Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Tuesday, December 30, 2003
More on the Court:

Conservative critics of the Court too rarely acknowledge that the problem they identify is essentially structural. It goes back to the establishment of judicial review in Marbury v. Madison, when the judiciary seized a power not delineated in the Constitution proper. No modern Court decision - including Roe - was as politically intrusive, unreasonable or damaging as Dred Scott. And our out-of-control equal-protection and privacy jurisprudence are no more out of control and no more untethered from the text of the Constitution than was the "substantive due-process" jurisprudence of the 19th and early 20th centuries. For every provision that the Court extends well beyond its intended significance - e.g., the equal-protection clause of the 14th Amendment - there is a provision that the Court has essentially drained of meaning altogether - e.g., the privileges and immunities clause of the 14th Amendment. By its nature, the Court is vulnerable to the temptation to usurp the prerogatives of the political branches. Whether it is tempted to do so in the name of the right to property (Dred Scott) or the right to contract (Lochner) or the right to privacy (Griswold) is a function of prevailing ideological fashion; the constant is the temptation, inherent in the Court's structure.

Historically, the remedy when the Court engages in this usurpation has occasionally been extreme. Thus: Dred Scott was reversed only by the Civil War and the post-Civil War amendments. The Lochner era was only decisively ended by FDR's threat to pack the Court. The Court can attempt to rule without the consent of the people, but if the people decisively refuse their consent, the Court must, and does, retreat.

Why, then, has there been no catalyst for a retreat to date?

I would venture that one insufficiently acknowledged reason is that conservative jurisprudence and political theory has a skeleton in its closet that it is reluctant to bring fully to light, and that this reluctance has had the effect of emasculating a truly conservative perspective on the Court.

The skeleton in the closet, it should come as no surprise to learn, is Brown v. Board of Education. It is a commonplace in conservative circles to say that Brown was correctly decided on the wrong grounds. Conservatives thereby assure themselves that their philosophy is pristine; that no manifest injustice like segregation could survive before a conservative Court if that Court was truly fair. But this is a glib evasion, because there is no way I know to decide Brown for the plaintiffs without traducing professed conservative juridical principles.

Robert Bork lays out one strong case against the imperial judiciary in his 1991 book, The Tempting of America. Bork acknowledges that Brown was a pivotal moment for the history of jurisprudence; that the result in Brown cannot be gainsayed without (correctly) discrediting the gainsayer; and that Brown was a fairly incoherent decision and certainly applied lawlessly (inasmuch as the decision rested on psychological studies related to the impact of segregation in primary schools but was applied to strike down racial segregation in entirely unrelated areas). He then proceeds to argue the Brown can be "reconstructed" on originalist grounds, as follows:

Yes, he says, the ratifiers of the 14th Amendment thought that segregation was perfectly consistent with the equal-protection clause. The legislative record leaves no real doubt about that. However, the ratifiers of the 14th Amendment certainly didn't think the purpose of that amendment was to secure a legal place for segregation; rather, the purpose was to ensure equality under the law for people of different races, and they presumed that this goal was compatible with segregation. In practice, segregation produced consistent inequality; it was not, as it turned out, possible to be both separate and equal. And, therefore, the ratifiers were wrong as to a matter of fact, and the Supreme Court would have been fully originalist in striking down Plessy, saying that while in 1896 people might reasonably have believed that separate but equal was a reasonable doctrine, it turned out not to be, and hence is unconstitutional. The alternative, Bork argues, would have been endless litigation about each instance of segregation to determine if services and facilities were truly equal, an unreasonable burden to place on the Court when a clear principle was called for.

This sounds persuasive on first reading, but it collapses on examination.

Let me make an analogy. The Constitution assumes in several places the institution of capital punishment. Nonetheless, the 8th Amendment prohibits cruel and unusual punishments. Does that mean that capital punishment was repealed by the 8th Amendment? The legislative record would clearly indicate that it was not. But perhaps the ratifiers of the 8th Amendment merely presumed that capital punishment was not cruel or unusual? Perhaps they were wrong about this presumption - perhaps we now know, with the benefit of hindsight and greater enlightenment, that capital punishment is necessary cruel, or that it is unusual, either in the sense of being irregularly applied or generally abhorred? Does not Bork's reasoning in his "reconstructed" Brown provide equally strong reasoning for the Court to eliminate capital punishment?

