American Constitutional Interpretation (University Casebook Series) [6 ed.] 1640201629, 9781640201620

Citation preview

FIFTH EDITION

WALTER F. Murpry JAMES E. FLEMING

_ Sormrios A. BARBER _ STEPHEN MACEDO

=

—

a7

ats

ae

HHAL) .O 1HaROR ERI

C.a Ne

4 SOtihe

Ԥ

ovirowant

ole cial Gee iOnasovd soivis? bodgweuniit] > inetiad wad sdfto nual] semi bas meal tonsner {

%SONSTIT UTIONAL ="

ERPREPATIONE os a

so en E

AT A. aieth

isn Sita’> YoAlessia

Se

Re

; a.

:

=

~

'

Hoe

axonsHoazal JIUMAR: aoa

wat

ten

nine Wank tacroapictteanio) Yo soeadiont brid tiation U box wi5= wat

ot

»

cTA EDITION

es

em

———

?

:

5

:

—

ae ad ‘ x y

nw

Pia

ee:

5

’

i. laeiend | nu!ferodivl 3et! ‘FORE! hiraee | water

Loouiate wad afi lo pe doh

sa a aln¥

=

|>©

bd

|

anomie ch e A: Rennes Baw wT Io)shes Laateae bedalirgniul sednit? 2 abc

Same-

Be:

oa

—~s De wie

+

gee

2.

a : he

liatettoF, Wripak-tet 2053

ee

i

quote)

ollieTa. ones

eilstovi avid

sais WeaMonT

«red ‘eyfoepviord avigol ans’ cold). alee ye Poe “na at

a

a

HOw weouer aenagt hag oad

“

MEST PLEMING aan

ae a

F

d

:

oar 5 Fe ruatt There t

Todos

qs

a

v ‘1p faut aL cists: tefonlt acedretl

anit

:

’

:

;

(Medtield $n pi sie} So i ae aha as

MurePHY "lt gue

DASE! ‘ie me 3 iit

wih

Quateyai

ee

W208 SAU AME. bey, fri Th each

ws

ney 7 FL . WALK

:

= =

4.qan

_-

mn

EDITORIAL

BOARD

ROBERT C. CLARK DIRECTING EDITOR Distinguished Service Professor and Austin Wakeman Scott Professor of Law and Former Dean of the Law School Harvard University

DANIEL A. FARBER Sho Sato Professor of Law and Director, Environmental Law Program University of California at Berkeley

SAMUEL ISSACHAROFF Bonnie and Richard Reiss Professor of Constitutional Law New York University

HERMA HILL KAY Barbara Nachtrieb Armstrong Professor of Law and Former Dean of the School of Law University of California at Berkeley

HAROLD HONGJU KOH Sterling Professor of International Law and

Former Dean of the Law School Yale University

SAUL LEVMORE William B. Graham Distinguished Service Professor of Law and Former Dean of the Law School University of Chicago

THOMAS W. MERRILL Charles Evans Hughes Professor of Law Columbia University

ROBERT L. RABIN A. Calder Mackay Professor of Law Stanford University

CAROL M. ROSE Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law Yale University Lohse Chair in Water and Natural Resources University of Arizona

UNIVERSITY

CASEBOOK

SERIES®

AMERICAN CONSTITUTIONAL INTERPRETATION FIFTH EDITION

by WALTER F. MURPHY Princeton University

JAMES E. FLEMING Boston University

SOTIRIOS A. BARBER University of Notre Dame

STEPHEN MACEDO Princeton University

FOUNDATION PRESS

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

University Casebook Series is a trademark registered in the U.S. Patent and Trademark Office. © 1986, 1995, 2008, 2008 FOUNDATION PRESS © 2014 LEG, Inc. d/b/a West Academic 444 Cedar Street, Suite 700 St. Paul, MN 55101

1-877-888-1330 Printed in the United States of America

ISBN: 978-1-60930-142-2 Mat #41267429

For Walter Murphy

ili

=

_

BN

is

a

—

———

Sy

=

a 1

SS

q

° a

ee

2

at

-*

Ther gel ileatt ns QUY oemeued ees acgaiude eras

Ys ay ebyap atis of « 6245 bene

are

rn

dieemaep ] a>

ive

tanieal re

_—

aan

ec

Ce

© 208 LG, Tow lila oat AbeSomlarSlatoot Weel 2

a)

ceed sot

a

,

ee

©

Le

=

reas, ae

PREFACE The goal of all five editions of this book has been to meet a need for teaching materials that directly confront the core problems of the enterprise of constitutional interpretation. To learn about politics in a constitutional democracy, to teach students about politics in such a polity, and to share ideas with colleagues with similar interests, we must teach about a political system as a whole. And, for the United States and most industrialized nations, that “whole” includes a constitutional text. Relationships between those texts and the sociopolitical entities that Aristotle called “constitutions” remain problematic, even for the United States, as many of the readings in this volume demonstrate. How authoritative interpreters construe a nation’s constitutional text and broader constitution will always have a significant, and sometimes a critical, effect on the future of that polity as well as on specific public policies. We try to highlight those broader systemic effects by stressing the dual nature of the American political system: It is a constitutional democracy, not simply a democracy or even a representative democracy. It rests on a hybrid of the political theories of constitutionalism and democracy.

We have organized the book around three basic interrogatives: WHAT is the constitution that is to be interpreted? WHO may authoritatively interpret it? And HOW is it to be interpreted? We harbor no illusions that constitutional interpretation can or should be an exact science: It is subject to inevitable and often heated controversy because interpretive disputes frequently turn on our deepest disagreements about political morality. But constitutional interpretation need not, indeed, should not, be mere partisan responses to particular practical problems. Constitutional interpretation is performed most adequately and responsibly, we believe, when interpreters articulate and grapple with the difficult political and legal judgments that underlie their choices, including the crucial choice of an interpretive strategy. This view is itself controversial among political scientists, law professors, practicing lawyers, elected public officials, and members of the United States Supreme Court. But it is a belief that

1 See Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007). Later we make the obvious point that there is no single democratic theory any more than there is a single theory of constitutionalism, a fact that complicates constitutional interpretation not only in the United States but also in Australia, Canada, India, Japan, most nations of Europe, and some in Latin America.

vi

PREFACE

is hardly unique to us. We hope to convince others to think about and even test its validity for the United States and other nations as well.’ We have tried to accomplish these tasks not by focusing exclusively on legal doctrines, but by showing students how constitutional interpretation connects with both political theory and public policy. Constitutional interpretation is, perhaps inevitably, informed by political theory, usually produces legal doctrine, and always interacts with, and sometimes changes, other forces in the political system. In turn, those forces act on the interpretive enterprise, sometimes changing the decisions it yields, sometimes modifying the nature of that enterprise, and occasionally reshaping the polity itself. Answers to the WHAT, WHO, and HOW of constitutional interpretation are difficult and controversial, but no intellectually serious effort to understand or engage in constitutional interpretation can avoid them. And answers, as we have indicated, may have enormous consequences for the entire polity. A public official who believes that the constitution is totally contained within the plain words of the document of 1787—88 and its amendments is very apt to see the rules of the political system, its distributions of decision-making authority, and its values and goals very differently from an official who believes that the constitution includes traditions, practices, and political theories that bind and loose as authoritatively as does the document. So, too, a response to the interrogative WHO that Congress or the President has interpretive authority equal or superior to that of the judiciary has massive implications not only for public policy, but also for the nature of the political system. Similarly significant consequences follow from responses about HOW to interpret.

We recognize that, if students are to explore these basic questions intelligently, they need to understand some of the substance of constitutional law. We have therefore organized analyses of these interrogatives around customary categories of constitutional law and theory. For example, we discuss questions of HOW to interpret in connection with approaches to interpretation such as_ textualism, structuralism, and reinforcing representative democracy. To some extent, all of the materials illustrate textwalism, for the American constitutional document has such sanctity that, even when going against its terms, public officials find it necessary to attempt to justify their actions by interpreting those words. To illustrate structuralism, we look at separation and sharing of power among the President, 2

One

of us did co-produce

a volume

of essays,

cases,

and materials

that cut across

national lines: Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s, 1977). ° Thomas Jefferson’s refusal to engage in constitutional interpretation to rationalize what he thought was his own unconstitutional action in purchasing the Louisiana Territory is the great exception. See Chapter 19.

PREFACE

Congress, and the national judiciary as well as division and sharing of power generated by federalism. To illustrate how interpreters approach the constitution as a device to reinforce representative democracy, we deal with problems involving freedom of communication and political participation. And to analyze an approach that views the constitution as a scheme to protect fundamental rights, we examine writings concerned with property, religious liberty, and autonomy. In sum, we have designed this book so that no one who uses it can avoid learning a great deal of constitutional law. We intend, however, that users will also learn much more. Instructors will thus find much in these pages that is familiar from other casebooks, but those materials are organized here in ways that, we believe, will enlighten students about the nature and relevance of constitutional interpretation. We should emphasize, however, that our editings of materials often include sections omitted by editors who are more concerned to present legal doctrines than to link political theory, fundamental principles, public policy, and constitutional interpretation. To guide students, we have begun Parts and Chapters with introductory essays. Because we know that many instructors will not assign all pages of this book, we have deliberately built in some redundancy. We fear that a neat, economical presentation of questions, arguments, and evidence will cause many important points to be lost. After most of the readings we have included editors’ notes and queries. Some of this apparatus may be of use to busy instructors as well as to beginning students. To allow students to savor the rhetoric as well as the reasoning that judges deploy to justify their work, we have retained many (though not all) of their references to previous decisions. To make the book more legible, we have eliminated the citations to those cases. At the beginning of the volume a Table of Cases, with full citations, enables readers to pursue further research.

This book is large. It provides more than enough readings—and we hope ideas—to energize a two-semester course, though the editors themselves have used this volume only for one-semester courses. In any event, if we take democratic theory seriously, having a choice is not a bad thing. We maintain a web site—www. princeton.edu/aci—where we will supplement the fifth edition with future cases, materials, and analysis as well as cases, notes, and selected bibliographies from the first, second, third and fourth editions whose text does not appear in the hard copy of this edition. We encourage users of this book to avail themselves of the web site, and we have included in the book cross-references to

some of the material available there.

vii

vill

PREFACE

We would make a pair of additional points. None of us pretends to be indifferent about either the three basic interrogatives around which we have structured this book or the enterprise of constitutional interpretation itself. Each of us thinks of himself as a defender of constitutional democracy. On the other hand, we do not completely agree about some aspects of the American version of free government. We disagree, for instance, on precisely WHAT the constitution includes, the limits on how it may be legitimately changed, and HOW it should be interpreted. We also disagree about some of the substantive results of constitutional interpretation.

We hope our disagreements are fruitful for users of this book. Rather than present a party line about correct answers to the basic interrogatives or specific issues of constitutional interpretation and law, we have tried to offer readers a range of arguments for differing responses. As Gerald Graff, the noted literary critic, has said, “the surest way to protect students from being bullied by their teachers’ political views is to expose them to the debates between those views.”4 Efforts to present several sides of disputes do not, we think, reflect moral or constitutional relativism or even pragmatic compromise, for none of us subscribes to the equality of all moral or constitutional answers. Rather, our editorial decision represents a collective faith in reasoned argument and a belief that offering readers options that require them to think long and hard gives them the best chance of reaching justifiable conclusions. Faith in constitutional democracy, after all, rests on belief in human dignity and, therefore, on the capacity of free and equal men and women to grapple with if not solve moral and constitutional problems in ways that preserve and enhance that dignity.

We dedicate this edition to Walter Murphy, our departed friend, teacher, and colleague. In preparing the fifth edition, we have missed his judgment, erudition, and wit. But we continue to appreciate how pervasive is his mark on this book. We appreciate Doris Murphy’s continuing support.

In the prefaces to previous editions, we have acknowledged the assistance of many people. Here we wish to thank several people who have been especially helpful to us in preparing the fourth and fifth editions. Karen Flax, Esq., read portions of the manuscript of all five editions and corrected some of our errors. Professor Linda C. McClain of Boston University School of Law gave valuable advice on the second, 4

Letter to the Editor, New York Review of Books, May 16, 1991, p. 62.

PREFACE

third, fourth and fifth editions. Katherine Amelia McClain diliently helped with proofreading of the fifth edition.

Fleming

Robert Rodgers, while a graduate student at Princeton (he is now a professor at Stonehill College), performed intelligently, resourcefully, and responsibly as far more than a research assistant for the fourth edition; John P. Dilulio, Jr., a current graduate

student at Princeton,

has provided similarly extraordinary assistance on the fifth edition. J.D. students Courtney Gesualdi, Kate Lebeaux, and Christopher Mercurio and reference librarians Stefanie Weigmann and Jennifer Ekblaw of Boston University School of Law provided helpful research assistance to Fleming. Cameron Samuelson, Fleming’s administrative assistant, ably assisted in proofreading the manuscript and preparing the index. John Bloomquist and Ryan Pfeiffer of Foundation Press provided much-needed encouragement as we prepared the fourth and fifth editions. For the first four editions, James Coates skillfully shepherded the manuscript through that labyrinth euphemistically called production. For the fifth edition, Rebecca Schneider did hkewise.

We acknowledge responsibility for all errors that remain, including those that “Spellcheck” missed. Yet, as we said in the Preface to the previous editions, if there were a way of graciously sharing blame with those commentators, judges, and other public officials who have so often misinterpreted the constitutional text as well as the broader constitution, we would most eagerly seize it. JEF Boston, MA SAB Notre Dame, IN SM Princeton, NJ July 2013

1X:

Bil opens

obvi

nonthe

e2h n Boveth

the aisad thi

ibs Use

HEE

MIGROS

4. igh

daaoeeh.

t Sé

; Ms

ee

= es

; uy

UAT HOY

J

‘texerian

(nee.

,

SIG

WY |.3 ati UT

o

Baa

ASO.

ellsy

Rey

a

Poneatty Dey

on

120

ett

tacydal

tnds. a

ASE mh a Mareetiis pirwd Th ayasibad t

;

.

Luis[5

gaipuloal Mag « is 4 had

Or

iy

wr 9 ite “acihvtaHtia ir:

a 2 Racy srr aI belt,90a bie -a7Free:

Pe Farcle Bisgite “gant ORT ROVEB we iefi2.08 ayes ody again oidug e y alasfi pre AB. LIMactiAP? all

ie

yout

ifr

an

OG

rtsation

leh ied ny

pire

ie

ten“a

is shee ‘ane cuvedgie, fis fudged

hi

ate

'

Lives sie Me hia enek & Seek

zs

Tore ta Br

iipess er

UN f aac soy raewinnie

p

heres. holt eateueh

‘aaa

. ss

nt

to itish4, HiT RE, gs

vilitiints ac tebe

viinel Hamed

sorsnher

Oh Couette Hone

aren

corte

teeta

teadaR: gietavisly, se l

line i rtthbetio oe

=

oor eid

SPECT

laces ie

its

h

+ yh

eas

cine). aay bios

esters pr

bo bvedgarts

SFO TI he 4%,

ie

ohio Mio birt

f

ABE

DLT

Lyrigg ha

;

64

diego is Hed’ ears

Wiseluiotiaae nigel

BOTS

he

sspurbere

bomneapen

SP

¢TUL)

SVEONG =

Mapa

Ee

nlet

0 1 WR

3

SE

EEN

SUMMARY LES SLMOU Celik

TT

EE

ESS

TEED

OF CONTENTS

pope bee SBA

“LALSTBUOTS COV09 NGIS'SRe

eds

et

ites) Ah

WOR 1 rie Dee

MATE

REN

ey ne ee Vv

ale da Ny) rrr

XXV

Chapter 1. Interpreting a Constitution ..........ccccccccccccececcscsceccecsecececeececeees 1

Chapter 2. Constitutional Literacy ........0.cccccccccccscscsssscscscsscssseessscsesececseeee 19

PART I. THE CONTEXT OF CONSTITUTIONAL INTERPRETATION Chapter 3. The Theoretical Context of Constitutional PALOEPECLALION ect tee EL

204

AQIGE 35

Chapter 4. The Political and Institutional Contexts of Censtitutional Interpretation. ee

67

PART II. WHAT IS THE CONSTITUTION? Chapter 5. What Is the Constitution? Problems of Inclusion.......... 105 Chapter 6. What Is the Constitution? Problems of Continuity AN CHANG Cosi 5cse. SATS TN AE INR ocliubane deca adesiots Naha Seta 169

PART III. WHO MAY AUTHORITATIVELY INTERPRET THE CONSTITUTION? Chapter 7. Who May Authoritatively Interpret the Constitution for the National Government? «......:.0.....ccccscassssecsscssasngaseaacnspesoosnenenes 261 Chapter 8. Who May Authoritatively Interpret the Constitution fOF CHE HCCC CAN SV SECU G otic ree, cee ceoten oe eusnieiee oe eatin

PART IV. HOW TO INTERPRET

FBO

Ea NET RR

351

THE CONSTITUTION

E18 O ESL IGMESS cons ca cevnasennsiccsenveesessonssctceceicvonvascosdonnpeasssesnsserces 377

Chapter 9. How to Interpret the Constitution: An Overview.......... 379

B: STRUCTURALISM: DRAWING INFERENCES FROM INSTITUTIONAL STRUCTURES AND RELATIONSHIPG............... 425 Chapter 10. Separation and Sharing of Powers: The Structure of the National Government ii2.i17... 00 neetilcceban lets lickosuieiesee 427

Chapter 11. Sharing Powers: The Structure of Federalism ............ 541

C: REINFORCING REPRESENTATIVE DEMOCRACY: KEEPING POLITICAL PROCESSES OP EIN ictig. cactiss-t, iasccsehcsttcccsstacssnescsccsssesesscesecs 677 Chapter 12. Freedom of Political Communication .....................0 697 xi

SUMMARY OF CONTENTS

Chapter 13. Political Participation’

2 iri.ccc0.2.sc--ce neces cesyeeseeeree een 811

D: TREATING EQUALS EQUALLY i0:22..0.0:0:..ccccsccssssosensasootossccssascscsscoces 931 Chapter 14. The Problems of Equal Protection: Suspect ClassifiCations .os.cc.00i5s5scecseneaneb sooat tasgeet eeeee see ae ee en

941

Chapter 15. The Problems of Equal Protection: Somewhat Suspicious Classifications and Fundamental Rights.............. 1041

E: MAINTAINING CONSTITUTIONAL DEMOCRACY: PROTECTING FUNDAMENTAL RIGHTS. .............ccssccsssscssssseseeeeeeeee 11387 Chapter 16. The Right to Property: To Individual Autonomy And Back |vcssocissedssescotocsvodearsceottaasesnecdecenen ones Sena aeeee tee ee ee eee 1195

Chapter 17. Autonomy, Religious Freedom, and the Elusive Quest for Governmental Neutrality Toward Religion............ 1283 Chapter 18. Individual Autonomy: Personal Liberty, Privacy, and Personhood «. .2.06 65! ducatl. Sgecitsdieeeee ) nd alae 2

PART V. CONSTITUTIONAL DEMOCRACY CRUCIBLE OF CRISIS

1413

IN THE

Chapter 19. Constitutional Interpretation and Emergency POWYS «4.5035: SAO ee ee eee

1583

Bpilogue issiisasicas dain dacwaadad.clenigadkandenh ae eee 1637

Appendix A. Table of U.S. Supreme Court Justices ...........ccccccseseees 1641 Appendix B. The Constitution of the United States of AMI OT ICA». scisesascaccsnscsicsannsanatsandcensosaweusodsteedanettakouktecesane eareeeeee 1647

TABLE OF CONTENTS Cases marked with an * are available at the book’s web site, www.princeton.edu/aci. Case names enclosed in brackets indicate cross-references to cases reprinted elsewhere in the book. IRS UINGs gers MPEU

adel fa etre Rp

SOR CASES

chats

a

pe

at..'Ts.m- dade

tele ax SE

Van ee

edi

et

cla

ee hemeahicstizaca”

V XXV

Chapter 1. Interpreting a Constitution .........00.ccccccccccsccscsscceseesseseeseeseesess 1 ies The Fonctions ofa Constitutional Text .s.g40 hack 0h.. ER... 3 tre Why Interpret the Constitutional Text? hica.00.2.:.c0cstbsadidio AT csc. 6 vas CABLE S12 open Pee PENS £m a a EN te I EE RR ON EE Inter niet the Ceoned bation... Ber Commci acy palilianiali 8 vels: ERT OTWENN. OTe 10 ee Rhee: 5 Seen ee Cai OS eer RY we MO 8 9" 9 GT OTA Hip Unitoreseem Developments sib Laccsdvsacndlsvacvssenishtdarvoodnentowmplhes10 RP ASSEN EDO a Oy ae eee OT a | See Se 8 a 11 ee Onn III. The Enterprise Called Constitutional Interpretation ........00..cccceeeeeee 12 esevagdonhettocaca pededectiimbecatonm MRE NORE AAA AAEEO TAT SRESOOKoo. 05.hsadse esannsicc ssos hd 14 Pi NIA WSO, CONSTITUTION 05 eccv-og so ocbortesvacbe bentundee 14 ctatwcuspoul obageRe Baa WiOmhallbinterprettity oovatber Jeeta geen b shad lout hebeaceyedkawrad d 15 Beeeeededat 17 Os ter pret). Aiden ak ALA WEL ReaMeHOWietorn The Strains of Crisis and Putting It Back Together..........00..000000. 17 D.

Chapter 2,Constitutional: Literacy ....-.:..s-2 escreynpts Peer sGeogra pC LatePy c..iiccencGO 56 sacaeadiaeel isl ef ose bade peieon A: tenet Siac be otha De) =SOClo— ECONOUME xiii

TABLE OF CONTENTS

IV. V.

cree aac onesnonct seme nenaeetaenne 3... Institutional: Strate gynite.c.c..0-.s0c.cccec ee, Pe eee sareeesaecees C.. Sentinels Over Public Rights. ...0. cece. ssecemecs orecs--eeaenaseoranennae aigeteener talesecedasacs The Developing System icc. (.c.:i:sccetepsdad ener enone eer ee Conclusion .c...8204. 2

58 60 60 64

Chapter 4. The Political and Institutional Contexts of sence67 Constitutional Interpretation. ..............:..20..0+.00000sssersarehentnastedecnser cenees 67 caeaamae eee ser ee ensessecca ssayaneiareaeeee seine c.sesscasb ..5..:.c.c "The Political System. I; 67 ... Government... of System National the Sharing Powers Within A. eees 12 ...:cccceeseeeees System........... Federal the Within Sharing Powers B. 73 EE en ae ne nate eee eee cpessesees pa Shaving’sie...5 C.-«The.Checking-of D. The Capacity of Interest Groups and Officials to Trigger sasnasdu sduacasu eee eee eee 74 gens Ppspaett paeee feacep aap See eaeene Gheelksisssictssteisieca E. An Open System of Checks and Counterchecks............:::ccceseeee 75 IL’ -The Judicial Process: Procedural Differences *: 20-0. sec t2 serene tans cen ee es 76 III...-.Procedures: Within, the Supreme) Cow triscsssecz pecrsereeee eee 78 IV: .The-Influence 6f MoralValtess io i eee eee ae ee 85 87 ee Vit..Korematsur A Gase Sti yccscccssinsaeeciaee tence ee As General. Backgrownid eiiiisaee es Ee eee 87 eaecct aeoeoreak oteneste B:. ..Hirabayashi‘v.. United States ive scisse ee 89 C.-- Kerematsu-and-fndo: Reach the Gourt=.9 Wives 92 Seno ferssest cote etcetera 95 D.-. Negotiations Withim-the-Gourtie: 96 AAA a eee ee ee eegs a BE. Aftermath jcc cs es te see eee ecco ete 98 VIE “Co melusiory 755555

PART II. WHAT IS THE CONSTITUTION? Chapter 5. What Is the Constitution? Problems of Inclusion.......... 105 I. Inclusion: Interpretations? Usages? Traditions? Political TPHEOLICS )os .scccssccsessieccoweeeanacteanaatairoasdeecrcnesSteeeaaeet sateteetee eee eee ene eee 106 Ike. The Constitution: Written? Livang?:on Abstract?a0) ta eee 108 If: ..Respeet:for the: Texts 310.5. 235 Gees, Aud aa et Oe ere 2 IV. The Objectives of This Chapter viiss.cccaiccstasn cous co cere eee 143 Calder vi Bull ia id dk SAS oc rete ot Oe TOE ER BT eee 114 Jacobson v.. Massachusettss £224. ets .ct ene acteeha tomas es gence nerereres waarmee 119 Palko v. Gomnecticut &, .ceccccccqsgesserseeskarseeaeactepreeenn eee 122 “Incorporation” Of the Bil Of Riehte tcc tec and the court has the ability to redress the injury to the plaintiffs right.2° Courts will only hear cases in which (a) the judicial decision will be legally binding between the parties to the case and not merely advice that the litigants are free to ignore; (b) if governmental action is challenged, the action is sufficiently “final” to be “ripe” for judicial determination, and sufficiently “live” to be current, not “moot”; and (c) the court is not asked to determine a political question better left to the other branches.27 These judge-made rules leave judges considerable discretion. A third peculiarity of judicial operations relates to the limited number and kinds of remedies that a judge can fashion. More of these are negative than positive. A court can hold a particular criminal statute constitutional, but it cannot force the attorney general to prosecute those who violate that law; it can invalidate a statute for failing to protect the rights of minorities, but it cannot directly compel either Congress or the states to enact a law that protects those rights; and it can exercise its equitable power to order, for example, the desegregation of a school or the reform of a prison (though the Supreme Court and Congress have pruned back these powers in recent years?8), but it generally lacks a legislature’s power of the purse to fund such remedies. Fourth, although the influence of an opinion as a precedent may be far flung, a formal judicial decree is quite limited in its reach. Unlike a statute, which may obligate everyone in the United States and its possessions, an order of a court directly binds only the parties to the case, their employees, agents, successors in office, and those who knowingly conspire with the litigants to violate that order. Thus Brown v. Board of Education (1954; reprinted below, p. 967) technically bound only the four school districts that were parties to the appeal and did not directly compel school officials anywhere else to act in a particular way. Of course, the implication of Brown was quite clear for other school districts: racially segregated schooling denies the equal protection of the law. The fifth and perhaps the most obvious difference between courts and other institutions is procedure. In court, each side is entitled to be represented by an attorney, to present full evidence and argument to support its position, to compel witnesses to testify about what they know, to hear all opposing evidence, have an opportunity to rebut it, 25 There have been some notable exceptions; see espec.: Truax v. Raich (1915), Pierce v. Society of Sisters (1925; reprinted below, p. 1426), Barrows v. Jackson (1953), and Flast v. Cohen (1968). R.A.V. v. St. Paul (1992, reprinted below, p. 741) suggests that, where statutes affecting the First Amendment may sweep too broadly (be unconstitutionally “overbroad”), the Court will relax its standards for standing. i 26 See Allen v. Wright (1984); Lujan v. Defenders of Wildlife (1992). 27 For a fuller discussion of justiciability and standing, see Murphy, Pritchett, Epstein, and Knight, supra note 16, ch. 6 and literature cited. 28 See, e.g., Missouri v. Jenkins (1995); Lewis v. Casey (1996); and Woodford v. Ngo

(2006).

78

ParTI

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

and cross-examine opposing witnesses. The proceeding takes place in public before a judge, who is supposed to be neutral between the litigants, and sometimes before a jury, whose members likewise are supposed to be impartial. If the matter is criminal in nature, the government must prove guilt “beyond a reasonable doubt”, and must not only respect all of the accused’s constitutional rights at the trial, but be further prepared to show it also did so during the period before the trial. After the verdict, the losing party normally has the right to appeal to a higher court to correct any alleged errors at the trial. (Because of protection against double jeopardy, the the Fifth Amendment’s government may not appeal an acquittal in a criminal case.) The losing party also has the right to expect that the trial judge and any appellate judges who have reviewed the case will justify their decisions by legal rules and principles, not merely by expediency or wise public policy. In sum, “a day in court” has become another way of saying “fair play.”?9 Other institutions may also operate fairly, but they do not do so with such fastidious regard for formal procedures as do courts.

IIL. PROCEDURES WITHIN THE SUPREME

COURT

The Supreme Court’s procedures can affect the substance of its decisions. In this section we highlight the decision-making process inside the Court and how both formal and informal procedures—many of which have changed substantially over time—may affect the decisions the justices make. The Supreme Court’s term runs much like an academic year, with the justices sitting in Washington, DC from the first Monday in October through the end of June or early July. Yet the Court has a year-round with staff that comes to work each day and the justices remain in continual contact with their secretaries and clerks via mail, phone, fax, and email. When the justices are at the Court, they generally sit for two-week stints, hearing oral arguments on Mondays, Tuesdays, and Wednesdays from 10 a.m. until noon. After two more weeks off the bench, they repeat the cycle with slight modifications- for holidays or opinion-announcement days (when they read brief excerpts from their opinions in decided cases). When they are not in the courtroom, justices work with their clerks on setting the Court’s agenda, preparing for oral arguments, making decisions, and drafting opinions.®° During the term, the justices meet in private conference nearly every Friday morning. It is here that they debate and vote on petitions for certiorari—cert petitions—to set the Court’s agenda and decide cases after hearing oral arguments, as we will discuss below. Though the Court had a largely mandatory 29 For an interesting counter-argument, see Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Soc’y Rev. 95 (1974). 30 Artemus Ward, “Sorcerers’ Apprentices: U.S. Supreme Court Law Clerks,” in Mark C. Miller, ed., Exploring Judicial Politics (New York: Oxford University Press, 2008); Artemus Ward and David L. Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York: New York University Press, 2006). 31 See, e.g., “Supreme Court Calendar, October Term 2007,” http://www.supremecourtus. gov/oral_arguments/07termcourtcalendar.pdf.

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

jurisdiction until the 20th century, nearly every case that now comes to the Court is in the form of a petition for certiorari: requests that the Court review decisions of lower federal courts or state judicial rulings on federal questions. The party asking for the writ (the petitioner) must succinctly set out the pertinent facts of the dispute, the questions of law, and a jurisdiction for the Court’s hearing the case. The other party (the respondent) has thirty days in which to file a brief in opposition to the petition for the writ. When a petition arrives, the Clerk of the Court assigns the case a docket number and sends a copy of the case-file to each justice’s chambers. The justices have complete discretion to grant or deny such petitions.®? It takes a vote of four, one less than a majority, to grant certiorari (sometimes referred to as the “rule of four”). During vacations as well as term time, petitions for certiorari are endless. Oliver Wendell Holmes, Jr., who called them the “bloody certs,” used to greet new members of the Court with a cheery “Welcome to our chain gang.” Despite needing only four votes for a grant, nearly all of the petitions are denied. In recent years the justices have granted fewer than 100 of the nearly 8,000 petitions they receive each year and seldom offer any reason whatsoever for denying a petition.33 The number of petitions has exploded over time and the process has undergone dramatic changes as a result. During the first century of the Court, the justices were individually responsible for reading the petitions, discussing them in conference, and casting votes on whether or not to grant them. When the justices began hiring law clerks at the end of the 19th century, clerks reviewed petitions, but only as an exercise in learning the law. However, in the

1930s Chief Justice Charles Evans Hughes decided to stop formally discussing each petition in conference and instead circulated a “dead list” of cases that he and his clerks felt were not worthy of consideration. In response, the other justices began relying on their own clerks for substantive help in reviewing the petitions. The dead list grew so large that it was replaced in 1950 by a “discuss list” of cases that the chief and the chief's clerks decided were worthy of review. The procedure continues to this day with any justice able to place a case on the discuss list after its initial circulation by the chief and the chief's clerks. As the Court’s docket grew, justices and clerks spent an increasing amount of time reviewing petitions and drafting memoranda. The following memorandum, written by Justice Hugo L. Black for his own use, is typical of these recommendations:

NO. 788 HARRY BRIDGES v. I.F. WIXON, AS DISTRICT IMMIGRATION AND NATURALIZATION SERVICE

DIRECTOR,

Cert. to CCA 9th

32 See H. W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge: Harvard University Press, 1991) and Doris Marie Provine, Case Selection in the United States Supreme Court (Chicago: University of Chicago Press, 1980). 33 David M. O’Brien, “A Diminished Plenary Docket: A Legacy of the Rehnquist Court,” 89 Judicature 134 (Nov.—Dec. 2005).

80

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

ParTI

In this case Harry Bridges has been ordered deported by the appointed an before hearings after General Attorney Commissioner. Hearings before a previous Commissioner, Dean Landis, had decided that the evidence failed to show that Bridges was a member of the Communist Party. Thereafter Congress amended the law, expressly intending to hit Bridges, so that deportation could be brought about for past membership in the Communist Party. It is under this new legislation that the deportation was ordered here. Questions are raised with reference to the absence of evidence to support the finding and which involved freedom of speech and association. They are of sufficient importance that I think we should grant certiorari on all the points requested.

GRANT. H.L.B. Two developments have helped ease the burden of the ever more demanding function of setting the Court’s agenda. First, the number of clerks has increased from one per justice to the current number of four per associate justice, five for the chief justice, and one each for retired justices. Second, in 1972 a handful of justices began pooling their clerks in order to share recommendations and conserve resources for writing opinions and other duties. Some justices refused to join the pool. Justices such as William Brennan continued personally to review nearly all of the petitions. But after Brennan’s departure in 1990, only John Paul Stevens—who shared the reviewing duties with his clerks— was outside of the pool. Even justices who are in the pool, such as Anthony Kennedy, have expressed concern over the dwindling number of chambers reviewing petitions: from nine prior to the pool to only two after Brennan’s retirement. Today, eight of the nine justices participate in the pool; the lone holdout, Justice Samuel Alito, joined the pool upon his ascension to the bench in 2006, but withdrew in 2008.

When the Court grants a writ of certiorari, it agrees only to hear the case (though it is somewhat more lkely that the justices will reverse than affirm cases it has agreed to hear). Each side may then submit a brief on the merits (more fully stating its arguments) and a reply brief (responding to the other’s arguments). Either at this stage or when the petition for certiorari is filed, other parties may also present briefs to the Court as amici curiae, which translates to “friends of the court.” Such individuals or organizations must show that they also have interests at stake in the litigation and wish to present arguments different from those of either side. If the case is of widespread interest, there may be a large number of amicus briefs. For example, in the first major affirmative action case, University of California Board of Regents v. Bakke (1978; discussed below, p. 985), 62 such briefs were filed, and in another affirmative action case, Grutter v. Bollinger (2003; reprinted below, p. 999), 66 amicus briefs on behalf of more than 300 organizations were filed. On occasion, the Court will invite someone to appear as an amicus, usually the Solicitor General of the United States or an attorney general of a state.

If the justices grant certiorari, the Clerk of the Supreme Court sets a date for oral argument. Each side is allowed 30 minutes (although in

CHAPTER

4

THE POLITICAL AND INSTITUTIONAL

CONTEXTS

cases whose impact is likely to be especially far reaching, the Court may grant additional time). Normally, amici are not allowed to participate in oral argument, though the Court often allows the Solicitor General or sometimes state attorneys general to do so. Clerks prepare bench

memoranda for their justices that can include potential questions for counsel as well as analysis and recommendations on the key issues and merits of the case. Bench memos can be relatively brief or quite lengthy, depending on the particular case and justice’s preference.

Counsel stands at a lectern facing the bench and begins, “Chief Justice, may it please the Court....” Frequently, these are his or her last prepared words. The Court’s rules say: “Oral argument read from a prepared text is not favored.” Instead of a lecture, the justices want a discussion in which they can sate their appetites for information. Most lawyers who argue before the Court do not do so on a regular basis and many wrongly assume the justices want explanations of their own previous decisions. Counsel finds itself constantly interrupted, as two or three justices simultaneously push for responses to questions that range from a decision’s potential effects on public policy to details about the factual background of the case. When an attorney has five minutes remaining, a white light flashes on the lectern. When time is up, a red light goes on. Argument must immediately stop. There is a story that Chief Justice Charles Evans Hughes once cut off a famous lawyer in the middle of the word “if.” Chief Justice Roberts—himself an experienced litigator in the Supreme Court before he became Chief—has been kinder to counsel, allowing them more time to finish their arguments and presiding over a Court that has interrupted counsel much less than in previous years.*4 Throughout the years, the Court has decreased the time devoted to oral argument, leading critics to suggest that the sessions are little more than legal theater. Research suggests, however, that oral arguments matter, with the justices using the sessions to gather information regarding legal and policy options, the preferences of competing political institutions and actors, and institutional rules that might affect the choices they make.*® When the justices meet in conference on Fridays, no one is allowed in the room except the nine members of the Court. Messengers are met at the door by the junior justice in time of service on the Court. Justice Breyer commented on his long service in this role: “I did it for 12 years. One day ... somebody had knocked on the door, which was unusual. Somebody had coffee for Justice Scalia. 34 Lawrence S. Wrightsman, The Psychology of the Supreme Court (New York: Oxford University Press, 2006); Peter Lattman, “A Kinder, Gentler Supreme Court,” The Wall Street Journal Law Blog, December 26, 2006, http://blogs.wsj.com/law/2006/12/26/a-kindler-gentlersupreme-court/. 35 Timothy R. Johnson, Paul J. Wahlbeck, and James F. Spriggs, I, “The Influence of Oral Arguments on the U.S. Supreme Court,” 100 American Political Science Review 99 (2006); Tony Mauro, “Counting Questions: Adding Up High Court Outcomes,” The American Lawyer, May 12, 2005; Timothy R. Johnson, Oral Arguments and Decision Making on the U.S. Supreme Court (Albany, NY: State University of New York Press, 2004); Sarah, Shullman

“The Illusion of Devil’s Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions during Oral Argument,” 6 The Journal of Appellate Practice and Process 271 (2004); Timothy R. Johnson, “Information, Oral Arguments, and Supreme Court Decision Making,” 29 American Politics Research 331 (2001).

