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The New York Sun.

How the Supreme Court Used Three Cases to Inspire a ‘Living Constitution’
Brian Anderson On the Court's Role in Igniting the Civil War , and the
Activict Legacy of Brown v. Board
July 18, 2002

By Brian C. Anderson

Nothing so rattles the American Left as the specter of a conservative, Bush-appointed Supreme Court. And no wonder. Over the last half-century, sympathetic judges have given the Left “progressive” policy outcomes that the voting booth wouldn’t deliver — on everything from affirmative action to partial-birth abortion. Haunted by the doomsday scenario of a Supreme Court dominated by Antonin Scalia and Clarence Thomas, the Democrats will fight with every means they can muster to block the appointment of conservative justices. If their ferocious and successful campaign against President Bush’s recent circuit-court nominee, Charles Pickering, is any augury, those means (which in Pickering’s case included scandalously false accusations of racism) will be nasty.

What the liberals fear is a conservative judicial philosophy called “originalism,” which holds that judges must base their rulings on the Constitution’s text and structure, as the Framers understood it, and they must interpret statutes to mean what they say. When the Supreme Court ignores this principle, and forces its policy preferences on the American people, as has happened often in the last 50 years, it is acting more as an “anti-democratic Caesar” than as the impartial referee it’s supposed to be, in Justice Scalia’s view. As Justice Thomas notes, if law is just politics, “then there are no courts at all, only legislatures, and no Constitution or law at all, only opinion polls.” Why then would you need unelected judges to perform the same function as an elected congress?

It’s worth understanding how our courts got into this mess. The government by judiciary we now have is not what our Founding Fathers had in mind. The original originalists imagined that a life-tenured, independent judiciary would merely interpret the law as the people’s elected representatives made it — including the supreme law embodied in the Constitution. As Alexander Hamilton explained in The Federalist: “The courts must declare the sense of the law, and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

The Supreme Court took on the awesome powers it wields today with three big cases, at intervals of half a century. The first was the 1857 Dred Scott decision, concerning a Missouri slave, Scott, whose owner had taken him into parts of the Louisiana Territory where the federal government had banned slavery. Back home, Scott sued, saying that his stay in a free territory made him a free man, on the “once free, always free” principle that most Southern courts acknowledged. The Supreme Court, headed by Roger Taney and dominated by Southerners, ruled that Scott couldn't be free, in part, the Court implausibly held, because the Fifth Amendent’s due process clause, previously interpreted as a merely procedural guarantee that laws had to apply fairly, now had a newly discovered “substantive” content that prevented Congress from barring slavery in the federal territories or anywhere else. In other words, the painstakingly negotiated Missouri Compromise of 1820, in which Congress had admitted Missouri as a slave state but made slavery taboo in other parts of the Louisiana Territory — a political deal that preserved the Union fornearly four decades — was unconstitutional. The ruling helped ignite the Civil War.

You’d think that after its war-fomenting foray into politics, the Court would have left legislating to legislators, but from the late 1890s until the mid-1930s, it again made, rather than interpreted, the law. This time, the Court injected into the due process clause (not just of the Fifth Amendment but also of the post-Civil War Fourteenth Amendment, modeled on it, that applied to states) a natural right to “freedom of contract” dear to the nation’s rising business class. The 1905 Lochner case symbolizes this period in constitutional history: It struck down, on the substantive due process grounds that it violated freedom of contract, a New York law that limited bakers’ workweeks to 60 hours for health reasons — only one of hundreds of federal and state social welfare laws, including early New Deal initiatives, that couldn’t get past the courts during these decades. Just as Dred Scott helped precipitate a war, “Lochnerizing” the Constitution provoked a constitutional crisis. Frustrated by the Supreme Court’s thwarting of New Deal legislation, President Franklin D. Roosevelt threatened in 1937 to “pack” the Court with six additional judges who shared his politics. The justices averted the threat by mending their high-handed ways.

The modern era of judicial activism opened in 1954 with one of the most celebrated Supreme Court decisions ever: Brown v. Board of Education. In Brown, a unanimous Court, led by the new chief justice Earl Warren, ruled that state-mandated school segregation violated the Fourteenth Amendment’s injunction that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Brown struck down a shameful injustice; but how the Court broke the color line had deeply troubling implications. Neither precedent nor history — key pillars of jurisprudence — supported the view that the Constitution demanded desegregation. But the Warren Court wasn’t going to let these difficulties impede it from doing justice. The Court turned to contemporary social psychology that purported to show that segregation harmed the self-esteem of black schoolchildren and made it tougher for them to learn. Therefore, the Court said, separate wasn’t equal in education, regardless of what the Fourteenth Amendment’s framers intended or the Plessy Court believed. However well-intentioned, this argument advanced no legal reason to reach its holding.

Brown, acclaimed by the nation’s opinion leaders, became a powerful spur to future judicial lawmaking, this time to advance the values of the liberal elites, rather than the business elites and to force, rather than retard, social change. From Brown onward, the equal protection clause of the Fourteenth Amendment became a powerful engine of judicial might. Furthermore, the increasing power of the judiciary was fueled by a doctrine called “the Living Constitution,” which held, as Justice William Brennan put it, that: “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” More than adapt, the Living Constitution could bring about epochal social changes whenever judges like Brennan believed that justice demanded them. Lawmakers began to put off contentious issues, looking to the Supremes to take them off their hands.

Since Brown , the Living Constitution has been used to justify, amazingly, racial discrimination by the government. It has also led to completely new procedural rights for the criminally accused that revolutionized the way the nation dealt with crime and helped fuel the crime explosion that began in the mid-1960s. Obscenity has gained constitutional protection while restrictions of political speech have been deemed consistent with the First Amendment. Partial birth abortion has been sanctified in a way no framer ever intended and no part of the Constitution supports.

As the battle over judicial nominations is sure to heat up in coming months, even from a narrowly partisan standpoint, the Left would be wise to think hard about whether it makes sense to reject originalism and treat the judiciary as a political war machine. After all, one can imagine a Court made up of real conservative activists who’d go beyond the Constitution to dismantle the welfare state completely, say, or to ban abortion. Originalism ultimately favors neither Left nor Right, but self-government. President Ronald Reagan, swearing in Justice Scalia in 1986, put it beautifully: The Founding Fathers, he said, “knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people?” That is still the question.

Mr. Anderson is senior editor of City Journal, from whose latest issue this is adapted.

©2002 New York Sun

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