Let's take another tack. Justice Thomas has criticized the Court for presuming that, wherever there are racial disparities in representation (e.g., in schools) there is necessarily invidious segregation at work. A disproportionate number of black pupils should not, in and of itself, be sufficient evidence to prove a school sub-standard, unless the Court wants to presume that black students are necessarily inferior, or that blacks would never voluntarily choose to self-segregate. This is part of Justice Thomas' argument against the Court's history of school busing and other cases where the Court ran roughshod over our most basic liberties in the name of desegregation.

Bork is equally opposed to the history of busing jurisprudence. But without the very presumption that Justice Thomas attacks, Bork's "reconstructed" Brown falls to pieces. It would have been a hollow victory indeed for the Court to ban explicit racial segregation but permit it by surreptitious means, just as it was a hollow victory to provide constitutional guarantees of voting rights while allowing literacy tests, poll taxes and bald intimidation to evicerate those guarantees. Bork argues that segregation is necessarily incompatible with equal protection because separate cannot be equal in practice. I don't see how you avoid going from that principle to the one that Justice Thomas objects to.

One final tack: it is quite clear from the legislative record that the equal-protection clause of the 14th Amendment was something of an afterthought, with none of the sweeping significance that Brown endowed it with. Moreover, the text requires "equal protection of the laws." It is something of a stretch to interpret this as "equal provision of government services" which is what Brown was about. Further still, the text of that clause, and of the 14th Amendment generally, makes no reference to race. If it is a violation of the equal protection clause to provide unequal education to blacks and whites, it is presumably also a violation of the clause to provide unequal education to uptown and downtown residents, provided that residents are obliged to attend their local district schools. Would Bork really like to argue that universal school choice - which would at least ensure equal protection of the laws - is mandated by the 14th Amendment?

The other favored tack to take on Brown, taken by many anti-affirmative-action conservaties, is to say that the first Justice Harlan was correct in his Plessy dissent, and that the Constitution is color-blind. But this is manifestly false to the legislative record, and can in no sense be taken as originalist. The ratifiers of the 14th Amendment not only contemplated segregation but they contemplated affirmative action; neither was understood to violate the proposed amendment.

I agree with most of the legal profession that Brown, while an excellent result, was a poorly-written opinion. But I disagree with conservative critics like Bork that the opinion could have been founded in originalist principles. It could not. This is the skeleton in the closet: that the principles championed by the most high-minded of judicial conservatives could not plausibly and honestly have struck down racial segregation.

Brown happened because of a massive, sixty-year failure of the national government to address an affront to justice (segregation), just as the Civil War, its consequent amendments, and their radical redefinition of federalism, happened because of a massive, eighty-year failure of the national government to address an affront to justice (slavery). The legislative branch had its authority usurped because it failed to do a job it knew it had to do. The Court did not seize the sword from Congress's hands, but picked it up where it had been dropped.

We should be honest about this. Our Constitution is not perfect; it did not, most glaringly, resolve the problem of slavery, but merely kicked that can down the road a ways in the hopes that future generations would prove wiser, braver, or more dedicated to union. They were none, and we know the consequences.

We should be honest because there is a moral here. Those who cherish our free institutions should be the most zealous in advocating their just reform. When Jefferson and Madison, Clay and Webster, failed to reckon honestly with slavery, they did not thereby preserve the Union; they crippled it. When generations of national Democratic and Republic leaders failed to reckon honestly with segregation, they did not thereby preserve the Constitution; they undermined it. (An ocean away, when Britain's Liberals failed to reckon honestly with the demands for Home Rule, they did not thereby preserve the Empire; they sowed the seeds of its destruction.) It is not enough, it is never enough, for conservatives to point out how this or that proposed remedy for an injustice would break with tradition, or cause instability. It is not enough, it is never enough, for conservatives to stand athwart history yelling: "Stop!" If the injustice is looked in the face, and is manifest, it must be answered. If it is not answered the right way, it may well be answered the wrong way.