82

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

Part lI

And I... opened the door and I brought it in. And he said, ‘Well, you have been doing this for a long time.’ ‘Yes.’ I said, ‘Twelve years. I’ve gotten very good at it.’ He said, ‘No, you haven't actually.” ... It was only a joke.... But you know, when Justice Alito took over, for at least two or three months

the door would

knock [and] I’d jump up. It was like Pavlov and the dog.” The chief justice opens discussion by summarizing the case and explaining his or her views, with each justice following in order of seniority. The Court keeps no formal record of these debates, but some justices scribble notes either to refresh their memories or to enlighten history. In this book, we have used some of the notes that Harold Burton, William O. Douglas, Felix Frankfurter, Robert H. Jackson, Thurgood Marshall, and Frank Murphy left. We urge readers to treat these with caution because the people who took them were usually hotly engaged in discussion themselves. Still, all of these papers sketch the same general picture of intense, informed, often heated, and sometimes wide-ranging debate. Justices use the conference to either persuade their colleagues or, if they are undecided, to learn from them. At times tempers flash. “We do take our jobs seriously,” one justice has said in private, “and we do get angry. Any judge who didn’t get angry when he saw the Constitution misinterpreted ought to be impeached.” Yet the tenor of conferences has varied with the personality and leadership skills of the chief justice.37 For example, Charles Evans Hughes (1930-41) and Harlan Fiske Stone (1941—46) represent opposite extremes. Hughes disciplined himself to speak only a few minutes, and he expected similar self-control from his colleagues. He would cut off a speech with a curt “thank you” and nod to the justice next in seniority to begin. He preferred rapid disposition of cases to debate. Stone, a former professor, rankled under Hughes’s management. When Stone became Chief, he tried to turn the conference into a seminar, which his colleagues sometimes turned it into a shouting match. Business that took several hours under Hughes often took several days under Stone, but no one could complain about insufficient debate. More recent chief justices, such as Earl Warren and William Rehnquist mirrored Hughes’s style of efficient conference-management, while others, like Warren

Burger, presided over conferences that were

just as contentious and nearly as long as those under Stone. John Roberts, the current chief, has always been vocal about his desire to promote unanimity on the bench and has used conference discussion to frame issues in ways that he thinks will promote consensus: “I have a short amount of time, for sometimes very tough cases, to figure out how to present this that will make it most useful to the conference. In most

36 “Supreme Court Justice Stephen Breyer, Rock Star?” Transcript from March 23, 2007 broadcast of Wait Wait... Don’t Tell Me! with Peter Sagal, National Public Radio. http://www. npr.org/about/press/2007/032307.breyer.html. 37 David J. Danelski, “The Influence of the Chief Justice in the Decisional Process of the Supreme Court,” in Murphy, Pritchett, Epstein, and Knight, supra note 16; Stacia L. Haynie, “Leadership and Consensus on the U.S. Supreme Court,” 54 The Journal of Politics 1158 (1992); Robert J. Steamer, Chief Justice: Leadership and the Supreme Court (Columbia, SC: University of South Carolina Press, 1986).

CHAPTER 4

cases, I think the narrower concerned about it.”38

THE POLITICAL AND INSTITUTIONAL CONTEXTS

the better,

because

people

will be less

Throughout most of the Court’s history, discussion and voting were separate procedures. Discussions of cases have always begun with the chief and progressed in order of seniority, with the most junior justice speaking last. The voting procedure, however, has changed. Every chief justice from John Marshall to Fred Vinson formally called for a vote after discussion concluded. The justices then proceeded to vote in reverse order of seniority, thereby increasing the power of the more senior members, especially the chief as he could join or make a majority by voting last. Earl Warren felt that this procedure was unfair and persuaded the justices to vote in the same order in which they initially spoke: by seniority. Ever since, voting has proceeded with the chief speaking and voting first, the most senior associate justice second, and

so on. Being in the majority is important, for the chief justice has the prerogative of assigning the task of writing the opinion of the Court unless he or she votes with the minority. If the chief is in the minority, the senior associate justice in the majority makes the assignment. The person who assigns the opinion may, of course, keep it or give it to the justice whom he or she thinks most likely to reflect the views he or she wants to prevail. Chief justices up through the time of William Howard Taft generally frowned on dissents and tried to lead by example by refraining from writing them. But over time, as dissenting opinions have increased in frequency, chiefs have generally dissented as often as their colleagues.®9 Still, on occasion, chiefs join a Court majority that seems antithetical to their previous positions, such as when conservative Chief Justice Rehnquist joined liberal majorities in upholding Miranda rights in Dickerson v. United States (2000) and striking down a male-only admissions policy at the Virginia Military Institute in United States v. Virginia (1996, reprinted below, p. 1064). Did Rehnquist join these liberal majorities in an attempt to control the opinion? Did his substantive views on the issues change or did he consider the precedents so firmly entrenched that they should be upheld? These questions suggest the difficulties associated with analyzing judicial decision making. Being assigned to write the Court’s opinion does not guarantee that the opinion written will be that of the Court. To be so labeled and thus carry the institutional authority of the Supreme Court, rather than merely an expression of personal views, an opinion must have the approval of at least five justices. All justices are free to write their own opinions, either concurring or dissenting, to join in whichever other opinion(s) suit(s) them, and to change their vote up to the minute the Court announces its decision. Even afterward, if the losing party asks 38 Jeffrey Rosen, “Roberts’ Rules,” The Atlantic Monthly, January/February, 2007. 39 Qn the decline of consensual norms, see Lee Epstein, Jeffrey A. Segal, and Harold J. Spaeth, “The Norm of Consensus on the U.S. Supreme Court,” 45 American Journal of Political Science 362 (2001); Gregory A. Caldeira and Christopher J. W. Zorn, “Of Time and Consensual Norms in the Supreme Court,” 42 American Journal of Political Science 874 (1998); Thomas G. Walker, Lee Epstein, and William J. Dixon, “On the Mysterious Demise of Consensual Norms in the United States Supreme Court,” 50 The Journal of Politics 361 (1988).

84

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

Part I

for a rehearing, justices can change their minds, although this very rarely happens. The process of drafting opinions has also undergone dramatic changes over time.‘° For the first 100 years of the Court’s existence, the justices wrote their own opinions. Prior to the 1950s, chiefs generally made assignments according to the speed at which the justices completed their opinions. Toward the end of Chief Justice Vinson’s tenure, and especially since the tenure of Chief Justice Warren, an equal number of opinions have generally been assigned to each justice. This was a major problem for methodical writers such as Felix Frankfurter and Stanley Reed, and they turned to their clerks to keep pace with the new quota. It now appears to be an anomaly for justices to do their own drafting—only Antonin Scalia regularly writes the first draft of his opinions. To be sure, justices have not ceded their decision making authority to clerks. Still, words matter in law, and clerks have considerable input with regard to style, structure, and word choice. The opinion writer (with the assistance of clerks) prepares a manuscript

and, when

he or she thinks it ready, circulates it in the

form of a “slip opinion” to the rest of the Court, sometimes referred to as “the Conference.” Clerks in other chambers review the draft and suggest changes to their justices. If the justices approve, those changes are then forwarded to the opinion-writer. Slip opinions are given immediate attention, and justices and clerks have not been bashful about suggesting changes. Suggestions range from minor editing, style, and citation additions to major substantive discussions of the reasoning for the decision. Sometimes suggestions from different justices are mutually incompatible and the justice who was assigned the opinion has to either convert others or decide which colleague’s vote to lose. At the same time, the dissenting justices and their clerks, acting alone or together, may circulate their opinion(s), or they may wait until the majority's opinion is approaching final form. Dissents are also circulated to every member of the Court, and sometimes they persuade justices to change their votes. It is uncommon, but not unprecedented, for what began as a dissent to end up as the opinion of the Court. It is more common for the Court’s opinion writer to try to accommodate some of the dissenters’ views and win them over. Indeed, circulation of a dissent can be a means of tacit negotiation, one that Louis D. Brandeis

used with great effectiveness.41 Like the larger political system Court process of coalition formation bargaining. First, there is the crucial refuses to compromise seldom writes

of which it is a part, the intraencourages compromise and even goal of five votes. The justice who for the Court in important cases.

40 Ward, “U.S. Supreme Court Law Clerks,” supra note 30; Ward and Weiden, Sorcerers’ Apprentices, supra note 30; Edward Lazarus, Closed Chambers: The Rise and Future of the Modern Supreme Court (New York: Penguin Books, 2005). “1 See Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge: The Belknap Press of Harvard University Press, 1957). For more general discussions of judicial strategy, see Walter F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964), David M. O’Brien, Storm Center: The Supreme Court in American Politics (New York: Norton, 1986), Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: Congressional Quarterly Press, 1997), and Forrest Maltzman, James F. Spriggs II, and Paul J. Wahlbeck, Crafting Law on the Supreme Court:

The Collegial Game (New York: Cambridge University Press, 2000).

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

Sometimes the price of compromise is high. Holmes complained that “the boys generally cut one of the genitals” out of his opinions.42 Some of the cases reprinted in this book contain incompatible, incomplete, and at times even illogical arguments. On occasion, the opinion writer has erred; but more often, to achieve a majority, the justice has incorporated differing views.

Second, the justices realize that they will be working together over a long period. The average length of service on the Court is almost 20 years, with modern justices serving increasingly longer tenures.42 The person who graciously concedes a point today can hope for similar treatment tomorrow; just as the person who refuses to compromise when in this week’s majority may face a similar stonewall when in next week’s minority. Thus, as Felix Frankfurter once said, an opinion for the Court involves “an orchestral and not a solo performance.”44 This brief discussion makes plain how institutional procedures, both formal and informal, play an important role in shaping the substance of Supreme Court decisions. At each stage of the decision making process—agenda setting, oral argument, coalition formation, and opinion writing—justices and clerks work together to conduct the business of the Court. And though it has been said that the Court operates like “nine little law firms,” the nature of the work—which involves strategy and compromise—demonstrates the collective nature of the institution. Perhaps a more apt description would be to think of the Court as a single firm with nine senior partners and three-dozen associates all working on each case the firm considers and ultimately takes on.

IV. THE INFLUENCE OF MORAL VALUES There can be no doubt that the moral judgments of a judge—or a senator, representative, governor, President, police officer, professor, or student—influence the way in which he or she interprets the

Constitution. How could it be otherwise? While it is crucial to due process and fairness in the courtroom that judges be neutral between parties to a case, no judge, and certainly no justice of the Supreme Court, could avoid relying upon judgments about fairness, due process, and the nature and limits of democratic authority. Those who argue for a limited judicial role, and deny that it is legitimate for judges to rely upon moral judgments when interpreting the constitution, do so ultimately on the basis of their own democratic or majoritarian political morality: they see value in limiting the role of judges and freeing up elected officials. Everyone’s moral judgments are influenced by factors beyond their control: their early childhood, their upbringing, and their subsequent 42,

Holmes to Sir Frederick Pollock, Jan. 24, 1918, in Mark DeWolf Howe, ed., Holmes—

Pollock Letters (Cambridge: Harvard University Press, 1942), II, p. 258. 43 Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court (Albany, NY: State University of New York Press, 2003). See also Justin Crowe and Christopher F. Karpowitz, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice,” 5 Perspectives on Politics 425 (2007). 44 The Commerce Clause under Marshall, Taney and Waite (Chapel Hill: University of North Carolina Press, 1937), p. 43.

86

Part I

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

life experiences.

Nevertheless,

reflection and, to some

all of us

are

also capable

of critical

degree, correcting for arbitrary influences. An

important institutional check on the play of irrelevant personal factors is the fact that judicial decisions must be justified in public. Every Supreme Court justice knows that his or her opinions will be scrutinized by legions of professors, students, political officials, citizens, and, not least of all, other judges. Sloppy reasoning, unfounded empirical claims, unexamined assumptions, and every other imaginable shortcoming—real or perceived—will be pounced on and written about. Justices—like other students of the Constitution—expect their opinions to generate debate and controversy. Nonetheless, they do not want to be regarded as failing to advance a strong case for their positions. Any lawyer who is accomplished and well-connected enough to be sitting on the Supreme Court could be earning a great deal more money in private practice. Thus it is obvious that the work itself matters a great deal to Supreme Court justices, and so does public and professional perception of the quality of their work: justices of the Supreme Court care about their reputations for competence and good judgment. The political system puts one set of limitations on judicial choices, while the rules of the judicial process, the internal operating procedures of the Supreme Court, and the public nature of judicial decision making impose additional constraints. The restraints implanted by political culture, especially as transmitted through training in law school, law practice, and practical political experience are comparably significant. However, these are mere limitations, not iron fetters. The American political system is flexible, allowing for what Holmes termed “play in the joints”; rules and principles of law—in particular of constitutional law—are often open-ended. Political culture is a variegated and complex force that dwells in the gray area between the law’s black letters. There is, in short, much room for the play of individual values among both judges and other public officials. It makes a difference whether Earl Warren or William H. Rehnquist is Chief Justice or whether the Court is composed of William J. Brennans or Antonin Scalias, just as it makes a difference whether George W. Bush or Barack Obama is President. The procedures of the Court also make it probable that the justices will influence each other—and not always positively. Feuds and friendships sometimes develop on the Court. Felix Frankfurter and Wilham O. Douglas detested each other, as did Hugo Black and Robert Jackson. James C. McReynolds, a blatant anti-Semite, refused to speak “with the Orient’—Louis D. Brandeis or Benjamin N. Cardozo—unless absolutely necessary. On the other hand, Oliver Wendell Holmes and Brandeis enjoyed a close relationship and later brought Harlan Fiske Stone along as the third musketeer. Among the current justices, Antonin Scalia and Ruth Bader Ginsburg are personal friends. All such human interactions influence opinions. It is normal to listen more sympathetically to the arguments of friends than those of foes. With some justification, Chief Justice William H. Taft complained that Brandeis’s friendship with Holmes often gave him two votes; and Stone freely conceded that the warmth of Holmes and Brandeis helped move him away from Taft’s conservative views on the Constitution’s content and meaning. Justice William J. Brennan’s genial nature

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

allowed him to play the role of an intellectual bridge between the more and less liberal justices on the Warren Court and later among quite different factions when more conservative justices were in the majority. Conversely, Brandeis and McReynolds could never negotiate except through intermediaries; Black and Jackson as well as Douglas and Frankfurter found negotiation almost, though not quite, as difficult. It is important to keep in mind that affection or animosity seldom causes agreement or disagreement on matters of jurisprudence. Douglas and Rehnquist had great mutual respect, but they voted against each other in almost every non-unanimous decision in which they both participated. Likewise, Scalia and his friend Ruth Bader Ginsburg seldom agree on constitutional issues. On the other hand, jurisprudential agreement or disagreement can form the basis of friendship or enmity. Because justices feel so deeply about their work, it is sometimes difficult for them to leave their battles in the conference room. It is difficult to imagine, for example, that Scalia’s pugilistic and sarcastic attacks on his colleagues’ opinions—however compelling and amusing some readers may find them—have not taken their toll in this regard (see, e.g., Planned Parenthood v. Casey [1992; reprinted below, p. 1453]) (Scalia, J., dissenting).

V. KOREMATSU: A CASE STUDY We have been speaking of the contexts in which constitutional interpretation, as performed by justices of the Supreme Court, takes place. In this section, we shall go through one case, Korematsu v. United States (1944), to illustrate how various political and institutional factors interact with personal values to produce decisions. (We reprint the opinions in that case below at p. 1606.)

A.

GENERAL BACKGROUND

On December 7, 1941, while their special emissaries were in Washington supposedly negotiating, the Japanese attacked Pearl Harbor and wiped out a large part of the American fleet. They then swept across the western Pacific, quickly conquering Wake, Guam, the Philippines, Malaya, Singapore, and the Dutch East Indies; invaded New Guinea, the Solomon Islands, Burma, and even the westernmost of the Aleutian Islands, threatening Australia to the south, India to the

west, and, as some

panicked American

civilian and military leaders

thought, the American west coast as well.

Agitation for action against both alien Japanese and American citizens of Japanese descent (Nisei) began within weeks of the attack on Pearl Harbor. Some military leaders, most notably General John L. DeWitt, commander of the west coast area, wanted to intern these people. (He was also worried about the large number of “colored troops” under his command.) Others, such as the Office of Naval Intelligence (OND, thought that the Nisei posed no danger to national safety (a view in which the FBI concurred). But more was involved than a dispute about national security. Racism, evidenced on the west coast by antiAsian more than by anti-black prejudice, was hardly unknown in the United States. The Japanese government’s treachery and their troops’ systematic raping, torturing, and murdering of civilians and prisoners

88

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

Part I

of war provided a license for Americans to hate. Some public officials honestly, if incorrectly, feared mass violence against people of Japanese extraction and raised the argument that the Nisei as well as enemy aliens should be locked up for their own good. Economic self-interest encouraged radical governmental action against Japanese Americans. Their work ethic had made them tough competitors in farming, fishing, and small businesses. It did not escape notice that, if they were forcibly removed, competition from the Nisei would be destroyed, and their homes and businesses would have to be offered at fire-sale prices. Legislators, especially from the west coast, were soon swamped with demands from individuals and interest groups for action against all people of Japanese ancestry. Other groups, such as the American Civil Liberties Union and the Japanese American Citizens League, fought back; but their prestige was low, their numbers few, and their influence small. Even the doubts publicly expressed by the ONI and the FBI about the need for a restrictive program, and the misgivings of some officials about the constitutionality of incarcerating people because their ancestors had emigrated from a country with whom we later were at war, could not stop a juggernaut fed by fear, hate, and economic self-interest.4 On March 27, 1942, President Franklin Roosevelt signed a bill into law which made it a crime to remain in a “military zone” designated by a commander acting under authority of the Secretary of War or for anyone remaining in such a zone to disobey the commander’s regulations. This statute legitimated an earlier executive order authorizing the Secretary of War to designate military zones “from which any and all persons” might be excluded. The statute also retroactively validated the curfew that General DeWitt had imposed on enemy aliens and Nisei living in the Pacific states.

Pursuant to this new authority, the Army required all persons of Japanese ancestry to report to designated centers for transportation to and imprisonment in concentration camps.46 General DeWitt explained that it was legitimate to put the Nisei behind barbed wire while allowing German and Italian aliens to remain free because the Nisei “are a dangerous element. There is no way to determine their loyalty.” He continued:

A Jap is a Jap. It makes no difference whether he is an American citizen, he is still a Japanese.... You needn’t worry about the Italians at all except in certain cases. Also, the same for the 45 The ugly story is most fully told in Morton Grodzins, Americans Betrayed: Politics and the Japanese Evacuation (Chicago: University of Chicago Press, 1949); Commission on the

Wartime Relocation and Internment of Civilians, Personal Justice Denied (Washington, DC: Government Printing Office, 1982); Peter Irons, Justice at War (New York: Oxford University Press, 1983); Richard Drinnon, Keeper of Concentration Camps (Berkeley: University of California Press, 1987); and Roger Daniels, Prisoners Without Trial: Japanese—Americans in

World War II (New York: Hill & Wang, 1993). 46 Some Americans confuse the term “concentration camps” with Nazi Germany’s “death camps,” like Auschwitz, where the Germans systematically murdered millions of people; many thus object to labeling the tent cities surrounded by barbed wire and armed guards in which we confined Japanese—Americans as “concentration camps”. The Germans also operated concentration camps, like those the United States used, in which people were “concentrated ” and imprisoned for long periods of time, as were the Nisei in this country, usually without trial or even formal charges.

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

Germans except in individual cases. But we must worry about the Japanese all the time until he is wiped off the map.17

B.

HIRABAYASHI V. UNITED STATES

Gordon Hirabayashi, a student at the University of Washington, disobeyed both the curfew and the order to report for evacuation and provided the first judicial test of the statute as applied to an American citizen. A federal district court convicted him on both counts. He lost in the court of appeals and obtained certiorari from the U.S. Supreme Court. The justices held oral argument in May, 1943, and discussed and voted on the case a few days later. Chief Justice Stone opened the conference. According to Justice Frank Murphy’s notes, the Chief stressed that, although Hirabayashi had been convicted on counts of violating both the curfew and evacuation, the trial judge had imposed concurrent sentences. Thus affirming a conviction on either count would mean that Hirabayashi would have to serve the full sentence, and the Chief thus contended that there was no need for the Court to go beyond affirming the validity of the curfew. Stone saw three major constitutional problems: 1. Had Congress unconstitutionally delegated legislative power to executive officials? He believed not. Congress had known what action the executive would take and approved it. The debate went on: CHIEF JUSTICE STONE: “2. So you come to whether it was within [the] constitutional power of Congress and [the] President together. 3. Then you come to discrimination against Japanese. All this depends [on] whether there was a reasonable basis at the time government took action. It is jarring to me that U.S. citizens were subjected to this treatment, but I can’t say ... it was unconstitutional. They [the military] conducted a war under peculiar danger and great treachery.... Our safety was involved. They could draw [a] distinction between an Italian and [a] Japanese. You cannot say that it was an unconstitutional measure during wartime. It is a power about which I am abhorrent and mistrustful. [But] we can’t walk through fire lines even at misconvenience. .. . [W]e should not deal with second count.” ROBERTS: “I take the narrow ground that you do, if we can pass the destruction of citizens’ rights in camp.” BLACK: “I want it done on narrowest possible points.” REED: “The curfew is the same as concentration camp. The difficulty is [that] it is applied to certain types of citizens.” FRANKFURTER: “I am for deciding this case on narrow grounds....” JACKSON: “I don’t think [a] military commander is bound by due process. [But] can you make as simple a test as who is [an] ancestor?” ROBERTS: “If applied to all citizens, it would be all right.” 47 Grodzins, supra note 45, p. 282-83; Internment of Civilians, supra note 45, p. 66.

Commission

on the Wartime

Relocation

and

90

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

ParRTI

Murphy did not record Douglas as speaking. Given his taciturn nature, it is quite possible that he said little, for he was nursing serious doubts. Murphy noted that he himself was concerned about racial discrimination. Fear of dividing a nation at war reinforced the constant desire of a chief justice to unify the Court in an important case. Thus Stone assumed the task of writing the Court’s opinion and sought to mute conflict by considering only the validity of the curfew. He wrote that the Court would not in 1943 say that in 1942, only months after the disaster at Pearl Harbor, it had been unreasonable for the military to fear espionage and sabotage and to doubt there was time to separate the loyal from the disloyal among groups most likely to contain enemy sympathizers. It had been legitimate, therefore, to require such people to remain in their homes after dark. The Chief Justice insisted that “it is not for any court to sit in review” of the wisdom of the military’s choices. Toward the close of his opinion, he re-emphasized the limited nature of the Court’s holding: “It is unnecessary to consider whether or to what extent such findings [of military peril] would support orders differing from the curfew order.” Hugo Black and Felix Frankfurter were generally satisfied with the draft, and three others, Owen Roberts, Stanley Reed, and Robert H. Jackson, swallowed their doubts. Reed remarked to Stone that his task had been “thankless,” but that he had “done it well.”

On the other hand, Wiley Rutledge, Frank Murphy, and William O. Douglas still had serious reservations. Murphy was the most outspoken. Not only did General DeWitt’s crass racism anger the justice, he was also worried that Stone’s opinion undercut judicial authority by requiring the military to meet only a test of “reasonableness” to justify its actions, rather than the stricter test that Stone himself had suggested for “insular minorities” in United States v. Carolene Products (1938; reprinted below, p. 687) and the Court had strengthened in Skinner v. Oklahoma (1942; reprinted below, p. 1135). “While this Court sits,” Murphy said, “it has the inescapable duty of seeing that the mandates of the Constitution are obeyed.” Learning of Murphy’s plans to dissent, Frankfurter urged him to negotiate with Stone: Please, Frank, with your eagerness for the austere functions of the Court and your desire to do all that is humanly possible to maintain and enhance the corporate reputation of the Court, why don’t you take the initiative with the Chief Justice in getting him to take out everything that either offends you or that you would want to express more ironically?

Even after an exchange of several notes, Stone and Murphy remained far apart, and the latter circulated a blistering opinion branding the army’s program as “utterly inconsistent with our ideals and traditions” and “at variance with the principles for which we are fighting.” Frankfurter read Murphy’s draft in horror and immediately wrote another plea: Of course I shan’t try to dissuade you from filing a dissent .. . not because I do not think it highly unwise but because I think you are immovable. But I would like to say two things to you about the

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

dissent: (1) it has internal contradictions which you ought not to allow to stand, and (2) do you really think it is conducive to the things you care about, including the great reputation of this Court, to suggest that everybody is out of step except Johnny, and more particularly that the Chief Justice and seven other Justices of this Court are behaving like the enemy and thereby playing into the hands of the enemy?

Murphy had second thoughts. Within a few days he modified his dissent into a concurrence. Still, he felt obliged to say publicly: We give great deference to the judgment of the Congress and of the military authorities as to what is necessary in the effective prosecution of the war, but we can never forget that there are constitutional boundaries which it is our duty to uphold. ... Under the curfew order ... no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense, it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. Douglas also tried to negotiate with Stone. He had some success in persuading the Chief to remove a reference to the “ethnic solidarity” of the Nisei that smacked to Douglas of racism and, for a brief time, to include a hint that the Court would require individual judicial hearings before allowing internment. But several other members of the majority complained; Justice Black went so far as to state that, if he were the commanding general, he would refuse to allow the Nisei to return to the west coast even if a court so ordered. Stone then explained to Douglas he feared that “if I accepted your suggestions very little of the structure of my opinion would be left, and that I should lose most of my adherents. It seems to me, therefore, that it would be wiser for me to stand by the substance of my opinion and for you to express your views in your concurring opinion.” As published, Douglas’s concurrence noted that he agreed “substantially” with the opinion of the Court that, in 1942, the curfew had not been unreasonable. He insisted, however, that “[l]oyalty is a matter of mind and of heart not race.” Wiley Rutledge confessed to Stone that “I have had more anguish over this case than any I have ever decided, save possibly one death case in the Court of Appeals.” And in an early draft of a concurring opinion he wrote: “I have very strong sympathies with Mr. Justice Murphy’s views. Next to totalitarian power, sheer racial discrimination goes to the heart of the Nazi—Fascist political policy that we now fight.”48 Eventually, however, Rutledge removed this statement and contented himself with a notation that he did not join in the Court’s suggestion,

if that is intended, that the courts have no power to review any action a military officer may “in his discretion” find it necessary to take with respect to civilian citizens. ... [It] does not follow that there may not be bounds beyond which he cannot go and, if he

48 Quoted in Fowler V. Harper, Justice (Indianapolis: Bobbs—Merrill, 1965), p. 176.

Rutledge

and

the

Bright

Constellation

91

92

Part I

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

oversteps them, civilian citizen.

that courts

may

not have

power

to protect the

C. KOREMATSU AND ENDO REACH THE COURT The Court announced its decision in Hirabayashi in June, 1943. Then, in the fall of 1944, Fred Korematsu, a young Nisei who had been unwilling to leave his sweetheart, brought the issue of concentration camps before the Court. He had been convicted on the single count of not reporting for evacuation, and the court of appeals had sustained his conviction. Korematsu petitioned the Supreme Court for certiorari. According to Justice Douglas’s notes, Stone did not vote at all on the question of granting the writ. Black voted against, but the others agreed to take the case. On the same day, the Court heard argument in both Korematsu v. United States and Ex parte Endo. The latter was a challenge by a Nisei to her continued detention in a camp after a governmental board had found that she was not even suspected of disloyalty. Logically—and, it turned out, tactically—her suit was closely tied to Korematsu’s. The government argued that danger to the Nisei from other American citizens made it necessary to keep them imprisoned until some “orderly” way of resettling them could be found. Murphy’s notes on the conference for Korematsu are sparse, perhaps because he himself was heavily engaged in the debate. The way in which the justices spoke out of turn indicates something of the heat. JACKSON: “I would limit this to sabotage. It was a state of war. I don’t think [DeWitt] could exclude [people of] Japanese ancestry. I stop with H/irabayashi] last year and [go] no further. They say the courts have got to become a part of it. I don’t accept [a] military order as something we have got to accept without any inquiry into [its] reasonableness.” CHIEF JUSTICE: “You are saying that the Congress and President acting together are unable to create zones to protect us against military espionage and sabotage. If you can do it for curfew

you can do it for exclusion.”

,

RUTLEDGE: “I had to swallow Hirabayashi]. I didn’t like it. At that time I knew if I went along with that order I had to go along with detention for [a] reasonably necessary time. Nothing but necessity would justify it. ... And so I vote to affirm.” CHIEF JUSTICE: “I affirm on this record.”

Douglas recalled that Black “was very much on Stone’s side, very eloquent in defense of the power of the military to do what they did. And he had no doubts, no reservations.”49 The initial vote was 5-4. Black, Reed, Frankfurter, and, sadly, Rutledge, agreed with Stone that Hirabayashi, despite all its careful disclaimers of upholding no more than the curfew, disposed of

Korematsu. On the other hand, Roberts, never before known as a crusader for civil liberty, voted with Douglas, Murphy, and Jackson to 49 “Transcriptions of Conversations between William O. Douglas and Walter F. Murphy,” (Tape recorded during 1961-63), Mudd Library, Princeton University, pp. 165-66.

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

reverse. Stone assigned the opinion to Black, a staunch libertarian who was on close personal terms with two of the dissenters, Douglas and Murphy. Discussion at conference focused, rather than ended, wrangling. Korematsu “was very much discussed, very much considered,” Douglas remembered, “very much debated up and down the halls of the, the corridors of the Court.” Pens cut eloquent phrases, and tempers—of clerks as well as justices—flared. As in Hirabayashi, Black, like Stone, wanted a very narrow opinion, and he tried to stick to this plan despite prodding by some of his colleagues. Probably at Stone’s suggestion, he asserted that the charge against Korematsu had only been failing to report to a relocation center. Thus Black hoped to avoid the issue of the camps altogether and simply say that the Court could not know that Korematsu would have been imprisoned. No one, however, except Stone and Black took this disclaimer seriously. Even the government’s brief conceded that if Korematsu had reported to the center he would have been interned. Jackson, who detested Black, quickly wrote another dissent. His law clerk, however, read it with a very critical eye and urged the justice to revise it. The next draft, this one circulated to the other justices, in

effect, charged the majority with bad faith and shoddy logic in relying on Hirabayashi. Quoting copiously from Stone’s restrictive sentences in the earlier opinion, Jackson pointed out: “The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding.” On the merits, his tone was no less scathing, alleging that the decision violated the fundamental constitutional principle that guilt was personal and thus distorted the constitutional system to rationalize racism.°° The military, Jackson added, might be faced with dire emergencies and have to take action it thought appropriate. This action might, on more careful examination, be seen to violate constitutional commands;

that was a fact of life. But, by allowing violations of the military order to be prosecuted in federal courts, Congress was requiring the judiciary to examine the military action; when judges so acted, they had to apply their standards, for the decision of a court set a precedent for future cases. And in this instance, Jackson wrote, the majority had ignored its own doctrine that invasions of basic rights had to be subjected to “the strictest scrutiny.” Instead, the justices had refused to examine the reasons behind the military’s decision. Thus the Court “for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle . . . hes about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need.” Murphy had been busy with his law clerk preparing his own dissent, an opinion that made heavy use of the amicus curiae brief of the Japanese American Citizens League. He gleefully read Jackson’s draft and sent it to his clerk, Eugene Gressman, with a brief note:

50 Perhaps Jackson knew that General DeWitt and Black were old friends and was, for a select audience, tarring Black with the same brush as DeWitt.

94

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

ParRT I

Gene— Read this and perish! The Court has blown up over the Jap case—just as I expected it would. Murphy’s own dissent was even more impassioned than Jackson’s. He opened by asserting that “exclusion goes over ‘the very brink of constitutional power’ ”—a phrase he had used in Hirabayashi—“and falls into the ugly abyss of racism.” His closing paragraph stated his personal ideals, earlier versions of which had earned him Felix Frankfurter’s sarcastic rebaptism as “St. Francis”: I dissent ... from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. Meanwhile, Roberts circulated a short dissent, arguing that Korematsu had been caught in a trap. Had he left his home to report to the center, he would have violated the curfew; had he not reported to the center, he would have violated the exclusion order.

Despite despising Black, Frankfurter wrote several memoranda to inform and stiffen him. Their essential reasoning was: “To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business not mine.” Circulation of the dissents, however, especially Jackson’s, led Frankfurter to write a full

scale concurrence. Stone was concerned that Black, despite sufficiently emphasizing the narrowness of Chief followed his usual practice of writing a sending it to the author of the Court’s opinion Mr. Chief Justice STONE concurring.

his initial resolve, was not the Court’s decision. The draft of a concurrence and for his enlightenment.

I concur in the opinion of the Court and add a word only because it seems desirable, and a matter of some importance, to state explicitly the reasons why we are not free to decide petitioner’s main contention that a relocation order applied to him would be unconstitutional. Petitioner has not been convicted of violating a relocation order and in fact has never been subjected to such an order. He has been convicted of violating an Act of Congress which penalizes his disobedience of an order which in effect required him, pending further orders, to enter and remain in an assembly center. ... The conviction is plainly sustained by the reasoning of the opinion in

the Hirabayashi case. ... It was no necessary consequence of obedience to enter the assembly center that petitioner would ever be subjected to a relocation order. For it does not follow, either as a matter of fact or of law, that his presence in the assembly center would result in his detention under a relocation order. Many who were sent to the assembly center were not sent to relocation centers, but instead

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

were released and sent out of the military area. We cannot say that petitioner would not have been released, as others were. We do not and cannot know the terms of any relocation order to which he

might be but has not been subjected. For there is nothing to preclude the radical modification or complete abandonment of the relocation scheme at any time before petitioner could have been subjected to it. This Court does not decide moot cases or give advisory opinions. It will be time enough to decide the serious constitutional issue which petitioner seeks to raise here when a relocation order is in fact applied or is certain to be applied to him, and we are advised of its terms. Douglas circulated a dissent, based on statutory rather than constitutional interpretation. Given his strong antipathy to racism, it was a surprisingly mild document. But he was not only a civil libertarian; he also deeply loved his country and, as a close friend of President Roosevelt, trusted its leaders. As a former executive official, Douglas could also sympathize with the sense of urgency that decent and patriotic military officers might have felt in early 1942, as the United States and its allies suffered disaster after disaster. While he could recognize and despise the racism of DeWitt and the leaders of interest groups who had lobbied against the Nisei, Douglas was hesitant to ascribe that racism to the political system as a whole.

D.

NEGOTIATIONS WITHIN THE COURT

A unanimous Court would have made such a shaky constitutional decision seem less tortured, but that was not a possibility. Next best would have been to pick off several of the dissenters, but the majority had no real hope of winning over anyone except Douglas. He accepted the difficulties that the military faced in 1942 as they confronted a victorious enemy. Moreover, he and Black were friends and, even more

important, jurisprudential allies. ardent defender of civil liberties.

Each

thought

of the other

as an

By nature a self-contained and independent man, Douglas usually resented efforts to persuade him to change his vote. Ex parte Endo, however, presented a potential avenue of indirect communication. The Court had voted in conference to hold that the government was obliged to release Miss Endo; and Stone, perhaps sensing early that there were grounds for negotiating with Douglas, had assigned him the task of writing the opinion of the Court. Douglas later said that he wanted “to put it [Endo] on the constitutional grounds, but I couldn’t get a court [a majority] to do that. Black, Frankfurter, [and] Stone were very clear that that [keeping Nisei imprisoned even after the government’s own processes had shown them to be loyal] was not unconstitutional, but that this would have to turn, Hndo would have to turn, upon the construction of the regulations.” While Korematsu was churning up the Court, Douglas, who always wrote swiftly and was typically impatient to secure agreement, was getting anxious about when Endo could come down. Black was delaying the case, even though Douglas had reluctantly agreed to restrict the

95

96

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

Part I

opinion to holding that Congress had not authorized detention of any citizen whom the government conceded to be loyal. Stone tried to persuade Douglas that Endo, not Korematsu, was the critical case (at least if the latter ruling clearly stated that the Court’s sustaining exclusion did not legitimate detention). Stone reasoned that Korematsu, so restricted, would only uphold the authority to exclude potentially dangerous people from a war zone during a state of emergency. Endo, on the other hand, would compel the government to release all Nisei who were not charged with disloyalty—and, of course, almost no Nisei was so charged. Endo would thus be the great ruling; Korematsu, a narrow, technical decision. Black had also been talking to Douglas. Eventually, they sat down in Black’s chambers with Black’s clerk to seek accommodation. To meet many of Douglas’s objections, Black heavily edited the draft of his opinion for the Court. But the changes, though numerous, were largely in tone—for instance, stressing the Court’s rejection of racism as a justification for evacuation. He did not retreat from his position that the power to evacuate the Nisei fell within Congress’s power to wage war. Frankfurter, who loved to debate and negotiate with his colleagues, was working on Jackson, with whom he had developed a close personal relationship. Frankfurter tried to nudge him into the fold. In a brief memo beginning “Dear Bob,” Frankfurter asked: “If... Congress in the exercise of its war power could constitutionally authorize the military to do what General DeWitt did in California without giving a Japanese[— American] citizen ground for applying to a federal court for [a writ of] habeas corpus, what is the constitutional restriction upon Congress to authorize enforcement of that order in the usual way—i.e., penal sanctions in civilfian] courts—in which a constitutional command is vindicated?”5! If Jackson responded, he left no record of having done so and stuck to his dissent.

