Cutting the Gordian Knot of judicial activism
Constitutional purists 'can't get there from here' — or can we?
Legend had it that whoever could untie the Gordian knot would rule Asia. So Alexander the Great thought he would have a go at it. Drawing his sword, he cut the knot apart; that, he declared, made him the hero of the prophecy.
Alexander went on to conquer a great deal of Asia, but his early death brought his reign to a quick end, which serves him right for trying to cheat the Gordian legend. 'Cutting the Gordian knot' lives on, however, as an expression meaning to solve a difficult problem in an unexpected way. Oddly enough, the phrase connotes ingenuity rather than brute force, and it carries no suggestion of cheating at all.
The era in which liberals have dominated America has, unfortunately, lasted somewhat longer than Alexander's empire did. And the perplexities facing those of us who hope to repair some of the damage liberals have caused are, if anything, greater than the challenge Alexander faced with the Gordian knot.
To the extent that the solution to our problems lies in individual repentance, faith, hope and love, each of us holds the answer in his own hands. But to the extent that our lives are affected by public policy, our efforts are greatly hampered by the system of court—imposed restrictions and compulsions that today's liberals call 'the living Constitution.'
Do we want to ensure that the younger generation is educated with a high regard for the precepts of religion and morality? A judge tells us we can't do it.
Do we want to see to it that innocent people may live without fear in a society that is free of wanton criminal violence? A judge tells us we can't have it.
Do we want to guard our children's happiness by cleaning up a culture permeated by pornography? A judge tells us that can't be done, either.
Do we want to restore to unborn human beings the very right to life that we ourselves enjoy? A judge tells us that for them, no such right exists.
Each of those issues was brought to its present state by sudden changes in public policy, changes usually dictated by the federal judiciary and always provoking popular resentment. The furor has faded, however, and many Americans today don't even suspect that much of the system we live under was never established by legitimate processes.
Though increasingly quite open and systematic, the judiciary's activism (1) often has been cloaked in spurious appeals to the framers' authority, as in the late legal scholar Robert Eugene Cushman's remark that the framers 'were statesmen who had no purpose or desire to lay the hand of the dead upon a growing America.' (2)
It's hard to credit such appeals with basic honesty. If statesmen didn't want to lay their clammy, dead hands on future generations, why would they put themselves to the trouble of establishing a written Constitution at all? Why ascribe to them the absurdity of intending for their intentions to be ignored? How, exactly, could such a pushmi—pullyu purpose be effected?
Cushman's assertion is, in any case, refuted by numerous declarations of our founding fathers that they did indeed intend to influence events beyond their own time — to 'bind [man] down from mischief,' as Jefferson put it, 'by the chains of the Constitution.' (3) For all their absurdity, however, views such as Cushman's have prevailed among those who expound the law to us.
While it lasted, public resentment over the excesses of modern judicial activism helped elect a series of conservative presidents, with the result that the Supreme Court, under the influence of justices less attuned to the prevailing liberal outlook, seemed for a time at least to be slowing its assault on the remaining elements of the original constitutional order. But the court's professed respect for recent precedent has led it to disappoint those of us who had hoped for a voluntary restoration of that order. Thus the justices rejected a bid to retract their support for abortion, on grounds that 'Liberty finds no refuge in a jurisprudence of doubt.'
Something besides respect for precedent is at work, however. When in 2003 the court pretended to find a right to sodomy hiding among the Constitution's mysterious emanations and penumbras, its own precedent to the contrary counted for nothing. Dissenting Justice Antonin Scalia tweaked the majority's nose:
'Liberty finds no refuge in a jurisprudence of doubt.' Planned Parenthood of Southeastern Pa. v. Casey (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade. The Court's response today, to those who have engaged in a 17—year crusade to overrule Bowers v. Hardwick (1986) is very different. The need for stability and certainty presents no barrier. (4)
If precedent counts for nothing when in conflict with a liberal imperative, the rule of law apparently counts for even less. When a Florida trial judge ordered the feeding tube removed from Terri Schiavo, a disabled woman whose faithless husband was intent on her death, emergency legislative action in both Florida and the U.S. Congress was to no avail. A judge had decreed that she must die, and the mere enactments of duly elected lawmakers had no say in the matter. (5)
What, then, is going on? It's about pride, and little else. The personal interest of judges is to act as more than what John Marshall called them: 'the mere instruments of the law.' (6) And the class interest of liberals is to reinforce that proclivity.
Why expect a jurist interpreting the Constitution to be content with giving effect to the will of its framers? The framers' power of praise and censure went with them to the grave long ago. Today's liberal elite, on the other hand, has deployed an army of flatterers and rationalizers whose aim is to induce the jurist to 'grow,' to 'take an expansive view,' to 'be a force for social change' — to give effect to their will instead. Why expect him to reduce himself to a humbler role, when his reward for such self—denial is sure to be the abuse and contempt of that same army? (7)
Waiting for the accession of right—thinking judges, in short, is not going to cut it. Even if events had not already demonstrated its futility, such a course is too passive, and too slow, to satisfy those who suffer from our social ills. Though fewer and fewer Americans remember the connection between those afflictions and the edicts that unleashed them, they want and deserve some long—overdue relief.
