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Revolving Constitutional Convention By: Michael Uhlmann
Claremont.org | Monday, July 10, 2006


"If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." —Abraham Lincoln

The proposition that the federal judiciary is the fons et origo of constitutional meaning has in our time acquired the status of a religious conviction that only fools, cranks, or the impious would contest. The dogma of judicial supremacy draws added strength from two related beliefs, namely, that a written Constitution implies no less and that its roots can be traced to the American founding era. Did not the Great Chief Justice declare as much in his celebrated opinion in Marbury v. Madison (1803)?

The answer is that John Marshall did no such thing, notwithstanding that Marbury is commonly cited in support of the proposition. Judicial supremacy is in fact a thoroughly modern development that scarcely antedates the late 20th century. It was invented, not surprisingly, by the Supreme Court itself and asserted for the first time in Cooper v. Aaron, the 1958 Little Rock schools case. The justices, whose patience had been exhausted by the opposition to Brown v. Board of Education (1954), there decreed that its decisions were "supreme in the exposition of the law of the Constitution." No prior Court had ever made such a broad claim, and none had ever declared, as the Cooper opinion did, that the Supremacy Clause effectively equated the authority of federal judicial opinions with that of the Constitution's text. One can sympathize with the justices' ire in the face of Southern "massive resistance," and had their claim of supreme authority been limited by the immediate context of school desegregation, one might chalk it up to rhetorical hyperbole prompted by justifiable anger.

Judicial Innovations

The Court's declaration, however, did not long confine itself to the conditions that occasioned its birth. In the ensuing decades, the justices have reiterated their claim of exegetical supremacy on numerous occasions. Significantly, their most forceful assertions seem to occur in cases in which the Court has broken new ground, or in which the justification for one of its prior novelties has been aggressively challenged. In Planned Parenthood v. Casey (1992), for example, the Court faced just such a challenge to its abortion decisions. While noting the severe criticisms that had been leveled against Roe v. Wade's reasoning (1973), the justices nevertheless rejected the argument that Roe should be reversed. Overruling Roe, it averred, would not only undermine the Court's authority as the definitive interpreter of the Constitution but, no less, undermine the very rule of law itself. Indeed, American citizens' desire to live according to law, the plurality opinion said, "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." Having invested the judiciary with the authority to declare "constitutional ideals," among them the protection of liberty, the opinion went on to define liberty as a category without apparent limits: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Perhaps, but we have only the Court's word for it. Armed with that definition, one could drive a bulldozer through every statute book in the country, which is precisely what many accuse the Court of having done these past 40 years.

Lest there be any doubt about the reach of this newly declared monopoly power over the definition of "constitutional ideals," Congress soon joined state legislatures on the judicial target list. In City of Boerne v. Flores (1997), the Court sharply limited congressional power to interpret the Constitution under Section 5 of the 14th Amendment, notwithstanding the clear language and history of that provision. The justices have thus far been wary about asserting their exclusive interpretative franchise against presidential interpretations of Article II, particularly during wartime, but what in the Court's doctrinal theory will stay its hand? For all we know, the unpopularity of the war in Iraq may present the justices with an occasion to tread deeper into this territory as well.

The modern Court's presumption about the nature and scope of its powers would shock the authors of the original Constitution and the 14th Amendment, not to mention the overwhelming majority of justices who ever served. John Marshall, for one, would shudder at the thought that Marbury had become the springboard for claims of unchallengeable judicial prerogative. Abraham Lincoln, whose reflections on Dred Scott v. Sanford (1857) may have taught us more about the relation of Court power to "constitutional ideals" than anything before or since, would be likewise astonished. Lincoln's views, especially as set forth in his First Inaugural Address, were but a pithy restatement of an understanding more or less universally acknowledged by leading statesmen of his day and, before them, by every member of the founding generation. Here, for example, is James Madison on the floor of the House in 1789 during the debate on the removal power:

I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments. The Constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point….