But if Jackson was still out, Douglas was now a member of the majority. After only minor changes, the Conference approved Black’s amended opinion. The vote had become 6-8 to place the mantle of constitutionality on forced evacuation of the Nisei and—despite what Stone pretended to believe—imprisonment, without charge or trial, in concentration camps. For his part, Black withdrew whatever reservations he had about Endo, and the Court announced the two decisions on the same Monday, a week before Christmas, 1944.

EK. AFTERMATH Korematsu quickly became and remains an important (though infamous) case in American constitutional law, indicating just how far the Court may be willing to shrink the constitutional text as well as the broader constitution to rationalize governmental power in a time of war. As Douglas ruefully mused in 1963, “I think that those cases, like Korematsu and Hirabayashi, probably would have been decided the same way by any Court that I have sat on in the twenty-three years

5!

Frankfurter to

of Congress, Box 132.

Jackson, Oct. 27, 1944, in the Papers of Robert H. J ackson, The Library

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

[I've been a justice].”52 In contrast to Korematsu’s notoriety, Ex Parte Endo belongs in the domain of esoteric historians.®2 Shortly before his death in 1971, Hugo Black still stoutly maintained that his opinion in Korematsu had been constitutionally correct and that he would make the same choice if faced with the problem again. Douglas, on the other hand, came to regard Korematsu as a tragic, even

shameful,

mistake.

“I caved in,” he remarked

as he

expressed bitter regret at having suppressed his dissent. Endo, too, continued to gnaw at his conscience: I think perhaps the biggest disappointment to me was the fact that

they couldn’t, the Court wouldn’t, in Endo, go to the constitutional ground but just stick to the conventional way of deciding the case, strain to construe a regulation to avoid a constitutional question. I'm the author of that, but I did it under the necessities of the situation. But it seemed to me to be a much more wholesome thing, from the point of view of the Court as an educating influence, just to say what you can and can’t do.

During the war, others were even more insensitive. As attorney general of California, Earl Warren, whose tenure as Chief Justice would become synonymous with civil liberty, strongly urged evacuation of the Nisei in 1942 and, the following year, adamantly opposed release and resettlement in the state of even those Japanese—Americans who had been cleared by loyalty-security programs. He later confessed profound regret at denying “our American concept of freedom and the rights of citizens.... It was wrong to react so impulsively, without positive evidence of disloyalty, even though we felt we had a good motive in the security of our state.”54

Among the sharpest contemporary critics was a combat-weary Air Corps lieutenant, who had been a lawyer in civilian life. In a letter to Justice Jackson written from the Philippines during the war, the lieutenant described some of his experiences. “In short,” he noted, “I can be said to have no love for the Japanese.” Moreover, it was in his “selfish interests” to “support that which help us defeat the enemy.” But, he added, Korematsu “is the type of blow from which we cannot recover so easily. It introduces racialism, the very racialism we are fighting so strenuously to eliminate.... [Through that decision] the Court has ... deprived an American citizen of his rights, utterly devitalizing the constitutional principles which are included within the word ‘citizen.’ 55 The economic harm the Nisei suffered was staggering. They were forced to abandon their homes and businesses, and to sell almost everything they had worked all their lives to accumulate for whatever 52

Douglas—Murphy Conversations, supra note 49, p. 172.

53 An important article urges that we not forget to read Endo in conjunction Korematsu. Patrick O. Gudridge, “Remember Endo?,” 116 Harv. L. Rev. 1933 (2003). 54 The Memoirs of Chief Justice Earl Warren (New York: Doubleday, 1977), p. 149.

with

55 Lt. Felix F. Stumpf to Robert H. Jackson, April 18, 1945, in Jackson Papers, supra note 51, Box 132. Jackson may have appreciated even more the terse note he received from Jerome Frank, former professor at Yale, one of the leading “Legal Realists,” former member of Roosevelt’s “Brain Trust,” and later a distinguished judge on the U.S. Court of Appeals for the Second Circuit: “I want to let you know how much I admire your opinion in the Korematsu

case.

98

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

Part I

they could immediately get. However, far worse was the psychological injury of being denied the most basic rights of citizenship. They were herded like criminals behind barbed wire enclosures and deprived of liberty and dignity without any process of law whatsoever other than General DeWitt’s savage scream, “A Jap is a Jap,” and Hugo Black’s pious nostrum that “hardships are part of war, and war is an aggregation of hardships.” Of the 120,000 Japanese-Americans locked up in internment camps, not a single one was found to have engaged in an act of espionage or subversion.

VI. CONCLUSION Writing in Federalist No. 72, Alexander Hamilton asserted that “the best security for the fidelity of mankind is to make their interest coincide with their duty.” That hard-headed psychology underlies the American constitutional structure. While the political processes are largely open, money, education, and experience confer great advantages on some people and interests over others. And as Chapter 3 pointed out, democracy in the United States is also curtailed in other consequential ways. National public policy is made in arenas subject to pressures, cross-pressures, checks, and counterchecks—some more democratic in character (in the sense that they facilitate rule by the people), some more constitutionalist (in the sense that they limit majority rule).

In one important sense, Korematsu highlights’ the constitutionalist’s fear of representative democracy. There can be little doubt that an overwhelming majority of the nation approved the decision to fill up concentration camps with American citizens of Japanese descent. Open political processes, institutional access, crosspressures, political culture, and the potential judgment of history did nothing to sway Congress, the President, the War Department, or General DeWitt from violating the right of the Nisei to be treated by their government with equal dignity and respect.

In another important sense, however, Korematsu also highlights the democrat’s fear of the futility, if not the undesirability, of checks on popular government. For even federal judges—those people whom James Wilson thought would be “the noble guards” of the Constitution—caved in. Their reason may have been respect for military judgment at a time of crisis rather than fear of defeat at the polls, but the result was still surrender. For the Nisei, the Bill of Rights was no more than the parchment barrier many Federalists of 1787-91 had feared it would be. Madison would have understood, even if he might have wept. Even though Korematsuw illustrates a failure of the system, it also

illustrates the way the system works. Freely elected officials approved the underlying policy, though they did not initiate it. The Nisei found a few allies and they had access to the congressional phase of decision making as well as to the courts. Curiously, however, negotiation and compromise—the supposed hallmarks of the legislative process— occurred mostly in the judicial process, and on issues that were of little help to the Nisei. And for all the shame that the evacuation policy earned, even Korematsu did not end the matter. (See Editors’ Notes to

CHAPTER 4

THE POLITICAL AND INSTITUTIONAL CONTEXTS

the text of the opinions in Korematsu, below, p. 1606.) First, in 1948 Congress enacted a reparations bill that provided a token acknowledgment of the government’s guilt and offered small economic recompense. Second, Fred Korematsu and Gordon Hirabayashi, both still proud of their American citizenship, returned to court in the 1980s. Korematsu had his conviction vacated; Hirabayashi was only partially successful: the trial judge vacated the conviction for failing to report for “relocation,” but left intact the conviction for disobeying the curfew. Third, at about the same time that Korematsu and Hirabayashi were reopening their cases, a group of Nisei sued the U.S. government for damages under federal Torts Claims Acts. They lost in the district court, but won on appeal, and the case eventually reached the Supreme Court. The justices unanimously decided against the Nisei on jurisdictional grounds and remanded the case to the Federal Circuit,5é which, in 1988, ruled that the statute of limitations had run. Congress, however, responded to a suggestion in Justice Harry Blackmun’s the of a recommendations with along concurring opinion, congressionally-established commission to investigate remedies for what the government had done to the Nisei,5’ the lobbying of the Japanese—American Citizens League, and the prodding of conscience by acknowledging “the fundamental injustice of the evacuation, relocation, and internment.” As an additional token of remorse, Congress also authorized payment of approximately $20,000 (worth less than $1,500 in 1942 dollars) to each survivor of the camps.5§ Fourth, and with marvelous irony, the Supreme Court took a different kind of action. Early in his Hirabayashi opinion, Stone had written: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Similarly, Black had begun his Korematsu opinion by stating, then promptly ignoring, a principle constitutional law: “[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” Over the course of the next several decades, the justices have plucked Stone’s and Black’s sentences out of context and used them to justify striking down various sorts of racial and ethnic discrimination. (See below, Chapters 14 and 15, for the development of the doctrine of “suspect classifications,” in support of which the Court often cites Hirabayashi and Korematsu as authorities.) If one had not read the actual opinions and decisions in these two cases but only looked at the way the Court has used them, it would be quite reasonable to conclude that they must have been ringing affirmations of the right of all Americans to equal justice under law.59 56 United States v. Hohri (1987). 57 Commission on Wartime Relocation and Internment of Civilians, supra note 45. 58 PL. 100-38, 102 Stat. 903 (1988). When the Japanese invaded the Aleutian Islands off the coast of Alaska, the United States evacuated many Aleuts. The reasons were largely humanitarian,

namely,

to get them

out

of an

area

of combat.

Still, the

Commission

on

Wartime Relocation described the conditions in the camps to which they were taken as “deplorable.” Disease was rampant and the death rate high, though lower than among those who remained behind and were captured. Only half of the latter group survived captivity under the Japanese. In any event, the 1988 Act included Aleuts among those entitled to reparations.

59

For an analysis of the Court’s use of these cases through 1957, see Walter F. Murphy,

“Civil Liberty and the Japanese American Cases: A Study in the Uses of Stare Decisis,” 11

100

THE CONTEXT OF CONSTITUTIONAL INTERPRETATION

ParRT I

In conclusion, it is worth raising the question whether courts can save a people from ruin in time of war, or whether we should expect courts to be especially solicitous of civil liberties in wartime. We venture the hypothesis that if one had taken a poll of constitutional law scholars on September 10, 2001, most of them would have stated confidently that Korematsu is one of the most infamous cases in American constitutional history and that it was wrongly decided. Its holding has been roundly denounced by most commentators, including justices currently sitting on the Supreme Court.®° But on September 11 terrorists attacked the World Trade Center and the Pentagon. Shortly thereafter, the rehabilitation of Korematsu as good authority for emergency action in time of war began.*! The Bush Administration’s internment at the American military base at Guantanamo Bay of “enemy combatants” (who have limited access to judicial process) was criticized by some who raised the specter of the Japanese—American concentration camps of World War II.62 Whether or not it is fair to compare the government’s current actions in the “war on terrorism” to the government’s imprisonment of the Nisei during the Second World War, it bears reminding that Douglas doubted that any court on which he sat—including the Warren Court, which is generally regarded to be the court most protective of civil liberties in American history—would have decided it differently. Indeed, regarding cases like Korematsu, former Chief Justice Rehnquist has written: “There is no reason to think ... that future Justices of the Supreme Court will decide questions differently from their predecessors.”6

West.Pol.Q. 3 (1958). In the intervening decades, the justices have continued to “miscite” these rulings. For a more general discussion of stare decisis, see above, Chapter 2. 60 For example, Justice Scalia has grouped Korematsu with Dred Scott in the history of the mistaken Supreme Court decisions, Stenberg v. Carhart (2000) (dissenting opinion), and Justice Ginsburg has called the regulations at issue in Korematsu “an odious, gravely injurious racial classification [that] . . . will never again survive scrutiny: such a classification, history and precedent instruct, properly ranks as prohibited.” Adarand Constructors v. Pena (1995; reprinted below, p. 987) (dissenting opinion). 61 See, e.g., William Glaberson, “War on Terrorism Stirs Memory of Internment,” N.Y. Times, Sept. 24, 2001, p. A18; David J. Garrow, “Aftermath: The Rule of Fear; Another Lesson from World War II Internments,” N.Y. Times, Sept. 23, 2001, § 4, p. 6.

62 In this regard, it is worth noting that a federal district court judge, in ruling that an American citizen designated as an “enemy combatant” has the right to consult with counsel, discounted the “sky is falling” rhetoric of the briefs submitted in the case, including one that referenced Korematsu: “Those to whom images of catastrophe come that easily might take comfort in recalling that it is a year and a half since September 11, 2001, and [the petitioner’s] is not only the first, but also the only case of its kind. There is every reason not only to hope, but also to expect that this case will be just another of the isolated cases ... that deal with isolated events and have limited application.” Padilla vy. Rumsfeld (S.D.N.Y. 2008). 638 William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Knopf, 1998), pp. 224-25.

PART II

WHAT IS THE CONSTITUTION? Chapter 5:

What Is the Constitution? Problems of Inclusion

Chapter 6:

What Is the Constitution? Problems of Continuity and Change

Part I sketched the theoretical, institutional, and_ political frameworks within which American constitutional interpretation operates. We now turn to the most basic problem of that enterprise: What is the Constitution that is to be interpreted?

Chapter

1

distinguished

among

several

terms:

constitution,

constitutional text, and constitutionalism. We shall not repeat what we said there, but merely remind readers that in its narrowest sense, the

term constitution connotes governmental organization and processes and, in its broadest sense, a people’s way of life; a constitutional text refers to a document, or set of documents, that claims to both describe and prescribe the political order; and constitutionalism is a normative political theory that would impose limits on all governments, even those of, by, and for the people. Chapter 3 developed this idea in more detail and linked it to democratic theory as well as to the American political system.

Earlier we said the question “WHAT is the Constitution?” posed the most important problem in constitutional interpretation. Indeed, if interpreters are confused about what it is that they are interpreting, then their work will inevitably be confused. Chapter 1 discussed several segments of the basic interrogative: What is the character of the Constitution? Is it a compact among states or an effort to constitute a people? What is the authority of the text? What are the functions of the constitutional text and the larger constitution? What does the Constitution include? How does it validly change over time? All of these sub-questions, of course, are interrelated with each other as well as with questions of HOW to interpret and WHO are the authoritative interpreters. Nevertheless, the chapters in this Part try to focus on problems of inclusion and change. Chapter 5 shows interpreters grappling—not always selfconsciously and rarely systematically—with such issues as: does the Constitution encompass only the text of 1787-88 and its amendments, does it include other documents like the Declaration of Independence, and does it, additionally or alternatively, include various “original practices, interpretations, documents, other understandings,” and constitution the are sum, traditions, and/or political theories? In 101

102

Part II

Wuat IS THE CONSTITUTION?

the constitutional text the same in the United States? If not, how do they differ, and how do interpreters decide which principles and rules belong within the constitutional canon even if not specifically

enumerated in the constitutional text? In

reading

these

materials,

one

must

also

be

alert

for

the

dimensions of character, authority, and function. They frequently flicker across the background, influencing, perhaps subliminally, both the work that interpreters do and the ways the rest of us evaluate that work. Chapter 6 addresses yet another aspect of the character of the American constitution that extends beyond the relationships between constitution and constitutional text: the system’s rigidity and flexibility, amounting in its stability. No political order could “endure for ages to come” (McCulloch v. Maryland [1819; reprinted below, p. 555]) if it could not adjust to cope with unforeseen problems. Thus, the American

Constitution, like all constitutions and most constitutional texts, includes procedures for change. However, are Article V’s procedures sufficient? Can any constitutional text remain authoritative if its terms are so rigid as to be incapable of being “adapted to the various crises of human affairs” (McCulloch) without a cumbersome formal amendment process? Alternatively, if constitutional change is easy, will that text’s prescription of fundamental principles and rules be taken seriously?

In short, to what extent can the meaning of the constitutional document, and relationships between that text and the larger constitution, be legitimately changed by interpretation, practice, or tradition? Who has authority to recognize or effect such changes? We immediately find ourselves facing questions, not only about WHAT is the Constitution, but also about the second basic interpretive interrogative, WHO shall interpret? While these latter kinds of questions form the focus of Part III of this book, we cannot avoid raising them here. Underlying these inquires is yet another problem: if the compact of 1787-88 constituted the American people as a political community, have subsequent changes in that compact, either in the narrow sense of constitutional text or the broader sense of constitution, “reconstituted” that people? If, indeed, valid constitutional change may come about through interpretation, is the process of “constituting” the American people a continuous one? Justices Scalia and Brennan debate these issues, both in Michael H. v. Gerald D. (1989; reprinted below, p. 148) and in their lectures at law schools (reprinted below, pp. 231 and 236).

In reading materials dealing with constitutional interpretation, it is easy to miss a critical point: Implicit in most of these analyses is a vision of an attainable good society. This sort of vision, we emphasized in Chapter 1, is neither a mystic out-of-body experience nor a feathery dream of utopia; rather, it is a mental sketch of what sort of people Americans can and should become, given their realistic ideals and aspirations. Some such vision is probably necessary if constitutional interpretation is to make sense as a whole.! One of the principal 1 For discussions of constitutional “aspiration,” see Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), chs. 3-5; William J. Brennan, Jr., “The Constitution of the United States: Contemporary Ratification,” (1985; reprinted below, p. 236); Gary J. Jacobsohn, The Supreme Court and the Decline of

Part II

WHAT IS THE CONSTITUTION?

difficulties in constitutional interpretation—indeed, of all politics—is that the men and women making the critical decisions seldom have (or take) the time to reflect systematically on their aspirations for the nation. President George H. W. Bush’s disclaimer that “I’m not into the vision thing” triggered derision, but he was probably typical of public officials and their academic critics. Most theories of democracy and constitutionalism offer such visions, and these may differ more in means than in objectives. Each typically sees an achievable good society as consisting of free, selfgoverning men and women, enjoying not only specific liberties, but the more basic status of human beings equal in worth and dignity, able reasonably and responsibly to pursue conceptions of a good life, all the while respecting the equal rights and dignity of others who would do the same. What is evident in this is the aspiration for a constitution to become an effective frame for a way of life; and both a constitutional text and constitutional interpretation represent efforts to understand and shape that frame.

Jie,

ee

eae ie Srivlndin pee tee en eet

Constitutional Aspiration

(Totowa,

NJ: Rowman

hie

& Littlefield,

ee

ee

1986); and Hendrik

Hartog,

Hist. “The Constitution of Aspiration and ‘The Rights That Belong to Us All,’ ” 74 Jo. of Am. Rev. L. Fordham 69 Society, Good the and Constitution The 1013 (1987). See also Symposium: The Rehnquist 1569, et seq. (2001); and Symposium: A New Constitutional Order? Panel I: Court

and Beyond:

Revolution,

Counter—Revolution,

Aspirations?, 75 Fordham L. Rev. 489 (2006).

or Mere

Chastening

of Constitutional

103

hd

ey

me,

G

i

ned iJ

aay ps pies

rw

Diet

ety

fen

;

i. Ye

4

:

be

VoRinreh ees

in

ry

hee

Se

\ lon ekean,enon,be mea ener aides eS yg Hage

t

Soe TP

ex

tig Aire 2libors J Giiyes io tastes, sree ies ae, in

, Vexdisieigadio

Wash

oct.

listen

oPeTObe

aist. io

igecetiet

Cee

cng? a

wesie

4

stab

»

~

’ a

rial

ec

ple

eran j

ray

>

abe}

Liaw

«

hfe be

ris Muy

pyc

eden

esl

AT

rare

if

ters

+e

rH,

kas Sit

io

as

bn

os

2

tie

»

is set an o

SoeVionh Gate villia

Fikaris

dn ant

1a.

aeeie.

B

wer al an athe

=e

the

cal

interpret?) Wile

Met atie

yt Gy Ware fected 2

«Uae tine eae

ar pte’ hr): 4Piet ‘Oiae TSS rat eae

ba citaul, 7

© Cais both

eX Bea he 7,

SPAS

Wrudlped

.

s>

iedJuuaborcs

ing of Pion TH of thin@nld

»

bx

(SC ng a

(

é

se

‘si

foonfees

a

fs styod

hastge we ths, wil

rie “iweer

ae

0

“whepred? ta tigPaO

paren

is x aN

as

'

are.

an iathart

;

jae.

sa

seihiiaiiiebate Paky ”

i

weer bastlt

booy “aidewoldian re

’

of th Beer shane

CHAPTER

5

WHAT IS THE CONSTITUTION? PROBLEMS OF INCLUSION Professor Sanford Levinson has likened various views of WHAT the Constitution includes to the differences between Fundamentalist Protestant and Roman Catholic theologians.1 The archetypal Fundamentalist Protestant sees the revealed word of God as fully contained in the collection of writings called the Bible.2 Similarly, some American interpreters have viewed the Constitution as including only the document produced at Philadelphia in 1787 together with its formal amendments. Thus, it is tempting to think of Justice Hugo L. Black as a “Fundamentalist Protestant.” He often spoke as if the Constitution were the text, the whole text, and nothing but the text. He would angrily dissent when he thought the Court was adding to or subtracting

from the document’s plain words, even when his own values would have led him to agree with the majority’s decision had it been grounded in the constitutional text. (See, for example, his dissent in Griswold v. Connecticut [1965; reprinted below, p. 137].) In sharp contrast, Catholic theologians believe that the Bible, though very important, is only one of revelation. God’s truth, they argue, is also found in “authoritative” interpretations of a long doctrinal tradition that extends beyond the biblical text. In this sense, if no other,

most American constitutional followed the Roman model.

commentators

and

interpreters

have

Several generations ago, the noted scholar Thomas Reed Powell would begin his course on constitutional law at the Harvard Law School by warning students not to read the constitutional text. “It will only confuse you,” he would say. What mattered was what interpreters, most especially judges, had said—not what James Madison, Gouverneur Morris, and company had written. Powell’s even more famous colleague at Columbia, Karl Llewellyn, went further: “Wherever there are today established practices ‘under’ or ‘in accordance with’ the Document, it is only the practice which can legitimatize the words as being still part of our going Constitution. It is not the words which legitimatize the practice.” There was (and remains) a great deal of truth in Powell’s and Llewellyn’s efforts to shock their students. The truth of their claims, however, does not settle the issue of whether such practices and 1 Constitutional Faith (Princeton: Princeton University Press, 1988), ch. 1. 2 What “the Bible” includes poses its own set of problems, even for Christians. It took the early Church almost three centuries to narrow down hundreds of writings that various local communities thought authoritative to the handful now in the canon. Furthermore, Catholics and most Protestant sects differ even today about whether several books are inspired, and many scholars believe that the so-called Pastoral Letters attributed to St. Paul and the two letters allegedly written by St. Peter were composed long after their deaths. 3

“The Constitution as an Institution,” 34 Colum.L.Rev.

1, 12 (1934).

105

106

Part II

WHAT IS THE CONSTITUTION?

interpretive additions and subtractions are legitimate. Certainly no one would pretend that all such interpretations, practices, or “emendations have been correct; such an assertion would be self-refuting insofar as to most individual interpreters and institutions have managed if even Moreover, commentators. have as often as themselves contradict interpreters could agree on standards and then correctly sort out constitutional wheat from unconstitutional chaff, the question would still remain whether any addition to or subtraction from the constitutional text, other than by formal amendment, was valid.

I. INCLUSION: INTERPRETATIONS? USAGES? TRADITIONS? POLITICAL THEORIES? Whether or not commentators, judges, and other public officials have acted properly, Powell was clearly right in saying that they had commonly regarded as “authoritative” some previous interpretations of the Constitution, especially those offered by judges. However, Justice Felix Frankfurter noted in Youngstown Sheet & Tube Co. v. Sawyer (1952; reprinted below, p. 443) that long and unchallenged usages of other branches of government should also qualify for constitutional status. Twenty-two years later, United States v. Nixon (1974; reprinted below, p. 319) presented the Supreme Court with perhaps the most dramatic example of Frankfurter’s contention: a clash between, on the one hand, “executive privilege” (the President’s authority to maintain the confidentiality of conversations and papers relating to the inner workings of the executive department), and, on the other, judicial review (the authority of judges to declare acts of coordinate officials unconstitutional). Although interpreters could reasonably read both concepts into the constitutional document, its text did not explicitly mention either of these terms or use words remotely like them. Moreover, Presidents and judges since George Washington had, respectively, invoked executive privilege and invalidated the acts of coordinate officials.4 Thus, a decision for either side required the Court to move outside the text.®

Dissenting in Poe v. Ullman (1961; reprinted below p. Page number: Justice John Marshall Harlan, II, envisioned an even more extensive constitutional canoné than had Frankfurter:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has ‘ Several cases antedated Marbury v. Madison (1803; reprinted below, p. 296). In Hylton v. United States (1796), the justices asserted authority to invalidate an act of Congress, but actually upheld it. Probably in Hayburn’s Case (1792), and certainly in Yale Todd’s Case (1794), the justices did invalidate provisions of federal statutes. _°® That Chief Justice Warren Burger would write the opinion of the Court heightened the irony. When Nixon nominated Burger to become chief justice, the President had said that he was a strict constructionist who would stick to the words of the Constitution. 6 Historically, “canon” referred to an authoritative body of writing—originally a collection of Greek poetry amassed at Alexandria. The word has also come to mean a basic principle or rule, usually regarding interpretation; thus legal commentators and literary critics often speak of “canons of construction.” In its first meaning, canon often has an

ecclesiastical connotation.

We use the word in its historic, secular sense.

For a fascinating

discussion of the notion of a canon with respect to constitutional law, see J.M. Balkin and Sanford Levinson, “The Canons of Constitutional Law,” 111 Harv.L.Rev. 963 (1998).

CHAPTER

5

PROBLEMS OF INCLUSION

represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.... The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. Although judges seldom admit it, they, like other interpreters, also often read political principles or theory into and out of the document. Chief Justice Earl Warren used a theory of representative democracy to hold that the Constitution required electoral districts to conform to the principle of “one person, one vote.” (Reynolds v. Sims [1964; reprinted below, p. 826].) Similarly, Justice Antonin Scalia unsuccessfully urged his colleagues to leave the validity of state laws regulating abortion to democratic settlement, thus importing his own version of democratic theory into the Constitution. (Planned Parenthood v. Casey [1992; reprinted below, p. 1453].) And many of the Court’s rulings about the substance of such fundamental rights as those to marry, travel, and enjoy privacy depend as much on theories of constitutionalism and personal liberty as on the plain words of the text. (See especially Griswold reprinted below, p. 137, and the cases reprinted in Chapter 18.) An even more vexing question—one that has been hotly debated in recent years—is whether interpreters should consider foreign legal materials or practices when interpreting the U.S. Constitution. By one count in 2004, six members of the Court (Breyer, Kennedy, Ginsburg, Rehnquist, Scalia, and Stevens) had done so, although only in limited, non-binding ways.’ Justice Scalia, however, denies that he has referred to foreign legal materials to determine questions arising under the Constitution, claiming that “the framers would be appalled” by such an approach. The framers’ views are, as we have repeatedly noted, difficult to capture—reconciling Scalia’s claim with, for example, the founders’ reference in the Declaration of Independence to “a decent respect to the opinions of mankind” is therefore no easy matter.?

7 Vicki Jackson, “Yes Please, I’d Love to Talk with You,” Legal Affairs (July/Aug. 2004). Earlier in his tenure as chief justice, before the outbreak of controversy, Rehnquist appeared

more receptive to foreign legal materials. In 1989, he said, “It’s time the U.S. courts began looking to the decisions of other constitutional courts to aid in their own deliberative process.” “Constitutional Courts: Comparative Remarks,” reprinted in Paul Kirchhof & Donald P. Kommers eds., Germany and Its Basic Law: Past, Present and Future—A German-American Symposium (Baden—Baden: Nomos, 1993), p. 411. Later, as the more liberal members of his Court began to cite foreign law, he would decry the practice, maintaining that “the views of

other countries” are irrelevant to the Court’s “ultimate determination.” See Atkins v. Virginia (2002) (Rehnquist, C.J., dissenting). 8

The quotation is from a lively conversation that Justices Scalia and Breyer had on the

relevance of foreign law for American constitutional interpretation, organized by the U.S. Association of Constitutional Law and American University. The transcript is available at http://www.freerepublic.com/focus/f-news/1352357/posts. Scalia goes on to accept that “you can cite foreign law . . . to show that if the Court adopts this particular view, the sky will not fall.” 9 See also James Madison’s remarks in Federalist No. 63: “An attention to the judgment of other nations is important to every government ... [I]n doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.”

107

108

WHat IS THE CONSTITUTION?

Part II

Reference to foreign law and practices is not a recent innovation of the Supreme Court. In Dred Scott v. Sandford (1856; reprinted below, p. 181), Professor Vicki Jackson reminds us, “the majority cited discriminatory practices of European nations at the time of America’s founding to support the view that the Constitution precluded national citizenship for African—Americans, while a dissent argued in favor of Scott’s free status in part by relying on contemporary European practice and international law.” It was only after the Court’s controversial decision in Lawrence v. Texas (2003; reprinted below, p. 1502) that the practice sparked such outrage in some circles that resolutions were introduced in both houses of Congress declaring that “judicial determinations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless [such materials] inform an understanding of the original meaning of the Constitution.”!° It should come as no surprise that almost as frequently as a majority of justices find a “tradition,” hallow a practice, note a foreign law or judgment, or rely on a political theory, dissenting justices question the legitimacy of including such material. Michael H. v. Gerald D. (1989; reprinted below p. 148) provided the occasion for a wonderful argument between Justices Scalia and William J. Brennan, Jr., over the scope of “tradition” and its relevance for constitutional interpretation. Lee v. Weisman

(1992; reprinted below, p. 157) renewed

the debate,

with Scalia taking on Justices Kennedy and Souter. On the other hand, when the Court claims to stick to the plain words of the text, dissenters commonly protest against “mechanical interpretation” that ignores either “the living Constitution.” Or they object that the Constitution is a scheme of “majestic generalities” and abstract commitments that cannot be reduced to a code of detailed rules. This disagreement over WHAT the Constitution includes began shortly after ratification, as illustrated by the debate between Justices Samuel Chase and James Iredell in Calder v. Bull (1798; reprinted below, p. 114), the very first case in this book. That debate echoes through the more than 540 volumes of the United States Reports that come after Calder. ;

II]. THE CONSTITUTION: WRITTEN? LIVING? OR ABSTRACT? The notion of a “living Constitution” or an unwritten constitution supplementing the official document is open-ended. We thus prefer to use the terms (defined before at pp. 1-3) constitutional text for the document of 1787-88 as amended, and the constitution (italicized this once) to refer to elements that are not mentioned in the text, but have taken on constitutional authority. Not only is there doubt, even confusion, about WHAT interpreters mean to include when they speak of “the Constitution,” but American constitutional interpretation also

10 See S. Res. 92, 109th Congress (2005) and H. Res. 97, 109th Congress (2005). These resolutions, limiting the range of interpretive materials the courts may use, implicate both the question “WHAT is the constitution?” and the question “WHO are the Constitution’ s authoritative interpreters?”

CHAPTER 5

PROBLEMS OF INCLUSION

lacks clear “rules of recognition”!! that determine when and how a practice, tradition, political theory, or document which the amended text of 1787-88 does not mention becomes part of the constitutional canon. These are serious issues insofar as long and widely accepted practices—segregation by race, for example, or different legal treatment of women and men—can generate the very problems constitutional interpretation confronts. Moreover, any possibility of constitutional change raises grave questions of WHO has authority to add to or subtract from the nation’s fundamental law. Narrow textualists respond that constitutional interpretation does have a rule of recognition, the one and only one needed: Inclusion in the words of the amended text makes a practice, tradition, theory, or other document part of the canon; exclusion makes any or all of these Ben enete unless they fall within the meaning of the words found in the text.

At first glance, those who would restrict the constitution to the amended document of 1787-88 have the tidier argument. The text is tangible, bounded, set in hard print, and reproduced on pages that can be read, analyzed, and explained—and, moreover, the text is almost universally accepted as a source of constitutional meaning. This single “rule of recognition” seems to provide a clear standard. However, narrow textualists quickly encounter problems. As we saw in Chapter 1, some clauses of the document cry out for interpretations that go beyond parsing sentences and looking up definitions in a dictionary. The words of the Preamble setting such goals as justice, liberty, and domestic tranquility no more lend themselves to rigid application than do the terms of Article I authorizing Congress “to make all Laws which shall be necessary and proper” to carry out delegated powers. Thus, even narrow textualists concede that sometimes it is necessary to go behind the document to find the meaning of its words. Hugo Black, the greatest of the textualists, sought help when plain words failed by trying to reconstruct the “intent of the framers.” He was fond of quoting from Ex parte Bain (1887):!2 It is never to be forgotten that, in the construction of the language of the Constitution ..., as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed the instrument. But “intent” adds something to the words of the document. And, as Chapter 9 will develop in detail, questing for the “intent of the framers” or the “original understanding” or “original meaning” of the founding generation is usually as open-ended as foraging for the contents of the “unwritten constitution.” (Indeed, the two may be different aspects of the same search.) What the framers, whether of 1787-88 or of later amendments, had in mind is seldom crystal clear. Moreover, as Frankfurter noted when Black “discovered” the intent of the Fourteenth Amendment in the speeches of one of the resolution’s congressional

1 See H.L.A. Hart, The Concept of Law (2d ed.; Oxford: Clarendon Press, 1994), ch. 6; and Richard S. Kay, “Preconstitutional Rules,” 42 Ohio St.L.J. 187 (1981). 12, He quoted this passage, for instance, in his A Constitutional Faith (New York: Knopf, 1969), p. 8; and in his dissent in Adamson v. California (1947).

109

110

Wuat Is THE CONSTITUTION?

Part II

managers: “What was submitted for ratification was his proposal, not his speech.”!8 Furthermore, while the constitutional text instructs interpreters about how to go about their work in several places,'4 nowhere

does it

tell them to seek the “intent of the framers’ or the “original understanding” or “original meaning.” Thus, to justify utilizing such either could be found— intent and/or understanding—assuming interpreters must employ interpretive principles that are external to the text. They face the difficult task of justifying the use of principles outside of the text to demonstrate that it is wrong to go outside of the text;?© More generally, as we have already seen, the constitutional text is riddled with language that, in Ronald Dworkin’s phrase, expresses broad “concepts” rather than specific “conceptions.”!6 For example, the language of the Equal Protection Clause is quite general, suggesting that it embodies an abstract principle of equality, rather than a particular concrete understanding or expectation of what that principle would entail. This abstract language makes sense, one might argue, only when understood as products of a political theory or set of political theories. As we have mentioned earlier, for an interpreter who believes in following the black letter of the law, the Ninth Amendment presents the most troublesome use of broad language. This amendment’s exact terms direct interpreters to read the Constitution as including more than the words of the document: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The amendment does not say “the Constitution need not be construed” or “might not be construed” to exclude unlisted rights. Rather, it directs behavior just as clearly as do the “Thou shalt nots” of the Commandments brought down from Mount Sinai by Moses. The mood of the verb “construe” is imperative and its tense is future. This sentence commands later interpreters: The “Constitution ... shall not be construed.” A narrow textualist might try to dismiss these words as not being cognizable by judges with the following argument:

The Constitution consists only of the text. Thus when the words of that text say “the Constitution” includes more than the text’s words, judges must ignore the text’s words. But that reasoning seems circular, at least if the speaker believes that judicial review is legitimate.17 13 Adamson v. California, concur. op. (1947). ‘4 The Ninth Amendment, reprinted on the next page, issues one such interpretive command; the Eleventh Amendment issues another: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against Sieof the United States by Citizens of another State, or by Citizens or Subjects of any Foreign tate.” 145 For a discussion of the use of interpretive principles located outside the constitutional text, see Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993), chs. 4—5. 6 Taking Rights Seriously (Cambridge: Harvard University Press, 1977), ch. 5. uy The Canadian Supreme Court has made a useful distinction here. Admitting that the

constitution includes more than the constitutional text, the justices have said that they have

the authority to interpret only the latter. In Re the Matter of § 6 of the Judicature Act [1981],

CHAPTER 5

PROBLEMS OF INCLUSION

In addition, the document presents, as Chief Justice Marshall asserted in McCulloch v. Maryland (1819; reprinted below, p. 555), only the framework or “great outlines” of a political system—one that must be filled in by interpretation and practice—not a “prolix[ ]legal code.” As we have already seen, some of the most important parts of the constitutional system are not found in the text. The apparent ratification of the Twenty-seventh Amendment has posed an additional problem. Has that amendment, which requires that congressional pay raises not take effect until after the next election, become part of the constitutional text, as is commonly assumed? It was the second item of the original Bill of Rights that James Madison introduced in the First Congress, but it lay dormant for 203 years until resentment against legislators’ increasing their own salaries led to its approval by the thirty-eighth state in 1992. The problem for constitutional inclusion revolves around whether that prolonged coma constituted legal death. In Dillon v. Gloss (1921), the Supreme Court had said “it is quite untenable” that long dormant amendments from 1789 could become part of the Constitution. Because “ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States,” the justices reasoned, “there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period... .”