That being so, what makes the issue so intractable? Why has so much been said about judicial activism, and so little done?
The most important reason is that most Americans don't know the difference between court precedent and the Constitution itself.
In the many cases where a particular 'landmark decision' has provoked enough outrage to inspire calls for a specific amendment to undo it, such amendments have gotten nowhere — checked by the idea that adopting them would be 'tampering' with the Bill of Rights. On such occasions, it seems not one American in a hundred manages to recall that the ruling in question has itself tampered with the Constitution. Not one in a thousand has any idea that such tampering was specifically denounced by the very men who gave us that document. (8)
So here's my bid at cutting the Gordian knot: What if we devised an amendment, based on the framers' precepts, to make what Marshall called 'a fair construction' (9) of the Constitution not a theory in dispute but a positive requirement? What if the people told the judges to treat their task as Marshall did, and as Madison, Hamilton and the rest thought they should: as interpretation of an historical document, not husbandry of a growing, evolving one; as the effectuation of the intent of the framers, not the effacing of it?
Many would reject such a proposal out of hand. Legitimate or not, they say, judicial activism is something we have come to depend on; it is indispensable to social progress; without it, the Constitution would become archaic, burdensome and irrelevant; and so on.
Let's see if history bears such views out. Granted that some reforms might never have been achieved had our judiciary not departed from the framers' intent. But how do those benefits measure against the injuries judicial activism has inflicted on us?
Its first great exercise, the decision in Dred Scott v. Sandford (1857), was a disaster. The issue was slavery, and the danger was that a nation dedicated to freedom might not be able to deal with slavery without collapsing into fratricidal violence. When the country's elected leadership began fumbling this question, the Supreme Court stepped in to 'settle' it, once and for all.
The Missouri Compromise was void, wrote Chief Justice Roger Taney, for in making a territory free soil it worked to deprive slaveowners of their property without 'due process of law.'
Due process, the justices had discovered, did not mean what Madison, Hamilton and the rest thought it meant — that is, that public action against an individual must follow the established procedures of the law. Due process was actually Due Substance, or as we are now pleased to call it, 'substantive due process.' The law in question struck Taney as so unreasonable that even the most punctilious enforcement of it 'could hardly be dignified with the name of due process of law.' Thus spake the court. (10)
Dred Scott was intended to safeguard 'the peace and harmony of the country,' by removing its deadliest political problem from political contention. Its effect was to accelerate the trend toward violence over slavery. When John Brown returned from 'bleeding Kansas' with a plan for slave insurrection, stymied abolitionists bankrolled him; and when he was hanged, they beatified him. That drove the South to frenzy. A straight line can be drawn from Dred Scott through Harper's Ferry to Fort Sumter. No other avoidable event bears such responsibility for the onset of civil war. (11)
Then there is the Progressive Era, in which the court subjected popular state legislation to continual defeat, on the strength of a constitutional 'liberty of contract' which, so far as the federal government's power to enforce it is concerned, never existed. That also was the principle of 'substantive due process' at work.
Significantly, on the one occasion when the justices stood on firm framers' ground and struck down the federal income tax — a direct tax, it was not assessed in proportion to population, as required by Article I, Section 9 — the people found it a simple matter to pass an amendment changing that provision to one that suited them better. But for the abuse of the 'due process' clause they had no remedy. (12)
Finally, let's consider the interference of the modern court with the maintenance of law and order. Enforcement aside, one could argue that the Supreme Court does not 'cause' crime, any more than Dred Scott caused slavery. Such a stance, however, overlooks the many activist rulings that have affected America's culture, manners and morals in ways that foment lawlessness. And even with regard to law enforcement alone, it's hardly honest to deny that our judiciary bears any responsibility for crime's high levels.
This much is clear: 1. The reforms set down by the Warren Court drastically altered the relationship between authorities and criminals. 2. That transformation was in the criminals' favor, and it operated by the suppression of pertinent, often conclusive evidence, and by the inhibition of authorities from methods, noncoercive and long unchallenged, whereby such evidence had been obtained. 3. The changes were imposed over the vehement protests of the law enforcement community. 4. They were accompanied by litigation, seeking to label capital punishment 'cruel and unusual,' that resulted for a time in its de facto abolition, and continues to severely restrict its application. 5. Neither the Warren reforms nor the death penalty interdiction conformed to the intent of the framers. 6. Both were followed by an enormous increase in violent crime. (13)
From the Civil War to the Great Crime Wave, events appear to bear out the truth of Washington's warning that allowing the Constitution to be altered by usurpation 'must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.' (14) As a matter of general principle, then, we can return constitutional law to the authority of the framers without fear of doing more harm than good. But that said, we are still far from disposing of all the objections to a 'Fair Construction Amendment.'
