My Constitutional Law Crash Course

'A little knowledge is dangerous' is an aphorism long standing and of good repute. Recently — over the last few days —  I've learned that 'a little bit more knowledge' can be quite enlightening and very helpful in reducing the level of not knowing what one doesn't know. Reading a representative selection of the current punditry regarding the Harriet Miers nomination to SCOTUS, a law quarterly article written in the Spring of 2000, and a posting at the Supreme Court Historical Society site has not only tendered added insight into the considerations pertinent to this controversial nomination, but has substantially, I might even say radically, altered my views regarding the selection of Supreme Court justices, as well as the very meaning and importance of what constitutes constitutional Law.

In no way do I now consider myself an expert on the subject nor do I offer my services in Ms. Miers' stead. However, those, such as George Will and Charles Krauthammer, who have been accused of being 'elitist' in their criticism of the President's nominee, have a point. More of a point than is evident upon the surface of short op—ed pieces. A point that truly comes into focus only if one spends a bit of time studying a smattering of the history of the subject, the thought behind some of the Court's decisions and most importantly, get a flavor of the competing legal philosophies underlying constitutional battles past. For if one possesses 'neither the time nor the inclination' for constitutional thought, one ought not to rely upon on—the—job training to fill the gaps in one's erudition. This is, I posit, the utmost consideration regarding the confirmation of Miers that is now before the World's Greatest Deliberative Body. 

The charge of cronyism leveled against Mr. Bush is one of great importance — important because the check and balance of the Senate's power of advice and consent regarding Presidential appointments is designed to specifically, though not exclusively, prevent such shenanigans. Just being a close associate of the President does not, in and of itself, render her a crony. Nor does her not being an optimal candidate, i.e., the 'best' in the Senate majority's opinion, indelibly label her as such. But, if she is not well—qualified for a seat on the Court, then that unflattering sobriquet may well apply. And if it does, then the Senate not only has the right, but the duty to withhold its consent whether or not the President listens to its advice. Remember, the Legislative and Executive branches are separate and equal. And if the President makes a decision that is essentially a political one,  the Senate may find itself under intense political pressure to conform by confirming, but it is not obligated to do so.

'Right!', say you. 'What about Bork? Talk about political!' And I must concur. Bare knuckle, down—in—the mud, hardball politics was certainly the hallmark of his confirmation hearing and added his name to the eponymous lexicon. However, one of the surprising conclusions I reached as a result of my very—very—short course in constitutional jurisprudence is that I am now decidedly grateful that he was not confirmed. Though the confirmation process was decidedly ungentlemanly, the correct result was, I believe, achieved. I say this because Robert Bork is a proponent of nearly unlimited police powers for the several states except for that which is specifically prohibited by the Federal as well as their respective state constitutions. This being the same view until recently held by myself.

What's interesting is that this is about as far from an 'originalist' view of the Constitution as one can get. What's worse is that Bork's opinion regarding the States' police powers is definitely a recipe for the worst kind of Big Brotherhood. And thus 'States' Rights' is not a cure—all for an overly expansive and invasive Federal government. More on this later.

The Bush Administration has made it known, quite deliberately and pointedly, that Harriet Miers is an Evangelical Christian of long—standing. However, during the confirmation hearing for our new Chief Justice Roberts, his Catholicism, it was pointedly emphasized, should not be considered relevant to his suitability to serve on the Supreme Court. Why the change of tack from one nominee to the next? Presumably this was done to reassure those deeply concerned about Ms. Miers' positions on abortion and gay marriage, since such an insight was not available from her writings regarding constitutional issues — for there are none. Her thoughts and philosophy regarding constitutional law reside on a carte blanche. The question of whether she has had such thoughts, or formed reasoned and wise opinions regarding the Constitution, or whether they are merely invisible or inchoate, seems answered by Senate Judiciary Committee chairman Arlen Specter's assurance that he had no doubt Ms. Miers was taking "a crash course" in constitutional law. How assuring is that? Not very when one considers the possible implications of that remark regarding the constitutional competence of the those charged with giving their advice and consent.

All of the above would be moot if a studied and elevated competence in constitutional law were to be had in a crash course. My impression, based upon my personal crash course in constitutional law, is that is not the case. This I will attempt to illustrate, if granted a modicum of patience by the reader, by briefly looking at one aspect of constitutional law, its waxing and waning over a period of some two centuries, and the change in labor laws that resulted from an evolved view of the constitutional limits to the police power of the States.