Eighteen years later, however, four justices, speaking through Hugo Black in Coleman v. Miller (1939), said that Dillon’s comment about more or less contemporaneous ratification was no more than an “advisory opinion.” “Congress has sole and complete control” over the question “whether ratification has occurred within a reasonable period of time.” The plurality, in effect, responded to a question of WHAT by offering a response to WHO: the legislature, not the judiciary, shall determine when an amendment enters the canon. In recent decades, Congress has sometimes qualified its proposed constitutional amendments by stating that they would die if not ratified within a specified number of years. However, Black could not muster a fifth vote for an opinion of the Court. Thus, as far as judges are concerned, the general question of the shelf-life of proposed amendments is still open.!8 Congress, smarting under a series of scandals and harsh public criticism, quickly declared in 1992 that the Twenty-seventh Amendment was “valid ... as part of the Constitution of the United States.” The vote was 414-3 in the House, 99-0 in the Senate.

S.C.R. 753. Applied to constitutional interpretation in the United States, this distinction would narrow judges’ tasks. It would not, however, eliminate the interpretive problems the Ninth Amendment raises since that amendment is part of the text. 18 For a general debate about the proper roles of Congress and the Court in deciding when an amendment had become canonized, see Walter Dellinger, “The Legitimacy of Constitutional Change: Rethinking the Amendment Process,” 97 Harv.L.Rev. 386 (1983); Laurence H. Tribe, “A Constitution We Are Amending: In Defense of a Restrained Judicial Role,” 97 Harv.L.Rev. 433 (1983); Dellinger, “Constitutional Politics: A Rejoinder,” 97 Harv.L.Rev. 446 (1983); and John R. Vile, The Constitutional Amending Process in American Political Thought (New York: Praeger, 1992). See also Chapter 6, below.

111

112

Part II

WHAT IS THE CONSTITUTION?

Commentators, however, are divided; Dillon’s implicit time limit is still convincing to many.!°

reasoning

about

an

III. RESPECT FOR THE TEXT are commentators constitutional of minority small A a convey never can words that believe They “deconstructionists.” writer’s real thoughts to a reader. In short, no document can have any meaning other than what the reader puts into it—the reader is the author. Deconstructionists therefore contend that the notion of a single authoritative constitutional text for an entire people makes no sense. Deconstructionists’ claims have a delightfully ironic twist: if words can never convey writers’ real thoughts to readers, readers cannot understand writings that say words can never convey writers’ real thoughts. On the other hand, if words can convey writers’ thoughts to readers, writers of such sentences are deceiving us—and themselves. Most commentators and interpreters who see the American Constitution as including more than the amended document of 1787-88 are not deconstructionists and do not believe they are belittling that text. Their contention is twofold: first, textualists have oversimplified the real work of interpretation; and, second, deconstructionists have pointed to, but exaggerated, the serious problem of formulating and expressing complex ideas in the inexact medium of language. Words can have a variety of meanings, and both writers and readers have only partial access to each other’s frameworks of understanding. This problem, though it does cause difficulty, does not destroy the ability of texts to convey meaning. Recognition of these interpretive problems is hardly recent in constitutional interpretation. As we saw in Chapter 1, James Madison mused in Federalist No. 37: “When the Almighty himself condescends to address

mankind

in their own

language, his meaning,

luminous

as it

must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.” Words often capture our ideas imperfectly, and our ideas themselves are often hazy and uncertain. Chief Justice John Marshall noted that “[s]uch is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense.” (McCulloch v. Maryland [1819; reprinted below, p. 555].) Thus, most constitutional commentators argue that the constitutional text both settles many problems about the structure of political offices and the legitimacy of governmental action and inaction and announces rules and principles that restrict the range of legitimate responses to many other problems. To restrict, however, is not to determine. Constitutional texts also assert more abstract requirements, such as that public officials should not conduct searches or seizures that are “unreasonable,” or impose “cruel” punishments, or deprive any person of “life, liberty, or property, without due process of law,” or take anyone’s private property except for a “public use” and with “just compensation.” And sure the successful operation of a constitutional system presupposes some rough, working agreement with respect to 19

For an excellent analysis, see Sanford Levinson, “Authorizing the Constitutional Text:

On the (So-Called) Twenty-seventh Amendment,” 10 Const. Comm. 101 (1994).

CHAPTER 5

PROBLEMS OF INCLUSION

forms of conduct that are, and are not, proper, prudent, and good. Successful constitutions inevitably leave gaps, furnish flexibility, foster constructive debate. Even the constitutional text of India, which runs to more than 300 pages, required in its first four years more than 50 amendments and at least as much judicial interpretation as has the American document. Other constitutional democracies have encountered similar difficulties in turning constitutional texts into instruments of governance. Constitutional interpretation is a heavy industry in countries such as Australia, Canada, Germany, Ireland, and Italy as well as in India, South Africa, and the United States. Finding underlying theories and judging the compatibility of earlier interpretations, traditions, and usages with a not always crystal clear text and its formative principles are no less central to that enterprise than defining the document’s explicit terms. Proponents of an American constitution that includes more than the amended document of 1787-88 assert that interpreters should openly acknowledge the difficulty of determining WHAT the Constitution contains. Such an approach, they argue, shows more respect for the text than do efforts to conceal what interpreters are actually doing. Interpretive candor better enables the people and their representatives to amend the text in order to clarify its meaning, or to narrow or broaden its scope in a way that will make real, not merely formal, changes in the political system.

These sorts of debates about constitutional inclusion, textual meaning, and deconstruction remain debates. All claims here are contestable; and commentators and interpreters, including judges, have sometimes changed their minds. Moreover, as we have seen, disagreement may not only concern the Constitution’s content, but also WHO has authority to speak definitively about that content. Once again, we are not advancing a version of constitutional relativism, but rather stressing the necessity of reasons and evidence in justifying constitutional interpretations. Constitutional interpretation is fundamentally different from constitutional pontification.

IV. THE OBJECTIVES OF THIS CHAPTER The preceding chapters have consisted of essays introducing readers to the enterprise of constitutional interpretation, along with its intellectual and political setting in American politics. While this chapter continues to pursue those discussions, our methodology changes dramatically. Each of the chapters that follow will begin with an essay, but all except Chapter 9 will, after a few pages, mainly reprint clauses of the constitutional document, texts of statutes and executive decrees, legislative debates, and judicial opinions—the basic elements of constitutional interpretation. At this point, readers might want to look back at Chapter 2 to refresh their memories on the topic of constitutional literacy. The complexity of these raw materials causes most beginning constitutional in interpreting difficulty to experience readers interpreters. Moreover, in addition to the difficulties sketched in of problems substantive encounter will 2, readers Chapter

113

114

WHAT IS THE CONSTITUTION?

Part II

constitutional law—for example, the meaning of such terms as ex post facto law or “self-incrimination” and the wide-ranging implications of the phrase “due process of law’ in the Fourteenth Amendment. These are interesting issues in and of themselves, and they form important dimensions of WHAT the constitutional text and the broader constitution include, as well as HOW to find meaning from those materials. This Chapter, however, has two fundamental objectives that go beyond the substance of constitutional doctrine. The first is to push readers into the jungle of constitutional interpretation by letting readers see and judge for themselves the complexities which the preceding chapters have been speaking about. The second objective is to help readers start hacking a path through that jungle by confronting the basic interrogative WHAT is the Constitution? WHAT does it include? As readers make their way through these materials, we hope they will be learning something about substantive constitutional law. However, they should keep asking themselves WHAT it is that the interpreters think that they are interpreting. This task is hardly easy, for often judges, commentators, and other interpreters do not convincingly justify their answers. Indeed, they sometimes fail to ask the question, even of themselves. Nonetheless, how they try to solve or ignore the problem of WHAT may be useful. Indeed, we can learn from failures as well as from successes. And learn we must, for this elemental question is not about to disappear or to become less central to constitutional interpretation.

“There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power.”—Justice CHASE “If... the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it void, merely because it is, in their judgment, contrary to the principles of natural justice.”—Justice IREDELL

Calder v. Bull 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798) Connecticut’s legislature passed a law setting aside a decree of a probate court disapproving and refusing to record a will. The statute granted a new hearing, after which the probate court approved and recorded the will. Calder, who would have inherited the property had the probate court disapproved the will, contended that the statute granting a new hearing was an ex post facto law, prohibited by Article if § 10 of the constitutional document. The state superior court rejected the argument, as did the Connecticut Supreme Court of Errors. Calder obtained a writ of error from the U.S. Supreme Court.

CHAPTER

5

PROBLEMS

mw CHASE, JUSTICE...

OF INCLUSION

.

_It appears to me a self-evident proposition, that the several state legislatures retain all the powers of legislation, delegated to them by the state constitutions; which are not expressly taken away by the constitution of the United States.... All the powers delegated by the people of the United States to the federal government are defined, and

NO CONSTRUCTIVE powers can be exercised by it, and all the powers that remain in the state governments are indefinite.... The sole inquiry is, whether this resolution or law of Connecticut ... is an ex post facto law, within the prohibition of the federal constitution? ... I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without controul; although its authority should not be expressly restrained by the constitution, or fundamental law of the state. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the federal or state legislatures cannot do, without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A, and gives it to B. It is against all reason and justice for a people to intrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.

The legislature may enjoin, permit, forbid and punish; they may declare

crimes,

w

andestablish rules of conduct ¥ for all its citizens in

future

es; they may command what is right, and prohibit what is wrong; t they cannot change innocence into guilt, or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or

the

right

of private

pr

‘To

maintain

that 1ad

our

not

federal or state been expressly

115

116

WHAT IS THE CONSTITUTION?

Part II

in my opinion, be a political heresy altogether restrained, would, inadmissible in our free republican governments. . . The Constitution of the United States ... lays several restrictions on the legislatures of the several states; and among them, “that no state shall pass any ex post facto law.”... I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law; the former only are prohibited. Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive... . But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create or aggravate the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful; and the making an innocent action criminal, and punishing it as a crime. The expressions “ex post facto laws” are technical, they had been in use long before the revolution, and had acquired an appropriate meaning by legislators, lawyers and authors. The celebrated and judicious Sir William Blackstone, in his Commentaries, considers an ex post facto law

precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of The Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of government... . . ... The restraint against making any ex post facto laws was not considered, by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property; or the provision, “that private property should not be taken for public use, without just compensation,” was unnecessary... . It seems to me, that the right of property, in its origin, could only arise from compact express, or implied, and I think it the better opinion, that the right, as well as the mode, or manner, of acquiring property, and of alienating or transferring, inheriting, or transmitting it, is conferred by society ... and is always subject to the rules prescribed by positive law....

I am of opinion that the decree of the supreme court of errors of Connecticut be affirmed, with costs. = PATERSON, JUSTICE. ... s IREDELL, JUSTICE. ...

CHAPTER 5

PROBLEMS OF INCLUSION

If... a government composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government any court of justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of parliament, which authorizes a man to try his own cause, explicitly adds, that even in that case, “there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.” 1 Bl.Com. 91. In order, therefore, to guard against so great an evil, it has been the policy of all the American states, which have, individually, framed their state constitutions, since the revolution, and of the people of the United States, when they framed the federal constitution, to define with precision the objects of legislative power, and to restrain its exercise within marked and settled boundaries. If any act of congress, or of the legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the |

legislature of the Union, or the legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed upon the subject; and all that the court could properly say, in such an event, would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: Ist. If the legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case,

they

violate

a

fundamental

law,

which

must

be

our

guide,

whenever we are called upon as judges, to determine the validity of a legislative act. Still, however, in the present instance, the act or resolution of the.

legislature of Connecticut, cannot be

regarded as an ex post facto law;

for the true construction of the prohibition extends to criminal, not to civil issues... . _.. It is not sufficient to urge, that the power may be abused, for such is the nature of all power—such is the tendency of every human institution. ... We must be content to limit power, where we can, and

where we cannot, consistently with its use, we must be content to repose a salutary confidence. It is our consolation, that there never

117

118

Part II

WHAT IS THE CONSTITUTION?

existed a government, in ancient or modern times, more free from danger in this respect, than the governments of America... . a CUSHING, JUSTICE .... The case appears to me to be clear of difficulty, taken either way. If the act is a judicial act, it is not touched by the Federal Constitution; and, if it is a legislative act, it is maintained and justified by the ancient and uniform practice of the state of Connecticut.

JUDGMENT affirmed. EDITORS’ NOTES (1) The definition of an ex post facto law is not the central point of this case for constitutional interpretation, but it is still important insofar as Chase’s definition remains good law to this day. Query: Where does he find that definition? (2) For the purposes of this Chapter, the critical issues concern what the Constitution encompasses. Query: What is Chase’s conception of WHAT the Constitution includes? What is Iredell’s conception? To what extent does Chase contend that the Constitution includes a political theory? Does Iredell deny such a claim? (As you read the cases and materials throughout this book, consider the ways in which the classic debate has been replayed and Iredell concerning WHAT Chase between throughout American constitutional history.) (3) Iredell attacks the notion that federal judges can apply standards of natural justice or natural law to constitutional interpretation. Query: Does Chase claim that judges can use such criteria? Is the political theory that Chase uses here a theory of natural justice or instead a theory of the principles of free republican government embodied in our Constitution? (4) Until the early years of John Marshall’s tenure as chief justice (1801-1835), each member of the Court usually wrote his own opinion or joined in one of the several opinions filed by colleagues. In 1798 there were six justices. Chief Justice Oliver Ellsworth and Justice James Wilson apparently did not participate in this case. (5) In 1804, the House of Representatives impeached Samuel Chase for abusing his powers as a trial judge (until near the end of the nineteenth century, Supreme Court justices “rode circuit” and sat as trial as well as appellate judges) to launch partisan attacks against Jeffersonians. Though the Senate failed to convict by the required two-thirds vote in 1805, there was little doubt of Chase’s guilt. He was saved only by a combination of sympathy for an old man who had signed the Declaration of Independence, antipathy toward the arrogant John Randolph of Roanoke (who managed the case for the House), and, of course, by partisan Federalists. Chase remains the only justice of the Supreme Court ever to be impeached— though threats have not been infrequent.

“There are manifold restraints to which necessarily subject for the common good.”

every

person

is

CHAPTER 5

PROBLEMS OF INCLUSION

Jacobson v. Massachusetts 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) The Massachusetts legislature authorized localities to require vaccinations when they thought it necessary for public health. After an increase in smallpox, Cambridge ordered all residents to be vaccinated. Jacobson refused and was prosecuted. At the trial, he attacked the law’s constitutionality and tried unsuccessfully to introduce evidence that such vaccinations often had injurious and sometimes fatal side effects, and that both he and one of his sons had earlier become seriously ill after being vaccinated. The trial court found him guilty (a decision that state appellate courts affirmed). Jacobson then appealed to the U.S. Supreme Court.

= MR. JUSTICE HARLAN’ delivered the opinion of the Court. We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts . . . is in derogation of rights secured by the Preamble of the Constitution of the United States. Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments... . We also pass without discussion the suggestion that the above section of the statute is opposed to the spirit of the Constitution. Undoubtedly, as observed by Chief Justice Marshall, speaking for the court in Sturges v. Crowninshield [1819], “the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words.” We have no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our

decision. ... The authority of the State to enact this statute is to be referred to what is commonly called the police power—a power which the State did not surrender when becoming a member of the Union under the Constitution. ... According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety... . ... The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems

best; and that the execution of such a law

against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution ... does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could John Marshall Harlan (1833-1911), the grandfather of Justice John Marshall Harlan

[II] (1899-1971).—Eds.

119

120

Part II

WHAT IS THE CONSTITUTION?

not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.... This court has more than once recognized it as a fundamental principle that “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State....” In Crowley v. Christensen [1890] we said: “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country,

essential

to the safety, health,

peace,

good

order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by LAW. eee ... Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.... Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large, was arbitrary and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.... There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society ... the rights of the individual in respect of his liberty may at times, under the pressure of

great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.... The liberty secured by the Fourteenth Amendment, this court has said, consists, in part, in the right of a person “to live and work where he will,” Allgeyer v. Louisiana [1897] and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense. ... __[The Court then discussed Jacobson’s effort to present medical evidence attacking the effectiveness of vaccination in preventing smallpox.] ... We must assume that when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled ... to choose between them.... It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in

CHAPTER

5

PROBLEMS

OF INCLUSION

the light of all the information it had or could obtain. .. . If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution... . . While this court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law... .

The judgment of the court below must be affirmed. . a Mr. JUSTICE BREWER

and MR. JUSTICE PECKHAM

.

dissent.

EDITORS’ NOTES (1) Note how smoothly Harlan dismissed the Preamble to the constitutional text. Query: To what extent did that dismissal thereby eliminate that paragraph from the Constitution the Court interprets? It is worth remembering that judges rarely refer to the Preamble—an interesting phenomenon given that the Preamble announces the political system’s purposes, and judges often claim that any textual interpretation must take into account the document’s purposes. (2) Note also the equal smoothness with which Harlan dismissed “the spirit of the Constitution,” to which the Court under Chief Justice Marshall had several times alluded (and to which interpreters of legal texts commonly advert). (3) Apply Harlan’s mode of reasoning about the Preamble to other clauses (the First Amendment, for example). Query: Does that part of the text confer any power on federal courts? Would it follow, then, that courts could not invalidate an effort to establish a national church or to censor criticism of incumbent political officials? If not, why not? Furthermore, how does determining the meaning of such phrases in the Preamble as “the blessings of liberty” differ from determining the scope of the “liberty” that the Fifth and Fourteenth amendments purport to protect?

(4) Query: Regarding the substantive issue in dispute, would Harlan’s logic sustain the constitutionality of compulsory tests for AIDS? (5) By the mid—1970s, most U.S. public health officials believed that smallpox had become so rare that the danger of an adverse reaction to the vaccination—something the Court in Jacobson weighed lightly—was many times greater than that of contracting the disease. In 1980, due to the success of worldwide vaccination programs, smallpox was declared eradicated in the field and widespread vaccinations ceased. However, given the heightened concern over possible terrorist threats after the attacks of September 11, 2001, the United States government has begun a program to

121

122

WHAT IS THE CONSTITUTION?

Part II

vaccinate health care professionals who may have to respond to a terrorist attack using biological agents.

“If the Fourteenth Amendment has absorbed [portions of the Bill of Rights], the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed.”

Palko v. Connecticut 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937) As an original matter, the amendments of the Bill of Rights applied only to the federal government and not against the state governments. Barron v. Baltimore (1833). For several generations, a majority of the Supreme Court held that the Fourteenth Amendment did not make the Bill of Rights binding on the states. Likewise, Hurtado v. California (1884) ruled that the Fifth Amendment’s requirement of indictment by grand jury did not apply to the states; Maxwell v. Dow (1900) reaffirmed Hurtado; and Twining v. New Jersey (1908) said that the did not extend the Fifth’s ban against Fourteenth Amendment compulsory self-incrimination to the states. However, In re Kemmler (1890) held that a state’s use of electrocution as a method of execution was not a “cruel and unusual” punishment, implying that the Eighth Amendment applied to the states. After 1890, on the other hand, the Court not only extended the Fourteenth Amendment’s protection of property, but also held that this protection included the Fifth Amendment’s prohibition against government’s taking private property without “just compensation.” Chicago, Burlington & Quincy R.R. v. Chicago (1897). In addition, a series of cases decided that “liberty of contract” was included under the general term “liberty” in the Due Process Clause. See espec. Lochner v. New York (1905; reprinted below, p. 1230). Then, without further warning, in 1925 Gitlow v. New York held that the First Amendment’s protection of freedom of speech applied to the states. This ruling was followed by others that included in the Fourteenth Amendment: freedom of the press, Near v. Minnesota (1931); the Sixth Amendment’s guarantee of the right to counsel (under certain circumstances), Powell v. Alabama (1932); and the Sixth Amendment’s requirement of a trial by “an impartial jury,” at least where a state chose to use juries, Norris v. Alabama (1935). By the mid—1930s, the whole question of which of the guarantees in the Bill of Rights were included in the Fourteenth Amendment was thoroughly confused. Palko v. Connecticut presented the Court with an opportunity to clarify the situation. A state statute allowed a prosecutor in a criminal case to appeal rulings of law and thereby seek to retry a defendant who had been acquitted under a mistaken interpretation of the law. Palko was tried for first degree murder, but the jury returned a verdict of guilty only of second degree murder. The prosecutor appealed, and the state supreme court ordered a new trial, holding that the trial judge had erred in excluding certain testimony and had incorrectly

CHAPTER 5

PROBLEMS OF INCLUSION

instructed the jury. At the second trial, the jury found Palko guilty of murder in the first degree, and he was sentenced to death. He lost in the state appellate courts and appealed to the U.S. Supreme Court. a MR. JUSTICE CARDOZO delivered the opinion of the Court. ... _ 1. The execution of the sentence will not deprive appellant of his life without the process of law assured to him by the Fourteenth Amendment of the Federal Constitution. _ The argument for appellant is that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also. The Fifth Amendment, which is not directed to the states, but solely to the federal government, creates immunity from double jeopardy. No person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” The Fourteenth Amendment ordains, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” To retry a defendant, though under one indictment and only one, subjects him, it is said, to double jeopardy in violation of the Fifth Amendment, if the prosecution is one on behalf of the United States. From this the consequence is said to follow that there is a denial of life or liberty without due process of law, if the prosecution is one on behalf of the People of a State. ... ... Is double jeopardy in such circumstances [as those of this case], if double jeopardy it must be called, a denial of due process forbidden to the states? The tyranny of labels, Snyder v. Massachusetts [1934], must not lead us to leap to a conclusion that a word which in one set of facts may stand for oppression or enormity is of like effect in every other.

. [I]n appellant’s view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII)* if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule. The Fifth Amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. This court has held that, in prosecutions by a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer. Hurtado v. California [1884]. The Fifth Amendment provides also that no person shall be compelled in any criminal case to be a witness against himself. This court has said that, in prosecutions by a state, the exemption will fail if the state elects to end it. Twining v. New Jersey [1908]. The Sixth Amendment calls for a jury trial in criminal cases and the Seventh for a jury trial in civil cases at common law where the value in controversy shall exceed twenty dollars. This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether. On the other hand, the Due Process Clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against * Eds.’ Query: Why only amendments 1-8? Why not the Ninth Amendment as well? Or even the Ninth and the Tenth? The Tenth relates only in part to powers reserved to the states; it also speaks of powers reserved “to the people.”

123

124

Part II

WHAT IS THE CONSTITUTION?

encroachment by the Congress, De Jonge v. Oregon [1937]; Herndon v. Lowry [1937]; or the like freedom of the press, Grosjean v. American Press Co. [1936]; Near v. Minnesota [1931]; or the free exercise of religion, Pierce v. Society of Sisters [1925]; or the right of peaceable assembly, without which speech would be unduly trammeled, De Jonge; Herndon; or the right of one accused of crime to the benefit of counsel, Powell v. Alabama [1932]. In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states. The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of-a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them. What is true of jury trials and indictments is true also, as the cases show, of the immunity from compulsory selfincrimination. This too might be lost, and justice still be done. Indeed,

today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether.... No doubt there would remain the need to give protection against torture, physical or mental....

Justice,

however,

would

not

perish

if the accused

were

subject to a duty to respond to orderly inquiry. The exclusion of these immunities and privileges from the privileges and immunities protected against the action of the states has not been arbitrary or casual. It has been dictated by a study and appreciation of the meaning, the essential implications, of liberty itself. We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption.... If the Fourteenth Amendment

has absorbed them, the process of absorption

has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. Twining. This is true, for illustration, of freedom of thought, and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be

CHAPTER

5

overridden

PROBLEMS OF INCLUSION

by the

courts.

Fundamental

too

in the

concept

of due

process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial. The hearing, moreover, must be a real one,

not a sham or a pretense. For that reason, ignorant defendants in a capital case were held to have been condemned unlawfully when in truth, though not in form, they were refused the aid of counsel. Powell. The decision did not turn upon the fact that the benefit of counsel would have been guaranteed to the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing.

Our survey of the cases serves, we think, to justify the statement that the dividing line between them, if not unfaltering throughout its course, has been true for the most part to a unifying principle. On which side of the line the case made out by the appellant has appropriate location must be the next inquiry and the final one. Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”? Hebert v. Louisiana [1926]. The answer surely must be “no.” What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. This is not cruelty at all, nor even vexation in any immoderate degree. If the trial had been infected with error adverse to the accused, there might have been review at his instance, and as often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the presiding judge[,] ... has now been granted to the state. There is here no seismic innovation. The edifice of justice stands, its symmetry, to many, greater than before. 2. The conviction of appellant is not in derogation of any privileges or immunities that belong to him as a citizen of the United States. ...

The judgment is affirmed. a Mr. JUSTICE BUTLER dissents. EDITORS’ NOTES (1) Query: To what extent was Cardozo, as well as the justices who joined him and went before him, adding to the constitutional document in interpreting the meaning of “due process of law”? Or were the justices not adding, but merely interpreting? Quoting himself speaking for the Court in Snyder v. Massachusetts (1934), Cardozo referred to a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” as the proper gauge to determine if the Fourteenth Amendment included a particular right. What did he mean by “tradition” in

125

126

WHAT IS THE CONSTITUTION?

ParT II

this context? How does an interpreter discover it? What about the “conscience of our people”? For efforts to answer the question about tradition, see the various opinions in Michael H. v. Gerald D. (1989; reprinted below, p. 148), and Lee v. Weisman (1992; reprinted below, p. 157); see also Bolling v. Sharpe (1954; reprinted below, p. 972). (2) Query: Is there any significant difference between Cardozo’s two basic formulations of the due process inquiry: (1) whether an asserted right is “implicit in the concept of ordered liberty” and (2) whether it stems from “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”? (3) Query: To what extent did Cardozo read a version of democratic theory into the text when he wrote that “freedom of thought and speech” formed “the matrix, the indispensable condition, of nearly every form of freedom”? Did he also thereby import a theory of constitutionalism (as we defined that term in Chapter 3, to be concerned with dignity and autonomy)? If he did not make recourse to a political theory underlying the constitutional document, where in the constitutional document alone did he

find the standard(s) to determine what rights are “fundamental”?

(4) Query: Look back at the opinions in Calder v. Bull (1798; reprinted above, p. 114): what would Justice Chase have said about Cardozo’s reasoning? Justice Iredell? (5) In Benton v. Maryland (1969), the Supreme Court overruled the specific holding of Palko concerning double jeopardy, but not Palko’s general approach to “incorporation” of the Bill of Rights.

“Incorporation” of the Bill of Rights The plain words of the Fourteenth Amendment indicate that if any of its clauses “incorporate” some or all of the Bill of Rights so as to make them applicable against the states, it is the “privileges or immunities clause”: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....” The amendment’s legislative history, though complex and often confused, gives far stronger support to such a claim for this clause than for the “Due Process Clause,” which forbids states to “deprive any person of life, liberty, or property without due process of law....” But in The Slaughter—House Cases (1878; reprinted below, p. 568), the very first judicial interpretation of the amendment, the Supreme Court gutted the privileges or immunities clause. The opinion for the Court in Slaughter-House, like the debate in Congress on the Fourteenth Amendment, utilized an opinion by Justice Bushrod Washington, while sitting as a circuit judge, in Corfield v. Coryell (1823), in which he discussed the meaning of the very similar clause in Article IV § 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.” Crandall v. Nevada (1868; available at www.princeton.edu/aci), Slaughter-House, and Twining v. New Jersey (1908) listed as among the privileges and immunities of United States

CHAPTER

5

PROBLEMS OF INCLUSION

citizens the rights to: travel interstate, petition Congress, vote for national officials, enter public lands, inform federal officials of crimes, and be protected against violence when in federal custody. During the great battle between the Court and the New Deal, Colgate v. Harvey (1935) tried to resurrect the privileges or immunities clause as a defense against governmental regulation of business, but the attempt was short-lived. Only five years later, Madden v. Kentucky (1940) overruled Colgate. (In Saenz v. Roe [1999; reprinted below, p. 1148], the Court partially revived the privileges or immunities clause in holding that it provides a textual basis for the right to travel.) Thus, to make any part of the Bill of Rights applicable to the states, the Court had to overrule much of Slaughter-House, find another clause to bear the burden, or look beyond the constitutional document for justification. Despite occasional protests, the justices have opted to use the Due Process Clause as the instrument of incorporation. The Court has now held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights: (1) First Amendment: Free speech—Gitlow v. New York (1925); freedom of the press—Near v. Minnesota (1931); free exercise of religion— Hamilton v. Regents (1934) and Cantwell v. Connecticut (1940); ban against establishment of religion—Everson v. Ewing Township (1947); freedom of assembly—De Jonge v. Oregon (1937); right to petition government for redress of grievances—NAACP v. Button (1963).

(2) Second Amendment: Chicago (2010).

Right

to bear

arms—McDonald

v. City of

(3) Fourth Amendment: General protection of a right to privacy— Griswold v. Connecticut (1965; reprinted below, p. 137); protection against “unreasonable searches and seizures’—Wolf v. Colorado (1949); exclusion of unconstitutionally seized evidence—Mapp v. Ohio (1961); exclusion of illegally seized evidence—Berger v. New York (1967) and Terry v. Ohio (1968); requirement of probable cause to arrest a suspect—Terry v. Ohio (1968). (4) Fifth Amendment: Protection against taking private property without “just compensation’—Chicago, Burlington & Quincy R.R. v. Chicago (1897); protection against self-incrimination—Malloy v. Hogan (1964), overruling Twining v. New Jersey (1908), and Adamson v. California (1947); protection against double jeopardy—Benton v. Maryland (1969), overruling the specific holding of Palko v. Connecticut (1987; reprinted just before), but not Palko’s general approach to the problem of incorporation.

(5) Sixth Amendment: Assistance of counsel—Gideon v. Wainwright (1963), Miranda v. Arizona (1966), and Argersinger v. Hamlin (1972); trial by jury for serious offenses—Duncan v. Louisiana (1968); right to a speedy trial—Klopfer v. North Carolina (1967); right to be informed of the nature of the charge—Connally v. General Construction Co. (1926), Lanzetta v. New Jersey (1939), and Winters v. New York (1948); right to confront and cross examine witnesses—Pointer v. Texas (1965); right to compulsory processes (subpoenas) to require attendance of witnesses at a criminal trial—Washington v. Texas (1967).

127

128

WHAT IS THE CONSTITUTION?

Part II

Protection against “cruel and unusual” (6) Eighth Amendment: punishment—Louisiana ex rel. Francis v. Resweber (1947) and Robinson v. California (1962). (See also our comment in the headnote to Palko about In re Kemmler [1890].) (7) Ninth Amendment: Protection of unlisted fundamental rights— Griswold v. Connecticut (1965; reprinted below, p. 137) and Roe v. Wade (1973; reprinted below, p. 1433). Not included have been the Fifth Amendment’s right to indictment by grand jury and the Seventh’s right to a jury trial in civil cases where the amount in controversy exceeds $20. There has been no specific ruling on the Third Amendment’s protection against nonconsensual quartering of troops in civilian homes in time of peace, though Griswold, a case involving state action, cited this guarantee as part of the general right to privacy. The Court has also not specifically held that the Eighth Amendment’s ban against excessive bail binds the states, but the logic of criminal justice decisions indicates that the Court would so rule. There have been at least four approaches to the general problem of incorporation of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment: (1) Due process incorporates all of the Bill of Rights, at least all of the first eight (though why not the Ninth and Tenth as well?)—Hugo Black; (2) Due process incorporates all of the Bill of Rights plus some other “fundamental” rights not listed there—Frank Murphy and Wiley Rutledge, dissenting in Adamson v. California (1947); William O. Douglas, dissenting in Poe v. Ullman (1961) and speaking for the Court in Griswold v. Connecticut (1965); (8) Due process “selectively” incorporates only those parts of the Bill of Rights that are “of the very essence of a scheme of ordered liberty’—Cardozo in Palko and, generally, the Court since; (4) Due process includes none of the Bill of Rights, and so the states are basically free from the particular restraints of the Bill of Rights—a view Black attributed, not altogether unfairly, to the Court in Hurtado v. California (1884) and Twining v. New Jersey (1908). John Marshall Harlan, II, offered a variation on the fourth theme: the Fourteenth Amendment “incorporates” none of the Bill of Rights as such; rather, due process includes restrictions very much like those contained in some of the clauses of the Bill of Rights. As Harlan put it, “The Due Process Clause stands ... on its own bottom.” Thus, it is “due process” the Court must interpret, not the Bill of Rights. See his dissent in Poe v. Ullman (1961; reprinted as the next case) and his concurring opinion in Griswold v. Connecticut (1965; reprinted below, p. 1387). See also Sanford Kadish, “Methodology and Criteria in Due Process Analysis—A Survey and Criticism,” 66 Yale L.J. 319 (1957): The consequence of requiring due process to be measured precisely by the provisions of the Bill of Rights is not to eliminate broad judicial inquiry, but rather to change its focus from due process to freedom of speech or freedom from double jeopardy and the rest, and to disguise its essential character.

CHAPTER 5

PROBLEMS OF INCLUSION

“The notion of privacy ... emanates from the totality of the constitutional

DOUGLAS

scheme

under

which

we

live.’—Justice

“[We must approach] the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government.”—Justice HARLAN

Poe v. Ullman 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) In 1879, Connecticut adopted a statute making it a crime to use or aid in using contraceptives. As technology and notions about sexual morality changed, so did the composition of the state’s population. In the nineteenth century, a heavily Protestant majority had apparently supported the law, but by the middle of the twentieth century, it was the large Catholic population who were—according to their bishops—in favor of the statute. Thus repeal was politically unlikely. In the 1940s, a group advocating birth control went to court to attack the law as violating the Fourteenth Amendment. A doctor challenged the statute as depriving his patients of life and liberty without due process by preventing his giving them medical advice that might save their lives. State courts sustained the law, and the U.S. Supreme Court dismissed the action on the ground that the doctor lacked standing to assert his patients’ rights. Tileston v. Ullman (1948). In the late 1950s, the group tried again. This time the plaintiffs were married couples and a physician. They also lost in state courts, and once more the Supreme Court dismissed the suit. Speaking for four justices,

Felix

Frankfurter

concluded

that

there

was

no

imminent

threat to any putative right. He reasoned that in the 82 years that the statute had been on the books, Connecticut had only once tried to enforce it. Brennan concurred separately on similar grounds, while Black and Stewart dissented for procedural reasons. Douglas and Harlan also dissented.

We reprint here only a portion of Douglas’s dissent and that part of Harlan’s dissent dealing with substantive issues.

a MR. JUSTICE DOUGLAS, dissenting. .. . III

[T]his Connecticut law as applied to this married couple deprives them of “liberty” without due process of law, as that concept is used in the Fourteenth Amendment. The first eight Amendments to the Constitution have been made applicable to the States only in part. My view has been that when the Fourteenth Amendment was adopted, its Due Process Clause incorporated all of those Amendments. See Adamson v. California [1947] (dissenting opinion [by Black J.]). Although the history of the Fourteenth Amendment may not be conclusive, the words “due process” acquired specific meaning from Anglo—American experience. ... When the Framers wrote the Bill of Rights they enshrined in the form of

129

130

ParT II

WHAT IS THE CONSTITUTION?

constitutional guarantees those rights—in part substantive, in part procedural—which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of “due process” must, in my view, include them all until and unless there are amendments that remove them. That has indeed been the view of a full court of nine Justices, though the members who make up that court unfortunately did not sit at the same time.! Though I believe that “due process” as used in the Fourteenth Amendment includes all of the first eight Amendments, I do not think it is restricted and confined to them. We recently held that the undefined “liberty” in the Due Process Clause of the Fifth Amendment includes freedom to travel. Kent v. Dulles [1958]. Cf. Edwards v. California [1941] (concurring opinion [by Douglas, J.]). The right “to marry, establish a home and bring up children” was said in Meyer v. State of Nebraska [1923] to come within the “liberty” of the person protected by the Due Process Clause of the Fourteenth Amendment. As I indicated in my dissent in Public Utilities Commission v. Pollak [1952], “liberty” within the purview of the Fifth Amendment includes the right of “privacy.” ... “Liberty” is a conception that sometimes gains content from the emanations of other specific guarantees (N.A.A.C.P. v. Alabama [1958]) or from experience with the requirements of a free society. For years the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system. Lochner v. New York [1905]. The error of the old Court, as I see it, was not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did. {

cua

lusive’

nar

19%

ta

a

1 judicial inquiry.

_ The regime of a free society needs room for vast experimentation. Crises, emergencies, experience at the individual and community levels produce new insights; problems emerge in new dimensions; needs, once never imagined, appear. To stop experimentation and the testing of new decrees and controls is to deprive society of a needed versatility. } y

yat

q

laoielat

ra

may

dn

anvthine ay

L

es

ap

=

a at start with Justices Bradley, Swayne, Field, Clifford and Harlan.... To these I add Mr. Justice Black, Mr. Justice Murphy, Mr. Justice Rutledge and myself (Adamson v. California). [Footnote by J ustice Douglas.]