What current doctrine may lack by way of historical pedigree has been more than compensated by the Court's increasingly bold assertions of power over an ever-expanding list of subjects. The justices have rewritten inconvenient constitutional history to suit fashionable ideological preferences, conjured novel constitutional rights and legal theories out of thin air, uprooted many well-settled norms of American political culture, and all but decreed that the Constitution incorporates postmodern conceptions of moral autonomy. Specifically, the Court has converted the 14th Amendment into a free-roaming license to second-guess state regulations it doesn't like. It has endowed the Due Process and Equal Protection Clauses of that amendment with new substantive content and applied virtually all of the Bill of Rights against the states, employing vague criteria such as "fundamental fairness," "evolving standards of decency," or "democratic ideals" to strike down state laws. Beginning in the 1960s, it applied these and similar tests to write what was in effect a national code of criminal procedure and, in the reapportionment decisions, to impose a constitutionally suspect and historically unprecedented theory of representation. With few exceptions, it has continued the process, begun decades before, of eviscerating the 10th Amendment and expanding congressional power under the Commerce Clause to sanction almost anything Congress wishes to do in the name of economic and social welfare. In combination, the Court's rulings have radically altered the balance of power between the national and state governments, far beyond anything contemplated by the original 14th Amendment. Indeed, it would not be too much to say that state power now exists largely at the sufferance of varying Supreme Court majorities.

The justices have also substantially altered the meaning of both the free speech and religion clauses of the First Amendment, and among other things read into both their own predilections about autonomous individualism. As a result, pornography runs free while religion is increasingly treated as a toxic presence in the public square. The Court has also concocted a constitutional right of privacy, which it found in "penumbras, formed by emanations" of no fewer than five amendments. In subsequent cases, it ruled that this hitherto undiscovered principle encompassed yet another constitutional novelty, the right to abortion. The privacy and abortion decisions, in turn, established the intellectual foundation for Lawrence v. Texas (2003), which yielded still another constitutional right, that of consensual sodomy. One has no confidence that the process of conjuring constitutional novelties will end there. Indeed, the open-ended theory of individual autonomy advanced by Justice Anthony Kennedy to justify the results in Casey and Lawrence cannot be easily cabined. As Justice Antonin Scalia pointed out in his blistering Lawrence dissent, Kennedy's rationale necessarily casts constitutional doubt on virtually every government effort to regulate morals.

A New Constitution

If one stands back from these judicial innovations (and the foregoing constitutes only a partial list) and compares the Constitution of 1960, say, to the Constitution described by the Court today, the difference is stunning. And virtually all of the difference may be attributed to judicial innovation, notwithstanding that the constitutional text, in the decisively important areas, has remained the same. At the risk of only slight exaggeration, it may be said that the Supreme Court has given us a new Constitution. The Court's sweeping departures from traditional understanding and precedent, to be sure, have been nominally justified by reference to a particular constitutional clause or phrase. The justices, after all, are smart lawyers who know how to connect linguistic dots and, when necessary, to construct a judicial version of law-office history to support their conclusions. But lawyerly skill only serves to disguise the radicalism of many of their ventures. Upon close examination the chosen nexus between text and result is so strained that any sense of fidelity to the idea of a written Constitution disappears entirely. One struggles to resist the notion that the justices are simply making it up as they go along.

The problem with modern judicial review is not only that particular conclusions in particular cases can be disputed on policy grounds; disagreements of that sort have been present since the beginning of the republic and are in any case inevitable. Nor is the problem merely that the Court has invaded the province of legislatures and arrogated to itself unprecedented power to resolve controversial issues of policy. The problem, rather, is that the justices have invested themselves with the authority of what Judge John Noonan once described as "a floating constitutional convention." Alexis de Tocqueville rightly observed long ago that all major political questions in the United States tended to become judicial questions. But how does it follow that the Supreme Court must be considered the exclusive repository of constitutional wisdom? By what authority did the justices acquire the power to alter constitutional meaning without the consent of the people? Have we surrendered our rights, as Lincoln feared when speaking of Dred Scott, into the hands of "that eminent tribunal"?