Judicial activism, after all, has not been totally perverse in its effects. It has conferred quite a few 'partial benefits,' and some of them not so transient. So even if Americans were to put an end to it, we would need to sort through the Supreme Court's activist decisions and ratify those changes we should have made for ourselves.
The most obvious such case is Brown v. Board of Education of Topeka, Kansas, the 1954 ruling against racial segregation in education. It and the later decisions concerning racial discrimination in employment, housing and public accommodations were among the Warren Court's whoppers, so far as the intent of the framers is concerned. 'Separate but equal,' sad to say, is closer to the intentions of those who adopted and ratified the 14th Amendment than Brown is. (15)
Thanks in large part to the Supreme Court, Jim Crow is dead and buried. Yet even here, the judges have overreached themselves, enforcing busing and reverse—discrimination schemes that are almost as abusive of individual rights and injurious to racial harmony as the segregationist practices they replaced. Our amendment, then, should feature a civil rights provision to preclude both extremes — one modeled, perhaps, on the initiatives that voters have already approved in California and Washington state. In so doing, it would respect the wishes of a great majority of Americans today. (16)
Another candidate for inclusion in the amendment is the 'incorporation doctrine,' by which provisions of the federal Bill of Rights are made binding on state governments through progressive reinterpretation of the 14th Amendment. While some of us might argue in favor of leaving those issues to the states — and indeed that would be much preferable to our current judge—ridden condition — the national enforcement of civil liberties seemed like a good idea to Madison, and today it is taken for granted by most of our countrymen. (17)
Yet here, too, the courts have taken things too far, holding, for example, that 'freedom of speech' covers everything from nude dancing to flag burning, and inventing a constitutional right to abortion that had never before been imagined. Our 'incorporation' clause might restore the balance by applying the Bill of Rights to the states — but binding the definition of those rights to their original understanding. That would return to the people their power to control abortion and pornography and to provide for school prayer, and it would confine federal review of state law enforcement to actual violations of due process: torture—induced confessions, murder of suspects in custody, lynching and the like.
There's one objection to a Fair Construction Amendment that we needn't worry too much about. It's the line of argument that confuses 'original' with 'literal.' That line usually dwells on technological changes, with the implication being that if, for example, the First Amendment were held to its original meaning, then the protection of 'freedom of speech or of the press' would leave radio, television and the Internet out in the cold.
Please notice that if taken literally, the First Amendment also would give no protection to the writing of letters or the display of hand—painted posters and banners, since those activities involve neither speaking nor pressing. Nor would the amendment protect symbolic political expression such as 'the wearing of the green,' which, the Irish tell us, cost innocent people their lives under oppressive British rule.
Obviously, the First Amendment was originally intended and understood to protect all means of individual and mass communication, whether written or oral, whether verbal or symbolic. That original understanding easily and properly applies to new media as they develop.
On the other hand, certain types of expression, such as libel and pornography, existed in the 18th century just as they do now, and even though the First Amendment contains no literal terms excluding those items from its protection, the amendment's original meaning leaves them naked as a jaybird. (18)
(Another category of unprotected speech is what the court has called 'fighting words.' If I am arguing with someone on the street, and a policeman overhears me insult my antagonist's mother, he can haul me in for disturbing the peace, my right of free speech notwithstanding. In this regard, a ban on flag—burning would pose no constitutional problem at all, if the court would only think to apply its 'fighting words' doctrine to symbolic speech.)
The biggest problem with a Fair Construction Amendment is that it would need to include a section to give proper constitutional authority to a great many of the activities in which the federal government is now engaged. Some might wish it were otherwise, but there is no way any amendment will be considered if it does not take care to protect the constitutionality of Social Security, Medicare, the Federal Reserve Bank, national parks, disaster relief, etc., etc., etc. Here is where the real fight would be. Which programs to include, which to leave out?
Authorization for the more controversial ones perhaps could be offered in separate amendments, rather than drag the entire project down with disputes over such things as funding for the arts. What we should avoid for sure is any clause that would give the federal government carte blanche to spend and regulate on whatever subject it pleases. That's pretty much what the feds are doing now, of course, but to concede them that authority in writing would be a big mistake. It would put paid to our original system of limited, delegated federal powers. In that regard, at least, it would indeed make our Constitution the 'blank paper' Jefferson feared.
A final problem with a Fair Construction Amendment is how it would be enforced. Most jurists, to be sure, would understand and obey the requirement of interpretation by the original understanding (much as they may despise that standard now), once it was made explicit in the Constitution. But some might find themselves unwilling to comply. For example, a justice who is convinced that capital punishment is evil might yield to the temptation of declaring it cruel and unusual within the meaning of the Eighth Amendment. In such a case, even if the jurist made a pretense of consulting the intent of the framers (for we mean to secure it more than lip service), the country would require a remedy.