CHAPTER

5

PROBLEMS

OF INCLUSION

as what it does fails to shock the The present legislation is an excellent example. If a State banned completely the sale of contraceptives in drug stores, the case would be quite different. It might seem to some or to all judges an unreasonable restriction. Yet it might not be irrational to conclude that a better way of dispensing those articles is through physicians. The same might be said of a state law banning the manufacture of contraceptives. Health, religious, and moral arguments might be marshalled pro and con. Yet it is not for judges to weigh the evidence. Where either the sale or the manufacture is put under regulation, the strictures are on business and commercial dealings that have had a long history with the police power of the States. sent | law, ©however, deals

a

not

with sale, not

with

wuaiith use.’It provides:

ie person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned. ulation ...

reaches

into the intimacies of the marriage,

we imagine a regime of full enforcement of the law in the manner of an Anthony Comstock,? we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on. It is said that this is not that case. And so it is not. But when the State makes “use” a crime and applies the criminal sanction | mar and wife, the State hasentered the innermost sanctum of the, . If it can make this law, it can enforce it. And proof of its violation hecessarily involves an inquiry into the relations between man and wife. at is an invasion of the privacy that is implicit in a free society, A aed theologian who conceives of the use of a contraceptive as a “sin nonetheless admits that a “use” statute such as this enters a forbidden domain. . [T]he Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil—namely, the contraceptive industry—is quite overlooked. As it stands, the statute is, of course, unenforceable without police invasion of the bedroom, and is therefore indefensible as a piece of legal draughtsmanship. Murray, We Hold These Truths (1960), pp. 157-58.

2 Anthony Comstock (1844—1915)—the Congregationalist who inspired the foundation of the New York Society for the Suppression of Vice in 1873 and the Watch and Ward Society of Boston in 1876 and who inspired George Bernard Shaw to use the opprobrious word “comstockery” in Mrs. Warren’s Profession—was responsible for the passage in 1879 of this Connecticut law... . [Footnote by Justice Douglas.]

131

132

Part II

WHAT IS THE CONSTITUTION?

This notion of privacy is not drawn from the blue.’ It emanates from the totality of the constitutional scheme under which we live. One of the earmarks of the totalitarian understanding of society is that it seeks to make all subcommunities—family, school, business, press, church—completely subject to control by the State. The State then is not one vital institution among others: a policeman, a referee, and a source of initiative for the common good. Instead, it seeks to be coextensive with familyand school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is rejected as out of accord with the democratic expressly of social good, and with the actual make-up of the ing understand human community. Can there be any doubt that a Bill of Rights that in time of peace bars soldiers from being quartered in a home “without the consent of the Owner” should also bar the police from investigating the intimacies of the marriage relation? The idea of allowing the State that leeway is congenial only to a totalitarian regime. =u MR. JUSTICE HARLAN,’ dissenting. . . . [believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life..

I In reviewing state legislation . . . in provision for the health, safety, morals or welfare of its people, it is clear that what is concerned are “the powers of government inherent in every sovereignty.” License Cases [1847]. Only to the extent that the Constitution so requires may this

Court

interfere

with

the

government. Barron v. Poti

exercise

of this plenary

[1833].

se

ee

:

ot

th

nce ceooemlan

2

y

ay, as if we

y co :

as

to the

ssion ISRour aa — in a literalistie

ee us, but as. the basic charter of our

society , setting out in spare but meaningful ‘terms the principles of ea er inieTtt. McCulloch v. Titty ant [1819]. But as inescapable as is the rational process in Constitutional adjudication in general, nowhere is it more so than in giving meaning to the prohibitions of the Fourteenth Amendment and, where the Federal Government is involved, the Fifth Amendment, against the deprivation of life, liberty or property without due process of law.

3 The right “to be let alone” had many common-law overtones. See Cooley, Torts (2d ed. 1888), p. 29; Warren and Brandeis, Right To Privacy, 4 Harv.L.Rev. 192 [1890]. [Footnote by Justice Douglas. ] 4 Calhoun, Democracy and Natural Law, 5 Nat.Law Forum, 31, 36 (1960). [Footnote by Justice Douglas.]

John Marshall Harlan Harlan [I] (1833-1911)— Eds.

[II] (1899-1971),

the

grandson

of Justice

John

Marshall

CHAPTER 5

PROBLEMS OF INCLUSION

It is but a truism to say that this provision of both Amendments is not self-explanatory. As to the Fourteenth, which is involved here, the history of the Amendment also sheds little light on the meaning of the provision. It is important to note, however, that two views of the Amendment have not been accepted by this Court.... One view . sought to limit the provision to a guarantee of procedural fairness. The other view ... would have it that the Fourteenth Amendment ... applied against the States only and precisely those restraints which had prior to the Amendment been applicable merely to federal action. However, “due process” in the consistent view of this Court has ever broader concept than the first view and more flexible than the been gobt secon It jis not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather ... those concepts which are considered to embrace those rights “which are ... fundamental; which belong ... to the citizens of all free governments,” Corfield v. Coryell [1823], for “the purposes [of securing] which men enter into society,” Calder v. Bull [1798]. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is expli itly set out eee senedsin one!Bill of ee ae t that

isa discrete sanp which beets as an independent ty of liberty and procedural fairness, more general and inclusive,

the specific prohibitions. , Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision’s larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms oewa specific guarantees elsewhere provided 1in the Constitution. ‘This if

of isolate

lom

of

pointts pricakan qut n

speech,

terms

of they

c ~

—

hn

aoe

-

wrt

oie

’

PART III

WHO MAY AUTHORITATIVELY INTERPRET THE CONSTITUTION? Chapter 7:

Who May Authoritatively Interpret the Constitution for the National Government?

Chapter 8:

Who May Authoritatively Interpret the Constitution for the Federal System?

The materials in Part III ask “WHO shall interpret the Constitution?” At one level, it is undisputed that all public officials, state and federal, from presidents to local police officers often interpret the Constitution. Deciding what policies government may legitimately pursue, how or whether to enforce a law, and when to arrest and search a suspect, all create problems of constitutional interpretation.

Even if one were to concede what is not at all self-evident, that judges are the ultimate constitutional interpreters, if government had to await a judicial decision every time a constitutional problem arose, we would have grand anarchy. Every public official, after all, takes an oath to support “the Constitution of the United States,” to guide his or her actions by the commands of that Constitution. And, as we have seen time and again, disputes about the meaning of those commands cry out for interpretation. That oath is also one that millions of private citizens have taken. Moreover, the Preamble locates authorship of the Constitution in “the people of the United States.” Thus, it is not far fetched to argue that, as authors of the Constitution, “the people” are themselves the Constitution’s ultimate interpreter.

Thus the central problem we face in this Part is not simply WHO shall interpret, for the answer to that question is obvious: “Some of us most of the time, most of us some of the time.” Rather, here we confront questions about the extent to which—as well as the circumstances under which—some governmental institutions should defer to the judgment of other institutions (or to the claim of those other institutions to speak “for the people”), and, in cases of conflict, which institution should prevail. In effect, this Part of the book searches not only for authoritative constitutional interpreters, but also for

relationships among those interpreters. 259

260

WHO MaAy AUTHORITATIVELY INTERPRET THE CONSTITUTION?

Part III

We have divided this Part into two chapters. Chapter 7 addresses the question of WHO (which branch) should provide authoritative constitutional interpretation within the national government. Chapter 8 examines the question of an ultimate interpreter between the states and the national government.

CHAPTER

7

WHO MAY AUTHORITATIVELY INTERPRET THE CONSTITUTION FOR THE NATIONAL GOVERNMENT? You have probably noticed that the question WHAT is the Constitution often merges with the question of WHO has the power to interpret it. Addressing either question, moreover, typically finds readers confronting the question of HOW to interpret. This chapter and the next take up the WHO question without trying to isolate it from the questions of WHAT and HOW, for such an attempt could not succeed. Let’s start with the constitutional text. What does it suggest about the WHO question? The Supremacy Clause of Article VI together with the Necessary and Proper Clause of Article I, section 8 seem to assume that Congress (with the President’s participation) shall make judgments about constitutional meaning, for Congress can’t enact laws pursuant to the Constitution or proper under the Constitution without forming judgments about what the Constitution means. The same holds for the Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth amendments; they all authorize Congress to enact “appropriate legislation” to carry out their provisions. By directing the President to “preserve, protect, and defend the Constitution,” Article II enlists the President in constitutional interpretation, for the President could not preserve, protect, and defend the Constitution without forming some belief about what the

Constitution means. And by extending “the judicial power” “to all cases, in law and equity, arising under this Constitution,” Article III brings the courts into the processes of constitutional interpretation, as judges before and since Chief Justice John Marshall have modestly observed. The constitutional text thus supports a picture of shared authority in constitutional interpretation. Yet the text says nothing about whose views should prevail when the branches of the government disagree about constitutional meaning. Thomas Jefferson once proposed putting such questions to the people; they could decide through national constitutional conventions called specifically for that purpose. As he explained to Justice William Johnson, John Marshall’s colleague on the Court: “The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States.”! But the conduct of the Constitutional Convention— summoned by the Continental Congress in 1787 merely to propose 1 June 12, 1823, in Andrew A. Lipscomb, ed., Writings (Washington, D.C.: Thomas Jefferson Memorial Association, 1903), Jefferson’s letter to Madison, Sept. 6, 1789; cited above at p. 261.

of Thomas Jefferson XV, p. 451. See also

261

262

WuHo May AUTHORITATIVELY INTERPRET THE CONSTITUTION?

Part III

amendments to the Articles of Confederation, not to draft an entirely new document—has discouraged Congress from repeating such a summons. Moreover, it would take time and much deliberation to choose delegates to a national convention; additional time for them to debate and propose amendments (if they could be limited to mere amendments) and still more time for the states to vote on the proposals. For some crises, this solution would be much too slow and cumbersome, even assuming senators and representatives willing to accept the risks (to their careers and to the political system) that a convention would present.

Jefferson’s principle can survive in another form, however, for ordinary elections have served as occasions for voters to express their views of constitutional questions. Voters often judge candidates by the way the candidates interpret the Constitution. Think of people today whose electoral choices reflect their positions on such constitutional issues as legal abortions, school prayer, school vouchers, and gun ownership. The election of 1936 was something of a referendum on constitutional questions regarding the role of government and the scope of national power. In the two years preceding that election the Supreme

Court had voided most of President Franklin Roosevelt’s efforts to rescue the economy from the Great Depression. But the electorates of 46 of the then 48 states voted to continue FDR and his New Deal. Six weeks after the landslide, the Court began to change its constitutional interpretation to conform to that of the President, Congress, and the electorate. One justice later said: “Looking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country—for what in effect was a unified economy.”? When Roosevelt was elected to a third term in 1940, the voters rejected what had hitherto been an informal constitutional limit of two presidential terms. The voters reaffirmed that change when they elected Roosevelt to yet a fourth term in 1944, though this change survived only until the Twenty-second Amendment was adopted in 1951. Another example of popular interpretation was the electoral pressure on state and local politicians in the South to fight Brown v. Board of Education (1954; reprinted below, p. 967) as an unconstitutional usurpation of “states’ rights.” (Before the Voting Rights Act of 1965 the electorate in many parts of the South was virtually all white.) Examples of popular interpretation, matching in their success the electorate’s ratification of the New Deal, include the various antislavery movements in the decades before the Civil War and Jefferson’s victory over Adams in the presidential campaign of 1800, a campaign that centered on the constitutional scope of the national government, and a victory that buried Hamilton’s vision of the Constitution until FDR resurrected it some five generations later.

2 Owen J. Roberts, The Court and the Constitution (Cambridge: Harvard University Press, 1951), p. 61. This “switch in time that saved nine” has often been attributed to Roosevelt's “Court-packing plan,” his effort to persuade Congress to increase the number of justices to 15, which he announced in February, 1937. The first “switching” vote within the Court had occurred, however, in early December, 1936. As usual, it took months for the Justices to write out their arguments and agree on an opinion for the Court. Publication of the decision came shortly after FDR had announced his plan and made it appear as if some justices had caved in to his pressure and not to the electorate’s judgment.

CHAPTER

I.

7

FOR THE NATIONAL

GOVERNMENT

WHOIS THE ULTIMATE INTERPRETER?

When the Supreme Court reaffirmed Roe v. Wade (19783) in Planned Parenthood v. Casey (1992) (reprinted, respectively, at pp. 1433 and 1453) it reaffirmed its determination to nationalize the abortion question in the face of persistent and passionate efforts by several state governments and the Republican Party to return the question to the states. When the Court reaffirmed Employment Division v. Smith (1990; reprinted at p. 1328) in City of Boerne v. Flores (1997; reprinted at p. 1344) it effectively said that strong majorities in both houses of Congress in concert with the President couldn’t form their own view of the freedom of religion at the expense of the Court’s interest in shielding the state governments from national power. And in Bush v. Gore (2000; reprinted at p. 1619) the Court preempted a constitutional provision that vests Congress with power to settle contested presidential elections. These decisions were and remain highly controversial. The public’s acquiescence in them leaves little doubt that Americans live in an era of judicial supremacy in constitutional interpretation. But it was not always so. Over the course of two centuries the question of WHO the ultimate interpreter should be has attracted competing responses that include three of special concern to us in this chapter: judicial supremacy, legislative supremacy, and departmentalism.

A.

JUDICIAL SUPREMACY

Judicial supremacy is the answer familiar to most Americans. During the ratification debate, many Anti-federalists feared that the new constitution would impose a government by judiciary on a free people. Brutus (see his essay below, p. 281) was the most eloquent of these critics. To answer his arguments Hamilton wrote Federalist No. 78 (reprinted below, p. 284). Hamilton contended that judicial review actually secures the supremacy of the people, not the judges. His reasoning was that by securing the supremacy of the Constitution (the fundamental law of the people) over legislation (the ordinary law of their agents), courts insure the supremacy of the people. This part of Hamilton’s argument is controversial because it assumes the more-orless uniform and unchanging identity of “We the people,” the clarity of constitutional language, and the willingness of judges to subordinate their personal preferences when constitutional language points the other way. Because they reject Hamilton’s assumptions, most observers today confound arguments for judicial review with arguments for judicial supremacy. Still, a narrow view of judicial review may offer a way to avoid judicial supremacy.

One justification for judicial review rests on the textual and functional grounds that John Marshall cited in Marbury v. Madison (1803; reprinted below, p. 296). Marshall, who built upon Hamilton’s original argument, argued further that: (1) Article VI says the Constitution is a law that is superior to ordinary laws; (2) “it is emphatically the province and duty of the judicial department to say what the law is”; and therefore (3) judges must prefer the fundamental 3 For a defense of Hamilton’s argument against heavy odds, see Sotirios A. Barber, The Constitution of Judicial Power (Baltimore: Johns Hopkins University Press, 1993), chaps. 2, 7.

263

264

WuHo MAy AUTHORITATIVELY INTERPRET THE CONSTITUTION?

Part III

law of the Constitution to ordinary laws when necessary to decide cases before the courts. This authority of a court—the authority to refuse to enforce an act thought to be unconstitutional—may be all that is meant by judicial review. If so, judicial review can leave elected officials free to act on their own interpretations of the Constitution in future cases— free, that is, to reject judicial interpretations as precedents that bind their future conduct. Thus, Jefferson, as chief executive, released from prison persons convicted of violating the Sedition Act because he thought that act unconstitutional even though the federal judiciary had held otherwise. And President Ronald Reagan refused for a time to accept the courts’ interpretation of a section of the Social Security Act as a rule in the future conduct of his administration, forcing claimants who rejected his interpretation either to abandon their claims or fight them individually in separate and costly lawsuits. Under a narrow reading of Marbury, Congress could have ignored Dred Scott v. Sandford (1857; reprinted at p. 181) and reenacted the Missouri Compromise or passed some other law limiting slavery in the territories, as Abraham Lincoln urged Congress to do (see p. 311). And the national government could have continued to enforce the Brady Act on those law enforcement officials whose state or local governments either supported the Act or chose not to challenge it, unlike the two county sheriffs in Printz v. United States (1997; reprinted at p. 618).

Actions like these imply nothing about a court’s power to form its own interpretation of applicable law and refuse enforcement of an act on the parties in particular cases. Lincoln thus did not advocate freeing Dred Scott in defiance of the Supreme Court’s decision in his particular case. Yet from the narrow power to refuse enforcement to an act, many observers have inferred something more: the obligation of coordinate officials not only to obey that particular ruling but to accept that ruling as legal precedent binding their future conduct. This additional something transforms judicial review into judicial supremacy: the Court decides what the Constitution means not only for the case at hand but for future judgments of all other officials.

In this regime of judicial supremacy the decision of a particular case is formulated as a general rule that becomes part of the “supreme Law of the Land” along with the constitutional provision that the rule purports to interpret. In fact, the judicially fashioned rule of a particular case effectively displaces the constitutional provision it purports to interpret until either a future court or a constitutional amendment says otherwise. Think of that: what the Court says about the Constitution becomes more important than the Constitution itself. As outrageous as this result has appeared to politicians from Jefferson to Reagan and beyond, the practice of judicial supremacy has achieved informal but apparently firm constitutional status with the American people. The practice of judicial supremacy has also attracted impressive defenders among the nation’s legal intellectuals. Few of these defenders have been more prestigious than Joseph Story, Harvard’s first professor of law and (in spite of Jefferson’s hopes when appointing him) John Marshall’s close colleague and ally on the Supreme Court. In his ela

said:

Commentaries on the Constitution of the United States, Story

CHAPTER 7

FOR THE NATIONAL GOVERNMENT

Now, it is the proper function of the judicial department interpret laws, and by the very terms of the constitution

to to

interpret the supreme law. Its interpretation, then, becomes obligatory and conclusive upon all the departments of the federal government, and upon the whole people, so far as their rights and duties are derived from, or affected by that constitution.‘ Story reinforced his conclusion with the claim that “[wle find the power

to

construe

department,

the

constitution

without

any

expressly

limitation

or

confined

to

the

qualification,

judicial

as

to

its

conclusiveness.”5 Yet Story pointed to no words of the constitutional text that “expressly confined” constitutional interpretation to the judiciary— indeed, as we just saw, the document can be taken to contradict such a claim. As a logical matter, judicial review implies nothing about the obligation of other branches of government either to obey a particular judicial decision or to follow its reasoning in the future. Moreover, Marshall himself did not draw Story’s conclusion, at least not explicitly, though one can reasonably believe that he approved it and even anticipated it in Marbury. Ironically, Brutus’s argument against judicial supremacy provides some support for Story’s claim, for by charging that judicial supremacy was part of the Federalists’ constitutional plan from the beginning, Brutus testifies that judicial supremacy was what the framers intended. Questions of logic and intent aside, practical usefulness counts for much, and the practical need for an umpire provides some justification for judicial supremacy. If there is a constitutional dispute among the branches of government, there must exist somewhere, so the argument goes, a final decision maker. As Story put it, “to produce uniformity of interpretation, and to preserve the constitution, as a perpetual bond of union, a supreme arbiter or authority of construing is, if not absolutely indispensable, at least of the highest practical utility and importance.”¢ But Story’s point obviously rests on controversial assumptions. One might agree on the need for an umpire but disagree, as Jefferson did, that the judiciary best performs that function. One might also contend that Madison’s strategy of fractured, separated, and shared powers is at odds with the notion of a final umpire.’ The most durable justification for judicial supremacy is a claim of institutional competence—a claim that judges are better equipped for the task of constitutional interpretation than other officials. Legislative politics and processes, the argument runs, do not provide time for interpreters to research and debate underlying constitutional issues in systematic and dispassionate ways.’ Nor, the argument continues, does 4 Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, 1833), I, Bk. III, § 383. 5 Td. at § 385. Sapids 7 For an argument that courts should not act as constitutional judges between Congress and the President or between the nation and the states, see Jesse H. Choper, Judicial Review

and the National Political Process (Chicago: University of Chicago Press, 1980).

8

See

Congressman

Support

the

attack

on

congressional

interpretation

by

Circuit

and later presidential counsellor) Abner J. Mikva,

and Defend

the Constitution?”

61 No.Car.L.Rev.

“How

587 (1983),

Judge

(and

former

Well Does Congress

and the defense

of

265

266

Part III

WHo MAy AUTHORITATIVELY INTERPRET THE CONSTITUTION?

the need to get reelected and the pressure to reflect the immediate for principled conditions the favor of constituents interests The Federalist to back traces view This tion. constitutional interpreta (see esp. Nos. 49 and 78) and permeates Story’s Commentaries on the Constitution. Charles Evans Hughes put it more bluntly a century later: ‘It is only from the Supreme Court that we can obtain a sane, wellordered interpretation of the Constitution.”? Yet there is room for much disagreement here. Many debates in Congress—see that on the Judiciary Act of 1802, reprinted below, pp. 288-96—stand up well against the justices’ most sophisticated analyses. And, reasonable observers from Jefferson’s time to the present have seen political partisanship as the obvious force behind controversial judicial decisions. Nor does a judicial monopoly offer much by way of consistency and coherence, for the Court has modified and reversed its interpretations sufficiently often that studying the changing substance of judge-made constitutional law is a full time profession. An additional justification for judicial supremacy draws on the ideology of “limited government.” In the debates on the Judiciary Act of 1802, Gouverneur Morris, who had chaired the Committee on Style at

Philadelphia and had written much of the final draft of the Constitution, made an unambiguous claim for judicial supremacy. Judges derive that power, he said, “from authority higher than this Constitution. They derive it from the constitution of man, from the nature of things, from the necessary progress of human affairs.” He was arguing that human nature required that, if government were to be limited, some institution, removed from popular control, would have to check the people and their representatives. Yet judicial review does more than invalidate legislation in the Constitution’s name; it also legitimates legislation by upholding it against constitutional challenge. And it legitimates far more legislation than it invalidates. Nor is it always clear that in striking down legislation courts “limit” government as much as they preserve the political (and therefore governmental) status quo.!0 And, in any event, limiting government is hardly all that American-style constitutions do. These constitutions also establish government to meet popular needs, and there would be no point in establishing government solely for the sake of limiting it.11 In fact, Suzette Hemberger has shown that the chief purpose of the party that drafted and defended the Constitution at ratification was rather to empower the new government, not limit it.!2 If the value placed by the framers on a strong national government was forgotten in the eras of Jefferson, Jackson, Coolidge and Reagan, it was rediscovered in the congressional interpretation by Louis Fisher, “Constitutional Congress,” 63 No. Car. L. Rev. 707 (1985).

® Quoted in Carl Brent Houghton Mifflin, 1948), p. 773.

Swisher,

American

Interpretation by Members

Constitutional

Development

of

(Boston:

10 See Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993), chap. 3.

11

See Sotirios A. Barber, Welfare and the Constitution (Princeton: Princeton University

Press, 2008), chaps. 1, 2.

12 Suzette Hemberger, “What Did They Think They Were Doing When They Wrote the U.S. Constitution, and Why Should We Care?,” in Sotirios A. Barber and Robert P. George, Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton: Princeton University Press, 2001).

CHAPTER 7

FOR THE NATIONAL GOVERNMENT

soa Lincoln, Wilson, the two Roosevelts and, ironically, George W. ush.

However judicial supremacy might be linked to “limited government,” constitutionalists have heatedly disagreed about the link between judicial supremacy and judicial review. Though Jefferson, Jackson, Lincoln, and Franklin D. Roosevelt supported judicial review, they did not believe that they or Congress were bound by the Supreme Court’s constitutional interpretations. And soon after the Convention Madison emphatically denied judicial supremacy. (See his letter to John Brown, 1788, reprinted below, p. 278, as well as his comments quoted below, pp. 279-280.) The Court itself historically seldom explicitly claimed judicial supremacy and has never articulated a full argument for it vis-a-vis Congress or the President. In Ableman v. Booth (1859; p. 366, available at www.princeton.edu/aci), a unanimous Court did claim that “no power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws.” But to “decide, ultimately and finally, all cases arising under such Constitution” is not quite the same as to interpret the Constitution in a manner that all other public officials must follow in situations other than the particular cases. Moreover, in Ableman the justices were asserting their interpretive superiority over state officials, not their superiority over Congress or the President. The first modern, general claim by the Court to supremacy came in Cooper v. Aaron (1958; reprinted below, p. 370), where the justices said that “the federal judiciary is supreme in the exposition of the law of the Constitution.” Obviously, the phrase “exposition of the Constitution” has far more sweeping implications than merely deciding cases under the Constitution. If one takes the justices at their word, Brown v. Board of Education (1954; reprinted below, p. 967) became “the supreme law of the land,” an addition to the constitutional text of 1787-88. And we find ourselves once more enmeshed in problems of constitutional inclusion and change. Although

Cooper spoke in broad terms,

that case, like Ableman,

involved only the authority of state versus federal officials. Similarly, only state officials were parties to Baker v. Carr (1962; reprinted below, p. 820), where the Court first referred to itself as the “ultimate interpreter of the Constitution.” It was not until Powell v. McCormack (1969) that the Court so designated itself in a dispute pertaining to its authority over Congress, an assertion the justices repeated about their relations to the President in United States v. Nixon (1974; reprinted below, p. 319) and reiterated about both in the Legislative Veto case, INS v. Chadha (1983; reprinted below, p. 514). The Court has strengthened its hand against the President and Congress in recent decisions involving Congress’s power to enforce the provisions of the Fourteenth Amendment (discussed later in this chapter and Chapter 11) and Congress’s Article I powers (see United States v. Windsor [2013], discussed in Chapter 15).

B.

LEGISLATIVE SUPREMACY

Serious assertions of legislative supremacy in constitutional interpretation have been infrequent, although they have at times been

267

268

Wuo May AUTHORITATIVELY INTERPRET THE CONSTITUTION?

Part III

vigorously pushed, as after the Civil War when the Radical Republicans dominated Congress, impeached the President, and curbed the Court. Early on, some Jeffersonians had also pressed for congressional supremacy. (See the debate on the Judiciary Act of 1802, reprinted below, p. 288.) As Caesar Rodney of Delaware wrote in 1803: “Judicial supremacy may be made to bow before the strong arm of Legislative authority. We shall discover who is master of the ship.”!° John Marshall was sufficiently frightened by the threats of the Jeffersonians to impeach and remove Federalist judges that he was willing even to modify judicial review. As he wrote a colleague: [T]he modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.14 This notion has been several times revived—usually with the proposed appellate jurisdiction resting in the Senate alone—but, of course, it has never become a constitutional practice. : Even without appellate review, any claim that Congress’s constitutional interpretation should prevail over that of judges rests on the legislators’ alleged connections to the people through the ballot. As Justice Gibson of the Pennsylvania Supreme Court, dissenting in Eakin v. Raub (1825; reprinted below, p. 306) wrote: “It may be said, the power of the legislature . . . is limited by prescribed rules. It is so. But it is nevertheless, the power of the people, and sovereign as far as it extends.” Therefore, he concluded: it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act. What is wanting to plenary power in the government, is reserved to the people for their own immediate use; and to redress an infringement of their rights in this respect, would seem to be an accessory to the power thus reserved. On the other hand, a strand of constitutionalist thought rejects any argument that popularly elected officials should have the final word in determining fundamental relations within the polity. Those officials, a constitutionalist would say, will be responsible to popular majorities, who are themselves a potent source of danger to civil liberty. One does not, says the Italian proverb, make the goat one’s gardener.

C.

DEPARTMENTALISM

No President has ever pressed a claim to supremacy in constitutional interpretation; but as many legislators have done, some presidents have asserted equality, at least where the issue involved their own authority. (See the opinions of Jefferson, Jackson, Lincoln, and Roosevelt, reprinted below, pp. 304-306, 310-319.) Madison’s 8 Quoted in Charles Warren, The Supreme Court in United States History (rev. ed.; Boston: Little, Brown, 1926), I, pp. 228-229. 4 Quoted in Albert J. Beveridge, The Life of John Marshall (Boston: Houghton Mifflin,

1919), TH; py 177%

CHAPTER

7

FOR THE NATIONAL

GOVERNMENT

position fluctuated as he faced various crises, but in the early days of the Republic he was clearly a departmentalist. His strategy of allowing different social interests to dominate particular institutions and of pitting ambition against ambition and power against power pushes toward stalemate that can be overcome only by compromise or leadership, and leadership typically means presidential leadership. Madison was opposed to judicial supremacy, as he explained in 1789 (reprinted below, p. 277), even as he feared legislative supremacy. Thus, he told the First Congress that the American constitutional system was what we're calling departmentalist: There is not one Government ... in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the Government. In all systems, there are points which must be adjusted by the departments themselves, to which no one of them is competent.15

Jefferson was more consistent in his departmentalism. When he became President, he pardoned many people who had been convicted under the Sedition Act for libelling John Adams. Upset, Adams’s wife Abigail wrote Jefferson and asked for an explanation. He replied: You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence. ... But the executive, believing the law to be unconstitutional, were bound to remit the execution of it because that power had been confined to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.'° Two

decades

later,

Jefferson

chided

his

friend

William

Jarvis

for

considering “judges as the ultimate arbiters of all constitutional questions.” The former President would agree only that they “have more frequent occasion to act on constitutional questions.” That power, however, was neither exclusively nor finally theirs: The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.'” President George W. Bush expanded the departmentalist tradition of Jefferson and Madison in a big way. He used the occasions for signing congressional acts into law to publish “signing statements” that 15 Annals of Congress (1789), I, p. 521. 16 Lipscomb, supra note 1, XI, pp. 50-51. 17 September 28, 1820, in Paul L. Ford, ed., The Works of Thomas Jefferson (New York: Putnam’s, 1905), XII, pp. 161-164; see also Jefferson’s letter to Torrance, June 11, 1815, in Lipscomb, supra note 1, XIV, pp. 303-806.

269

270

Part III

Wuo May AUTHORITATIVELY INTERPRET THE CONSTITUTION?

In issuing these announced his interpretations of the laws being signed. to interpret authority claimed Bush signing statements, President of the view his with consistent manner a in federal statutes Constitution, even when legislative intent and the language of the statute appeared contrary to the President’s interpretation. In a Pulitzer

Prize winning

story in the Boston

Globe

of April 30, 2006,

Charlie Savage reported that as of that date, President Bush had used signing statements “to disobey” (as Savage put it), on claimed constitutional grounds, more such claims by far than any previous President.18

President Bush made his most publicized signing statement when signing an act he did not want to veto, the $453 billion Defense Appropriation Act of December 2005 (HR2863), Title X of which is known as the Detainee Treatment Act of 2005 (DTA). Pursuant to Congress’s power “To make Rules for the Government and Regulation of the land and naval Forces” (Art. I, sec. 8, par. 14), and in reaction to the world-wide condemnation of then recent practices at the U.S. facilities for detainees at the Abu Graib prison in Baghdad and the naval prison at Guantanamo Bay, Cuba, DTA secs. 1002-1003 prohibit “cruel, inhuman or degrading treatment or punishment” of both civilian and military detainees of any U.S. agency anywhere. This part of the Act is also known as the McCain Amendment for its author, Arizona’s Senator John McCain. President Bush switched from opposition to support of after consulting with McCain on the the McCain Amendment amendment’s wording. But when the President signed the bill, he set aside his agreement with the Senator. Now he would construe the amendment not in accordance with the wording he had agreed to, but “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President .. . of protecting the American people from further terrorist attack.”!9 One authority on signing statements, Georgetown law professor Martin Lederman, called the President’s action an attempt “to publicly play McCain for a fool with the Commander-in-Chief version of ‘I had my fingers crossed.” Senator McCain apparently did not disagree. Professor Lederman reports Senator McCain’s joint statement with Virginia’s Senator John Warner, then chairman of the powerful Senate Armed Services Committee, promising “strict oversight” of the implementation of the DTA and reminding the President that the DTA had passed Congress “by very large majorities” and that Congress had declined the President’s in our request for a “presidential waiver of the restrictions legislation’—the very exemption from congressional control that President Bush claimed in his signing statement.2°

During his campaign for the presidency in 2008, Barack Obama roundly criticized what he considered President Bush’s excessive use of signing statements. But candidate Obama promised only to restrain the practice, not abandon it, and as President, Mr. Obama has used signing 8 19

Charlie Savage, “Bush Challenges Hundreds of Laws,” Boston Globe, April 30, 2006. See www. whitehouse.gov/news/releases/2005/12/20051230-8. html.

20

See http://balkin.blogspot.com/2006_01_01_balkin_archive.html.

CHAPTER 7

FOR THE NATIONAL GOVERNMENT

statements far less than his immediate predecessors. Signing statements record the President’s opinions on matters that include the meaning of a statute, its intended application, and its constitutionality. Our interest is limited to those signing statements wherein the President questions the constitutionality of a statute. According to the Congressional Research Service, the box score of recent presidents for this kind of signing statement is as follows: President Reagan issued 84 in two terms; President George H. W. Bush issued 107 in one term; President Clinton issued 70 in two terms; President George W. Bush es 127 in two terms; and President Obama issued 10 in his first term.?1! From the time of Marbury v. Madison, a court’s refusal to enforce law on constitutional grounds counts as a declaration unconstitutionality. Could a President’s signing statement declaring statutory provision unenforceable on constitutional grounds amount the same? Perhaps, at least for administrative agencies that are part the

executive

branch.

On

June

18,

2007,

the

U.S.

a of a to of

Government

Accountability Office (GAO) reported that of nineteen agency actions that it studied, six failed to enforce statutory provisions that President Bush had challenged in signing statements. In one such case, the Department of Defense (DOD) refused Congress’s mandate to separate the costs of the wars in Iraq and Afghanistan in its 2007 budget request.?22 The power claimed by President Bush thus carried the seed of executive supremacy in constitutional interpretation, especially in light of the fact that the judiciary relies on the executive to enforce court orders. Fearing this prospect, editorial writers and organizations like the American Bar Association criticized the Bush signing statements as challenges to the constitutional system and the rule of law. For a thoughtful and balanced defense of signing statements, we have selected what may initially seem an unlikely source: Professor Walter Dellinger. Dellinger served in several capacities in President Bill Clinton’s Department of Justice. His reputation as a liberal Democrat was widely thought to be one reason that President Clinton failed to send his name to a Republican Senate as a federal judicial nominee. Dellinger, subsequently a member of the Duke University law faculty, was generally a critic of President Bush’s signing statements. But he criticized the substance of President Bush’s interpretations more than the practice of presidential signing statements as such. He gave an informed and nuanced defense of that practice in the memorandum reprinted below at p. 340.23 The influence of Dillinger’s memorandum is 21 Todd Garvey, “Presidential Signing Statements: Constitutional and Institutional Implications” (Congressional Research Service, Jan 4, 2012), available at http://www.fas.org/ sgp/crs/natsec/RL33667.pdf. 22 See “Don’t Veto, Don’t Obey,” New York Times, June 22, 2007, A22 (Editorial). The GAO Report leaves the reason for this refusal unclear. On the one hand, the DOD cited President Bush’s signing statement suggesting that the congressional mandate encroached on the President’s constitutional power/duty to recommend to Congress “such Measures as he shall judge necessary and expedient” (Article II, § 3). On the other hand, DOD claimed that the insurgency activity in Iraq and Afghanistan precluded accurate predictions of costs. See 2006 Year Fiscal the Accompanying Statements Signing Presidential “B308603, Appropriations Acts, June 18, 2007,” at http://www.gao.gov/decisions/appro/308603.htm. 23 See also Walter Dellinger, “A Slip of the Pen,” New York Times Op-Ed July 31, 2006.

271

272

Wuo May AUTHORITATIVELY INTERPRET THE CONSTITUTION?

evident in President Obama’s memorandum March 9, 2009, reprinted below at p. 343.

D.

ParT III

on signing statements

of

RESOLUTION?

The constitutional text compels no clear answer to the question of whose interpretation should prevail. But constitutional practice has evolved in a direction favoring the judiciary. Today, most of the nation accepts not only judicial review but also judicial supremacy: the obligation of Congress and the President to conform their actions to the Supreme Court’s view of constitutional meaning. The primary option open to Congress and the President when fundamentally disagreeing with the Court on this view is to amend the constitutional text. And defenders of judicial supremacy would remind us that from the Republic’s earliest days elected leaders have followed precisely this route to reversing the Court’s constitutional interpretations. The practice of responding to the judiciary in this way began in 1793,

after

Chisholm

v. Georgia

said Article

III gave

federal courts

jurisdiction over suits against a state by citizens of other states for money damages. That decision was reversed when Congress proposed and the states quickly ratified the Eleventh Amendment, which granted the states immunity from such suits. This practice continued when, in 1868, the Fourteenth Amendment reversed Dred Scott’s exclusion of African Americans from U.S. citizenship,24 when, in 1918, the Sixteenth Amendment gave Congress the power to tax incomes, reversing Pollock v. Farmers’ Loan & Trust Co. (1895), and when, in 1971, the Twentysixth Amendment gave eighteen year olds a right to vote after Oregon v. Mitchell (1970) had said a state could deny the franchise to those under 21. These events would seem to suggest that the Court’s interpretations are definitive of the Constitution and require reversal either by the Court itself or by the sovereign people acting under Article V.

Yet matters are not so clear. While the nation usually accepts the Court’s constitutional interpretations, some constitutional problems resist judicial resolution, and despite exceptions in behalf of protected individual rights, the rule is for courts to presume that an act of Congress is constitutional. True, there are exceptions beyond those for individual rights. We’ve mentioned the Court’s campaign against the New Deal, where the Court’s laissez faire economic philosophy inspired a narrow reading of the Commerce Power, and Chapters 8 and 11 will discuss the Court’s current attempts to scale back Congress’s power in the name of protecting “state sovereignty.” Still, the Court has invalidated only a little over a hundred provisions of federal law over two centuries, and few of these decisions have proved of lasting significance to the political system. Even where problems might have seemed amenable to judicial resolution, there have been cracks in the general pattern of deference to the Court. Beyond the constitutional referendum in the election of 1936, Congress has reenacted some judicially invalidated statutes in slightly modified form and watched the justices change their minds.25 24

Dred Scott v. Sandford (1857) is reprinted above, p. 181.

25 For discussions, see Walter F. Murphy, Congress and the Court (Chicago, University of Chicago Press, 1962); William Lasser, The Limits of Judicial Power: The Supreme Court in

CHAPTER 7

FOR THE NATIONAL GOVERNMENT

Furthermore, presidents typically try to nominate judges who share their views, and the process of reshaping the judicial mind through appointments is a familiar feature of American constitutional history.2° é OA. fruitful approach to the problem would be to consider the judiciary’s authority relative to different substantive issues under different conditions. If the dispute concerned, say, procedures for trying alleged enemy combatants in a time of war, the President’s word could be expected to carry more authority with the public than the Court’s. And perhaps it should as a matter of normative constitutional theory that would permit overrides of constitutional procedures in genuine military emergencies, a question we'll take up in Chapter 19. In normal times, of course, the Court’s view on a matter of criminal procedure would probably be more authoritative with the public than the

executive’s, and perhaps it should be more authoritative as a matter of

normative theory flowing from the relative fitness of the two institutions for gathering and processing certain kinds of evidence. The vague and controversial “doctrine of political questions,”2’ that certain constitutional matters lie beyond the judiciary’s institutional authority and competence, makes some sense in this context. Take, for example, the tragic incident at Kent State University in 1970, when Ohio National Guardsmen fired on students demonstrating against the war in Vietnam, killing and wounding a number of people. Later, a group of students asked a federal district court to restrain the governor from future “premature” use of the National Guard to cope with situations that could be handled by nonlethal force. The district court dismissed the suit, but the court of appeals ordered the trial judge to determine if the National Guard’s pattern of training made lethal force inevitable. When the case reached the Supreme Court, the majority

American Politics (Chapel Hill: University of North Carolina Press, 1988); and the literature cited in each.

26 See Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007). 27 Marbury v. Madison (1808; reprinted below, p. 296) hinted at the doctrine: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive,

can never be made in this court.” Luther v. Borden (1849) is the classic, if murky, case. The

Court has since made several heroic, if ultimately unsuccessful, efforts to distinguish “political” from “justiciable” questions. Perhaps the most useful was Justice Brennan’s in Baker v. Carr (1962; reprinted below, p. 820): (i) “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or” (ii) “a lack of judicially discoverable and manageable standards for resolving it; or” (ii) “the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or” (iv) “the impossibility of a court’s undertaking independent resolution without expressing a lack of the respect due coordinate branches of government; or” (v) “an unusual need for unquestioning adherence to a political decision already made; or” (vi) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” See Fritz W. Scharp, “Judicial Review and the Political Question,” 75 Yale L.J. 517 (1966); and Louis Henkin, “Is There a ‘Political Question’ Doctrine?” 85 Yale L.

ie

peal

3

ene”

i:

ORI

nad

erate

re)es2 Ss Ig. any.

!

|

yi

ul

Sti

‘pie '

pes

Lvtr

ap

ejes

=

ige ae

tae ve mSCO Vera.

!—believe that judges should only invalidate legislative actions under the circumstances outlined by the three paragraphs of Stone’s footnote. Ely contends that, for the most part, the constitutional text delineates procedural rights and ways of getting policies enacted; it identifies very few substantive rights and values. This “general theory,” he says, “is one that bounds judicial review under the Constitution’s open-ended provisions by insisting that it can appropriately concern itself only with questions of open participation’—under which he would include protection of minorities against discriminatory legislation— “and not with the substantive merits of the political choice under attack.”®2. However, within the confines of this role of guarding 51

Democracy and Distrust, supra note 10.

52

Ibid., p. 181.

CHAPTER 9

AN OVERVIEW

democratic government, Ely’s theory strongly empowers judges and all other interpreters to act against elected officials. Indeed, the confines may not be as narrow as they appear. Ely’s account implies not only that dissenters

must be able to challenge those who wield power,

but

that legislation should not leave the good of particular groups out of account and thereby represent the good of the whole people. _ By advancing an ideal of democratic openness and inclusion, reinforcing representative democracy prescribes a wider scope for judicial power than does Thayer’s theory of deferring to representative democracy. Yet it does not incorporate all of the substantive values that would be included by those committed to liberal constitutionalism (or some other version of constitutionalism). Reinforcing representative democracy is thus open to attack as too broad or too narrow (as giving too much or too little power to judges). Justice Frankfurter thought it too broad. (See the Editors’ Note on the 692-695.) During his early years on the to agree with Carolene Products; later, Stone’s contention that the degree of

history of footnote 4, below, pp. Court, he claimed several times however, he sharply criticized judicial scrutiny of challenged legislation should vary with the kind of legislation being challenged. “There is no warrant in the constitutional basis of this Court’s authority,” Frankfurter wrote, “for attributing different roles to it depending upon the nature of the challenge to the legislation.”53 It is undeniable that the Constitution’s plain words offer small support™ for such a special judicial role. To justify judges’ reinforcing representative democracy, one has to argue that the preservation and improvement of representative democracy are among the Constitution’s controlling purposes.

Reinforcing representative democracy may also be vulnerable to attack as too narrow. The authority it allocates to judges serves some aspects of constitutionalism (like concern for participation and for protecting minorities), but it may depreciate constitutionalism in other respects. The objective of Ely’s version of reinforcing representation was to steer judges away from protecting what he calls “substantive rights,” such as the rights to property and privacy. He had to recast the first of Stone’s three paragraphs into process-oriented (as opposed to substantive) terms, which suggested a special judicial role when “legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments... .” Stone had inserted the first paragraph at the insistence of Chief Justice Charles Evans Hughes, who was no stranger to generous readings of the document. “Behind the words of the constitutional provisions,” the Chief had earlier written for the Court, “are postulates which limit and control”5>—fancy jargon for a claim that the Constitution includes more than the text itself. The “postulates” might include underlying structures and rights. came 53

54

In 1940, when regulations requiring children to salute the flag first before the Court, Stone did not consider it sufficient that the West Virginia v. Barnette, dis. op. (1943; reprinted below, p. 1307).

Justice Hugo Black argued that the wording of the First Amendment, “Congress shall make no law,” gives courts greater authority over the validity of legislation than does the Fourth Amendment’s wording only forbidding “unreasonable searches and seizures.” 55 Monaco v. Mississippi (1934).

409

410

How TO INTERPRET THE CONSTITUTION

Part IV

processes for political change were open and that the regulations did not discriminate. “The Constitution,” he said, “expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that our freedom of mind and spirit must be preserved.” (Minersville v. Gobitis, dis. op. [reprinted below, p. 1298].) If there is a case to be made for casting the constitutional order's fundamental purposes as the protection or promotion of democratic values, understood one way or another, then certainly the protection or promotion of values associated with constitutionalism furnish other constitutional purposes, either additional or distinct. Protecting fundamental rights operates from the premise that because the Constitution embodies liberal constitutionalism, it requires interpreters, particularly judges, to be especially protective of certain substantive rights and basic individual liberties, even against threats by officials who were fairly chosen through open elections.*® Just as democratic theory, and its corollary rights to political participation, reflect certain values, so do liberal constitutionalism and its corollary substantive rights (often conceived in terms of individual dignity and autonomy).57 During the period 1890-1937, a majority of the Supreme Court saw rights to private property and “liberty of contract” as essential to the autonomy of individuals, and as such in need of aggressive judicial protection. In more recent decades, however, most justices, like most elected officials and scholars, have deemed liberty of contract and economic affairs in general to be within the regulatory power of the state, and not to warrant aggressive judicial protection. (Some believe that such liberties are not fundamental; others argue that they are fundamental, but that legislative and executive branch protections suffice, as part of “the Constitution outside the Courts.”58) Instead, most interpreters have seen rights to equal protection, to privacy, and to autonomy as essential to the basic values of constitutionalism (and perhaps also democracy), and in need of judicial protection.

In Meyer v. Nebraska (1923; reprinted below, p. 1422), Justice James C. McReynolds, a crusty advocate of laissez faire capitalism, put the notion of fundamental rights in terms the Court still quotes. He tied this interpretive approach to the text through the word “liberty” in the Fifth and Fourteenth Amendments. That word, he argued, reflected a broad concept that:

°6 Professor Laurence H. Tribe maintains that reinforcing representation is only a particular kind of fundamental-rights approach, with such rights restricted to those of political participation and equal treatment. “The Puzzling Persistence of Process—Based Constitutional

Theories”, 89 Yale.L.J. 1063 (1980).

57 Commentators and interpreters sometimes use the terms “fundamental rights” and “fundamental values” as if they were interchangeable, sowing confusion among the unwary. “Values,” of course, is a broader concept than “rights.” Rights are likely to be a subset of values and to point to values beyond rights; for example, the rights of every person to “due process of law” and “equal protection of the laws” point to abstract values of fair treatment and equal dignity. This section and the materials in Chapters 16-18 speak mostly of “rights,” although notions of “values,” to which particular rights point, lurk in the background. 8 See e.g., Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993); Fleming, supra note 46.

CHAPTER 9

AN OVERVIEW

denotes not merely freedom from bodily restraint but also the right of any individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. McReynolds claimed to get much interpretive mileage from the word “liberty,” but a tight textual tie, some interpreters and commentators assume, is not essential. The general theory of liberal constitutionalism, as Chapter 3 showed, presumes that governmental powers float in “an ocean of rights.” If a textual connection is necessary, it is supplied by the Preamble’s goals of justice, domestic tranquility, and liberty; by the Bill of Rights, especially the First, Fifth, Eighth, and Ninth Amendments; and by the Thirteenth and Fourteenth Amendments. The advantages of an interpretive approach that tries to carry out the purpose of protecting fundamental rights are plain: it offers the prospect of secure guarantees for basic liberties, guarantees of equal protection, and other basic values that should not (or cannot prudently) be entrusted entirely to the political process. Justice William J. Brennan’s speech on contemporary ratification of the Constitution (reprinted above, p. 236) articulates these advantages, as does Chapter 3 of this book.

The drawbacks are also manifest. This approach gives interpreters a broad range of judgment. Constitutionalist as well as democratic theorists might worry about which substantive guarantees and limitations on legislative action will be deemed fundamental by Supreme Court justices or other interpreters. It is not at all easy, for one thing, to classify rights listed in the text as more or less fundamental. There certainly is no simple method or formula for doing so that does not draw directly on controversial judgments of political morality. In Palko v. Connecticut (1937; reprinted above, p. 122), Justice Benjamin N. Cardozo claimed that some rights mentioned in the first eight amendments are “of the very essence of a scheme of ordered liberty” and are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Even interpreters who agree that the text contains a hierarchy of rights can find little specific guidance in Cardozo’s noble hortatory prose. It is also difficult to provide clear guidelines for identifying rights not specifically enumerated that deserve constitutional status. Justice John Marshall Harlan’s efforts in Poe v. Ullman (1961; reprinted above p. 129) were heroic, but his message that American constitutional democracy was a synthesis of “the liberty of the individual” and “the demands of organized society,” based on “what history teaches are the traditions from which it developed as well as the traditions from which it broke,” was no less indeterminate than his call for “judgment and restraint” in discovering or constructing that synthesis.°9 59 One of us has offered a systematic account arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. This framework seeks to secure the basic liberties that are preconditions for deliberative

democracy—to

allow

citizens

to deliberate

about

the institutions

and

policies

of their

411

412

PART IV

How To INTERPRET THE CONSTITUTION

The great charge against those approaches to constitutional interpretation that see its central purpose in the protection of fundamental rights is that people disagree about which liberties are fundamental. Indeed, property rights and other economic liberties have been making a constitutional comeback. Chief Justice William H. Rehnquist said for the Court in 1994 that the right to “just compensation” for private property taken for a public use, a right protected by the Fourteenth as well as the Fifth Amendment, should no longer be “relegated to the status of a poor relation.”©° Before liberal constitutionalists endorse constitutional protections for an expansive array of liberties, they should reflect that others may seek to use this expansive flexibility to protect “liberties” that limit the ability of states and Congress to preserve the natural environment or redistribute resources to provide for the welfare of all. Majoritarian democratic theorists worry about unelected and fallible federal judges using this interpretive approach. Insofar as elected officials protect fundamental rights, questions of democratic legitimacy do not arise; but constitutionalists worry that elected officials cannot always be counted on to protect the rights of individuals and unpopular minorities. As Madison said: [I]nvasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which Government is the mere instrument of the major number of its constituents.®

VIII. THE ROLES OF CONSTITUTIONAL ASPIRATION AND PRUDENCE Constitutional interpreters have a great many choices to make, as is evident. Besides the various approaches we have described, two ways of thinking about constitutional purposes can be discerned.

An outlook whose concerns premise that the Constitution

are aspirational operates from is more than a set of rules

the for

government, but has, as the Preamble states, certain goals that point the nation toward an attainable good life, or a realizable vision of justice. An aspirational approach requires interpreters to look for purposes in a deep sense, to ask what kind of society the Constitution envisions for the United States. This outlook takes the nation’s ideals very seriously and uses them to_ structure _ constitutional interpretation.®2

government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. A unified theory of this sort, if realized in practice, might afford everyone the status of free and equal citizenship. Fleming, supra note 46. See also James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Cambridge: Harvard University Press, 2013). 60 Dolan v. City of Tigard (1994). 61 Letter to Jefferson, October 17, 1788. A convenient source is Marvin Meyers, ed., The Mind of the Framer (Indianapolis: Bobbs—Merrill, 1978), pp. 206—209. 62 For discussions of this interpretive approach, see espec. Barber, On What the Constitution Means, supra note 19, ch. 5; Fleming, supra note 46, at 112-16; and Gary J.

Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration Rowman & Littlefield, 1986).

(Totowa,

NJ:

CHAPTER 9

AN OVERVIEW

womasalA concern for constitutional aspirations need not define a separate

interpretive approach. Indeed, it not only often involves textual, moral and political, and historical considerations, but also an attention to tradition and previous interpretations. We can sometimes see it shine clearly through presidential addresses—in Lincoln’s first inaugural (reprinted above, p. 311) or his Gettysburg Address—and in judicial opinions such as Black’s dissent in Barenblatt v. United States (1959; p. 869, available at www.princeton.edu/aci), or Warren’s opinion in Trop v. Dulles (1958; reprinted above, p. 200), or in his opinion for the Court in

Bolling v. Sharpe, the school segregation Columbia (1954; reprinted below, p. 972).

case

from

the District of

Often, however, aspirational concerns move “by silent foot,” shaping the way interpreters read the document, understand traditions, construe previous interpretations, and apply political theories. It is rather rare for a Supreme Court justice openly to proclaim what they think are the system’s aspirations, as Justice Brennan did in “The Constitution of the United States: Contemporary Ratification” (reprinted above, p. 236). A careful reading of the opinions and other writings of Chief Justice Rehnquist and Justice Scalia reprinted in this book,® though, shows that each has a vision of what sort of society the Constitution anticipates and presupposes. For Rehnquist, and even more for Scalia, it is the world as they believe the founding generations conceived it, these generations’ specific conceptions about that world, and their broader concepts about political life. What makes it difficult at times to perceive that these two justices are being guided by constitutional aspirations is that they argue that the Constitution does not embody abstract aspirations; and Scalia presents the Constitution more as a backstop against regression and moral decline.

Interpreters seldom explain and justify the aspirations that guide their work; they may even be unaware of how their visions of the good American society shape their constitutional interpretation. On the other hand, as with purposes in general, it is difficult to justify interpretations that do not take into account that the political system has ideals, that the American people and their Constitution stand for certain substantive values. That these are difficult to enunciate, and even more difficult to order, underlines one of this book’s basic themes: Interpreters need to be more aware of what it is that they are doing and

be more ready to offer reasoned justifications for their choices. To the extent that all approaches to constitutional interpretation all would guide concrete decisions in particular circumstances, prudence for need The prudence. on practice in depend approaches reveals statecraft as an element of constitutional interpretation. The premise of a prudential outlook is that the constitutional text as well as the polity that has developed from it not only intend for the United States to “endure for ages to come” (McCulloch v. Maryland [1819; reprinted below, p. 555]), but also intend that it endure as a constitutional democracy. The words of the document, its surrounding practices, the lessons of tradition, and the meaning of underlying normative

theories

must,

therefore,

be construed

not

as

categorical

63 See espec. Rehnquist, “The Notion of a Living Constitution” (reprinted above, p. 243), and Scalia’s opinion in Michael H. v. Gerald D. (1989; reprinted above, p. 148).

413

414

How TO INTERPRET THE CONSTITUTION

PART IV

imperatives for saints in a heaven on earth, but as practical guidelines for flawed people in an imperfect world. Chapter 4 explained how political exigencies may constrain interpreters by excluding ideal solutions. Chapter 19 will discuss how demands for national survival may affect constitutional interpretation. Prudence is an ever-present feature of constitutional interpretation. Although threats to national, or even institutional, survival are relatively rare, every interpreter is a person of limited power, operating in a world of competing interests and ambitions that influence judgments about what the Constitution means, requires, or permits. Even when reinforced by lucid historical and philosophic analyses, sound argument may have difficulty fully translating constitutional commitments and aspirations into viable public policy. The objective of prudence is to transform as many of those norms into political reality as circumstances permit.®4 One example will have to suffice. During the mid—1940s, when the Supreme Court was hearing a series of challenges to state laws segregating people by race, most of the justices came to believe that such regulations were unconstitutional. At the same time, they doubted that a sweeping ruling to that effect would help eradicate racism from American life. Indeed, the justices feared such a ruling might do far more harm than good. The white South would resist and the rest of the country did not seem prepared to make the hard fight needed to carry out the constitutional command of “equal protection of the laws.” Therefore, some of the justices made a conscious choice to avoid ringing rhetoric about how the Fourteenth Amendment

forbade a caste society,

and decided instead to move slowly and proceed case by case in classic common-law style in order to undermine the old doctrine of “separate but equal.” Then, even after the decision in Brown v. Board of Education (1954; reprinted below, p. 967) invalidated segregation in public schools, the Court moved cautiously to enforce its decision by merely ordering that states act “with all deliberate speed” to dismantle dual systems of public education. The point is not that this strategy was wise or foolish, but that the justices thought that constitutional interpretation required practical wisdom or prudence as well as textual, doctrinal, historical, and morally and politically principled analyses. Interpreters who view the Constitution as a set of textual commands fixed in meaning are apt to brand prudence as irrelevant or even anathema. Justice Sutherland, dissenting in West Coast Hotel v. Parrish (1937; reprinted below, p. 1243) against the Court’s

abandoning, under pressure from the President, the doctrine of substantive due process® in the economic sphere, claimed that a judge 64

For a study of prudence, see Murphy, supra note 1.

65

This doctrine, discussed in detail in Chapter 16, prevailed from 1890 until 1937 and

was a potent weapon against governmental regulation of the economy. Its gist is that the prohibitions in the Fifth and Fourteenth Amendments against government’s taking “life, liberty, or property, without due process of law” impose substantive as well as procedural constraints. There are some forms of liberty that government may not take away, no matter what procedures it uses. John Hart Ely has responded: “substantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’ . . . [A]nd ‘procedural due process’ is redundant.” Democracy and Distrust, supra note 10, p. 18. Although the justices say they no longer apply the doctrine to strike down regulations of private property and economic liberties, they continue to use a modified version to protect other fundamental rights. See espec. the cases in Chapter 18. Moreover, Justice Stevens charged in 1994 that the Court was

CHAPTER 9

AN OVERVIEW

who allowed prudential considerations to affect his decision stood forsworn.” A judge’s duty, as Sutherland had said earlier in dissent in Home Building & Loan Association v. Blaisdell (1934; reprinted above, p. 192), was to interpret the document as written, regardless of the consequences. If the people disapproved, they could amend the text. _Given that most justices have had some experience in practical politics before going to the bench (though less so now than in previous periods), and that presidents, legislators, and state officials face electorates, prudential considerations are rarely altogether absent from constitutional interpretation. As a virtue or intellectual capacity concerned with how one pursues one’s ends in particular circumstances, prudence anticipates ends; and a focus on ends or aspirations influences one’s reading of provisions that are instrumental thereto. At its best, prudence preserves the Constitution and the country by wisely construing its content, moderating or delaying the pursuit of ideal ends when the costs of their pursuit are too high. At its worst, prudence turns constitutional interpretation into mere expediency and thus abandons any notion of the Constitution as an authoritative set of fundamental principles.

IX. BALANCING: AN INEVITABILITY MASQUERADING AS AN APPROACH? When constitutional provisions and underlying principles seem to conflict with one another, sometimes we say that one takes priority, but other times we say that the competing commitments seem equally basic or genuinely conflicting. Often, the best way of resolving such conflicts is to weigh the conflicting values and interests in the particular context at hand. Balancing, a metaphor borrowed from the image of a blindfolded goddess of justice holding a set of scales in which she weighs opposing claims, is an element of all approaches and likely an unavoidable feature of constitutional interpretation. During the late middle ages, English judges spoke of their task as “balancing the equities,” and this language came to permeate the common-law system. The analogy is apt, for both parties in litigation often have some right—and some wrong—on their sides.

Balancing received great attention in American law during the early years of this century when Roscoe Pound, who was to become dean of Harvard Law School, began to spread the gospel of “sociological jurisprudence.” Society, he claimed, is composed of many interests, each pressing different and at times conflicting demands. “Law” consists of the rules society devises to resolve those struggles and those rules must be malleable enough to bend as society’s needs shift. “Law must be stable, and yet it cannot stand still’6* was one of Pound’s constant refrains. In this process, he said, judges play the crucial role of “social engineers.” In essence, through a study of history, economics, and resurrecting substantive due process in cases involving economic regulation. Dolan y. Tigard,

dis. op. Justice Ginsburg suggested in dissent in 2012 that a concern to protect liberty of contract was implicit in opposition to the constitutionality of the Affordable Care Act (see National Federation of Independent Business v. Sebelius [2012; reprinted below, p. 654)). 66 Interpretations of Legal History (New York: Macmillan, 1923), p. 1.

415

416

PART IV

How To INTERPRET THE CONSTITUTION

sociology, they would analyze the interests vying for legal protection, “balance” those demands against each other, and create “appropriate” rules to resolve conflicts. Some came to regard balancing as a distinctive approach to constitutional interpretation. Textualists balance when different clauses of the constitutional text

seem

to

state

inconsistent

rules;

doctrinalists

balance

when

historical when balance originalists clash; doctrines different h— approac eclectic an adopt who those and clash; ndings understa drawing insight and relevant evidence from wherever it can be found— must weigh and balance the evidence gleaned from a variety of interpretive approaches. As unavoidable and pervasive as balancing is, however, its necessity has not always been acknowledged. Barenblatt v. United States (1959; p. 869, available at www.princeton.edu/aci) set the stage for a classic debate about balancing in constitutional interpretation. The clash was between the authority of a congressional committee to compel a witness to testify about membership in the Communist party (a supposed threat to national security) and a witness’s First Amendment right to refuse to disclose his political associations.®” For the Court, Justice Harlan sustained the authority of Congress: [R]esolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.... We conclude that the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and that therefore the provisions of the First Amendment have not been offended.

In a passionate dissent, Justice Black protested: I do not agree that laws directly abridging First Amendment freedoms can be justified by a congressional or a judicial balancing procedure.... To apply the Court’s balancing test under such circumstances is to read the First Amendment to say “Congress shall pass no law abridging freedom of speech, press, assembly and petition, unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the Government in stifling these freedoms is greater than the interest of the people in having them exercised.” Black reasoned that the plain words of the constitutional text ended the matter. The First Amendment said “Congress shall make no law’ abridging these freedoms; and “no law” meant “no law at all’—not “no law unless on balance.” More generally, one might argue that basic liberties and fundamental rights have a presumptive priority over considerations of the general interests against which they might be balanced.

Specific constitutional issues have changed, but the debate goes on.®8 In the current generation, Justice Antonin Scalia has played the 67 Harlier, in NAACP v. Alabama (1958; reprinted below, p. 865), the Court, speaking through Justice Harlan, had held that the First Amendment protected a right to privacy in one’s political associations. It was this right, not the Fifth Amendment’s protection against self-incrimination, that Barenblatt had invoked.

68 As we shall see in Chapters 14-15 and 17-18, the justices have developed a test called “strict scrutiny” to determine the constitutionality of legislation that uses certain “suspect

CHAPTER 9

AN OVERVIEW

role Black marked out. In general, Scalia has charged, balancing has an Alice-in-Wonderland character: “[T]he scale analogy is not really appropriate, since the interests on both sides are incommensurate.

It is

more like judging whether a particular line is longer than a particular rock is heavy.”69 Balancing may be unavoidable once we allow that few, if any, rules hold under all conceivable circumstances. Furthermore, balancing would seem not only a necessity, but a virtue, once we realize that many conflicting considerations must be brought to bear in hard cases. As Justice Souter puts it in McCreary County v. American Civil Liberties Union of Kentucky (reprinted below, p. 1398), “issues of interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit.... [T]rade-offs are inevitable, and an elegant interpretative rule to draw the line in all the multifarious situations is not [to] be had.” (Note that even Scalia admits to being only a “fainthearted originalist”: one who is prepared to acknowledge that in extreme cases other factors—including moral outrage at the result— override or outweigh the values that support adherence to a supposed original meaning.”°) Nevertheless, like any approach, its misuse can lead to confusion and obscurity. Even a staunch proponent of balancing concedes that Harlan’s employment of it in Barenblatt was a “sham.”7! Roscoe Pound had warned that there were different levels of interests and that judges should be careful to compare them on the same plane. “If we put one as an individual interest and the other as a social interest we may decide the question ... by our very way of putting it.”72 In a word, the classifications” or infringes on “fundamental rights.” In general, this test requires government to demonstrate that the particular regulation serves a “compelling interest” and is “narrowly tailored” to further that interest. In a sense, stricter judicial scrutiny tilts the scales in favor of the party asserting the unconstitutionality of the challenged legislation. 69 Bendix Corp. v. Midwesco, concur. op. (1988). This case centered on the validity of a state regulation that affected “commerce among the several States.” A few sentences later Scalia qualified his general characterization of balancing: “We sometimes make similar ‘balancing’ judgments in determining how far the needs of the State can intrude upon liberties of the individual, but that is the essence of the courts’ function as the nonpolitical branch. Weighing the governmental interest of a State against the needs of interstate commerce is, by contrast, a task squarely within the responsibility of Congress.” Scalia did not offer further explanation of this distinction. On the other hand, in an article published the following year, he launched a broad attack on balancing as a threat to the rule of law. Near the conclusion of this piece, he wrote: We will have ... balancing modes of analysis with us forever—and for my sins, I will probably write some of the opinions that use them. All I urge is that these modes of analysis be avoided where possible; that the Rule of Law, the law of rules, be extended as far as the nature of the question allows.... (“The Rule of Law as a Law of Rules,” 56 U.Chi.L. Rev. 1175 [1989].) Dissenting in Morrison v. Olson (1988; discussed below, p. 539), Scalia expressed much the

same view. For a perceptive analysis of the disagreements between Scalia, on the one hand, and Justices O’Connor, Souter, and Stevens, on the other, about balancing or “standards” and “rules,” see Kathleen M. Sullivan, “Foreword: The Justices of Rules and Standards,” 106

Harv.L.Rev. 24 (1992). 7 See “Originalism: The Lesser Evil,” (1989; reprinted above, p. 231). 71 Dean Alfange, “The Balancing of Interests in Free Speech Cases: In Defense of an Abused Doctrine,” 2 Law in Transition Q. 1, 24 (1965). 72 “A Survey of Social Interests,” 57 Harv.L.Rev. 1, 2 (1948).

417

418

ParRTIV

How TO INTERPRET THE CONSTITUTION

individual always loses. And, of course, it was precisely such a skewed balance that Harlan attempted in Barenblatt. As Black noted, if balancing were legitimate, what should have been weighed against Congress’s authority to obtain information was not the right of a single person to privacy in his or her political associations, but rather the right of all citizens to make political choices—even mistakes—without fear of governmental reprisal. A related, common misuse involves weighing the marginal benefit of one interest against the total cost of another. In 1978, Chief Justice Warren Burger, arguing against excluding illegally obtained evidence, proposed that the Court “balance the costs to society of losing perfectly competent evidence against the prospect of incrementally enhancing Fourth Amendment values.”73 What the Chief should have balanced against an incremental gain in deterring unlawful police conduct was the incremental cost to society of losing one particular piece of evidence-—not the overall costs. Alternatively, he could have balanced the full advantage of the exclusionary rule in deterring police misconduct against the total social cost of losing probative evidence. As it turned out, however, Burger rigged the scales by balancing the total cost against an incremental gain. Misuse, of course, may be a more persuasive argument for proper use than for abandonment. And balancing’s promises are attractive: It appears to provide, Professor Louis Henkin has written, “bridges between the abstractions of principle and the life of facts; it bespeaks moderation and reasonableness, the Golden Mean.”’”4 Nonetheless, the possible costs to other values also need to be weighed. First, if this approach means balancing all the relevant values, then it would seem to involve judges in weighing policy choices. This involvement was precisely the reason that Roscoe Pound advocated this approach, but it could be worrisome to those who advocate judicial deference to democratic policy making. Concurring in Dennis v. United States (1951; reprinted below, p. 720), Justice Frankfurter asserted that demands of free speech and national security were “better served by candid and informed weighing of the competing interests ... than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.” However, he then invoked the interrogative WHO: “[W]ho is to balance the relevant factors and ascertain which is in the circumstances to prevail? ... Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress.” On Frankfurter’s view, courts should be quite deferential to Congress’s balancing of interests; but this is unsurprising since he was an advocate of great judicial deference. Second, balancing may be no more than a black box from which interpreters extract whatever answer they want. Critics thus argue that when one looks behind balancing’s symbolism of blindfolded justice and fairness, one is usually left with the announcement of a decision, rather than a reasoned justification. Justice Cardozo frankly conceded the point: “If you ask how he [the judge] is to know when one interest 73 a

United States v. Ceccolini, concur. op. (1978).

x “Infallibility under the Law:

1978).

Constitutional Balancing,”

78 Colum.L.Rev.

1022,

;

1047

CHAPTER 9

AN OVERVIEW

outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself.”75 As Henkin comments, “balancing seems to emerge aS an answer instead of a process, and the metaphor of balancing as the whole message.”%6 To blandly say, as judges, legislators, and executive officials sometimes do, that “on balance” we think the government’s claims under a particular clause outweigh a citizen’s claims under some other (or the same) clause just masks from both interpreters and observers the reasoning, if any, behind a supposed interpretation. Balancers need to carefully distinguish the whole array of relevant considerations, to explain and justify the weight that ought to be given to competing and possibly incommensurate interests, and to justify the favored decision and rule of law as the best overall. Accomplishing such tasks is likely to require attention to constitutional text, history, structures, purposes, relevant moral and political values, and the dimensions of interpretation related to a coherent and justified conception of WHAT is the Constitution and its aspirations that are being construed.

Another possible problem with balancing in constitutional decisions is that it might seem, when frankly adopted, to be inconsistent with the sorts of assurances people want from a constitutional order; namely, the “rule of law” (as opposed to rule of particular persons). The whole point of enshrining rights and other guarantees in a Constitution is to assure people that at least some of their basic political interests are secure from the normal course of politics. At the same time, constitutional guarantees may not be absolutes—in truly extraordinary circumstances, it may make sense to qualify or partly abridge even the most fundamental guarantees, or at least countenance this interpretive possibility. The interests in stability and public assurance are among the factors that any sensible constitutional interpreter will take into account.

In the end, balancing seems viable, not as a distinct approach to constitutional interpretation, but rather as a sensible admonition to

give due weight to all of the relevant considerations when making a decision. Balancing is problematic only if the calculus is concealed or if it ignores the special weight that some considerations (such as basic liberties or fundamental rights) ought to have, including the principle of fairness, and the avoidance of racial and other invidious forms of discrimination. If balancing stands for an inability or refusal to recognize the special weight or priority that we owe to honoring basic liberties and fundamental guarantees or inappropriately discounts injuries done to the few for the benefit of the many, then balancing is

not only a mark of moral and political obtuseness, but also a rejection of of our the character and structure or failure to understand constitutional scheme. With respect to the “war on terrorism,” for example, it is important to keep in mind that the vast majority of Americans are not in danger of being detained indefinitely or being subjected to trial before a military tribunal with greatly diminished 75 76

The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 113. Supra note 74, p. 1048.

419

420

How To INTERPRET THE CONSTITUTION

PARTIV

rights of due process. In this context, Ronald Dworkin has argued that a balancing metaphor may obscure what is really at stake: We must decide not where our interest lies on balance, but what justice requires, even at the expense of our interests, out of fairness

to other people—those resident and foreign aliens who might very well be ensnared in the less protective and more dangerous legal system the [Bush] administration is constructing for them. We simply cannot answer that question by simply comparing the costs and benefits to any person or group.” If balancing proves capable of giving special weight or priority to fundamental commitments—such as basic fairness, equal protection, due process, and non-arbitrariness—then it may be unproblematic and, indeed, all to the good. However, it may then cease to be a distinctive that no relevant and instead stand for the truism approach interpreters. by undervalued or ignored be should ns consideratio

X.

CONCLUDING REMARKS

This chapter has come a long way from the apparent simplicity of the “plain words” version of textualism with which we began. We have challenged the notion that the interpretation and enforcement of constitutional commands can be a simple, uncontroversial, or value-free process. If we are right, constitutional interpreters must face and address a series of difficult normative and political questions, including those surrounding the issue of HOW the Constitution should be interpreted. Construing the sources of constitutional interpretation to include the text, the history of its ratification and amendment, the tradition of its interpretation, the structures that constitute the political system it envisages, and the value claims that go into the articulation of these various sources, makes constitutional interpretation difficult. The complexity of these sources may seem to defy efforts to articulate defensible answers to hard constitutional questions. Surely, some may say, it would be better to try and revive a simpler textualist approach to constitutional interpretation. On the contrary, however, the variety of these sources makes the interpretive enterprise more, rather than less, manageable. The fact that we have historical materials of various sorts surrounding the original text and its amendments, voluminous records of past authoritative interpretation by judges and other political actors, evidence about the consequences of past decisions and _ political controversies enveloping them, and a long tradition of normative argument about competing political visions of good government under the Constitution, means that interpreters have far more to draw on than a naked text standing alone. Constitutional interpretation becomes increasingly manageable when guided by more than just the text.

Hence, the reader should not be daunted by the complexity of constitutional interpretation and the controversy that surrounds it. These features have been part of the enterprise all along. Being self7”

Ronald Dworkin, “The Threat to Patriotism,” New York Review of Books, February 28,

2002, p. 48.

CHAPTER 9

AN OVERVIEW

aware about the approaches to interpretation and the inevitability of normative judgment should allow us to confront important and unavoidable questions more directly, more clearly, and—we hope—more reflectively and responsibly. Finally, it is important to understand that our discussion of various approaches to constitutional interpretation does not concern judicial interpretation exclusively. In fact, some constitutional scholars and theorists have argued that the enforcement of certain constitutional norms should be judicially under-enforced, with some of the slack being taken up by legislatures, executives, and citizens, as part of a collective project that takes the Constitution seriously outside the courts.78 For example, Lawrence Sager has emphasized the thinness of judicially enforced constitutional law, and the great gap between constitutional law and our fuller conceptions of constitutional justice.79 He argues that this gap should be filled by legislatures, executives, and citizens who conscientiously deliberate about what the Constitution requires.

Appendix This chapter has not discussed several well-known perspectives on constitutional interpretation, usually expressed as distinctions or even dichotomies: Strict v. Liberal Construction; Judicial Activism v. Self— Restraint; Substance v. Procedure; and Interpretivism v. Non— Interpretivism. While we think all four lead into blind alleys, many commentators actively refer to them, and we shall thus briefly discuss each.80 1.

STRICT V. LIBERAL CONSTRUCTION

It is difficult to know what it would mean to consistently interpret the constitutional text either strictly or liberally. How, for instance, does one “strictly” interpret the Ninth Amendment? Does a strict interpretation require that more or fewer rights be protected? More generally, when one strictly interprets government’s powers, one usually liberally interprets individual rights. Conversely, when one strictly interprets individual rights, one usually liberally interprets governmental power. An effort to interpret both powers and rights equally strictly is likely to leave the interpreter in a gigantic muddle. One could always attempt to interpret rights liberally and powers strictly. But that approach (a form of liberal constitutionalism) would have to be justified, and we could do so only by addressing the myriad of questions posed in this chapter. Indeed, resorting to either a “strict” or a “liberal” approach to constructing the constitutional text by itself will not get us anywhere.