Legal Realism

The Court's long march toward judicial supremacy has been much remarked in a large and sharply contested literature. Although the Court and its defenders would have you think otherwise, the path from Marbury to Lawrence is anything but a straight line. It is, among other things, filled with paradoxical twists and turns. Not the least of these is that liberals, who once criticized the federal judiciary for frustrating the will of elected legislatures, now routinely defend many modern Supreme Court decisions as the ultimate expression of our democratic way of life. The difficult task of reconciling these two positions has been a major burden for modern academic scriveners, as a glance at almost any volume of any law review in recent years will readily confirm. One may be forgiven for thinking that the reversal is merely a matter of ideological convenience or hypocrisy, but as Johnathan O'Neill suggests in his splendid Originalism in American Law and Politics, there is more to the story than that. Modern judicial review, he correctly argues, is "rooted in the 'revolt against formalism,'" a movement inspired, in more or less equal parts, by philosophical pragmatism, legal positivism, Darwinian theory, and Progressive reformism.

These ostensibly diverse schools tended to share the belief that law was made, not discovered. Its vital essence was to be found not in logical deductions from a priori moral or legal principles or from architectonic constitutional texts, but rather in rational balancing of competing interests. The actions of judges and legislators were, in this sense, different in form but not in kind. Judicial patronage of substantive due process in the late 19th and early 20th centuries erred not so much because it deviated from constitutional text or precedent, but because judges imposed inappropriate standards of fairness and social utility, based on their desire to protect propertied interests.

The prophet of this new understanding was Oliver Wendell Holmes, Jr., whose academic writing and legal opinions gave birth to a movement later known as legal realism, which in diverse forms continues to dominate law schools today. Holmes's principal mission was to sever legal thought from moral encrustations. Conceptions of objective moral principles, natural law, and natural rights were in his view mere intellectual constructs, suitable to particular eras and comforting to those who espoused them, but carrying no binding legal authority beyond the context of their creation. He was therefore not much interested in the thought of the framers, nor in the idea of a written Constitution based on the enduring truths set forth in the Declaration of Independence. To Holmes and his acolytes, such sentiments were, if not mere poppycock, wholly inapposite to the social conditions of the late 19th century, and wholly at odds with that era's intellectual suppositions.

To this thoroughgoing Darwinian, law was absolutely indispensable lest mankind descend into bestial depravity, but it was best understood as an instrument of almost infinite plasticity; it must be capable of adjusting itself to what he called "the felt necessities of the times." In the ordinary course, Holmes believed, legislative understanding of those necessities should be acknowledged by the courts as more or less definitive. He was not what would today be described as a "judicial activist," save in those instances when legislatures threatened the free interplay of ideas, especially those ideas that supported his evolutionary concept of law. In due course, Holmes's formula, adjusted and refined from time to time by his successors, established the foundation for modern judicial review: deference to legislatures on most matters of economic and social welfare, but judicial supremacy on almost everything else, especially when it came to defining the rules of the game. Although the term had not yet come into common usage during Holmes's time, the idea of a "living Constitution" may be his most enduring monument.

The Rise of Originalism

O'Neill, assistant professor of history at Georgia Southern University, begins with an adroit assessment of the origins of modern legal thought, compressing a long and complicated story into a short space without sacrificing anyone or anything of importance. He deftly traces the connections between legal realism and the rise of judicial supremacy and demonstrates why the latter is a deeply problematic concept. With this foundation laid, he then proceeds to the principal burden of his book, which is to place the multi-faceted idea of "originalism" in its proper historical, political, and jurisprudential context, to explain its strengths and weaknesses, and to assess its continuing importance. In this, he succeeds admirably, which is no small task, considering that the subject suffers under the weight of a seemingly interminable, and interminably tendentious, academic literature. In O'Neill's hands, the topic acquires new life and, with only occasional lapses, escapes the academic jargon in which it has been so often encapsulated.