As mentioned earlier, Robert Bork is an advocate of the legal principle salus populi est suprema lex, that is, 'the good of the public is the supreme law.' When interpreted in its strictest sense, as does Bork, this means that it is within the police powers of the individual state to enact any law and impose any obligation upon the citizens of that state that is not specifically prohibited to it by either the Federal or the state's constitution. That is a lot of latitude. And this view of constitutional law has been on one side of an argument regarding the extent and legitimacy of a state's police powers that has been a basic theme in constitutional jurisprudence for well more than a century. [1]

The legal principle on the other end of this philosophical tug—of—war is sic utere tuo ut alienum non laedas or 'you should use what is yours so as not to harm what is others.' It may not be obvious to the casual observer why this represents a view opposite to one that advocates maximum police powers. But it does, and for the following reason: it means that the police powers of the state, in addition to the specific prohibitions of a constitution, including the Bill of Rights, are strictly limited to the prevention of harm to, or the forfeit of, the life, liberty or property of one person by the actions of another person or the state. And what is most interesting, is that the sic utere view was the one held by the Founders and the one that prevailed for about the first century or so of our grand Republic as illustrated in 1886 when the influential legal commentator Christopher Tiedeman wrote:

This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State. According to the maxim, sic utere tuo, ut alienum non laedas, it being of universal application, it must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions. [2]

But funny things happened on the way to the twentieth century — industrialization and urbanization. The issues of child labor, excruciatingly long working hours in sweat shops and factories, along with the dangerous and unhealthy working conditions in mines and elsewhere, led to demands that the police powers of the state be employed to regulate the practices of employers who insisted that freedom of contract prohibited the state from so doing. [3]

We all know the end result and by 1904 Ernst Freund was able to assert:

But no community confines its care of the public welfare to the enforcement of the principles of the common law. The state places its corporate and proprietary resources at the disposal of the public by the establishment of improvements and services of different kinds; and it exercises its compulsory powers for the prevention and anticipation of wrong by narrowing common law rights through conventional restraints and positive regulations which are not confined to the prohibition of wrongful acts. It is this latter kind of state control which constitutes the essence of the police power. The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskillful, careless, or unscrupulous. [4]

And we were thus well on our way to the modern regulatory state. By 1918 forty—three states, Puerto Rico and the District of Columbia had statutes regulating the number of hours an employer could insist that an employee work.

That is not, of course, the end of the story. Sic utere may have been down but certainly not out. Salus populi was certainly ascendant but not unchallenged. The principle of judicial review and the resulting court decisions regarding abortion, private homosexual sodomy, and the use of birth control by married couples, are all based on the sic utere principle. That's right. The courts did not impose their will upon the people. What they said was that state legislatures, even when representing a substantial majoritarian view, could not impose their will, i.e.,  the police powers of the state, upon those who were, essentially, doing no harm to others or the public good.

Barry Goldwater should be proud. Of the courts that is, for advocating maximum freedom.

Now, abortion is prohibited once the fetus is viable as one would expect according to the sic utere principle. Those who oppose abortion say that is a distinction without a difference.  Life begins at conception and thus the state may intervene to protect the unborn at any gestational stage. Exceptions for rape and incest would seem impermissible, for how can one justify harm to one person because of harm to another? But should, or rather, does the state have the police power to prohibit abortion under all circumstances? With threat to the life of the mother a singular exception? 

Gay marriage also raises some interesting issues. At first glance, sic utere would seem to rule in favor of such arrangements. However, long—term there may be harm to society as a whole if an institution designed for and amenable to the continuance of the human species loses that purpose as its sole justification. Those jurists who look to foreign courts for guidance would do well to also consider the effects of foreign court decisions and cultural predilection upon the general well being of those same countries. The widespread acceptance in Europe of sex, including homosexuality, as an instrument pleasure rather than procreation, seems to be at least one of the reasons that the continent is in the process of committing mutually unassisted slow—motion suicide. For there is not a single European country where the native birthrate is at or above the replacement level. In the not too distant future the only ethnically European persons left may be Americans or globally displaced expats with European ancestry. [5]

In America, could there be a similar consequence to enshrining gay marriage as a legitimate public institution? However farfetched, such questions are part of deciding constitutional issues and the Justices must weigh sic utere against salus populi.  From what I've been reading, whatever one's intellectual prowess may be, or how outstanding a career as a corporate attorney one may have had,  I get the impression that constitutional law is a unique and unruly beast. An animal that requires superb intellect and long study to tame and call one's own. A 'crash course' just won't do.