78 See, e.g., Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (New Haven: Yale University Press, 2004); Sunstein, The Partial Constitution, supra note 58. See also Whittington, supra note 38; Tushnet, supra note 27. 79 Sager, supra note 78. 80 For further analyses of the distinctions made in this Appendix, see Harris, supra note 28, pp. 124-28; and Walter F. Murphy, “The Art of Constitutional Interpretation,” in M. Judd Harmon, ed., Essays on the Constitution of the United States (Port Washington, NY: Kennikat Press, 1978).

421

422

How TO INTERPRET THE CONSTITUTION

PART IV

A similar sort of difficulty arises in conflicts between governmental agencies. Normally, liberally construing the powers of one means strictly interpreting the powers of the other, thereby triggering the same logical dilemma as with rights—a dilemma that can only be resolved by a theory not expressed in the words of the document. Further complicating matters is the fact that the exercise of governmental powers and the protection of individual rights (or two sets of governmental powers) are not always in a zero-sum relationship (where the former necessarily diminishes or imperils the latter). Indeed, the exercise of powers may be necessary to secure rights. We all need public officials to protect us from our fellow citizens. “If men were angels,” Madison said in Federalist No. 51, “no government would be necessary.” There are frequent occasions—as when police intervene to prevent a murder or when federal officials enforce the Fourteenth Amendment—in which individual rights depend on government’s exercising its powers. Moreover, states’ rights—even states’ existence— may depend on the federal government’s power to conduct foreign relations or to ameliorate an economic crisis like the Great Depression. 2.

JUDICIAL ACTIVISM V.

JUDICIAL SELF—RESTRAINT

Initially used to call attention to the need for limits on judicial discretion,®! this alternative is now more often an ideological epithet by critics: Any disfavored interpretation is “activist,” any favored example is “self-restraint.” This distinction is usually deployed to argue that judges should defer to the interpretations of legislatures, presidents, or even state officials. In that sense, the distinction fits under the question of WHO shall interpret. Insofar as the constitutional document nowhere expresses a judicial duty of general deference to other branches of government, to argue for such a stance requires an elaboration and defense that answers all of the difficult questions posed in this chapter.®2 To the extent that the American constitutional system also rests on a theory of constitutionalism—the idea that the Constitution imposes limitations upon the power of even the people’s representatives—its faithful interpretation may require that judges “actively” oppose the choices of elected officials. Thus, used evaluatively, the distinction poses a dilemma: From different perspectives, judges may be activist when they either strike down legislation that they believe unconstitutionally expands powers or accept the validity of such legislation. 3.

SUBSTANCE V. PROCEDURE

Should we read the constitutional document as_ primarily procedural (prescribing norms about how things are to be done) or primarily substantive (prescribing limits on what governments or majorities may do to individuals and groups, regardless of the process followed)? John Hart Ely presents an impressive theory of the Constitution as almost entirely procedural: He argues that the oar The first time this phrase struck wide public notice was when Harlan Stone, dissenting in United States v. Butler (1936), referred to “our own sense of self-restraint.” ® For a critical analysis of the claim that judges should generally defer to other officials, see Barber, The Constitution of Judicial Power, supra note 19.

CHAPTER 9

AN OVERVIEW

document is replete with commands about how officials are to be chosen and the processes they are to follow in creating public policy, but that it contains few norms about the content of public policy and few protections of substantive rights.83 On the other hand, how much help does the distinction between process and substance really offer? The problem is that substantive values underlie and inform constitutionally prescribed procedures (such as requirements of elections) and features of due process (such as the requirements of search warrants and public trials).84 Gesturing toward processes cannot absolve interpreters from articulating and defending substantive value choices insofar as processes can be interpreted in different ways and can thus operate to achieve or deny fundamental fairness. Moreover, as Ely openly acknowledges, his use of this distinction is not simply a product of textualism, but also of a philosophic approach that views the Constitution as embodying a particular form of democratic theory. 4.

INTERPRETIVISM V. NON-INTERPRETIVISM

This distinction utterly confounds the possibility of insight into the problems of constitutional interpretation.85 Thomas Grey defined “interpretivism” as an effort to find all constitutional meaning within the four corners of the document and “non-interpretivism” as allowing interpreters to move beyond the document and import values not there.8¢ It is quite simply impossible for interpreters to remain within the four corners of the document. Plain words, as we saw, restrain choices in constitutional interpretation, but they seldom determine them. All interpretivists thus concede that one should look beyond the document—at least to what the founders “intended” or “understood” or “meant” to have been within the four corners.’ In effect, this process would present another set of documents—records of speeches, or writings of framers and ratifiers—whose words must also be collated, reconciled, interpreted, and applied. And we resurrect the difficulties of originalism. Further, although some Legal Realists of an earlier generation thought that the power of text to constrain was small,** (a claim repeated by some contemporary members of the Critical Legal Studies 83 Supra note 10. 84 Laurence H. Tribe makes this point, “The Puzzling Persistence of Process—Based Constitutional Theories,” supra note 56, as does Fleming, supra note 46. 85 The same holds for the distinction between “originalism” and “nonoriginalism” as drawn, for example, in Antonin Scalia, “Originalism: The Lesser Evil” (reprinted above, p.

231): 86

“Do We Have an Unwritten Constitution?,” supra note 3. Ely, who freely acknowledged

his debt to Grey, helped bring the term into common usage among commentators, supra note 10, espec. chs. 1—2. 87 Grey asserted that interpretivism would sometimes authorize “Mmjormative inferences _.. from silences and omissions, from structures and relationships, as well as from explicit commands.” Supra note 3, p. 706 n. Given the open-ended nature of structuralism and the

great variety of plausible inferences from “silences and omissions,” it is difficult to imagine what one could import into the Constitution via non-interpretivism that one could not import through interpretivism. 8 See, e.g., Charles P. Curtis, “The Role of Constitutional Text,” in Edmond Cahn, ed., Supreme Court and Supreme Law (Bloomington: Indiana University Press, 1954).

423

424

How TO INTERPRET THE CONSTITUTION

PART IV

Movement®?), few responsible interpreters publicly assert the authority to ignore or contradict the plain words® (except, perhaps, in the most dire national emergencies). (See Chapter 19.) Overall, interpreters insist that they are explaining or explicating what those words mean for the political system; and those whom self-labeled interpretivists brand as non-interpretivists may be displaying a greater fidelity to that text by taking seriously those words (such as those of the Preamble and the Ninth Amendment) that instruct interpreters to go beyond the document itself. We are all interpretivists; we are all non-interpretivists. This supposed distinction obscures the real issues in constitutional interpretation, which relate precisely to drawing and justifying various lines between WHAT is and is not included in the Constitution, WHO determines in an authoritative manner such issues for the polity, and HOW those authoritative interpreters make and justify their decisions. Indeed, Grey, who sired the interpretive/non-interpretive distinction, subsequently renounced his child as ill-conceived.9!

89 See, e.g., Mark Tushnet, “A Note Theory,” 58 So.Cal.L.Rev. 683 (1985).

90 1

on the Revival

of Textualism

See supra note 2 for a caveat. “The Constitution as Scripture,” 37 Stan.L.Rev. 1 (1984).

in Constituti dln

B: STRUCTURALISM: DRAWING INFERENCES FROM INSTITUTIONAL STRUCTURES AND RELATIONSHIPS Chapter 9 spoke in general terms about the nature of structural analysis and its concern with the whole of the object to be interpreted (not merely its discrete parts). Use of structural analysis in American constitutional interpretation began at least as early as the Federalist Papers. Chapter 9 quoted Madison’s argument in No. 40:

There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end

to the means. In Chisholm v. Georgia (1793), when the Court faced its first important case testing the nature of federalism, it was appropriate that the justices looked not merely to specific clauses of the document, but also to the more general ideas that held the document—and the larger political system—together. Perhaps the most significant of the early uses of structuralism came in John Marshall’s opinion for the Court in McCulloch v. Maryland (1819; reprinted below, p. 555).

The point is not that structuralism is the most ancient approach to interpretation or that somehow it is “the best,” but only that it has been with us from the beginning despite the fact that neither the founders nor early interpreters put that twentieth-century label on it. Nevertheless, we must keep in mind the difficulties that structuralism carries; most seriously, the necessity for an interpreter to articulate this structure (whether of the document, the broader political system, or the theories that surround and support both the document and the system). The chapters in this section illustrate a structural approach to constitutional interpretation by taking up its two most common uses: settling problems of power allocations among the branches of the national government (Chapter 10) and between the national and state governments (Chapter 11). However, one should keep in mind that structuralism need not have such narrow ambitions. One can make a strong case that representative democracy best characterizes the structure of the document, the political system, and/or its underlying theories. If this is so, then we should construe the Constitution in order to secure whatever rights are integral to the structure of representative democracy. The implications for constitutional interpretation would be 425

426

HOW TO INTERPRET THE CONSTITUTION

PART IV

broad and similar to those of the purposive approach of reinforcing representative democracy—explored in Chapters 12 and 138.

One

could

make

a similarly

strong case

for a constitutionalist

structure, in which case the Constitution should be construed to secure those rights and liberties that are integral to the particular substantive values embodied in the Constitution, for example, the values of personal autonomy, equal freedom and privacy associated with political liberalism. Here again, the implications would be very similar to the purposive approach protecting fundamental rights, which is explored in Chapters 16-18. Or one could, as we do throughout this book, organize most, if not all, of constitutional interpretation around a variety of structural approaches. We have been more modest, but we think readers should be aware that the claims for a structuralist approach can be very ambitious, reaching as they do to the most general and pervasive normative properties of the Constitution and _ the constitutional system.

CHAPTER

10

SEPARATION AND SHARING OF POWERS: THE STRUCTURE OF THE NATIONAL GOVERNMENT I.

INTRODUCTION

Constitutional theorists from Madison and Jefferson to Rehnquist and Dworkin all support by example Justice Harlan Stone’s call to read particular provisions of the constitutional text “as ... part[s] of an organic whole.”! As Chapter 3 indicated, many of the founders were quite conscious of the general framework of government they were establishing. Part of Madison’s grand strategy was to pit economic, social, and institutional interests against each other to set power against power, and thus to avoid tyranny and, chiefly, to enhance the probability of good government. Federalist Nos. 10 (reprinted below, p. 1210) and 51 (reprinted below, p. 432) explain his design. Its function is not so much to separate powers but, as Richard E. Neustadt put it, to separate institutions and require them to share powers.2 As argued a generation ago by Herbert J. Storing and more recently by Garry Wills, the scheme of separated institutions outlined and defended in The Federalist is designed not to weaken government but to strengthen it— to establish institutions that work together to pursue public purposes in ways that (through mutual checks) minimize mistakes and reflect the principles of political morality, at home and abroad.

Chapter 3 also sketched some of the ways in which these shared powers work. The President is part of the legislative process; he or she can propose legislation, negotiate with individual legislators to approve or disapprove particular bills, and veto those he or she strongly disapproves. Congress participates in the executive process by creating, funding, and occasionally investigating federal agencies. The Senate’s power to advise and consent (or not consent) to the appointment of most high level executive officers involves that house even more formally in administrative processes. Congress and the President influence judicial power by choosing judges, enacting and approving (or vetoing) laws regulating jurisdiction, and determining what litigation will be brought in the name of the United States.4 And judges, in interpreting the Constitution as well as the general language of congressional enactments, often act as legislators. In making sense of the 1 2

Wright v. United States, concur. op. (1938). Presidential Power and the Modern Presidents (New York: Free Press, 1990), p. 29. 3 See Herbert J. Storing, “The Problem of Big Government,” in Robert A. Goldwin, ed., A Nation of States (Chicago: Rand McNally, 1961); Garry Wills, A Necessary Evil: A History of American Distrust of Government (New York: Simon & Schuster, 1999). 4 Congress’s power to investigate may also fulfill a judicial function. It is not unusual for congressional hearings to expose both private citizens and governmental officials to merciless publicity about alleged wrongdoings.

427

428

How To INTERPRET THE CONSTITUTION

PART IV

bureaucratic language of executive orders and applying laws to concrete cases, judges may function as administrators. At its best, the process 1s like a dialogue that reaches conclusions only after all reasonable considerations of costs and benefits, moral and material, have been heard and weighed. Viewed from the inside, however—that is, from the perspective not of the framers who designed the system but of the politicians and others who run it—the system can look less like a process of complementary parts productive of acknowledged public goods than an arena of conflicting ambitions and visions. While this is true of all areas of public policy, one might have expected relatively less conflict regarding questions of war and national security. But despite the prime importance of a “united homefront,” who decides questions of war and national security is a hotly contested matter. The problems begin with the constitutional text. Article I authorizes Congress “to declare war ... to raise and support armies ... to provide and maintain a navy ... [and] to make rules for the government and regulation of the land and naval forces ...” Article II, however, makes the President commander-in-chief of the armed forces, authorizes him or her to conduct diplomacy, requires him or her to swear “to preserve, protect and defend the Constitution,” and instructs him or her to “take care that the laws be faithfully executed.” (74 These clauses, Edward S. Corwin once remarked, form “an invitation to struggle for the privilege of directing American foreign policy.”5 Presidents since George Washington have claimed authority to take military action to defend the United States without a declaration of war or other congressional approval. In response, individual legislators and Congress as an institution usually contest the President’s claim. The War Powers Act of 1973 (reprinted below, p. 453), and the 1991 Authorization for Use of Military Forces Against Iraq Resolution (reprinted below, p. 458), and the 2002 Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq (reprinted below, p. 460), present two phases of this struggle between the executive and the legislature. Although judges .have sometimes become involved—see, for example, Little v. Barreme (1804; reprinted below, p. 485), and the Prize Cases (1863; reprinted below, p. 437)— they have usually been prudent enough either to keep out of this dangerous field or to enter it only in a limited and cautious fashion— see, e.g., Hamdi v. Rumsfeld (2004; reprinted below, p. 469).6 Economic policy is a different battlefield. Since the New Deal of the 1930s, Congress has assumed a positive responsibility to regulate and, in part, direct the nation’s economy. It has used means that vary from prohibiting, tightly restricting, or heavily taxing certain kinds of commerce, to setting minimum wages and_ subsidizing selected industries. More broadly, the national government now tries to insure 5

The President: Office and Powers (4th rev. ed.; New York: New York University Press,

8

See also the Supreme Court’s artful dodging of cases from the Vietnam War, especially

1957), p. 171.

Massachusetts v. Laird (1970) and Mora v. McNamara (1967), and later of the question of the validity of President Carter’s abrogation of the defense treaty with Taiwan. Goldwater v. Carter (1979).

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

monetary stability through the Federal Reserve System and to cushion economic disasters by providing financial help for the aged, the disabled, the unemployed, and the victims of natural and man-made disasters. In considering legislation for such a complex world, Congress has seen its options as either setting broad policy goals and delegating large measures of discretionary authority to administrative officials or

prescribing massive, intricately detailed codes that require frequent and equally intricate revisions. In the belief that Congress is institutionally ill-equipped for this second approach, legislators have typically opted for the first alternative. The constitutional course of this choice has been choppy. After more than a century of approving ever broader delegations of congressional power, the revolutionary changes of the New Deal caused some justices to rethink the issue. Panama Refining Co. v. Ryan (1935) and Schechter Poultry Corp. v. United States (1935) ruled that two New Deal delegations had gone too far. Because these holdings threatened the efficacy of modern government as a whole, Schechter and Panama did not long survive as meaningful precedents. The Court later returned to its traditional approval of broad delegations on the theory (often the fiction) that Congress was delegating in ways that provided meaningful guidance to administrative and executive agencies.7

But discretion over the details of public policy often means that administrators are really legislating. In delegating power as a way of exercising power, legislators could be contributing to a situation in which they lose power. To mitigate this result, representatives and senators have resorted to a bevy of tactics. Three have been especially important. The first has been to exercise “legislative oversight” over administrators—a euphemism for intervening in the administration of laws, the President’s task—through control of the budget and the power to investigate administrative practices, supposedly to inquire into a need for new legislation. The second tactic has been to increase the number of so-called independent regulatory commissions headed by people appointed in the regular fashion but serving for set terms and not responsible to or removable at will by the President. The third tactic has been to delegate broad legislative authority but to tie a string to the delegation through what is called the legislative veto. Legislative oversight encounters few difficulties because Congress clearly has authority to appropriate money and to enact laws—and thus to learn how effective current laws are. Yet Congress’s examination of administrative performance, often through legislative hearings, has fomented bitter partisan and institutional struggles. Indeed, individual legislators have frequently used their positions of power within Congress to make it attractive for the President to choose their people rather than his or her own to head various federal bureaus or become federal judges. On the other hand, the constitutionality of the other two devices has been less certain. 7

more

See Justice White’s dis. op. in INS v. Chadha (1983; reprinted below, p. 514). For a general analysis, see Sotirios A. Barber, The Constitution and the Delegation of

Congressional Power (Chicago: University of Chicago Press, 1975). Theodore W. Lowi argued in a classic work that the modern practice of broad congressional delegation constitutes an abdication of responsibility as well as a surrender of all hope of achieving coordinated and just

public policies at the national level. The End of Liberalism (2nd ed.; New York: Norton, 1979).

429

430

How TO INTERPRET THE CONSTITUTION

PAaRTIV

Congress’s establishment of “independent regulatory commissions” has provoked interesting constitutional debate. Prior to the New Deal, Myers v. United States (1926) had decided that the President did not have to seek the Senate’s approval for removing a postmaster from office. Dicta in that case suggested that Congress could place no notwithstanding power, removal on the President’s limitations Johnson’s Andrew since times several Congress’s attempt to do so insulate could Congress that decided later Court the But presidency.

control. presidential from albeit not all, administrators some, Postmasters, said the Court, were “executive” officers and therefore answerable to the President; commissioners of the independent regulatory agencies, such as the Federal Trade Commission and the Federal Power Commission, were somehow different. Because Congress created them to achieve the aims of particular enactments, it could validly provide that commissioners of independent agencies should serve for specific terms, rather than at the pleasure of the President.® Though this reasoning has not convinced everyone, the Court still adheres to it. The third tactic, the legislative veto, has had a stormier course. Here, Congress usually requires that, as part of its delegation of power to an administrative agency,? the agency lay detailed plans before Congress; if Congress (sometimes the legislation will provide that if either house) takes no action within a specified period, the regulations go into effect and have the force of law.

The chief difficulty with this procedure is that in approving a set of regulations, Congress may be effectively changing the meaning of existing law without the President’s approval or in derogation of the President’s authority to veto congressional attempts to change the law. The constitutional problems surrounding the legislative veto have yet to be resolved completely. In INS v. Chadha (1988; reprinted below, p. 514), the Supreme Court declared the practice unconstitutional. But since that time Congress has continued to use it, though often in a more subtle form, and another battle seems likely. In the meantime, the Court continues to disfavor congressional experiments in law-making processes, aS we see in cases involving “automatic” deficit control (Bowsher v. Synar [1986; reprinted below, p. 526]) and the line-item veto (Clinton v. New York [1998; p. 540, available at www.princeton. edu/aci)). In the background of such clashes are structural questions of the proper judicial role in disputes between Congress and the President. Jesse H. Choper has argued that courts have no legitimate part to play as arbiter between Congress and the President or between the nation and the states.

Each of these units, Choper reasons,

has an array of

political checks against the other. And judges, he concludes, should husband their authority to protect individuals against government, in 5 Humphrey’s Executor v. United States (1935). See also Wiener v. United States (1958). In Morrison v. Olson (1988; discussed below, p. 539), the Court rejected the suggestion—over Justice Scalia’s vigorous dissent—that all executive officials (in this case, special prosecutors under the Ethics in Government Act of 1978) must be appointed and removed at the President’s discretion. res We use the term “agency” here very broadly. Congress has even delegated law-making authority to the Supreme Court.

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

what would otherwise be an unequal struggle.!9 =

Pt |

TO

suaded many olars, but not the Supreme Court, although Justice White in dissent in Chadha and Bowsher and Justice Breyer in dissent in Clinton argue for approaches to separation and sharing of powers that have affinities to Choper’s argument. However one evaluates his thesis, it is interesting that in the Federalist—see espec. No. 10, reprinted below, p. 1210, and No. 51, reprinted below, p. 432—Madison did not mention judicial review or even judges generally as elements in his grand design of pitting interests against interests and power against power at the national level. Only in Federalist No. 39 (reprinted below, p. 552) did he speak of judges as having an important role in maintaining the system’s structure, and then merely insofar as relations between the nation and the states were concerned.!2 Whatever the proper role of judges, the sharing of power among the branches of the national government blurs lines of responsibility and leaves no branch completely autonomous. Yet we expect each branch to retain a degree of institutional integrity sufficient to prevent domination by the others. The purpose is to secure a governmental system that can act in ways that insure thoughtful deliberation, democratic accountability, and respect for constitutional principles. This combination of goals is difficult to achieve. Interpreters must decide, for example, when Congress’s authority to make “exceptions” to the Supreme Court’s appellate jurisdiction so trench on judicial power as to destroy the Court’s integrity as a separate institution of government. (See Ex parte McCardle [1869; reprinted below, p. 464] and the Editors’ Notes that follow it.) Interpreters must decide when the judiciary’s power to remedy a constitutional violation puts judges in the legislative position of exercising the power of the purse by enacting tax laws.!° Judges must even decide whether considering a plaintiffs claim that the executive is violating the law would encroach on the President’s power to execute the law.14 And both Congress and the Court must decide when laws that purport to remedy violations of the Constitution amount to of constitutional definitions legislative improper presumably principles.!

10

Judicial Review and the National Political Process (Chicago: University of Chicago

Press, 1980).

1

For arguments

along these lines, see Mark Tushnet, Taking the Constitution Away

from the Courts (Princeton: Princeton University Press, 1999), and James

E. Fleming, “The

Constitution Outside the Courts,” 86 Cornell L. Rev. 215 (2000). 12 It is worth noting that, at the Philadelphia Convention, Madison wanted judges linked to the executive in a council of revision that would pass on the constitutionality of legislative proposals. Later, in 1791, when he introduced the Bill of Rights, he also argued that judges would be important defenders of that part of the constitutional text. 13 See, for instance, Missouri v. Jenkins (1989). 14 See Lujan v. Defenders of Wildlife (1992). 15 See Katzenbach v. Morgan (1966; reprinted above, p. 324 and discussed at p. 338) and 601). City of Boerne v. Flores (1997; reprinted below, p. 1344 and discussed at p. 338 and p.

431

432

How TO INTERPRET THE CONSTITUTION

PaRTIV

Questions like these are likely to turn on an interpreter’s beliefs about the Constitution’s structure or architectural scheme, whether as outlined in the document, as indicated by the operations of the larger political system, or perhaps as both the document and the system’s development are thought to reflect some broader political theory. The cases reprinted here show the justices drawing—usually implicitly but sometimes explicitly—the structural lines that they see as outlining the institutions of the national government. These cases also exhibit the justices’ deeper visions of the American polity. To illustrate the complexities of shared powers among separate and quasi-autonomous yet interdependent institutions, we have divided the cases and materials in this chapter into four sections. The first consists of Madison’s effort in Federalist No. 51 to sketch an overall scheme. The second section takes up one of the most troublesome of shared powers,

that to wage war. The third addresses problems of preserving institutional integrity in a system of shared powers. The final section returns to problems of institutional interaction and confronts the nature of the powers to appoint, to remove, to claim executive privilege, — and to exercise the veto, legislative as well as executive.

II.

ASYSTEM OF SHARED POWERS “Ambition must be made to counteract ambition.”

Federalist No. 51 James Madison (1788)

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments ... should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.... Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted.

It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the executive magistrate, or

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

tional

means and,

not ; nents of | ers. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs.... We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. ... But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconvenience is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. ... May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?... There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into

433

434

How TO INTERPRET THE CONSTITUTION

PART IV

distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or selfappointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.... Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature. ... In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important ... that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle. Publius

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

EDITORS’ NOTES

(1) Madison’s argument here parallels his more general theme in Federalist No. 10, reprinted below, p. 1210. Does Madison argue for any special role for courts to enforce the structure of separated and shared powers? Or does he assume that the political processes themselves will enforce this structure?

(2) For an analysis of the development of the general notion of playing off human frailties against each other as a principle of political and economic statesmanship, a notion connected to the case for capitalism, see Albert O. Hirschman, The Passions and the Interests (Princeton: Princeton University Press, 1977).

III. SHARING POWERS: THE POWER TO WAGE WAR “T]he legislature seem to have prescribed ... the manner in which this law shall be carried into execution.”

Little v. Barreme (The Flying Fish) 6 U.S. (2 Cranch) 170, 2 L.Ed. 243 (1804) During the Quasi-Naval War with France (1797-1800), Congress authorized the President to instruct U.S. naval vessels to seize any American ship bound to a French port. The Secretary of the Navy ordered the seizure of American ships bound to or from a French port. In pursuance of that order, the frigate Boston, commanded by Captain Little, captured The Flying Fish, bound from the French West Indies, took her to an American port, and filed a libel (an action in maritime law to seize a ship) against her, alleging she was an American vessel. The trial judge held that the ship was actually Danish and disallowed the seizure but refused to award damages against Little because there had been probable cause to think The Flying Fish was American. The circuit court reversed, ruling that, because the ship was coming from not to a French port, she would not have been liable to seizure even if American. Little appealed to the U.S. Supreme Court. =» MARSHALL, CHIEF JUSTICE, now delivered the opinion of the Court [7% It is by no means clear that the president of the United States, whose high duty it is to “take care that the laws be faithfully executed,” and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding armed

vessels

of the United

States,

to seize and

send into port for

adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed ... that the 5th section [of the statute] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that the manner in

which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port. Of consequence, however

435

436

PART IV

How TO INTERPRET THE CONSTITUTION

strong the circumstances might be, which induced Captain Little to suspect The Flying Fish to be an American vessel, they could not excuse the detention of her, since he would not have been authorized to detain her had she been really American. It was so obvious, that if only vessels sailing to a French port could be seized on the high seas, that the law would be very often evaded, that this act of congress appears to have received a different construction from the executive of the United much better calculated to give it effect... .

States;

a construction

I confess, the first bias of my mind was very strong in favor of the opinion, that though the instructions of the executive could not give a right, they might yet excuse [Captain Little] from damages. I was much inclined to think, that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not.to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that, where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.

It becomes, therefore, unnecessary to inquire whether the probable cause afforded by the conduct of The Flying Fish to suspect her of being an American, would excuse Captain Little from damages for having seized and sent her into port, since, had she been an American, seizure would have been unlawful.

the

Captain Little, then, must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the circuit court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to ib.

There appears, then, to be no error in the judgment of the circuit court, and it must be affirmed with costs.

EDITORS’ NOTES (1) On first reading, The Flying Fish seems perhaps important for international law in its holding that military and naval officers are liable for acting illegally, even when obeying direct orders of superiors. Otherwise, however, the case appears of little interest. But is there more here? What did this apparently trivial opinion of Marshall imply about the relations among Congress, the President, and the courts? Whose interpretation of a statute and the Constitution’s allocations of authority is

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

to prevail? For a different attitude toward the weight to be accorded the President’s interpretation of statutes, see Rust v. Sullivan (1991; reprinted below, p. 803) and Justice Scalia’s opinion for the Court in Lujan v.

Defenders of Wildlife (1992). (2) Query: What did Marshall imply about the President’s power to wage war, even limited war, when Congress has laid down explicit terms? In the absence of any congressional directive? See Justice Clark’s use of

this ruling in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952; reprinted below, p. 448). (8) In Little v. Barreme, Marshall skewered Jefferson almost as neatly as he had in Marbury. Not only did the Chief Justice claim judicial authority to determine the constitutional boundaries between congressional and presidential power, but he did so on a substantive issue on which Jefferson would have found it embarrassing to disagree publicly and assert a departmentalist theory of constitutional interpretation: he was on record as opposing the quasi-war with France that John Adams and his Federalists had waged.

‘Whether the President ... has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.”—Justice GRIER

“[Blefore this insurrection against the established Government can be dealt with on the footing of a civil war, . it must be recognized or declared by the war-making power of the Government.”—Justice NELSON

The Prize Cases 67 U.S. (2 Black) 635, 17 L.Ed. 459 (1862) In 1861, after the attack on Fort Sumter, President Lincoln proclaimed a blockade of Southern ports, even though Congress had not declared war. The Union navy seized and brought to port as prizes several ships carrying goods to the Confederacy. The U.S. district court condemned the vessels, and the owners appealed. = MR. JUSTICE GRIER delivered the opinion of the court. ... Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force. .. .

By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He‘is bound to take care that the laws be faithfully executed. He is of Commander-in-chief of the Army and Navy of the United States, and

437

438

PART IV

How TO INTERPRET THE CONSTITUTION

of the militia of the several States when called into the actual service either war a declare or initiate to power no has He States. United the against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d _ of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection United States.

against

the

government

of a State

or

of the

If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party bea foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be “wnilateral.” ... This greatest of civil wars ... sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. It is not the less a civil war, ... because it may be called an “insurrection” by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. .. . As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, ... the Queen of England issued her proclamation of neutrality.... This was immediately followed by similar declarations or silent acquiescence by other nations.... Whether the President in fulfilling his duties, as Commander-inchief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.... The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case. ... If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress ... in anticipation of such astute objections, passing an act “approving, legalizing, and making valid all the acts, proclamations, and orders of the President, & c., as if they had been issued and done

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

under the previous express authority and direction of the Congress of the United States.” _ Without admitting that such an act was necessary under the

circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, . . . this ratification has operated to perfectly cure the defect... . The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law. ed aly [T]herefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard. . . . = MR. JUSTICE NELSON, dissenting. . . . ... [B]efore this insurrection against the established Government can be dealt with on the footing of a civil war, ... it must be recognized or declared by the war-making power of the Government.... There is no difference in this respect between a civil or a public war... . Now, in one sense, no doubt this is war, ... but it is a statement simply of its existence in a material sense, and has no relevancy or weight when the question is what constitutes war in a legal sense, in the sense of the law of nations, and of the Constitution of the United States? For it must be a war in this sense to attach to it all the consequences that belong to belligerent rights. ... [T]o constitute a civil war in the [legal] sense ... it must be recognized or declared by the sovereign power of the State, and which sovereign power by our Constitution is lodged in the Congress of the United States—civil war, therefore, under our system of government, can exist only by an act of Congress, which requires the assent of two of the great departments of the Government, the Executive and Legislative. ... The Acts of 1795 and 1807 did not, and could not under the Constitution, confer on the President the power of declaring war against a State of this Union, or of deciding that war existed, and upon that ground authorize the capture and confiscation of the property of every citizen of the State whenever it was found on the waters. The laws of war, whether the war be civil or inter gentes, ... convert every citizen of the hostile State into a public enemy, and treat him accordingly, whatever may have been his previous conduct. This great power over the business and property of the citizen is reserved to the legislative department by the express words of the Constitution. It cannot be delegated or surrendered to the Executive. Congress alone can determine whether war exists or should be declared; and until they have acted, no citizen of the State can be punished in his person or property, unless he has committed some offence againsta law of Congress passed before the act was committed, which made it a crime, and defined the punishment. ... ... I am compelled to the conclusion that no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861; ... and, consequently, that

439

440

PART IV

How To INTERPRET THE CONSTITUTION

the President had no power to set on foot a blockade under the law of nations, and that the capture of the vessel and cargo in this case, and in all cases before us in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemies’ property, are illegal and void, and that the decrees of condemnation should be reversed and the vessel and cargo restored. Mr. CHIEF JUSTICE TANEY, MR. JUSTICE CATRON and MR. JUSTICE , CLIFFORD, concurred in the dissenting opinion of MR. JUSTICE NELSON. EDITORS’

NOTE

The Dred Scott Case (1857; reprinted above, p. 181) ruled that a black person could not be a citizen of the United States, slaves were mere property, and therefore the Missouri Compromise of 1820, which had forbidden slavery in the territories north of latitude 36° 30’, had deprived slaveowners of their property without due process of law. Because of this decision, many Republican politicians looked on the Supreme Court as proSouthern. Two deaths and a resignation among the justices allowed Lincoln to change the orientation of the Court; but the closeness of the vote in the Prize Cases (5-4) helped persuade Congress to adopt a bill, already under consideration, to increase the number of the justices to ten and so allow Lincoln to increase what was perceived as a narrow Unionist majority.

“(T]he President alone has the power to speak or listen as a representative of the nation.”

United States v. Curtiss-Wright Export Corp. 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936) In 1934 Congress adopted a Joint Resolution authorizing the President to prohibit the sale of arms and munitions to Bolivia and Paraguay, who were fighting over the Chaco, if he believed that such anembargo would contribute to peace. President Franklin Roosevelt immediately issued a proclamation forbidding arms shipments to either country. Shortly thereafter, the Department of Justice secured an indictment against Curtiss—Wright for selling machine guns to Bolivia. In the trial court, the corporation claimed that the President’s proclamation had no_ legal force because Congress had unconstitutionally delegated legislative power to the executive. The district judge agreed and the government appealed directly to the Supreme Court. = MR. JUSTICE SUTHERLAND delivered the opinion of the Court... . Whether, if the Joint Resolution had related affairs it would be open to the challenge delegation . of legislative power to the =,

to dete

nine

©

solely to internal

LUsvlravurorl is tO alliCUubl da

SsitvUuavlor U

weign affairs.... [A]ssuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may

CHAPTER 10

THE STRUCTURE OF THE NATIONAL GOVERNMENT

it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within a foreign territory? It will contribute to the elucidation of the question if we first consider the differences between the powers of the Federal government & in respect of foreign or external affairs and those in respect of domestic or internal affairs. . . . ___. The two classes of powers are different, both in respect of their origin and their nature. The broad statemer teo

my

noe

Ute

y

E

hen

a UNAD Pe st

:

ia!

wilde

forthe

Aeted

charge was that they agreed to ssemble and to talk and publish certain ideas at a later date: The

,is that they conspired to organize the Communist Party and Oo us eech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No>

Jed, this is a virulent form of prior an

of

speech and pees which I believe the First Amendment forbids.. So long as this Court exercises the power of judicial review ... I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not lkely to protect any but those “safe” or orthodox views which rarely need its protection. ... Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society. = MR. JUSTICE DOUGLAS, dissenting.

725

726

How TO INTERPRET THE CONSTITUTION

PART IV

If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality. This case was argued as if those were the facts. ... So far as the present record is concerned, what petitioners did was to organize people to teach and themselves teach the Marxist—Leninist doctrine contained chiefly in four books: Foundations of Leninism by Stalin (1924), The Communist Manifesto by Marx and Engels (1848), State and Revolution by Lenin (1917), History of the Communist Party of the Soviet Union (B) (1939). ... How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore, a mystery. Some nations less resilient than the United States, where illiteracy is high and where democratic traditions are only budding, might have to take drastic steps and jail these men for merely speaking their creed. But in America they are miserable merchants of unwanted ideas.... The fact that their

ideas are abhorrent does not make them powerful. . . . The First Amendment provides that “Congress shall make no law . abridging the freedom of speech.” The Constitution provides no exception. This does not mean, however, that the Nation need hold its

hand until it is in such weakened condition that there is no time to protect itself from incitement to revolution. Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy.... The First Amendment reflects the philosophy of Jefferson “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” The political censor has no place in our public debates. . . . EDITORS’ NOTES (1) Query: What are the main differences between Vinson’s formulation for the plurality of the clear and present danger test (adopting the “gravity of the evil” test developed by Chief Judge Learned Hand of the Court of Appeals for the Second Circuit) and Brandeis’s formulation in his concurring opinion in Whitney? (For a further development of Hand’s test, which was a variation on his theory of negligence law, see Richard A. Posner, “Free Speech in an Economic Perspective,” 20 Suffolk U.L.Rev. 1 [1986].) Would Vinson’s formulation be as protective of freedom of speech as Brandeis’s? Do the two formulations reflect different conceptions of the “structural role” of the First Amendment in “securing and fostering our republican system of self-government”? (See Editors’ Note (2) to New York Times v. Sullivan [1964; reprinted above, p. 706]).