Originalism, O'Neill rightly observes, is a house of many mansions. His first order of business is to distinguish among diverse words and phrases that have been deployed in the contemporary debate on judicial power. Terms like "original intent," "interpretivism," "textualism," "original meaning," "judicial restraint," "literalism," and "strict construction" are thrown about by academics, politicians, and even citizens in confusing array. O'Neill sorts through the terminology with clarifying grace, distinguishing what is important from what is not, and finally distilling the essence of the originalist phenomenon: the effort to restrain free-wheeling judicial interpretation by restoring fidelity to the Constitution as a charter with a fixed, unchanging meaning. Originalists of varying stripes, as O'Neill demonstrates, do not always agree on the precise description of the goal or how best to achieve it, but they are united in opposition to the idea that the Court is vested with final authority to divine constitutional meaning. The modern Court tends to assume rather than argue that all law, including constitutional law, is by its nature (so to speak) an endlessly evolving phenomenon. Regardless of what the framers may have thought about the Constitution and its purposes, blind obedience to their conceptions of human nature, government, and morality makes us slaves to the dead hand of the past. Some scholars and judges even contend that the framers themselves intended no such result. As Justice Kennedy opined in his Lawrence decision, the framers as men of their times were limited in their ability to foresee particular contingencies. They nevertheless embraced flexible principles that empowered subsequent generations to redefine what might be particularly needful for their own times. In respect of the newly declared right to homosexuality at issue in Lawrence, Kennedy continued, had the framers understood what the Court understood about "the components of liberty in its manifold possibilities, they might have been more specific." An enduring Constitution, in the Court's view, is necessarily an evolving Constitution.

To this argument, originalists reply, first, that to read the framers in this manner is to impose a fundamentally dishonest, historicist interpretation of their ideas. Second, even if one concedes for the sake of argument that the framers endorsed the idea of a living Constitution in the modernist sense, judges who embrace that concept undercut the ground of their own authority. If the Constitution has no fixed meaning, why should the power of judicial review implied by Article III and Article VI be exempt from reinterpretation? If indeed the Constitution is but a constantly evolving instrument without fixed meaning, the political branches are far better equipped than a non-elected judiciary to evaluate appropriate remedies for new contingencies.

On the whole, O'Neill gives strong support to the originalist critique of judicial supremacy and of the conception of the Constitution that is said to support it. He notes, however, that while originalism has drawn blood in its encounter with the opposition, it has yet to "establish itself as the primary legitimate jurisprudential method." Its failure derives partly from practical considerations; there are, after all, powerful forces with a vested political or intellectual interest in maintaining and expanding the status quo. But it also derives from certain defects in the originalist critique itself. Originalists are at their best in exposing the intellectual fragility of postmodernist constitutional constructs; they have been less effective at explaining on philosophical grounds the rightness of their position.

At the end of the day, words in a legal text, without more, cannot carry the philosophical weight that originalists place upon them. It is one thing to point out, as originalists do most effectively, that such-and-such a phrase had, and was meant to have, a particular, relatively fixed meaning at the time of its adoption. Persuading others that the identified meaning has, or should have, binding effect in our own day is another argument altogether. Ultimately, that argument must rest on the reaffirmation of the enduring, self-evident truths that must undergird the case for limited government, that is, on premises that are not explicitly identified in the constitutional text itself. A true originalism, in short, must look beyond the Constitution to justify the ground of its intellectual authority. Originalism and living constitutionalism rest, O'Neill suggests, "on competing conceptions of legal authority" that have been in tension for most of American history, one based on the desire for order, the other on the desire for change. Neither, he says, has been "able wholly to displace" the other in the past. As for the future, O'Neill is unsure whether the revival of a vigorous originalism in our time is a harbinger of a return toward "a more traditional conception of the American constitutional order," or whether it is merely the old order's "last gasp."

Originalism in American Law and Politics is everything a work of this kind should be. It is comprehensive in its coverage, scrupulously fair to all contending parties, and engagingly argumentative. Professor O'Neill sheds new light on a subject that has been fairly beaten to death, at great length, by advocates of every imaginable ideological stripe. He accomplishes these tasks, moreover, in a reasonably short space (296 pages, including notes). The text is coherently organized and clearly written, and may justly take pride of place as the best general introduction to the subject now in print.

Justice Breyer's Jurisprudence

Would that similar praise could be bestowed upon Justice Stephen Breyer's Active Liberty: Interpreting Our Democratic Constitution. Although the author does not explicitly say so, his book purports to be a response to the originalist critique, and that is how it has been treated by favorable reviewers. If indeed that is his true purpose, originalists have little to fear. The stated purpose of the work, however, is not so explicit. Justice Breyer announces what he calls a "focus" and a "theme," which have to do with the public's participation in government (hence "active liberty"); the book even has a "thesis": "that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts." His announced focus, theme, and thesis, however, never quite pull themselves together into a sustained argument. His preferred method is to dance around his subject without ever actually landing on it. Breyer's book, like his description of the judicial function, is all about the importance of nuance in constitutional interpretation.

Justice Breyer's operative premise is that the theory of democracy imposes a kind of judicial modesty, but one would be hard pressed to identify a clear argument in his book that explains why. To the contrary, the clearest inference to be drawn from his presentation is that once you understand the purpose of democracy, you will come to see why judges have a special obligation, as it were, to rise above the framers' Constitution and the expressed will of elected lawmakers.

The most dyed-in-the-wool originalist would not disagree with judicial review as a general proposition, but he would endorse it on the grounds first elaborated by John Marshall in Marbury, which is to say on the proposition that the text of the Constitution, understood as its framers understood it, is first in order of priority. A statute or governmental act that fails to conform to the Constitution must fail as an exercise of delegated authority, either because the authority was not granted in the first instance or, if arguably delegated, improperly applied. Breyer's argument for judicial review, however, enters by another route, one that enables him to proceed, as it were, by changing the subject. He begins by relying on the distinction drawn by Benjamin Constant in 1819 between "ancient liberty" (the freedom to participate in government decision-making) and "modern liberty" (the freedom from arbitrary government impositions). The Constitution, Breyer argues, is more or less equally devoted to both kinds, but it is the protection of ancient liberty that will be the primary focus of Breyer's discussion.

At the outset, one wonders why a European writing 30 years after the ratification of the Constitution should be looked to as a worthy source of inspiration about the great charter's purposes. There's nothing inherently wrong with employing the services of foreign commentators, to be sure, but why Constant when there are so many other authoritative sources closer to home? These include, but are not limited to, James Madison, who had rather a lot to say about the purposes and structure of the Constitution and about the difference between direct democracy and a republic. The spirit of Madison, not to mention the other framers, is strangely absent from Breyer's text. The principal father of the Constitution is discussed only passingly. Alexander Hamilton, the great expositor of judicial review in The Federalist, is not discussed at all. Thomas Jefferson is mentioned twice, but only to support the most general and obvious proposition that all power in this regime derives from the people. James Wilson is cited once with a brief quotation endorsing the idea of a popularly elected president. Beyond these passing references, all of which have the character of window-dressing and add nothing of importance to Breyer's argument, no framer makes even a cameo appearance on stage. Abraham Lincoln is wholly absent, as are his elegant, compelling arguments about the moral foundations and limits of popular government, and, as well, the limits of judicial power. These telling omissions reveal more about Justice Breyer's attitude toward the Constitution than what he actually says about the subject.

Breyer talks frequently about democracy, and while he notes the threat posed by despotic majorities, he never addresses the subject except by indirection. In a work devoted to shoring up public participation in government decisions, this, too, is a curious omission. Justice Breyer invokes democracy at such a high level of abstraction that one would never know that constituting democracy is, well, a problem. The principal risk is that one part of the people will use the power of government to interfere with the rights of others. The central task of the framers was to reduce that risk to manageable proportions while at the same time ensuring that government could govern effectively and that popular consent was the sole source of governmental authority. No mean trick, that, which is why the framers' extended reflections on the subject deserve special attention, especially by those whose job it is to interpret the Constitution. But rather than invoking the framers, Breyer begins by invoking Constant.

It is, as I say, an odd choice. For one thing, Constant was hardly the first to distinguish between ancient and modern liberty. The American Founders were thoroughly familiar with the virtues and vices of ancient republics, but they had also immersed themselves in the improved science of politics, utilizing principles that, as Alexander Hamilton said, were "not known at all, or imperfectly known to the ancients." These included the separation of powers, legislative checks and balances, an independent judiciary, representation, and (by applying the principle of representation in a manner never before seen) an extended, uniquely federated republic. Taken together, these new devices were "means, and powerful means," Hamilton remarked, "by which the excellencies of republican government may be retained and its imperfections lessened or avoided"—a tidier and more democratic solution, by far, to the problem of majority tyranny than any dreamed of by Constant.

Constant was a defender of the extended commercial republic, and of the principle of representation that made it possible; but those ideas first came to fruition on American shores through the husbandry of the Founding Fathers, and the government they erected was a going concern for 30 years before Constant wrote about modern liberty. What Constant's thought contributes to our understanding of the American regime, either in its origins or its present operations, is hard to see. It is therefore hard to understand why Breyer chooses to invoke him, unless, like his passing references to American statesmen, the invocation is so much window-dressing. An alternative explanation does insinuate itself, however. Constant, like the framers, was much aware of the threat posed by tyranny of the majority in modern representative government. Unlike the framers, his preferred solution to the problem was a complicated form of constitutional monarchy, in which the monarch (who was separate from the executive) would exercise a moderating influence on democratic excess, by (among other things) insuring that all important interests were properly represented. Is Breyer's invocation of Constant meant to imply that the framers' Constitution suffers from certain inadequacies and that, by substituting the judiciary for the monarchy, those inadequacies might be remedied in the name of perfecting democracy? Justice Breyer does not make that argument explicitly, but given Active Liberty's subsequent defense of judicial power, the thought crosses the mind.

The rest of Breyer's book doesn't get much better. Its main thrust is that construing the Constitution is a complicated business, far more complicated than can be comprehended by reliance on its text alone. In addition to "text, history, and precedent, consequences also guide [a judge's] decision-making." And proper attention to consequences, especially "constitutionally relevant consequences," he adds, will limit judicial subjectivity, though precisely how he never quite says. He illustrates the difference between his approach and that of textualists in brief discussions of selected issues dealing with free speech, federalism, privacy, affirmative action, statutory interpretation, religion, and administrative law. Along the way, his brief for judicial modesty, though frequently invoked, is never developed. To the contrary, by the end of the volume, what we have is a brief for more or less unlimited judicial discretion, which he justifies on the ground that it enhances democracy. The "constitutionally relevant consequences" he alludes to as a brake on judicial subjectivity turn out to be no brake at all.

Active Liberty

That point comes through loud and clear in Breyer's application of his theory to three Establishment Clause cases—the 2000 decision upholding school vouchers, to which Breyer dissented (Zelman v. Simmons-Harris), and last year's two Ten Commandments decisions, one from Texas (Van Orden v. Perry), the other from Kentucky (McCreary County v. ACLU). Breyer argues that his decisions in all three cases were driven by a consistent and deep commitment to the framers' overarching purpose in crafting the Establishment Clause. That purpose, he avers, was to avoid social conflict. That's certainly one way of characterizing the framers' intent, but it hardly exhausts the subject. For one thing, Breyer takes for granted modern suppositions about the First Amendment that first entered constitutional law via the Supreme Court's decision in Everson v. Board of Education (1947).

Everson did three things at once, all unprecedented, and all based on dubious, if not entirely false, historical foundations. (1) It applied the Establishment Clause against the states for the first time. The general merits of the incorporation doctrine aside, the First Amendment is that part of the Bill of Rights least amenable to being incorporated. It is the only amendment that specifically addresses the national government: "Congress shall make no law…." (Emphasis supplied.) How one warps that text to include the states is a feat of legal prestidigitation almost without peer, but that is nevertheless what the Court did in 1947. (2) It read into the Establishment Clause Thomas Jefferson's metaphor concerning the "wall of separation between church and state," and by so doing fundamentally altered (and greatly expanded) the original meaning of what constituted a forbidden establishment. (3) It made the Supreme Court the final arbiter of all matters touching the relationship of government and religion.

What the Court has done to the religion clauses could serve as the model for everything that's wrong with modern judicial review: the Court began by ignoring original meaning altogether; having emptied the amendment of its original meaning, it filled the void with currently fashionable theories about the proper relation between government and religion; it then attributed these theories, in varying ways, to the intention of the framers, whose authority was thereafter cited as justification for what the modern Court wanted to do; and it invested itself with the exclusive authority to define and modify the rules forever after. The Court's opinions now govern in lieu of the constitutional text. To compound the problem, those opinions have given birth to a variety of Court-made tests that the justices themselves have trouble sorting out. Seasoned First Amendment litigators approach every new case with trepidation, not knowing which rule may apply, or not.

When Justice Breyer talks about the framers' desire to avoid religious conflict, he is really talking about the modern Court's (or his own) revisions of what the framers originally meant. The framers are cited, and their authority invoked, but their actual ideas are no longer seriously studied or discussed. What is discussed, endlessly, is the Court's most recent opinions, and it is from these that Breyer extracts the reductionist notion that the avoidance of social conflict is the primary purpose of the Establishment Clause. Consider this telling paragraph from Active Liberty:

The twentieth-century Supreme Court had held in applicable precedent that, given the changing nature of our society, in order to implement the basic value that the Framers wrote the [Establishment] clause to protect, it was necessary to interpret the clause more broadly than the Framers might have thought likely.

Breyer states that he opposed school vouchers because of the "potential for civil strife." What potential he has in mind is not immediately apparent, for not a shred of evidence can be found in either Milwaukee or Cleveland, the two cities with extensive voucher programs, of anything resembling "civil strife." The programs are working—spectacularly in Milwaukee—and are widely accepted by both communities, and enthusiastically supported by racial and ethnic minorities whom the programs were designed to help. So much for dreaded civil conflict.

In passing, it should be noted that the Court has tolerated all sorts of social conflict in its efforts to secure other constitutional rights. Consider the social disruption occasioned by Brown v. Board of Education, for example. Or consider the free speech, free press, and right of petition language of the First Amendment. The Court has often offset the risk of conflict by what it deems to be the amendment's clear preference for freedom, and it has developed an elaborate series of tests to weigh the balance. If the avoidance of social conflict is Justice Breyer's ultimate desideratum under the Establishment Clause, he could tear a page from the Court's other First Amendment rulings.

But Breyer not only avoids any actual assessment of the risk of strife; he also averts his gaze from the goals sought to be accomplished by school vouchers. This is an odd position for one who wishes to weigh the consequences of constitutional rulings. If he had had his way in the voucher case, the avoidance-of-social-strife principle would have been applied as a per se rule. So much for consequences. Had Justice Breyer bothered to look beyond his formal rule, however, he might have discovered that voucher programs permit the least privileged in society to escape the ignorant oppression of inner-city schools. Breyer, who is genuinely and nobly moved by the plight of ethnic and racial minorities in many other areas of law, and who notes that plight as one of the reasons for judicially-mandated legal change, is curiously deaf in the voucher litigation to the cri du Coeur that arises from so many inner-city parents about the dismal quality of schools their children are forced to attend. The record in Zelman was chock-full of evidence about both parental motivation and Cleveland's abysmal schools, but Breyer paid little attention.

Finally, Breyer also fails to note that the ostensible constitutional offense, government aid to religious schools, could occur only after the intervening agency of private parties. The Cleveland program was thoroughly secular in purpose (improving the lot of poor kids) and strictly neutral in its operation (public schools as well as private secular and religious schools were all equally eligible). The only way government money could reach religious schools was through parental choice. In other words, the government did not choose to aid a religious institution; the parents did. Where, then, was the injury to the First Amendment? Just how far would the justice extend his theory of potential religious conflict? Surely, indirect government aid to religion is far more massive in the case of tax deductions for contributions to religious institutions, and for that reason potentially more offensive to a larger segment of the public. Would Breyer apply his per se rule about avoiding religious conflict to tax deductions?

Breyer split his vote on the two Ten Commandment cases. Applying his social conflict theory of the First Amendment, he voided the Kentucky courthouse display on the ground that its sponsors had a religious motivation. Although he does not note the fact, the Kentucky display was changed a number of times to include secular trappings after the ACLU had filed its complaint. In doing so, the sponsors were responding rationally to prior Supreme Court rulings indicating that the presence of secular symbols can mitigate the purpose and effect of a challenged religious display. Writing for the majority, including Breyer, Justice David Souter noted that the addition of secular symbols in this case only underscored that the original purpose was religious.

Justice Breyer went over to the other side in the Texas case. His reasoning here was that the prospect of religious conflict was minimal. The sponsoring organization was a civic, not religious entity; the monument was surrounded by other, secular historical markers; and, most importantly for Breyer, "the monument had stood for forty years without legal challenge." He inferred from all this that the religious message was largely incidental, and that it was "unlikely to prove socially divisive."

Note that in the Ten Commandments litigation, Justice Breyer assessed the likelihood of social conflict, a courtesy he did not extend in the school vouchers case. There he applied what was in effect a per se rule: the "basic value" of the Establishment Clause was to prevent religious turmoil. Since vouchers might (without any assessment of likelihood) produce such turmoil, they fail the constitutional test. In Texas, he assessed the prospect as small because no one had complained, at least not loudly, for four decades. But as Justice Souter pointed out in his dissent in the Texas case, why should the rights of those who file suit now be undone because some anonymous others failed to file suit 40 years ago? For all Breyer knew, the new lawsuit could be the beginning of his dreaded religious conflict.

