 McCarran, Patrick, 137–39 McCloskey, Robert, 264 McConnell, Michael, 10

McCreary County v. ACLU of Kentucky (2005), 27 McCulloch v. Maryland (1819), 107, 225–26, 228 Mencken, H. L., 137 Metaphysics (Aristotle), 200 Mill, John Stuart, 193–95, 208 Miller, Harry, 260–61 Miller v. California (1973), 160 Milliken v. Bradley (1974), 265 Minton, Sherman, 128 Morrison v. Olson (1988), 29, 32, 33, 35–36, 45n92 Morse v. Frederick (2007), 98–99 Moynihan, Daniel Patrick, 271–74, 280, 282–84 Murphy, Frank, 128 Musgrave, Marilyn, 57 National Review, 249 natural born citizen, 4 natural law, 202–203, 205, 282 natural law theory, 93n71, 142–144 natural rights, 227–233, 236–37 New Deal, the, 130, 132, 142–143, 289 New York v. United States (1992), 32–33 Nicomachean Ethics (Aristotle), 201, 235–37 Nietzsche, Frederick, 195 Ninth Amendment, 114 obscenity, 157–162 O’Connor, Sandra Day, 32–33, 129, 166 Office of Economic Opportunity, 251–255 O’Hare Truck Service v. Northlake (1996), 24 Olsen, Theodore, 135 originalism: abandonment of, 8–17; methodology of, 3–8, 21, 221–224; original-meaning school, 6, 247–48, 282, 284–85, 289. See also Scalia, Antonin

Index

originalists, 3, 248, 272, 283 Osborn v. Bank of the United States (1824), 107 Paris Adult Theatre v. Slaton (1973), 160 Parker v. District of Columbia (2007), 115 Planned Parenthood, 155 Planned Parenthood v. Casey, 4, 15–17, 166–67 Plato, 196 Plaut v. Spendthrift Farm, Inc. (1995), 33 Plessy v. Ferguson (1896), 9–10, 51, 146, 284 Poe v. Ullman (1961), 156, 163 political questions, 104–110 Politics (Aristotle), 201, 237 Powell, Lewis, 130 Powell v. McCormack (1969), 109–10 Printz v. United States (1997), 32–33 privacy, right of 162–67, 247; in Griswold, 12–13, 162–64 The Public Interest, 249–92 Randolph, Edmund, 219 Rantoul, Robert, 26 Rawls, John, 231–34, 236 Reagan, Ronald, 129, 247–48, 279, 291 Rehnquist, William, 29–30 Reich, Charles, 251 Reinhardt, Stephen, 131 Roberts, John, 19–20, 21, 98–99, 132–33, 137, 139–40, 144, 149 Roe v. Wade (1973), 14–16, 53, 69, 129–31, 133, 142–44, 164–66, 264, 279–80 Romer v. Evans (1996), 167–68 Roosevelt, Franklin, 52, 128 Roosevelt, Kermit, 7 Roth v. U.S. (1957), 157–60 Rousseau, Jean-Jacques, 199, 230–31, 233, 236 rule of law, 66–68, 78, 88n23 Runyon v. McCrary (1976), 146–48 Russell, Bertrand, 179, 191 Rutledge, Wiley, 128

301

Sagan, Carl, 178, 180, 185, 192 same-sex marriage, 54–58, 168–69, 279 San Antonio School District v. Rodriguez (1973), 265 Scalia, Antonin, 23–40, 91n60, 99, 129, 221–23, 283; dissent in Lawrence v. Texas, 55; dissent in Planned Parenthood v. Casey, 16–17; dissent in Romer v. Evans, 167–68. See also A Matter of Interpretation (Scalia) Schuck, Peter, 261–63 scientific naturalism. See scientism scientism, 178–185, 196–97, 204–205, 209, 271 Second Amendment, 115, 220. See also Bill of Rights Second Treatise of Government (Locke), 228–29 Securities Exchange Act (1934), 33–34 separation of powers, 20, 29–33, 35–39, 43n51, 43n52, 44n81, 44n87, 63, 70–74, 76, 107, 156, 265–66. See also judicial supremacy Shakespeare, William, 4, 27 Shelley v. Kraemer (1948), 145–48 Sierra Club v. Morton (1972), 37 Sixth Amendment, 27 Skerry, Peter, 279–80, 283 Smith, James Morton, 116 Socrates, 182 Souter, David, 27 Sowell, Thomas, 255–57 Specter, Arlen, 144–45 Spooner, Lysander, 6 standing, 37–38, 69, 115 stare decisis, 7–8, 16, 62–65, 69, 75–84; Stenberg v. Carhart (2000), 167 Stevens, John Paul, 34, 166 Stone, Geoffrey, 116–17 Storing, Herbert, 112 Story, Joseph, 6, 24, 28, 39–40, 74, 224 Strauder v. West Virginia (1880), 9–10 Straussians, 248, 292, 295n32 Sunstein, Cass, 230

302

Sutherland, George, 127–28 Swift v. Tyson (1842), 78 Taney, Roger Brooke, 50 Tenth Amendment, 32–33, 114 Thayer, James Bradley, 111 A Theory of Justice (Rawls), 231–232 Third Amendment, 53 Thirteenth Amendment, 146–47 Thomas, Clarence, 40, 129–30, 141, 143–44 Three Essays on Religion (Mill), 193–95 Thurmond, Strom, 19, 29, 31 Tinker v. Des Moines Independent School District (1969), 98–99 Tocqueville, Alexis de, 153–54, 170 Treatise on Law (Aquinas), 201 Trop v. Dulles (1958), 11 Truman, Harry S., 128 Twenty-seventh Amendment, 114 United States v. Students Challenging Regulatory Agency Procedures [SCRAP] (1973), 38 United States v. Virginia (1996), 24