Constitutional law questions are probably the most difficult to resolve of all legal issues. Answers given by the Supreme Court reverberate broadly, deeply and over a long time. Accusing judges of donning the legislative hat, though in some cases warranted, is simplistic when, in fact, they are often acting as anti—legislators.  The Founding Fathers, the more I learn, were wise beyond my feeble ken. They sought to maximize freedom and this is possible only by minimizing government and its police powers. There is no optimal tradeoff between the two, for we Americans are too many and too varied. But answers must be given. The Court must speak. Those entrusted with the burden of so deciding must be the wisest and most knowing of all.

Is that Harriet Miers? I don't know. If she's confirmed, I hope so.

But I don't think so.

Endnotes:

1. The primary source for the sic utere versus salus populi argument is from a Spring 2000 article in the Hastings Constitutional Law Quarterly  titled 'The Evolving Police Power: Some Observations for a New Century' by Glenn H. Reynolds and David B. Kopel, and is posted online at Mr. Kopel's web site here. The posted format is that of a narrow single column, and those interested in reading the entire piece may wish to reformat the page prior to embarking on that task.

2. Christopher G. Tiedeman, A Treatise on the Limitations of the Police Power in the United States, at 4—5, (1886), citing Thorpe v. Rutland R.R., 27 Vt. 140, 149—50 (1854).

3. The movement of the courts in the direction of salus populi and away from sic utere began in the later 1800's and to a large extent resulted from the social dislocations and economic upheaval created by the industrial revolution. The role of the Supreme Court in this period of evolving legal doctrine is recounted at the Supreme Court Historical Society site in an essay titled 'Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era' by Melvin I. Urofsky and posted here.

4. Ernst Freund, The Police Power: Public Policy and Constitutional Rights 6 (Arno Press 1976) (1904)

5. Details regarding European population trends may be found in Rand Corporation research brief RB—9126—EC titled 'Population Implosion? Low Fertility and Policy Responses in the European Union' and available online here

'A little knowledge is dangerous' is an aphorism long standing and of good repute. Recently — over the last few days —  I've learned that 'a little bit more knowledge' can be quite enlightening and very helpful in reducing the level of not knowing what one doesn't know. Reading a representative selection of the current punditry regarding the Harriet Miers nomination to SCOTUS, a law quarterly article written in the Spring of 2000, and a posting at the Supreme Court Historical Society site has not only tendered added insight into the considerations pertinent to this controversial nomination, but has substantially, I might even say radically, altered my views regarding the selection of Supreme Court justices, as well as the very meaning and importance of what constitutes constitutional Law.

In no way do I now consider myself an expert on the subject nor do I offer my services in Ms. Miers' stead. However, those, such as George Will and Charles Krauthammer, who have been accused of being 'elitist' in their criticism of the President's nominee, have a point. More of a point than is evident upon the surface of short op—ed pieces. A point that truly comes into focus only if one spends a bit of time studying a smattering of the history of the subject, the thought behind some of the Court's decisions and most importantly, get a flavor of the competing legal philosophies underlying constitutional battles past. For if one possesses 'neither the time nor the inclination' for constitutional thought, one ought not to rely upon on—the—job training to fill the gaps in one's erudition. This is, I posit, the utmost consideration regarding the confirmation of Miers that is now before the World's Greatest Deliberative Body. 

The charge of cronyism leveled against Mr. Bush is one of great importance — important because the check and balance of the Senate's power of advice and consent regarding Presidential appointments is designed to specifically, though not exclusively, prevent such shenanigans. Just being a close associate of the President does not, in and of itself, render her a crony. Nor does her not being an optimal candidate, i.e., the 'best' in the Senate majority's opinion, indelibly label her as such. But, if she is not well—qualified for a seat on the Court, then that unflattering sobriquet may well apply. And if it does, then the Senate not only has the right, but the duty to withhold its consent whether or not the President listens to its advice. Remember, the Legislative and Executive branches are separate and equal. And if the President makes a decision that is essentially a political one,  the Senate may find itself under intense political pressure to conform by confirming, but it is not obligated to do so.