Much to be Modest About

Turning to more general matters, in his effort to claim that his interpretive approach yields judicial modesty, Justice Breyer cites as models for emulation Holmes, Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, and Learned Hand. All shared to a greater or lesser extent the premises of legal realism, which Breyer does not discuss. He cites them, one suspects, because each tended to support the courts' deference to legislatures at least on economic regulatory matters. But there were other prominent features in their jurisprudence that, one also suspects, Breyer might not wish to be seen as supporting.

For example, does Breyer mean the Holmes who had nothing but contempt for what he called "the thick-fingered fools" who endeavored to improve their lot by supporting expanded government? The Holmes who, in upholding compulsory sterilization laws in Buck v. Bell (1927), wrote that "three generations of imbeciles are enough"?

Does he mean the Stone who gutted the 10th Amendment as so much meaningless surplusage? The Stone who paved the way for judicial supremacy in his 1938 Carolene Products opinion?

Does he share Louis Brandeis's almost childlike faith in the value of "experts" as a corrective to democracy?

Does he approve of the Frankfurter who believed that the Court had no constitutional or historical justification for its rulings in the reapportionment cases, and who warned against judicial intrusion into the "political thicket"?

Does he mean to invoke the Learned Hand who during his last days on the bench warned against judicial activism in general and inveighed against Brown v. Board in particular?

It is perhaps unfair to ask such questions of Breyer. His references to these judges like those to the framers, and even Constant, are probably nothing more than symbolic. These are all great figures in modern law, but Breyer never really tells us, beyond a passing reference to the judicial modesty that they somehow exemplified, what it is particularly that he admires about them. To ask particular questions about them, however, reveals the soft underbelly of Breyer's approach. The careers of these men coincided with the rise of judicial supremacy. With the exception of Learned Hand, all contributed to that rise in some significant sense. Frankfurter, as his Baker v. Carr dissent indicates, in his final days seemed puzzled by the Court's new aggressiveness; but it was he, perhaps more than any other figure besides Earl Warren, who micromanaged the decision in Brown. Holmes was the spiritual godfather of the realist movement that in turn provided the rationale for judicial activism. Brandeis, an enthusiastic supporter of the expanding welfare state, did his part to remove constitutional obstacles to its effectuation.

But it is Stone whom Breyer most resembles. In his famous Footnote 4 in Carolene Products, Stone wrote the script for what might be called the Avuncular Theory of judicial review, which has dominated the Supreme Court ever since. Footnote 4 noted that henceforth the Court would generally defer to the legislature on laws governing economic activity. When civil or political rights are in issue, however, the Court would impose "a more searching judicial inquiry." Among the rights that would be specially protected, Stone said, were those specified in the Constitution, particularly the Bill of Rights; rights integral to the political process, such as voting and political activity; and rights associated with what he called "discrete and insular minorities." The formula, set forth in a few short paragraphs in a footnote in an otherwise insignificant case, became the foundation on which the Court rested virtually all of its subsequent enterprises. Breyer does not reference Footnote 4, but he might have, for there is nothing of importance in Active Liberty that does not flow from its premises. For all his invocations of the need for judicial modesty, Justice Breyer provides no constitutional reason for it; to the contrary, he gives us reason to believe that (other than on economic matters) active liberty means, above all, an active judiciary.

Finally, it is notable that Breyer nowhere references the most egregious decisions of modern times, and perhaps of any time, the abortion cases. It is these, more than any others, that have brought the originalist critique to prominence and caused many people to rethink the role of the judiciary in a democratic society. Breyer wishes us to believe that his brand of activism embraces democratic values as much as his originalist critics, and that, properly applied, it, too, leads to judicial modesty. But the man who wrote the opinion for the Court in Stenberg v. Carhart (2000), striking down state prohibitions on partial-birth abortions, can lay no claim to modesty.

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Michael Uhlmann is a professor of political science at Claremont Graduate University, and a contributor to the Claremont Review of Books.


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