It's important, however, that the remedy not be too handy. Interpretation by the original understanding would limit majority rule as well as protect it, and in seeking a more adequate check on judicial power than we now have, we wouldn't want to threaten the judicial independence which alone can give the Constitution true expression.
But a jurist's defiance of the intent of the framers is malfeasance, no less so than an executive's defiance of the laws. And the penalty appropriate to such behavior is impeachment. That remedy is serious enough to discourage abuse, both by Congress in its exercise and by the courts under its discipline. And it's been there waiting for us all along. As Hamilton told us, impeachment is both an 'important constitutional check' on judicial power and 'the only provision on the point which is consistent with the necessary independence of the judicial character.' (19)
A Fair Construction Amendment, then, might shape up something like this:
Section 1: The Judiciary of the United States shall not presume to exercise nonjudicial power.
The sense in which this Constitution was accepted and ratified by the nation shall be the guide in expounding it. Its provisions are neither to be restricted in—to insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption. Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation.
Disregard of these principles is cause for impeachment.
Section 2: No one in the United States shall be either subject to or entitled to discrimination in education, employment, housing, or public accommodations on account of race.
The Congress shall have power to enforce this section by appropriate legislation.
Section 3: The provisions of this Constitution's first eight articles of amendment shall apply to the states as well as to the United States; but in every other respect, they shall be expounded according to the rules set forth in Section 1 of this article.
Section 4: The Congress shall have power to ...
Devising a Fair Construction Amendment, and getting it past the ferocious opposition of today's activist establishment, would be a lot of trouble. But at the end of it all, we'd have the advantage of practicing actual self—government, under a Constitution of our own making, rather than bowing to the dictates of a liberal elite whose constitutional authority is often pure fiction.
How would our amendment fare in that fight? Since it seeks to overturn the liberal regime, it would undoubtedly be attacked as 'extremist.' But would that tag stick, once people realized that the wording of Section 1 comes straight from the writings of Marshall, Madison, Hamilton, Jefferson and Washington? (20) How would the amendment's opponents go about arguing with those gentlemen? They might not have as much success trying to 'bork' the Founding Fathers as they had in demonizing Robert Bork himself.
Section 2 upholds the main beneficial change our country owes to judicial activism. In so doing, it trumps the ace our activists have always played when pressed hard by their opponents: that without judicial intervention, the evil of Jim Crow segregation would still be with us.
How would supporters of 'abortion rights' handle a Fair Construction Amendment? Even with nothing said about abortion, the amendment's ratification would make Roe v. Wade vanish like a bad dream. How could pro—choicers make an issue of that, without admitting that Roe was humbug from the beginning? And having admitted it, what luck would they then have, either in inserting an 'abortion rights' section into this measure or in winning approval and ratification for such 'rights' in a separate amendment? Not much, I'd expect.
Imagine the liberals' consternation as they realized that, on one issue after another, a Fair Construction Amendment was putting them in that same bind — 'binding them down from mischief,' one might say, by the chains of the real, not the 'living,' Constitution.
This little brainstorm may or may not be the way to cut the Gordian knot into which liberals have tied our country's constitutional law. One thing, however, is certain: Conservatives have been picking away at that knot for a generation now, with hardly any effect.
It's time to try something new.
1. Judicial activism — the interpretation of the Constitution in a sense deliberately contrary to its original meaning so as to achieve a political result favored by the judge — has in the past been used in ways that aren't recognizably 'progressive,' but in modern times, it has been almost exclusively the tool of the left. Liberals nevertheless have sometimes called conservatives 'judicial activists' for urging that this or that 'landmark' decision be reversed. Thus Hearst columnist Marianne Means wrote in 1996 that 'conservatives who have long denounced liberal court 'activism' now promote similar activism going in the opposite direction.' But 'activism' does not mean 'willingness to reverse precedent.' It's not the opposite of stare decisis. As the distinguished constitutional historian Raoul Berger put it, 'Too much discussion of constitutional law is centered on the Court's decisions, with not enough regard for the text and history of the Constitution itself. We need to recall Justice Gibson's great statement in 1825: 'In questions of this sort, precedents ought to go for absolutely nothing. The Constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision.' ' Berger argued that if a judicial decision alters and supersedes the Constitution itself, then while the judicial activist may thereafter seek to guard, uphold and perhaps extend the precedent, the business of the constitutionalist is to remove the accretion and adhere to the fundamental law itself. ———Means, 'Playing judicial politics is not good for the nation,' Hearst Newspapers column in The Chattanooga Times, April 17, 1996, p. A7; Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment, second edition, pp. 318—321.
2. Cushman, Leading Constitutional Decisions, 11th edition, p. vi.
3. Berger writes that 'the Founders' commitment to written limits on all power ... sprang from an omnipresent dread of the greedy expansiveness of power, graphically expressed by Jefferson: 'It is jealously and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power. ... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.' ' ———Government By Judiciary, p. 276.
See also James Madison, who wrote: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers" (quoted by Berger in Government By Judiciary, p. 4) and "A regular mode of making proper alteration has been providently provided in the Constitution itself. It is anxiously to be wished ... that no innovation may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted" (quoted by H.C. Hockett in The Constitutional History of the United States 1826—1876, p. 4).
4. Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice, ed. Kevin A. Ring, pp. 281—283. See also Mark R. Levin, Men in Black: How the Supreme Court is Destroying America, pp. 71—87.
5. The Schiavo case is too fresh in mind to require recounting here. It is treated extensively in, for example, the April 4, 2005, edition of The Weekly Standard, the April 2 edition of World, and in innumerable postings on the Web.
6. In Osborn v. Bank of the United States, Marshallwrote:"Judicial power, as contradistinguished from the power ofthe laws, has no existence. Courts are the mere instruments of the law, and canwill nothing. When they are said to exercise a discretion, it is a mere legaldiscretion, a discretion to be exercised in discerning the course prescribed bylaw; and, when that is discerned, it is the duty of the Court to follow it.Judicial power is never exercised for the purpose of giving effect to the willof the Judge; always for the purpose of giving effect to the will of theLegislature; or, in other words, to the will of thelaw."
7. Compare, for example, Jeffrey Rosen, 'Poetic justice: The education of David Souter,' The New Republic, March 8, 1993, pp. 25—28, with Rosen, 'Originalist sin: The achievement of Antonin Scalia, and its intellectual incoherence,' The New Republic, May 5, 1997, pp. 26—36.
8. When constitutional amendments were offered in a bid to reverse court decisions on school prayer and flag—burning, for example, liberal columnist Edwin Yoder undertook to instruct 'pseudo—conservatives' in the mysteries of conservatism, a viewpoint with which he was evidently unacquainted. The amendments the 'pseudos' were pushing would entail 'tampering with the First Amendment,' Yoder averred. The Bill of Rights 'has never been amended in the 202 years of its history,' he said, and he seconded Assistant Attorney General Walter Dellinger's warning against turning the Constitution 'into a forum for divisive political battles.' The 'true conservative,' Yoder declaimed, 'abhors sudden or radical change, above all in basic constitutional practices. ... For two centuries, the meaning of the First Amendment has been exclusively decided by jurists protected by life tenure from raw political passions.' ———Yoder, 'Radicals vs. the Constitution,' Washington Post Writers Group column in The Chattanooga Times, June 10, 1995, p. A6.
Mr. Yoder's sermon, unfortunately, ignored what conservatives were actually saying. When activist judges and lawyers speak of how such—and—such a law violates 'the First Amendment as applied to the states by the 14th Amendment,' it's evident (to conservatives, at least) that the Bill of Rights has been 'amended' somewhere along the way — and not, as Berger demonstrates conclusively in Government By Judiciary, by the method prescribed in Article V. And when the Supreme Court takes it upon itself to 'settle' questions such as slavery or abortion by asserting that the Constitution speaks on those issues in ways previously unsuspected, conservatives observe and deplore the importation into that document of 'divisive political battles' that belong in the legislative arena. True conservatives do abhor 'radical change' in 'basic constitutional practices' — which is why they protest when such change is imposed by 'life—tenured jurists.'
9. In a newspaper essay defendinghimself againstcritics of his jurisprudence, Marshall wrote: "There is a fair constructionwhich gives to language the sense in which it is used, and interprets aninstrument according to its true intention." ———JohnMarshall's defense of McCulloch v. Maryland,ed. Gerald Gunther, p. 92.
Contrary to the image of him cultivated by today'sjudicial activists, Marshall was not one of theirs. He emphaticallydisavowedany claim to the powers they presume to wield. The passage inMcCulloch that had drawn the most criticism (and is quoted approvingly today asa charter for judicial activism)speaks of "a constitution intended to endurefor ages to come, and, consequently, to be adapted to the various crises ofhuman affairs." In defending it, Marshall wrote that the passage "does notcontain the most distant allusion to any extension by construction of the powersof Congress. Its sole purpose is to remind us that a constitution cannotpossibly enumerate the means by which the powers of government are to be carriedinto execution. ...The [Supreme Court's] power of deciding in a last resort, allquestions 'arising under the constitution and laws' of the United States...cannot be the assertion of a right to change that instrument." ———Ibid., pp. 185,209.