Index

Vacco v. Quill (1997), 166 Vinson, Fed, 128, 146 Virginia Resolution (1798), 114 Voegelin, Eric, 202, 206–208 Warren, Earl, 9, 11, 38, 109, 264 Washington, George, 218–19 Washington v. Glucksberg (1997), 166 Weaver, Richard, 181 Webster v. Reproductive Health Services (1989), 166 Weinstein, Jack, 265 Welfeld, Irving, 258–260 White, Byron R., 54, 69, 109, 127, 166 White, Edward Douglass, 217–18 Will, George, 97–98 Wilson, Edward O., 197–98 Wittgenstein, Ludwig, 224 Wolff, Eleanor, 275–77 Young v. United States ex rel. Vuitton et Fils S.A. (1987), 36

About the Contributors

Hadley Arkes has written six books, and his articles have appeared in professional journals. He was the main advocate of the bill that became known as the Born-Alive Infants’ Protection Act. He first prepared his proposal as part of the debating kit assembled for George H.W. Bush in 1988. The proposal was to offer the “most modest first step” in legislating on abortion in order to open a conversation even with people who called themselves “pro-choice.” In March 2002 the bill was brought to the floor of the House, where it passed unanimously. In July it was brought to the floor of the Senate and passed in the same way. On August 5, President Bush signed the bill into law. Arkes has been the founder, at Amherst, of the Committee for the American Founding, a group of alumni and students seeking to preserve the doctrines of “natural rights” taught by the American Founders and Lincoln. Stanley C. Brubaker is Professor of Political Science at Colgate University and Director of Colgate’s Washington, D.C. Study Group program. He teaches in the fields of constitutional law, political philosophy and American politics and government. His research has focused on constitutional theory and interpretation, freedom of speech, and philosophy of punishment. His articles have appeared in numerous journals. He is currently completing a book entitled The Constitution of Self-Government. Robert Lowry Clinton is Professor and chairman of the Department of Political Science at Southern Illinois University at Carbondale, where he teaches in the fields of public law and political theory. Professor Clinton has published — 303 —

304

About the Contributors

two books and many articles. His most recent book is God and Man in the Law: The Foundations of Anglo-American Constitutionalism. Matthew J. Franck is Professor and chairman of the Department of Political Science at Radford University. He has taught constitutional law, American politics, and political philosophy at Radford since 1989. Franck has been Fulbright Professor of American Studies at the Graduate School of International Studies, Yonsei University, Seoul, Korea. He is author of two books and numerous essays and reviews. He has testified before the Subcommittee on the Constitution of the Committee on the Judiciary, U.S. House of Representatives, and has given many presentations. Franck is completing a book titled Strict Scrutiny: A Lexicon of Supreme Court Sense and Nonsense. Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is a member of the President’s Council on Bioethics. He previously served as a presidential appointee to the United States Commission on Civil Rights, and as a Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. He is the author or editor of several books and was a recipient of the 2005 Bradley Prize for Intellectual and Civic Achievement. Ken I. Kersch is Director of the Clough Center for the Study of Constitutional Democracy and an Associate Professor of Political Science, History, and Law at Boston College. He has also taught politics at Princeton University. He is the editor, with Ronald Kahn, of The Supreme Court and American Political Development, and author of Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law, and Freedom of Speech: Rights and Liberties Under the Law. Jack Wade Nowlin is Associate Professor of Law at the University of Mississippi. He has authored several book chapters, articles, and book reviews. His major research interests concern judicial power, constitutional structure, interpretive theory, and human life issues. Nowlin teaches constitutional law, jurisprudence, criminal procedure, and criminal law. Ralph A. Rossum is Henry Salvatori Professor of American Constitutionalism and Director of the Rose Institute of State and Local Government at Claremont McKenna College. He is the author or co-author of nine books, including Antonin Scalia’s Jurisprudence: Text and Tradition (2006) and the two-volume American Constitutional Law (8th edition, 2009).

About the Contributors

305

Edward Whelan is the President of the Ethics and Public Policy Center in Washington, D.C. He directs EPPC’s program on The Constitution, the Courts, and the Culture. His areas of expertise include constitutional law and the judicial confirmation process. He is a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia. He was also Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. In that capacity, he advised the White House Counsel’s Office, the Attorney General and other senior DOJ officials, as well as departments and agencies throughout the executive branch. He also served on Capitol Hill as General Counsel to the U.S. Senate Committee on the Judiciary. Christopher Wolfe is Emeritus Professor of political science at Marquette University and Co-Director of the Ralph McInerny Center for Thomistic Studies. His main area of research and teaching has been constitutional law, and, more recently, liberal political theory and natural law. His books include The Rise of Modern Judicial Review and Natural Law Liberalism. Professor Wolfe is the founder and President of the American Public Philosophy Institute.

About the Editor Bradley C. S. Watson holds the Philip M. McKenna Chair in American and Western Political Thought at Saint Vincent College in Latrobe, Pennsylvania, where he is also Fellow in Politics and Culture at the Center for Political and Economic Thought. He has authored or edited many books, including Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence.