August 12, 2008 8:20 AM
Posted By News Questions
& comments 2
The Dirty Dozen's Dirty Secret: The Conservative Legal Movement's Legitimacy Crisis -- Part II
by David Barron, Professor of Law, Harvard University
[The first part of this discussion is available here.]
Right-leaning legal thinkers are — if the book The Dirty Dozen is any indication — all mixed up about judicial review right now. The Dirty Dozen has all the standard conservative tropes about how bad it is for activist judges to make things up. And yet every one of the 12 cases the authors single out for disrepute is one in which the Court deferred to the state or national government. So the problem is not, it turns out, that unaccountable judges are running wild and trampling democratic will. It’s that unaccountable judges are being too respectful of popular will.
To see a glimpse of just how deep this tension runs, you might want to check out John McCain’s cri de couer against activist judges earlier this summer. The leading case he cited to show the problem — Kelo v. New London —- is a case in which the Court refused to invalidate a state government land use decision. (By the way, its number 10 on the Dirty Dozen’s list.)
Of course, if you’re not actually for judicial deference, it’s harder to complain about judicial activism. And to their credit, the authors see the problem. They try to address it in a final chapter that endorses neither deference nor activism but something called “judicial engagement.” But whatever you call it, you still need a sorting theory. When should judges, while engaging, defer and when should they act? Here, again, the Dirty Dozen is revealing: it suggests that contemporary right-leaning constitutional thought hasn’t got much in the way of an answer to that question.
There was a time, of course, when originalism would have supplied the answer. But while the authors of the Dirty Dozen try to claim the originalist high ground in the introduction — and again in the conclusion — they candidly (and admirably) concede that orginalism is actually of little help in explaining their hostility to a number of the cases on their list that, remember, was chosen by 74 like-minded legal scholars.
To take but one example, consider Helvering. The authors concede right up front that the case’s interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding. Madison had one view, Hamilton another. Why a judge should side with Madison, and against Hamilton, as they would have it, is never really explained. But, as I say, Helvering is just exemplary. By the time the authors get to Bennis v. Michigan (number 8 on their list), they are reduced to arguing that the case’s broad view of the state’s power to seize civil assets is flawed even though it probably does accord with original understandings.
So if originalism offers no principled guidance, what does? At times, the authors seem to be arguing in simple, consequentialist terms. A case is badly decided if it has some bad effect in the world. So, for example, because subsidies for agribusinesses are bad (a plausible claim), then Helvering was wrongly decided because it paved the way for such federal largesse. If you missed that chain of reasoning I am with you, but even if you conclude it makes sense, you still need to make a full accounting if you want to go down the consequentialist route.
It will hardly do to make the case against the commerce clause case Wickard — as the authors do — by showing it was a key precedent for a recent decision upholding the federal preemption of state attempts to permit medicinal uses of marijuana. You also have to at least acknowledge that Wickard was the key precedent for the decision upholding the constitutionality of the 1964 Civil Rights Act. One might think any consequentalist calculus would want to weigh in the balance the effect of invalidating the signal legislative blow for human freedom in modern times. And yet The Dirty Dozen never faces up to that obvious problem.
The book does throw out one final sorting mechanism. But it turns out to be a fairly simple-minded version of libertarianism, which does not even begin to address the problem of private power — a problem that the book’s inability to come to grips with the 1964 Civil Right Act casts in stark relief. What’s more, that version of libertarianism is not even one that many conservatives would endorse, which may explain why Roe is sidled off to an appendix, notwithstanding the votes that it got in the survey. All of which only reveals how vexing this non-originalist judicial engagement project is likely to be for the conservative constitutional movement in the years to come.
So, if you are feeling blue about how effective the right wing has seemed to be in capturing constitutional discourse in recent years, cheer up. The Dirty Dozen suggests the conservative legal movement’s having a tough time figuring out its talking points for the future.
The combined Heart of Atlanta Motel and Zollie’s Barbeque cases that upheld the 1964 Civil Rights Act’s public-accommodations provisions covering private businesses reached the right result, but, as in Brown v. Board of Education which was certainly right in its finding that separate was never equal and reversing that doctrine under the Fourteenth Amendment, wandered all over the lot and unnecessarily rewrote what was left of the Constitution after Helvering v. Davis, the original “switch in time that saved nine” which reversed the views of Jefferson and Madison, Story, Holmes, and others that the Constitution created a federal government of limited and enumerated powers and purposes in order to uphold the Social Security Act. Significantly, that opinion, is utterly devoid of any explicit legal reasoning or precedent except for an argument of Hamilton’s that was not adopted by the Constitutional Convention and was taken out of context, and “Today we so hold.” Anyone with a modicum of literacy in the English language who has ever actually read Article II of the Constitution knows that the so-called “general welfare clause,” which is followed by eight broad purposes and powers for which Congress may authorize the expenditure of public money, was written as a limitation upon, and not a grant of, power to the federal government. Otherwise, the eight grants of power that follow it, as well as the Ninth and Tenth Amendments, passed to guarantee Framers’ original intent to create a federal government of limited powers, would be unnecessary and meaningless.
There was no legitimate reason, much less necessity, to make the major change in the long generally accepted doctrines of Constitutional interpretation in order to make the long-overdue finding that separate was never equal and never would be, adopt the substance, not necessarily all the language, of Harlan the Elder’s prescient dissent in, and reverse, Plessy v. Ferguson, which perpetuated officially sanctioned and required segregation, thereby branding black people as inferior, contrary to the essential theory of equal, God-given rights from the Declaration of Independence and Constitution, not to mention the conservative theory of free, competitive enterprise, in Brown v. Board. Given the findings cited showing how hard “Jim Crow” made travel for black people, the Equal Protection Clause of the Fourteenth Amendment, and removal of lingering badges of inferiority and servitude pursuant thereto and to the Thirteenth Amendment, supported the ending of segregation in private as well as public or officially segregated facilities, so both the “aggregate” theory of Wickard v. Filburn, and the interstate ketchup theory, first promulgated in these cases, as well as the argument from feudal principles that private property was subject to restrictions, hardly controversial but largely irrelevant, were unnecessary to support an additional Interstate Commerce Clause rationale, if needed. A federal attorney stated publicly at a CLE function dealing with the Civil Rights Act that this broadened the reach of the Interstate Commerce clause and would make his work in another area of law easier.
Having chosen to go with a “liberal” rationale, the attorneys and the court overlooked something highly relevant. At the times both the original Constitution and Bill of Rights, and the Thirteenth and Fourteenth Amendments, were adopted, and the United States adopted the common law of England, it already included non-discrimination against well-behaved travelers in inns and places of public accommodation. When Texas adopted its first Constitution in 1840, its first Legislature adopted, not the common law of Tennessee or the common law, if any, of the United States, but “the common law of England.” Unfortunately, in a compromise with what Sam Houston and others knew was right, they made a mistake, not unlike that of the Framers, departed from the common law of England, with and only with reference to black people, and provided for slavery and segregation. After the Emancipation Proclamation, and its famous arrival and publication in Texas on June 19th, 1865, known ever afterward as “Juneteenth” in Texas, and the fourteenth Amendment, the departure of Texas law from the common law and its public accommodations nondiscrimination provisions, which applied only against black people, was fundamentally legally, as well as morally, indefensible. See also TEX. CONST. Art. I §13 and §19, even before Art. I §3-a cancelled the whole structure of Texas segregation law that led to a whole volume of TEX. JUR. and TEX. JUR.2d titled “Negroes.” When I was in law school at Vanderbilt in the early sixties, I saw the letterhead of the Alabama Democratic Party, with the words “white supremacy segregation,” and other documents explicitly linking those concepts. Thus, the history of Lincoln—who, of course, was assassinated before the Fourteenth Amendment was drafted and adopted—and others saying that they “[did] not intend to make jurors or voters of Negroes [at that time] is largely irrelevant to the validity of the Civil Rights Act of 1964, etc.
I happen to diverge from some conservatives’ thought and insist that the Fourteenth Amendment’s Due Process, Equal Protection, and Paragraph 5 Congressional enforcement powers clauses meant what they said and clearly modified, inter alia, the Eleventh Amendment and the related common-law doctrines of sovereign and official immunity, rooted in the doctrine that “The King [George III] can do no wrong.” Otherwise, no civil rights laws would be effective against the states, state entities, or state actors. The argument, for example, that Title II of the Americans with Disabilities Act (ADA) applying to the states and state entities is unconstitutional on that ground, and because the Congressional findings of unfair discrimination were not repeated in each section of the ADA, is indefensible. There is absolutely nothing in the text of the relevant Paragraph 1 of the Fourteenth Amendment, containing its Due Process and Equal Protection clauses, that limits its protection to black people or other racial groups, and, indeed, it has long been held not to be limited to natural persons. At the same time, I find nothing in the federal constitution that even addresses, much less prohibits, state and local legislation on labor and other such issues, as “insulated laboratories for social experimentation,” unless it would contravene the fourteenth Amendment and federal laws enacted on the same subjects thereunder or under the Interstate Commerce Clause.
See Bob Levy's response at http://www.cato-at-liberty.org/2008/08/14/response-to-professor-barrons-critique-of-the-dirty-dozen/
The combined Heart of Atlanta Motel and Zollie’s Barbeque cases that upheld the 1964 Civil Rights Act’s public-accommodations provisions covering private businesses reached the right result, but, as in Brown v. Board of Education which was certainly right in its finding that separate was never equal and reversing that doctrine under the Fourteenth Amendment, wandered all over the lot and unnecessarily rewrote what was left of the Constitution after Helvering v. Davis, the original “switch in time that saved nine” which reversed the views of Jefferson and Madison, Story, Holmes, and others that the Constitution created a federal government of limited and enumerated powers and purposes in order to uphold the Social Security Act. Significantly, that opinion, is utterly devoid of any explicit legal reasoning or precedent except for an argument of Hamilton’s that was not adopted by the Constitutional Convention and was taken out of context, and “Today we so hold.” Anyone with a modicum of literacy in the English language who has ever actually read Article II of the Constitution knows that the so-called “general welfare clause,” which is followed by eight broad purposes and powers for which Congress may authorize the expenditure of public money, was written as a limitation upon, and not a grant of, power to the federal government. Otherwise, the eight grants of power that follow it, as well as the Ninth and Tenth Amendments, passed to guarantee Framers’ original intent to create a federal government of limited powers, would be unnecessary and meaningless.
There was no legitimate reason, much less necessity, to make the major change in the long generally accepted doctrines of Constitutional interpretation in order to make the long-overdue finding that separate was never equal and never would be, adopt the substance, not necessarily all the language, of Harlan the Elder’s prescient dissent in, and reverse, Plessy v. Ferguson, which perpetuated officially sanctioned and required segregation, thereby branding black people as inferior, contrary to the essential theory of equal, God-given rights from the Declaration of Independence and Constitution, not to mention the conservative theory of free, competitive enterprise, in Brown v. Board. Given the findings cited showing how hard “Jim Crow” made travel for black people, the Equal Protection Clause of the Fourteenth Amendment, and removal of lingering badges of inferiority and servitude pursuant thereto and to the Thirteenth Amendment, supported the ending of segregation in private as well as public or officially segregated facilities, so both the “aggregate” theory of Wickard v. Filburn, and the interstate ketchup theory, first promulgated in these cases, as well as the argument from feudal principles that private property was subject to restrictions, hardly controversial but largely irrelevant, were unnecessary to support an additional Interstate Commerce Clause rationale, if needed. A federal attorney stated publicly at a CLE function dealing with the Civil Rights Act that this broadened the reach of the Interstate Commerce clause and would make his work in another area of law easier.
Having chosen to go with a “liberal” rationale, the attorneys and the court overlooked something highly relevant. At the times both the original Constitution and Bill of Rights, and the Thirteenth and Fourteenth Amendments, were adopted, and the United States adopted the common law of England, it already included non-discrimination against well-behaved travelers in inns and places of public accommodation. When Texas adopted its first Constitution in 1840, its first Legislature adopted, not the common law of Tennessee or the common law, if any, of the United States, but “the common law of England.” Unfortunately, in a compromise with what Sam Houston and others knew was right, they made a mistake, not unlike that of the Framers, departed from the common law of England, with and only with reference to black people, and provided for slavery and segregation. After the Emancipation Proclamation, and its famous arrival and publication in Texas on June 19th, 1865, known ever afterward as “Juneteenth” in Texas, and the fourteenth Amendment, the departure of Texas law from the common law and its public accommodations nondiscrimination provisions, which applied only against black people, was fundamentally legally, as well as morally, indefensible. See also TEX. CONST. Art. I §13 and §19, even before Art. I §3-a cancelled the whole structure of Texas segregation law that led to a whole volume of TEX. JUR. and TEX. JUR.2d titled “Negroes.” When I was in law school at Vanderbilt in the early sixties, I saw the letterhead of the Alabama Democratic Party, with the words “white supremacy segregation,” and other documents explicitly linking those concepts. Thus, the history of Lincoln—who, of course, was assassinated before the Fourteenth Amendment was drafted and adopted—and others saying that they “[did] not intend to make jurors or voters of Negroes [at that time] is largely irrelevant to the validity of the Civil Rights Act of 1964, etc.
I happen to diverge from some conservatives’ thought and insist that the Fourteenth Amendment’s Due Process, Equal Protection, and Paragraph 5 Congressional enforcement powers clauses meant what they said and clearly modified, inter alia, the Eleventh Amendment and the related common-law doctrines of sovereign and official immunity, rooted in the doctrine that “The King [George III] can do no wrong.” Otherwise, no civil rights laws would be effective against the states, state entities, or state actors. The argument, for example, that Title II of the Americans with Disabilities Act (ADA) applying to the states and state entities is unconstitutional on that ground, and because the Congressional findings of unfair discrimination were not repeated in each section of the ADA, is indefensible. There is absolutely nothing in the text of the relevant Paragraph 1 of the Fourteenth Amendment, containing its Due Process and Equal Protection clauses, that limits its protection to black people or other racial groups, and, indeed, it has long been held not to be limited to natural persons. At the same time, I find nothing in the federal constitution that even addresses, much less prohibits, state and local legislation on labor and other such issues, as “insulated laboratories for social experimentation,” unless it would contravene the fourteenth Amendment and federal laws enacted on the same subjects thereunder or under the Interstate Commerce Clause.