Fromthe bench, Marshall wrote: "The intention of the instrument must prevail; ...itsprovisions are neither to be restricted into insignificance nor extended toobjects not comprehended in them nor contemplated by its framers" (Ogden v.Saunders, 25 U.S. 332, a raredissentingopinion). In modern terms, then,Marshall himself was a "strict constructionist," and in Gibbons v. Ogden (22U.S. 188), he himself said as much: "What do gentlemen mean by a strictconstruction? If they contend only against that enlarged construction whichwould extend words beyond their natural and obvious import, we might questiontheapplication of the term, but should not controvert the principle."
10. Legal scholar Bernard Schwartz writes: 'To today's public lawyer, the Due Process Clause so plainly imposes the most important substantive limitation upon governmental power that he may forget how limited due process was in its original connotation. When Madison wrote the Due Process Clause into his first draft of the Bill of Rights, he thought of due process only as a procedural guaranty. His view was doubtless that expressed by Hamilton in 1787 on a New York law [guaranteeing due process]. ... 'The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature,' said Hamilton.' Nevertheless, a New York court in 1856 used that state's Due Process clause to overturn an early prohibition law as depriving people of 'the rights of property ... in intoxicating liquors.' Even though New York's 'Act for the prevention of intemperance, pauperism and crime' relied for enforcement on 'the forms which belong to 'due process of law,' ' the court ruled in Wynehamer v. People that it violated 'the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power.' Schwartz writes that 'it was essentially the Wynehamer approach that Chief Justice Taney followed [in Dred Scott v. Sandford, 19 How. 393] when he held that Congress lacked the power to deal with slavery in the territories by enactment of the Missouri Compromise of 1820. According to Taney, congressional authority to regulate the territories was restricted by the protection given property rights by the Due Process Clause of the Fifth Amendment.' ———Schwartz, The American Heritage History of the Law in America, pp. 69—72.
Neither the New York temperance law nor the Missouri Compromise, however, attempted any restriction of what constitutional scholars would end up inanely calling 'procedural due process.' No tippler or tavern owner could be molested under the former except through due process, nor could any master lose his slave under the latter except through due process. When Dred Scott (with the active support of his nominal owners), pressed his suit for freedom on the grounds that he had once been taken by his master into a territory the Missouri Compromise had made free soil, the very involvement in the case of attorneys, judges, briefs, writs and rulings all bespoke due process of law.
11. Of the 'peace and harmony' passage (contained in a concurring opinion), Schwartz writes: 'Seldom has wishful thinking been so spectacularly wrong. Whatever Dred Scott brought about, it was not peace and harmony — either for the Court or for the country.' ———Ibid., pp. 72—73.
Within a year of Dred Scott, John Brown was collecting funds from Boston abolitionists with the intention, as historian T.R. Fehrenbach puts it, 'to lead a mass insurrection and arm the Southern slaves, and to create an Abolitionist republic on the ruins of the plantation South.' Similar uprisings in Virginia and in the Caribbean had involved the massacre of white women and children, but this didn't faze Brown or his backers. Fehrenbach writes that Brown's raid 'created a terrible crisis of ends and means in the North, particularly among an articulate, intellectual group in the East. ... While generally political figures of all parties considered Brown criminally insane, if not legally insane, and there were massive anti—Brown rallies in Boston and New York, there was an amazing reaction from what could only be considered the moral and cultural elite of the North of that time. ... Horace Greeley wrote the Harper's Ferry raid was 'the work of a madman,' but he had not 'one reproachful word.' Ralph Waldo Emerson described Brown as a 'saint.' Henry Thoreau, Theodore Parker, Longfellow, Bryant, and Lowell, the whole Northern pantheon, with the exception of Walt Whitman and Nathaniel Hawthorne, took the position Brown was an 'angel of light,' and not Brown, but the society that hanged him was mad.' Fehrenbach notes that while Thoreau had been willing to go to jail rather than support the war against Mexico, 'he was not pacifist: he was also willing to shed American blood in furtherance of his own ideology. ... On the day Brown died, church bells tolled from New England to Chicago; Albany fired off one hundred guns in salute, and a governor of a large Northern state wrote in his diary that men were ready to march to Virginia.' ———Fehrenbach, Lone Star, pp. 335—336.
The abolitionist support for Brown, both before and after the fact, had 'a blood—chilling effect south of the Ohio,' Fehrenbach writes. 'The countryside, from the evidence of letters to authorities and private correspondence, in the year 1860 was in panic. It was thought the South was honeycombed with traitors, and that every Negro was bloody—minded and ready to rise and kill. The panic took all its recognizable forms. A sixty—year—old preacher, a Democrat born in Kentucky who believed the Bible sanctioned slavery, criticized the flogging of Negroes in a sermon. His Texas congregation tied him to a post and almost killed the old man with seventy lashes on the back. In Palestine, Texas, a self—appointed committee collected all 'dangerous books for destruction by public burning.' People also burned possessions of Northern manufacture. Northern—born schoolteachers were hounded out; Yankee seamen were mobbed in the port towns. ... At Dallas a large mob hanged three unfortunate Negroes, for no known cause. Three white men were lynched in Fort Worth, on the suspicion they had 'tampered' with slaves. ... Similar violence and panic was occurring in some degree across the whole South; the wildest rumors seem to have begun in Texas, but they rapidly spread northward as far as the Potomac. In Virginia and Mississippi, many people believed Texas was in a state of chaos, induced by Northern conspiracies. One historian compared this mass delusion and mass fear with the 'Great Fear' that seized France in 1789; in any event it precipitated political crisis.' ———Ibid., pp. 337—338.
Philosopher Sidney Hook, in his essay 'Democracy and Judicial Review,' writes that Dred Scott, 'in the opinion of an amazing number of witnesses contemporary to the event, was one of the major causes of the Civil War, or one of the two main proximate causes of that conflict.' (The other proximate cause would be, of course, the election of Abraham Lincoln to the presidency. Lincoln, however, was merely the straw that broke the camel's back. Without the John Brown raid and the ensuing Southern hysteria, the moderate, law—abiding and notably unbloodthirsty Lincoln would never have inspired the fear and loathing he did.) Hook cites as representative of those witnesses a biography of Justice B.R. Curtis (a dissenter in the Dred Scott case) that was written in 1879 by his brother, George Ticknor Curtis: 'The course of the majority of judges in this case of Dred Scott precipitated the action of causes which produced our civil war, and which otherwise would have lain dormant until the period of danger to the Union, arising out of the existence of slavery, had passed by. If, without such an excitement as was occasioned by what was claimed to have been the 'decision' of the Supreme Court on the subject of slavery in the Territories, we could have gained ten years more in the growth of the North and in the peaceful development of the power of the Federal government within the just limits of the Constitution, Southern secession would never have been attempted.' ———Hook, The Paradoxes of Freedom, pp. 92, 146—147.
12. Schwartz writes: 'If corporations had not been included by the courts within the safeguards of the Fourteenth Amendment, the latter could hardly have developed as the basic charter of the new American economy. Nor could that charter have fostered the galloping industrialism of the post—Civil War period if the due process guaranteed by the amendment had been confined to its literal import of proper procedure. It was the judicial importation of a substantive side into due process that made it of such significance as a restriction on governmental power.' Schwartz credits Thomas M. Cooley, author of the 1868 treatise Constitutional Limitations, with laying the 'doctrinal foundation' for 'substantive due process,' thus rescuing it 'from the constitutional cul—de—sac in which Dred Scott had left it. Cooley was the first text writer to make a broad analysis of due process as a substantive limitation. The popularity of his treatise among lawyers and judges soon made Cooley the most frequently quoted authority on American constitutional law. Almost single—handed, Cooley prepared the way for the virtual takeover of American public law by the Due Process Clause of the Fourteenth Amendment.' ———Schwartz, op. cit., pp. 132—135.
Where Washington in his Farewell Address had insisted that any constitutional change be effected by 'an explicit and authentic act of the whole people,' then, Cooley had transformed 'due process' into 'due substance' by writing a treatise that gained popularity among lawyers and judges. Where Washington had decried 'all obstructions to the execution of the laws ... under whatever plausible character' as a 'fatal tendency,' Cooley had conjured up (in the words of his book's preface) 'definite limitations which circumscribe the legislative authority, aside from the specific restrictions which the people impose by their constitutions.' Whether American corporations could have thrived as they did without the imposition of extraconstitutional restrictions on the people's right of self—government is open to question. What's clear is that such restrictions were adopted in utter disregard of Washington's warning about 'the delegated will of the nation' being subjected to the will of 'a small but artful and enterprising minority of the community.'
Cooley's doctrine did not come into its own until a generation later, when the Supreme Court went in for 'substantive due process' in a big way. 'Particularly after the turn of the century,' Schwartz writes, 'in cases following that of Lochner v. New York in 1905, the Court relied on its independent judgment to determine the reasonableness of challenged statutes. In those cases, the Court came close to exercising the functions of what dissenting Justice Louis D. Brandeis called a 'superlegislature,' setting itself up as virtual supreme censor of the wisdom of legislation. Under the Lochner approach, substantive due process became the great instrument of judicially imposed laissez faire and was employed to invalidate a host of laws, particularly those seeking to regulate economic abuses.' ———Ibid., pp. 136—145.
In 1913, Theodore Roosevelt denounced the judges behind those decisions, saying they 'have arrogated to themselves ... the power to decide whether or not the people are to be permitted to have certain laws in the interest of social justice. ... Each decision told heavily against the interests of hardworking men, women and children unable to protect themselves, and each decision was in the interest of the wealthy and powerful.' And that state of affairs persisted until Franklin Roosevelt's court—packing threats and long tenure as president brought the high court around. ———Ibid., pp. 192—198.