'Right!', say you. 'What about Bork? Talk about political!' And I must concur. Bare knuckle, down—in—the mud, hardball politics was certainly the hallmark of his confirmation hearing and added his name to the eponymous lexicon. However, one of the surprising conclusions I reached as a result of my very—very—short course in constitutional jurisprudence is that I am now decidedly grateful that he was not confirmed. Though the confirmation process was decidedly ungentlemanly, the correct result was, I believe, achieved. I say this because Robert Bork is a proponent of nearly unlimited police powers for the several states except for that which is specifically prohibited by the Federal as well as their respective state constitutions. This being the same view until recently held by myself.

What's interesting is that this is about as far from an 'originalist' view of the Constitution as one can get. What's worse is that Bork's opinion regarding the States' police powers is definitely a recipe for the worst kind of Big Brotherhood. And thus 'States' Rights' is not a cure—all for an overly expansive and invasive Federal government. More on this later.

The Bush Administration has made it known, quite deliberately and pointedly, that Harriet Miers is an Evangelical Christian of long—standing. However, during the confirmation hearing for our new Chief Justice Roberts, his Catholicism, it was pointedly emphasized, should not be considered relevant to his suitability to serve on the Supreme Court. Why the change of tack from one nominee to the next? Presumably this was done to reassure those deeply concerned about Ms. Miers' positions on abortion and gay marriage, since such an insight was not available from her writings regarding constitutional issues — for there are none. Her thoughts and philosophy regarding constitutional law reside on a carte blanche. The question of whether she has had such thoughts, or formed reasoned and wise opinions regarding the Constitution, or whether they are merely invisible or inchoate, seems answered by Senate Judiciary Committee chairman Arlen Specter's assurance that he had no doubt Ms. Miers was taking "a crash course" in constitutional law. How assuring is that? Not very when one considers the possible implications of that remark regarding the constitutional competence of the those charged with giving their advice and consent.

All of the above would be moot if a studied and elevated competence in constitutional law were to be had in a crash course. My impression, based upon my personal crash course in constitutional law, is that is not the case. This I will attempt to illustrate, if granted a modicum of patience by the reader, by briefly looking at one aspect of constitutional law, its waxing and waning over a period of some two centuries, and the change in labor laws that resulted from an evolved view of the constitutional limits to the police power of the States.

As mentioned earlier, Robert Bork is an advocate of the legal principle salus populi est suprema lex, that is, 'the good of the public is the supreme law.' When interpreted in its strictest sense, as does Bork, this means that it is within the police powers of the individual state to enact any law and impose any obligation upon the citizens of that state that is not specifically prohibited to it by either the Federal or the state's constitution. That is a lot of latitude. And this view of constitutional law has been on one side of an argument regarding the extent and legitimacy of a state's police powers that has been a basic theme in constitutional jurisprudence for well more than a century. [1]

The legal principle on the other end of this philosophical tug—of—war is sic utere tuo ut alienum non laedas or 'you should use what is yours so as not to harm what is others.' It may not be obvious to the casual observer why this represents a view opposite to one that advocates maximum police powers. But it does, and for the following reason: it means that the police powers of the state, in addition to the specific prohibitions of a constitution, including the Bill of Rights, are strictly limited to the prevention of harm to, or the forfeit of, the life, liberty or property of one person by the actions of another person or the state. And what is most interesting, is that the sic utere view was the one held by the Founders and the one that prevailed for about the first century or so of our grand Republic as illustrated in 1886 when the influential legal commentator Christopher Tiedeman wrote:

This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State. According to the maxim, sic utere tuo, ut alienum non laedas, it being of universal application, it must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions. [2]

But funny things happened on the way to the twentieth century — industrialization and urbanization. The issues of child labor, excruciatingly long working hours in sweat shops and factories, along with the dangerous and unhealthy working conditions in mines and elsewhere, led to demands that the police powers of the state be employed to regulate the practices of employers who insisted that freedom of contract prohibited the state from so doing. [3]

We all know the end result and by 1904 Ernst Freund was able to assert:

But no community confines its care of the public welfare to the enforcement of the principles of the common law. The state places its corporate and proprietary resources at the disposal of the public by the establishment of improvements and services of different kinds; and it exercises its compulsory powers for the prevention and anticipation of wrong by narrowing common law rights through conventional restraints and positive regulations which are not confined to the prohibition of wrongful acts. It is this latter kind of state control which constitutes the essence of the police power. The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskillful, careless, or unscrupulous. [4]

And we were thus well on our way to the modern regulatory state. By 1918 forty—three states, Puerto Rico and the District of Columbia had statutes regulating the number of hours an employer could insist that an employee work.

That is not, of course, the end of the story. Sic utere may have been down but certainly not out. Salus populi was certainly ascendant but not unchallenged. The principle of judicial review and the resulting court decisions regarding abortion, private homosexual sodomy, and the use of birth control by married couples, are all based on the sic utere principle. That's right. The courts did not impose their will upon the people. What they said was that state legislatures, even when representing a substantial majoritarian view, could not impose their will, i.e.,  the police powers of the state, upon those who were, essentially, doing no harm to others or the public good.

Barry Goldwater should be proud. Of the courts that is, for advocating maximum freedom.

Now, abortion is prohibited once the fetus is viable as one would expect according to the sic utere principle. Those who oppose abortion say that is a distinction without a difference.  Life begins at conception and thus the state may intervene to protect the unborn at any gestational stage. Exceptions for rape and incest would seem impermissible, for how can one justify harm to one person because of harm to another? But should, or rather, does the state have the police power to prohibit abortion under all circumstances? With threat to the life of the mother a singular exception? 

Gay marriage also raises some interesting issues. At first glance, sic utere would seem to rule in favor of such arrangements. However, long—term there may be harm to society as a whole if an institution designed for and amenable to the continuance of the human species loses that purpose as its sole justification. Those jurists who look to foreign courts for guidance would do well to also consider the effects of foreign court decisions and cultural predilection upon the general well being of those same countries. The widespread acceptance in Europe of sex, including homosexuality, as an instrument pleasure rather than procreation, seems to be at least one of the reasons that the continent is in the process of committing mutually unassisted slow—motion suicide. For there is not a single European country where the native birthrate is at or above the replacement level. In the not too distant future the only ethnically European persons left may be Americans or globally displaced expats with European ancestry. [5]

In America, could there be a similar consequence to enshrining gay marriage as a legitimate public institution? However farfetched, such questions are part of deciding constitutional issues and the Justices must weigh sic utere against salus populi.  From what I've been reading, whatever one's intellectual prowess may be, or how outstanding a career as a corporate attorney one may have had,  I get the impression that constitutional law is a unique and unruly beast. An animal that requires superb intellect and long study to tame and call one's own. A 'crash course' just won't do.

Constitutional law questions are probably the most difficult to resolve of all legal issues. Answers given by the Supreme Court reverberate broadly, deeply and over a long time. Accusing judges of donning the legislative hat, though in some cases warranted, is simplistic when, in fact, they are often acting as anti—legislators.  The Founding Fathers, the more I learn, were wise beyond my feeble ken. They sought to maximize freedom and this is possible only by minimizing government and its police powers. There is no optimal tradeoff between the two, for we Americans are too many and too varied. But answers must be given. The Court must speak. Those entrusted with the burden of so deciding must be the wisest and most knowing of all.

Is that Harriet Miers? I don't know. If she's confirmed, I hope so.

But I don't think so.

Endnotes:

1. The primary source for the sic utere versus salus populi argument is from a Spring 2000 article in the Hastings Constitutional Law Quarterly  titled 'The Evolving Police Power: Some Observations for a New Century' by Glenn H. Reynolds and David B. Kopel, and is posted online at Mr. Kopel's web site here. The posted format is that of a narrow single column, and those interested in reading the entire piece may wish to reformat the page prior to embarking on that task.

2. Christopher G. Tiedeman, A Treatise on the Limitations of the Police Power in the United States, at 4—5, (1886), citing Thorpe v. Rutland R.R., 27 Vt. 140, 149—50 (1854).

3. The movement of the courts in the direction of salus populi and away from sic utere began in the later 1800's and to a large extent resulted from the social dislocations and economic upheaval created by the industrial revolution. The role of the Supreme Court in this period of evolving legal doctrine is recounted at the Supreme Court Historical Society site in an essay titled 'Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era' by Melvin I. Urofsky and posted here.

4. Ernst Freund, The Police Power: Public Policy and Constitutional Rights 6 (Arno Press 1976) (1904)

5. Details regarding European population trends may be found in Rand Corporation research brief RB—9126—EC titled 'Population Implosion? Low Fertility and Policy Responses in the European Union' and available online here