As with Dred Scott a half—century before, 'substantive due process' had produced unfortunate results. Yet writers like Schwartz find fault only with the specific purpose served by the judiciary in its usurpation of legislative power, not with the usurpation itself. They remain big fans of 'the living Constitution,' so long as it 'grows and evolves' in the direction they prefer.
13. These assertions are expanded on by the presentwriterin the bookYo! Liberals! You Call This Progress? Crime, Race, Sex,Faith, Law and the Culture War, coming this summer from Fielding Press, ofwhich this article is an excerpt. See also Berger,Death Penalties: TheSupreme Court's Obstacle Course; William Tucker,Vigilante: TheBacklash Against Crime in America; and Judge Harold J. Rothwax,Guilty:The Collapse of Criminal Justice.
14. Those words of Washington also come from hisFarewell Address.
15. Berger maintains that the Brown decision was, as historian Richard Kluger called it, 'simple justice.' But he shows beyond dispute that such justice is not what the framers of the 14th Amendment had in mind. At the time the amendment was adopted, eight Northern states provided for segregated schools either statewide or as a local option, and five Northern states excluded colored children from their public schools altogether. School segregation was the rule in the District of Columbia, over which Congress had direct authority. The legislative history of the 14th Amendment and of the related Civil Rights Act of 1866 shows clearly that Congress had no intention of disturbing such arrangements. ———Berger, Government By Judiciary, pp. 132—154.
16. Columnist William Rusher points out that while most Americans oppose quotas and preferential policies, they still do support 'affirmative action' in its more positive aspects: minority outreach, remedial education, Head Start programs, and so forth. Thus the California Civil Rights Initiative, which banned preferences, was approved by a wide margin despite vigorous opposition from the liberal establishment. But when the wording of an anti—preferences ballot proposition in Houston was changed to eliminate the words 'preferential treatment' and substitute the words 'affirmative action for women and minorities' as its target, it was defeated. Unfortunately, the change in wording served only to conceal the fact that preferential treatment was the policy at issue. Afterwards, liberals touted the Houston vote as an endorsement of preferences, the very policy the Houston ballot item had been rewritten to conceal. ———Rusher, ' 'Affirmative Action' Yes, Preferences No,' Newspaper Enterprise Association column in Chattanooga Free Press, Dec. 8, 1997, p. A5; Pat Buchanan, 'Supporters of quotas must obfuscate, or lose,' Conservative Chronicle, Nov. 19, 1997, p. 13.
17. Berger writes: 'Madison urged that 'the State governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.' ... [But] the view that prevailed was that of Thomas Tucker: 'It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do.' ' ———Berger, Government by Judiciary, pp. 155—156; Schwartz, op. cit., pp. 42—48; Robert E. Cushman and Robert F. Cushman, Cases in Constitutional Law, pp. 438—439.
18. As Robert Bork points out, the idea that pornography is protected by the Constitution reflects 'a profound ignorance of the history of the First Amendment. Until quite recently, nobody even raised the question of that amendment in prosecutions of pornographers; it was not thought relevant even by the pornographers. As late as 1942, in the Chaplinsky decision, a unanimous Supreme Court could agree: 'There are certain well—defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problems. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' ' Even today, 'obscenity' is not protected under Supreme Court doctrine; what has happened is that the court has arbitrarily created a narrower definition of what may be deemed obscene. ———Bork, Slouching Towards Gomorrah, pp. 140—153.
19. In The Federalist No. 81, Hamilton wrote: "Thesupposed danger of judiciary encroachments on the legislative authority, whichhas been upon many occasions reiterated, is in reality a phantom. Particularmisconstructions and contraventions of the legislature may nowand then happen;but they can never be so extensive as to amount to an inconvenience, or in anysensible degree to affect the order of the political system. ... [This]inferenceis greatly fortified by the consideration of the important constitutional check,which the power of instituting impeachments, in one part of the legislativebody, and of determining them in the other, would give to that body upon themembers of the judicial department. This is alone a complete security. Therenever can be danger that the judges, by a series of deliberate usurpations onthe authority of the legislature, would hazard the united resentment of[Congress], while this body was possessed of the means of punishing theirpresumption by degrading them from their stations." And in The Federalist No.79, he wrote: "The precautions for [judges'] responsibility are comprised in thearticle respecting impeachments. They are liable to be impeached for malconductby the House of Representatives, and tried by the Senate; and, if convicted, maybe dismissed from office, and disqualified for holding any other. This is theonly provision on the point which is consistent with the necessary independenceof the judicial character."
20. Chapter and verse may be found online attheSources page ofwww.fairamendment.us.
Karl Spence is a journalist living in San Antonio. A shorter version of this article appeared in the Chattanooga Free Press, and it is republished here by permission of the Free Press. It is an excerpt from the book, Yo! Liberals! You Call This Progress? Crime, Race, Sex, Faith, Law and the Culture War, coming this summer from Fielding Press. More about the Fair Construction Amendment may be found online at www.fairamendment.us.