(2) Query: The clear and present danger test would seem to require that a court analyze two factors: (a) how clear and present, or imminent, or

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

probable, is the danger and (b) how serious is the evil that the government is seeking to avert? Did Vinson analyze both of these factors? Exactly what, according to Vinson, was the serious evil in question here? (3) Query: In what way(s), if any, was Vinson’s version of clear and present danger distinguishable from the “bad tendency” test of Whitney? Which of the approaches used by the various opinion writers would be most and least restrictive of free speech? (4) Query: Did the opinions on the opposing sides in Dennis presuppose competing theories of democracy? If so, how did these theories differ? Frankfurter’s concurring opinion pointed to an alleged “paradox of life” (or of democracy) as justifying these convictions for advocacy of overthrow: To preserve democracy and freedom of expression, we must limit freedom of expression. To what extent was he correct? For a comparative analysis, see Walter F. Murphy, “Excluding Political Parties: Problems for Democratic and Constitutional Theory,” in Paul Kirchhof and Donald P. Kommers, eds., Germany and Its Basic Law (Baden—Baden: Nomos, 19938). (5) Query: In concurrence, Frankfurter argued that interpretation of the First Amendment calls for “weighing” or balancing of the competing interests, and that “[p]rimary responsibility for that balancing belongs to Congress.” Thus, his opinion illustrates an intertwining of answers to the questions HOW and WHO. John Hart Ely has argued that Frankfurter’s approach to the First Amendment—which he characterizes as “ad hoc balancing tempered with substantial deference to the legislative judgment’—“mocks our commitment to an open political process.” Democracy and Distrust (Cambridge: Harvard University Press, 1980), pp. 108-109. Is this charge accurate?

“(T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such

action.”—The COURT “I see no place in the regime of the First Amendment for any ‘clear and present danger’ test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.”—Justice DOUGLAS

Brandenburg v. Ohio 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) Ohio’s Criminal Syndicalism Act made it a crime to “advocate ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” or to “voluntarily assemble with any society, group, or assemblage of persons to teach or advocate the doctrines of political syndicalism.” Clarence Brandenburg, a leader of the Ku Klux Klan, was

727

728

PART IV

How TO INTERPRET THE CONSTITUTION

convicted under this statute for organizing Klan meetings and arranging for their filming and broadcasting. All of the participants

were hooded, but only some were armed. Included in the speeches were such remarks as: “Personally, I believe the nigger should be returned to Africa, the Jew to Israel’ and “We’re not a revengent organization, but if our President, our Congress, our Supreme Court continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

The Ohio appellate courts sustained the Brandenburg appealed to the U.S. Supreme Court.

conviction

and

= PER CURIAM....

In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, the text of which is quite similar to that of the laws of Ohio. Whitney v. California. ... But Whitney has

States [1951]. These later

decisions have fashioned the principle that

the constitutional

of free speech

guarantees

and free press

do not

permita State rbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States (1961), “the mere abstract teaching... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry (1937); Bond v. Floyd (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States (1957); De Jonge v. Oregon (1937); Stromberg v. California (1931).

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. ... Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to

imminent

lawless

action...

St

a

statute

falls

within the

condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney cannot be supported, and that decision is therefore overruled. Reversed. mw MR. JUSTICE BLACK, concurring...

.

= MR. JUSTICE DOUGLAS, concurring. .. . The “clear and present danger” test was adumbrated by Mr. Justice Holmes in a case arising during World War I—a war “declared” by the Congress, not by the Chief Executive. The case was Schenck v. United States [1919], where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said:

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Frohwerk v. United States [1919], also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security “by words of persuasion.” And the conviction in Frohwerk was sustained because “the circulation of the paper was in quarters where a little breath would be enough to kindle a flame.” Debs v. United States [1919], was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his “opposition was so expressed that its natural and intended effect would be to obstruct recruiting.” If that was intended and if, in all the circumstances, that would be

its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief. In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States [1919] was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out: It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.

... Mr. Justice Holmes, though never formally abandoning the “clear and present danger” test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York [1925]: Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. We have never been faithful to the philosophy of that dissent... . My own view is quite different. I see no place in the regime of the First Amendment for any “clear and present danger” test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it. When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are

729

730

How TO INTERPRET THE CONSTITUTION

PART IV

aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment. Action is often a method of expression and within the protec sonitls the First Amendment. Suppose one tears up his own copy 0 Constitution in eloquent protest to a decision of this Court. May he be indicted? ... Last Term the Court held in United States v. O’Brien [1968] that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying: The issuance of certificates indicating the registration and and is a legitimate of individuals eligibility classification substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system’s administration. But O’Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court’s affirmance of that conviction was not, with all respect, consistent with the First Amendment. The act of praying often involves body posture and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is “free speech plus.” ... That means it can be regulated when it comes to the “plus” or “action” side of the protest. It can be regulated as to the number of pickets and the place and hours, because traffic and other community problems would otherwise suffer.

But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card.

ne’s

beliefs have long been thought to be sanctuaries which

government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an “active” Communist and the innocent act of being a nominal or inactive Communist mark the

difference only between deep and abiding belief and casual or uncertain

belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyaltysecurity hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one’s thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known. The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts. The example usually given by those who

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

would punish speech is the case of one who falsely shouts fire in a crowded theatre. This is, however, a classic case where speech is . brigaded with action. They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and

conscience.

EDITORS’ NOTES (1) Query: How strong is the per curiam opinion’s claim that previous decisions, such as Dennis, “have fashioned the principle” adopted in Brandenburg? Does Brandenburg merely restate settled law or make the “clear and present danger” test significantly more protective of freedom of speech than Dennis had? (2) Query: In Brandenburg, does the Court use reinforcing representative democracy as an approach to constitutional interpretation? Put another way, does the Court protect Brandenburg’s speech because it is important for self-government (provided that it does not constitute incitement to imminent lawless action)? Does Douglas make such an argument? Are his fears about the clear and present danger test—that, even in the “strict” and “tight” formulation here, it inevitably will not sufficiently protect freedom of speech—well founded?

(3) Query: Consider Holmes’s dissenting statement in Gitlow, quoted by Douglas: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Is our constitutional scheme as neutral as to results as Holmes and Douglas seem to imply? (4)Query: Is a_ hyperbolic threat against the President constitutionally protected speech? See Watts v. United States (1969), where, at a political rally near the Washington Monument during the Vietnam War, Robert Watts allegedly stated: “If they ever make me carry a rifle the first man I want to get my sights on is L[yndon]. B. J[ohnson]....”

Watts was convicted of violating a 1917 federal statute forbidding any person “knowingly and willfully” to make “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The Court conceded that the statute “is constitutional on its face,” but it reversed the conviction on the ground that “the kind of political hyperbole” indulged in by Watts did not fit within the statutory term “threat.” The justices explained: “[W]e must interpret the language Congress chose ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’” (quoting New York Times v. Sullivan [1964; reprinted above, p. 706]). The Court concluded that Watts’s

731

732

How To INTERPRET THE CONSTITUTION

PART IV

“only offense here was ‘a kind of very crude offensive method of stating a political opposition....’” (5) In NAACP vy. Claiborne Hardware (1982), the Court unanimously reversed a damage award against alleged participants in an economic boycott by African Americans against white merchants in Mississippi. “If we catch any of you going in any of them racist stores,” Charles Evers, the leader of the boycott, had publicly stated, “we’re gonna break your damn neck.” The Court held that “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” And the fact that no acts of violence occurred until weeks after the speech indicated Mr. Evers’s “emotionally charged rhetoric ... did not transcend the bounds of protected speech set forth in Brandenburg.” (6) The Supreme Court denied certiorari in a case involving the antiabortion web site known as the “Nuremberg Files,” a compilation about physicians providing abortions whom an anti-abortion group anticipated one day might be put on trial for crimes against humanity. The group circulated a Deadly Dozen “GUILTY” poster which identified certain physicians who had provided medical services to women including abortion. It did so in the wake of a series of “WANTED” posters identifying other doctors who had performed abortions before they were murdered. The question was whether such expression amounted to “threats of force” under the Freedom of Access to Clinics Entrances Act (FACE) and therefore was not protected speech under the First Amendment. The Ninth Circuit Court of Appeals, en banc, held it to be “threats of force.” Planned Parenthood v. American Coalition of Life Activists (9th Cir. 2002).

V.

CATEGORIES OF UNPROTECTED

A.

FIGHTING WORDS

EXPRESSION

“[T]he right of free speech is not absolute at all times under all circumstances. There are certain well-defined narrowly limited classes of speech, the prevention punishment of which have never been thought to raise Constitutional problem.”

and and and any

Chaplinsky v. New Hampshire 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) Walter Chaplinsky, a Jehovah’s Witness, was distributing literature and talking to people on the streets of a small town in New Hampshire on a Saturday afternoon. When local citizens complained to the town marshal about Chaplinsky’s calling all religion “a racket,” the marshal replied that Chaplinsky had a lawful right to speak, but also warned Chaplinsky that the crowd was getting restless. Later, after an incident near a busy intersection, a traffic policeman took Chaplinsky into custody. The marshal, having heard a riot had started, came on the scene and repeated his warning to Chaplinsky. The marshal claimed that Chaplinsky then replied, “You are a God damned racketeer” and “a

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

damned Fascist.” Chaplinsky admitted using such terms, except for the name of God, but he also insisted that the marshal had cursed him when he asked for protection against hecklers. Chaplinsky was convicted under a statute which made it a crime to “address any offensive, derisive or annoying word to any other person who is lawfully in any street or public place,” or to “call him by any offensive or derisive name,” or to “make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.” State courts sustained the conviction, and Chaplinsky appealed to the U.S. Supreme Court. = MR. JUSTICE MURPHY delivered the opinion of the Court... . It is now clear that “Freedom of speech and freedom of the press,

which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.” Lovell v. Griffin [1938]. Freedom of worship is similarly sheltered. Cantwell v. Connecticut [1940]. Appellant assails the statute as a violation of all three freedoms, speech, press, and worship, but only an attack on the basis of free

speech is warranted. The spoken, not the written, word is involved. And we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term. But even if the activities of the appellant which preceded the incident could be viewed as religious in character,

and therefore

entitled

to the protection

of the Fourteenth

Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute.... Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of, free speech is not absolute at all times and under all circumstances./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 problem. 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 maaaliea “Resort to epithets or personal abuse is not in any proper sense comMunication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Cantwell... . ... [T]he state [supreme] court declared that the statute’s purpose was to preserve the public peace, no words being “forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.” It was further said: The word “offensive” is not to be defined in terms of what a particular addressee thinks. ... The test is what men of common | intelligence would understand would be words likely to cause an —

733

734

How TO INTERPRET THE CONSTITUTION

PART IV

average addressee to fight. ... The English language has a number of words and expressions which by general consent are “fighting words” when said without a disarming smile.... Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. ... The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker—including ... profanity, obscenity and threats. We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell; Thornhill v. Alabama [1940].... A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington [1915]. Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the applications “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.... Affirmed.

EDITORS’ NOTES (1) Query: In Chaplinsky, the Court articulated a “two-level” theory of the First Amendment, under which certain categories of expression are of “slight social value” and therefore do not receive the full protection that is accorded to higher value expression that does not fall within those categories. Traditional categories of unprotected speech included those mentioned in Chaplinsky—the “lewd and obscene,” the “profane,” the “libelous,” and the “insulting or ‘fighting’ words’—as well as incitement to imminent lawless action and, for a time, commercial expression. To what extent have subsequent cases, beginning with New York Times v. Sullivan (1964; reprinted above, p. 706) broken down or at least eroded these categories?

(2) Query: The Court suggested that “fighting words” are constitutionally unprotected because they “are no essential part of any exposition of ideas.” But does the First Amendment’s protection of the exposition of ideas embrace the “emotive force” as well as the “cognitive content” of expression? Is it necessary to interpret the First Amendment to do so in order to reinforce representative democracy? See Cohen v. California (1971; reprinted below, p. 759).

(3) Query: The Court also suggested that “fighting words” are unprotected because they “tend to incite an immediate breach of the peace.” Is this formulation more akin to a stringent “clear and present danger test” as in Brandenburg v. Ohio (1969; reprinted above, p. 727), or to a “bad tendency test,” like that applied in Whitney vy. California (1927; reprinted

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

above, p. 713)? Does addressing such words to a police officer constitute criticism of governmental policy and personnel that the First Amendment, according to New York Times, protects? See Stephen W. Gard, “Fighting Words As Free Speech,” 58 Wash.U.L.Q. 531 (1980). (4) In Gooding v. Wilson (1972), the Court reaffirmed Chaplinsky but diluted the fighting words doctrine. While involved in a protest against the war in Vietnam, Johnny Wilson had made such remarks to a police officer as: “White son of a bitch, I'll kill you,” and “You son of a bitch, I’ll choke you to death.” He was convicted under a Georgia law which made it a crime “without provocation, [to] use to or of another, and in his presence ... opprobrious words or abusive language, tending to cause a breach of the peace....” The U.S. Supreme Court reversed, holding the Georgia statute unconstitutionally overbroad, for state courts had construed it to sweep beyond the class of “fighting” words Chaplinsky defined. (5) Query: As in Gooding, the Court often cites Chaplinsky, but it has not subsequently upheld another conviction for “fighting words.” Does Chaplinsky today “strike[ ] a quaint, almost nostalgic note” and “bespeak[ | the gentility of a bygone era”? See Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (Jamie Kalven, ed.; New York: Harper & Row, 1988), pp. 17, 78. Is Chaplinsky still good law? As you read later cases in this chapter, consider what arguments one might make to suggest that First Amendment cases and developments have undermined Chaplinsky. Should its solicitude for governmental promotion of a moral, civilized (or at least less vulgar) public space and culture be reinvigorated?

B.

DEFAMATION OF GROUPS “(I]t would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State’s power.”—Justice FRANKFURTER “I think the First Amendment, with the Fourteenth, ‘absolutely’ forbids such laws without any ‘ifs’ or ‘buts’ or ‘whereases.’ ”—Justice BLACK “The Framers of the Constitution ... chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be.”—Justice DOUGLAS

Beauharnais v. Illinois 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952) Joseph Beauharnais, president of the White Circle League, distributed a leaflet calling on the Mayor and City Council of Chicago “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.” The leaflet urged “One million self respecting white people in Chicago to unite,” adding: “If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the

735

736

PART IV

How To INTERPRET THE CONSTITUTION

aggressions, ... rapes, robberies, knives, guns and marijuana of the negro, surely will.” The leaflet also attached an application for membership in the White Circle League. Beauharnais was convicted of violating an Illinois statute that made it unlawful to “manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch which ... portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which . . . exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which

is productive of breach of the peace or riots.” The

at, to convict, they

trial

did not need to find

ju ge instructed

the pamphlet “was

present danger of a serious substantive y inconvenience, annoyance or unrest.” public above far evil that rises

Beauharnais claimed the statute, as so interpreted, violated the First and Fourteenth Amendments. The state supreme court sustained his conviction, and he obtained certiorari from the U.S. Supreme Court. = MR. JUSTICE FRANKFURTER delivered the opinion of the Court. Today, every American jurisdiction ... punish[es] libels directed at individuals. 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 problem. 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. Chaplinsky v. New Hampshire [1942].

No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of

marijuana.

The precise question before

protection of “liberty” in the Due Process

Amendment libel

has been

us, then, -is whether the Clause

of the Fourteenth

prevents a State from punishing such libels—as criminal © defined,

limited

and constitutionally recognized time out —

of mind—directed at designated collectivities and flagrantly | disseminated. . [I]f an utterance directed at an individual may be the | object of criminal sanctions, we cannot deny to a State power to punish | the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the State. Illinois did not have to look beyond her own borders . . . to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence.... In many of these

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

outbreaks, utterances of the character here in question, so the Illinois

legislature could conclude, played a significant part... . In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented... . It may be argued, and weightily, that this legislation will not help matters. . . . [But]itwould be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbiddenby some explicit limitation on the State’s power.... It would ... be arrant dogmatism ... for us to deny that the Illinois legislature may warrantably believe that a man’s job and _ his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved. — We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party.1 Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. “While this Court sits” it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel... .

Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary ... to consider the issues behind the phrase “clear and present danger.” Certainly no one would contend that. obscene speech, for example, may be punished only upon a showing of. such circumstances. Libel, as we have seen, is in the same class. ©

Affirmed.

= MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS

concurs,

dissenting... . The Court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel. As a result of this refined analysis, the Illinois statute emerges labeled a “group libel law.” This label may make the Court’s holding more palatable for those who sustain it, but,the sugar-coating does not make the censorship less

‘very expansion of the law of criminal libel so as to punish

1... The rubric “race, color, creed or religion” which describes the type of group libel of which is punishable, has attained too fixed a meaning to permit political groups to be brought within it. If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole doctrine of fair comment as indispensable to the democratic political process would come into play. Political parties, like

public men, are, as it were, public property. [Footnote by the Court.]

737

738

PART IV

How TO INTERPRET THE CONSTITUTION

discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment. ... The Court’s reliance on Chaplinsky is also misplaced. New Hampshire had a state law making it an offense to direct insulting words at an individual on a public street.... Whether the words used in their context here are “fighting” words in the same sense is doubtful, but ... they are not addressed to or about individuals. Moreover, the leaflet used here was also the means adopted by an assembled group to enlist interest in their efforts to have legislation enacted. ... Freedom of petition, assembly, speech and press could be greatly abridged bya practice of meticulously scrutinizing every editorial, speech, sermon or other printed matter to extract two or three naughty words on which to hang charges of “group libel.” The Chaplinsky case makes no such broad inroads on First Amendment freedoms. ... This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes... . We are told that freedom of petition and discussion are in no danger “while this Court sits.” ... I do not agree that the Constituti leaves freedom of petition, assembly, speech, press or worship at hia mercy of a case-by-case, day-by-day majority of this Court... . I think the First Amendment, with the Fourteenth, “absolutely” forbids such laws without any “ifs” or “buts” or “whereases.” Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems

to be the danger of public discussion,

holds

the scales

are

tipped on the side of state suppression, and upholds state censorship. This method of decision offers little protection to First Amendment liberties “while this Court sits.” If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this. ancient remark: “Another such victory and I am undone.”

= Mr. JUSTICE

REED,

with whom

MR. JUSTICE

DOUGLAS

joins,

dissenting. ...

= Mr.

JUSTICE DOUGLAS, dissenting.

Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus. I would also be willing to concede that even without the element of conspiracy there might be times and occasions when the legislative or executive branch might call a uae to inflammatory talk, such as the shouting of “fire” in a school or a theatre.

My view is that if in any case other public interests are to override the plain command of the First Amendment, the peril of speech must be .

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster. The First Amendment is couched in absolute terms. ... Speech has therefore a preferred position as contrasted to some other civil rights. .. . Yet recently the Court in this and in other cases [e.g., Dennis v. United States (1951)] has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate “within reasonable limits” the right of free speech. This to me is an ominous and alarming trend. The free trade in ideas which the Framers of the Constitution visualized disappears. In its place there is substituted a new orthodoxy—an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. ...

. Intemperate

speech is a distinctive

characteristic

of man.

Hotheads blow off and release destructive energy in the process. They shout and rave.... The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be.... a MR. JUSTICE JACKSON, dissenting. ... EDITORS’ NOTES

(1) Query: What was Frankfurter’s standard for reviewing regulatory legislation under the First Amendment? Was it merely an extension of Thayer’s argument for deferential scrutiny to state legislation? What was the basis of the distinction he drew in footnote 1? (2) Query: Who had the best textualist argument here, Frankfurter, Black, or Douglas? To what extent were any (or all) of their opinions originalist? Was any of them articulating a theory of reinforcing representative democracy?

(3) Frankfurter’s opinion for the Court, when contrasted with more recent pronouncements and attitudes concerning freedom of speech, is striking in the following two respects. One, he confidently referred to Beauharnais and the White Circle League as “wilful purveyors of falsehood,” whereas in more recent years it is commonplace for judges to say things like “Under the First Amendment, . . . there is no such thing asa false idea” (American Booksellers Association v. Hudnut (7th Cir. 1986; reprinted below, p. 764)). Two, Frankfurter was unmoved by slippery slope arguments about the possibility of the abuse of power, whereas nowadays it is common for judges to be moved by such arguments (again, see Hudnut). Query: Are there any good constitutional arguments for reviving or reinvigorating Frankfurter’s outlook in these respects?

(4) Query: Is Beauharnais still good law? As you read later cases in this chapter, consider what arguments one might make that those developments in the elaboration of the First Amendment have undermined

739

740

How TO INTERPRET THE CONSTITUTION

PARTIV

Beauharnais. Should its solicitude for governmental concern to promote a more respectful and less hateful public space and culture in a polyglot community be reinvigorated?

(5) Query: What is the meaning and import of Black’s quotation of Pyrrhus (“Another such victory and I am undone”)? If Beauwharnais is indeed a pyrrhic victory for African Americans or other minority groups, what are the staggering losses that Black might believe offset the victory? (6) In 1977, the American Nazis planned to march in Skokie, Illinois, a predominantly Jewish suburb of Chicago whose residents included approximately 5,000 survivors of Nazi concentration camps. Among other measures, Skokie enacted three ordinances to prohibit the march: (1) requiring applicants for parade permits to obtain $300,000 in public liability insurance and $50,000 in property damage insurance; (2) prohibiting the “dissemination of any material which promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so”; and (3) prohibiting public demonstrations “on behalf of any political party while wearing a military-style uniform.” The district court held that all three ordinances violated the First Amendment,

and the Court of Appeals for the Seventh Circuit affirmed. Collin v. Smith (7th Cir. 1978). The Supreme Court denied Skokie’s request for a stay of the order of the Court of Appeals. Having won their right to march, the Nazis cancelled their plans for Skokie, instead holding a rally in Chicago. There were numerous arrests but no serious violence. (7) A number of colleges and universities, both state and private, have adopted codes to prohibit or punish hate-filled racist speech. For example, the University of Michigan prohibited any person from stigmatizing an individual “on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Viet-Nam era veteran status” with the “purpose or reasonably foreseeable effect of interfering with an _ individual’s academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety.” In Doe v. University of Michigan (E.D. Mich. 1989), a federal district court held that this code was unconstitutional under the First Amendment. In UWM Post, Inc. v. Board of Regents (E.D. Wis. 1991), a federal district court struck down a similar code from the University of

Wisconsin. _ Stanford University adopted a code focused on “discriminatory harassment” and modeled on the “fighting words” category of unprotected expression. At the University of Texas, the President’s Ad Hoc Committee on Racial Harassment rejected the “fighting words” approach, instead proposing a ban on “racial harassment” based on the common-law tort of intentional infliction of emotional distress. This alternative approach is similar to that recommended by Richard Delgado in “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-—Calling,” 17 Harv. Civ.Rts.—Civ.Lib.L.Rev. 133 (1982). Mari Matsuda offers a still different approach: recognition of a category of unprotected expression consisting of racist hate speech. “Public Response to Racist Speech: Considering the Victim’s Story,” 87 Mich.L.Rev. 2320 (1989). On Matsuda’s view, the constitutionally unprotected characteristics of racist hate speech

CHAPTER

12

FREEDOM

OF POLITICAL COMMUNICATION

include the message’s being “directed against a historically oppressed group.” Query: What about hate speech directed against a historically dominant group? Should the First Amendment countenance asymmetry in this respect?

“[St. Paul] has proscribed fighting words ... that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas.”—Justice SCALIA s ‘Such a simplistic, all-or-nothing-at-all approach to the First Amendment is at odds with common sense and with our jurisprudence as well. ”— Justice WHITE “The Court today turns First Amendment law on its head.”—Justice STEVENS

R.A.V. v. St. Paul 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)

Police in St. Paul, MN, arrested R.A.V. (a minor) and several of his friends for burning a cross on the lawn of an African—American family. The city could have tried him under such laws as those prohibiting terroristic threats, arson, and criminal damage to property, but chose to charge these juveniles only under the city’s Bias—Motivated Crime Ordinance:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

R.A.V.’s attorney claimed the ordinance violated the First Amendment. The trial court agreed, but the state supreme court reversed because, as construed in prior cases, the phrase “arouses anger, alarm or resentment in others” limited the reach of the ordinance to conduct that amounts to “fighting words,” i.e., “conduct that itself inflicts injury or tends to incite immediate violence.” Thus the ordinance only punished expression “that the First Amendment does not protect.” The court also | concluded that the ordinance was not impermissibly content-based, because it “is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.” The U.S. Supreme Court granted certiorarl. ms JUSTICE SCALIA delivered the opinion of the Court... .

I In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. Accordingly, we accept the Minnesota Supreme Court’s authoritative statement that the

741

742

PAaRTIV

How To INTERPRET THE CONSTITUTION

ordinance reaches only those expressions that constitute “fighting words” within the meaning of Chaplinsky v. New Hampshire (1942). ... facially. is ordinance the that conclude nonetheless [W]e unconstitutional in that it prohibits otherwise permitted speech solely. on the basis of the subjects the speech addresses. from generally prevents government The First Amendment proscribing speech, see, e.g., Cantwell v. Connecticut (1940), or even expressive conduct, see, e.g., Texas v. Johnson (1989), because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. Simon & Schuster v. NY State Crime Victims Bd. (1991); Police Dept. v. Mosley (1972). From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which 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.” Chaplinsky. We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States (1957) (obscenity); Beauharnais v. Illinois (1952) (defamation); Chaplinsky (“fighting words”). Our decisions since the 1960’s have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan (1964); Gertz v. Robert Welch (1974); see generally Milkovich v. Lorain Journal (1990), and for obscenity, see Miller v. California (1973), but a lmited categorical approach has remained an important part of our First Amendment jurisprudence. We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” Roth, Beauharnais, Chaplinsky, or that the “protection of the First Amendment does not extend” to them, Bose Corp. v. Consumers Union (1984); Sable Communications v. FCC (1989). Such statements must be taken in context, however, and are no more literally true than is the

occasionally repeated shorthand characterizing obscenity “as not being

speech at all.” What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their’ constitutionally proscribable content (obscenity, defamation, etc.)—not: that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government....

Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression. ... Such a simplistic, all-ornothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well.! It is not true that ‘Justice White concedes that a city council cannot prohibit only those legally obscene works that contain criticism of the city government, but asserts that to be the consequence, not of the First Amendment, but of the Equal Protection Clause. Such content-based discrimination

would

not,

he asserts,

“be rationally

related

to a legitimate

government

interest.” But of course the only reason that government interest is not a “legitimate” one is that it violates the First Amendment. This Court itself has occasionally fused the First

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

743

“fighting words” have at most a “de minimis” expressive content, or that

their content is in all respects “worthless and undeserving of constitutional protection”; sometimes they are quite expressive indeed. We have not said that they constitute “no part of the expression of ideas,” but only that they constitute “no essential part of any exposition of ideas.” Chaplinsky (emphasis added). The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace.... We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an

ordinance

against

outdoor

fires could be punishable,

whereas

burning a flag in violation of an ordinance against dishonoring the flag IS Tot.!

..

In other words, the exclusion of “fighting words” from the scope of the First Amendment simply means that . . . the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication. Fighting words are thus analogous to a noisy sound truck: Each is, as Justice Frankfurter recognized, a “mode of speech,” Niemotko v. Maryland (1951) (concurring in result); both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with the sound truck, however, so also with

fighting words: The government may not regulate use based on hostility—or favoritism—towards the underlying message expressed.2 The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech cannot be “underinclusive” (White, J.)—a First Amendment “absolutism” whereby “within a particular ‘proscribable’ category of expression, ... a government must either proscribe all speech or no speech at all” (Stevens, J.). That easy target is of the concurrences’ own invention. In our view, the First Amendment imposes not an “underinclusiveness” limitation but a “content discrimination” limitation upon a State’s prohibition of proscribable speech. There is no problem whatever, for example, with a State’s prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be “underinclusive,” it would not discriminate on the basis of content. See, e.g., Sable Amendment into the Equal Protection Clause in this fashion, but at least with the acknowledgment (which Justice White cannot afford to make) that the First Amendment underlies its analysis. See Mosley... . Justice Stevens seeks to avoid the point by dismissing the notion of obscene antigovernment speech as “fantastical,” apparently believing that any reference to politics prevents a finding of obscenity. Unfortunately for the purveyors of obscenity, that is obviously false. A shockingly hard core pornographic movie that contains a model sporting a political tattoo can be found, “taken as a whole [to] lack serious literary, artistic, political, or scientific value,” Miller (emphasis added). . . . [Footnote by the Court.] 2 Although Justice White asserts that our analysis disregards “established principles of First Amendment law,” he cites not a single case (and we are aware of none) that even involved,

much

less considered

and resolved,

the issue

of content

discrimination

through

regulation of “unprotected” speech—though we plainly recognized that as an issue in Ferber [v. New York (1982)]. It is of course contrary to all traditions of our jurisprudence to consider the law on this point conclusively resolved by broad language in cases where the issue was not presented or even envisioned. [Footnote by the Court.]

|

744

PARTIV

How TO INTERPRET THE CONSTITUTION

Communications (upholding 47 U.S.C. § 223(b)(1), which prohibits obscene telephone communications)... . When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate:

...

the

Federal

Government

can

criminalize

only

those

threats of violence that are directed against the President—since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption: that fear engenders, and from the possibility that the threatened. violence will occur) have special force when applied to the person of the President. See Watts v. United States (1969).... But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities... . Another valid basis for according differential treatment to even a. content-defined subclass of proscribable speech is that the subclass happens to be associated with particular “secondary effects” of the speech, so that the regulation is “justified without reference to the content of the ... speech,” Renton v. Playtime Theatres (1986).... A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy: the nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words” . may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, 42 U.S.C. §§ 2000e—2. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely’ because they express a discriminatory idea or philosophy. ... There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.... Save for that limitation, the regulation of “fighting words,” like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone.

3 Justice Stevens cites a string of opinions as supporting his assertion that “selective regulation of speech based on content” is not presumptively invalid. Analysis reveals, however, that they do not support it. To begin with, three of them did not command a majority of the Court, Young v. American Mini Theatres (1976) (plurality); FCC v. Pacifica Foundation (1978) (plurality); Lehman v. Shaker Heights (1974) (plurality); and two others did not even discuss the First Amendment, Morales [v. TWA (1992)]; Jacob Siegel Co. v. FTC (1946). In any event, all that their contents establish is what we readily concede: that presumptive invalidity does not mean invariable invalidity, leaving room for such exceptions as reasonable and viewpointneutral content-based discrimination in nonpublic forums. [Footnote by the Court.]

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

745

II ... [E]ven as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been

limited by . . . construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not

covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects: See Simon & Schuster.

ve S

Ss

He

In its practical operation, moreover, the ordinance goes even. beyond mere content discrimination, to actual viewpoint discrimination. KOC Displays containing some words—odious racial epithets, for example— would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender— aspersions upon a person’s mother, for example—would seemingly be usable ad libitum in the placards of those arguing in favor of racial .. . tolerance and equality, but could not be used by that speaker’s opponents. One could hold up a sign saying, for example, that all “antiCatholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules. VWOKMnU YeFRVeMteWhat we have here ... is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain ... messages of “biasmotivated” hatred and in particular, as applied to this case, messages “based on virulent notions of racial supremacy.” One must wholeheartedly agree with the Minnesota Supreme Court that “it is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear,” but the manner of that confrontation cannot consist of selective limitations upon speech.... The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.

Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is directed at expression of group hatred, Justice Stevens suggests that this “fundamentally misreads” the ordinance. It is directed, he claims, not to speech of a particular content, but to particular “injur[ies]” that are “qualitatively different” from other injuries. This is wordplay. What makes the anger, fear, sense of dishonor, etc. produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc. produced by other fighting words is ... that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that

746

How TO INTERPRET THE CONSTITUTION

PART IV

easily. It is obvious that the symbols which will arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” are those symbols that communicate a message of hostility based on one of these characteristics. St. Paul concedes in its brief that the ordinance applies only to “racial, religious, or gender-specific symbols” such as “a burning cross, Nazi swastika or other instrumentality of like import.”... Th[is] content-based discrimination . .. comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier, nor within a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable.... [T]he reason why fighting words are categorically excluded from the protection of the First Amendmentis not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression.... Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty.

St. Paul argues that the ordinance comes within ... the specific exception ... that allows content discrimination aimed only at the “secondary effects” of the speech. According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.” ... [I]t is clear that the St. Paul ordinance is not directed to secondary effects within the meaning of Renton. As we said in Boos.v. Barry (1988), “[l]isteners’ reactions to speech are not the type of ‘secondary effects’ we referred to in Renton.” ... Finally, St. Paul ... assert[s] that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the “danger of censorship” presented by a facially contentbased statute requires that that weapon be employed only where it is “necessary to serve the asserted [compelling] interest,” Burson v. Freeman (1992) (plurality) (emphasis added).[The existence of adequate content-neutral alternatives thus “undercuts significantly” any defense

of such a statute]Boos. ...

... The dispositive question in this case, therefore, is whether. content discrimination is reasonably necessary to achieve St. Paul’s» compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial

CHAPTER

12

FREEDOM

OF POLITICAL COMMUNICATION

747

effect., In fact the only interest distinctively served by the content limitation is that of displaying the city council’s special hostility towards the particular biases thus singled out.4 That is precisely what the First Amendment forbids. .. . Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means. at its disposal to prevent such behavior without adding the First Amendment to the fire. The judgment of the Minnesota Supreme Court is reversed... .

m JUSTICE

WHITE,

with

whom

JUSTICE

BLACKMUN

and

JUSTICE

O’CONNOR join, and with whom JUSTICE STEVENS joins except as to Part I(A), concurring in the judgment. I agree with the majority that the judgment . . . should be reversed. However, our agreement ends there. This case could easily be decided within the contours of established First Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment. Instead, “finding it unnecessary” to consider the questions upon which we granted review, the Court holds the ordinance facially unconstitutional on a ground that was never presented to the Minnesota Supreme Court, a ground that has not been briefed by the parties before this Court, a ground that requires serious departures from the teaching of prior cases and is inconsistent with the plurality opinion in Burson v. Freeman (1992), which was joined by two of the five Justices in the majority in the present case. This Court ordinarily is not so eager to abandon its precedents. . . . But in the present case, the majority casts aside long-established First Amendment doctrine without the benefit of briefing and adopts an untried theory. This is hardly a judicious way of proceeding, and the Court’s reasoning in reaching its result is transparently wrong.

I A This Court’s decisions have plainly stated that expression falling within certain limited categories so lacks the values the First Amendment was designed to protect that the Constitution affords no protection to that expression. Chaplinsky.... Thus, as the majority concedes, this Court has long held certain discrete categories of expression to be proscribable on the basis of their content. All of these 4 A plurality of the Court reached a different conclusion with regard to the Tennessee anti-electioneering statute considered earlier this Term in Burson. In light of the “logical connection” between electioneering and the State’s compelling interest in preventing voter intimidation and election fraud—an inherent connection borne out by a “long history” and a “wide-spread and time-tested consensus’—the plurality concluded that it was faced with one of those “rare cases” in which the use of a facially content-based restriction was justified by interests unrelated to the suppression of ideas. Justice White and Justice Stevens are therefore quite mistaken when they seek to convert the Burson plurality’s passing comment that “the First Amendment does not require States to regulate for problems that do not exist” into endorsement of the revolutionary proposition that the suppression of particular ideas can be justified when only those ideas have been a source of trouble in the past. [Footnote by the Court.]

~

748

How TO INTERPRET THE CONSTITUTION

Part IV

categories are content based. But the Court has held that First Amendment does not apply to them because their expressive content 1s worthless or of de minimis value to society. Chaplinsky.... This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need. Today, however, the Court announces that earlier Courts did not mean their repeated statements that certain categories of expression are “not within the area of constitutionally protected speech.” Roth. The present Court submits that such clear statements “must be taken in context” and are not “literally true.” To the contrary, those statements meant precisely what they said: The categorical approach is a firmly entrenched part of our First Amendment jurisprudence.... Nevertheless, the majority holds that the First Amendment protects those narrow categories of expression long held to be undeserving of First Amendment protection—at least to the extent that lawmakers may not regulate some fighting words more strictly than others because of their content. ... Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting words.

To borrow a phrase, “Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well.” It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, Ferber; but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection. ©

The majoritys observation that fighting words are “quite expressive indeed” is no answer. Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Therefore, a ban on all fighting words or on a subset of the fighting. words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. ... Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone’s lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment.! Indeed, by characterizing fighting words as a form of “debate,” the majority legitimates hate speech as a form of public discussion. . . .

1 This does not suggest, of course, that cross burning is always unprotected. Burning a cross at a political rally would almost certainly be protected expression. Cf. Brandenburg v. Ohio (1969). But in such a context, the cross burning could not be characterized as a “direct personal insult or an invitation to exchange fisticuffs,” Texas v. Johnson (1989), to which the fighting words doctrine applies. [Footnote by Justice White. ]

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

749

B _In a second break with precedent, the Court refuses to sustain the

ordinance even though it would survive under the strict scrutiny applicable to other protected expression. ... St. Paul has urged that its ordinance ... “helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination. ...” The Court expressly concedes that this interest is compelling and is promoted by the ordinance. Nevertheless, ... [uJnder the majority’s view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First Amendment analysis. .. .

Although the First Amendment does not apply to categories of unprotected speech, such as fighting words, the Equal Protection Clause requires that the regulation of unprotected speech be rationally related to a legitimate government interest. ... Turning to the St. Paul ordinance and assuming arguendo, as the majority does, that the ordinance is not constitutionally overbroad, there is no question that it would pass equal protection review. The ordinance proscribes a subset of “fighting words,” those that injure “on the basis of race, color, creed, religion or gender.” This selective regulation reflects the City’s judgment that harms based on race, color, creed, religion, or gender are more pressing public concerns than the’ harms caused by other fighting words. In light of our Nation’s long and painful experience with discrimination, this determination is plainly reasonable. Indeed, as the majority concedes, the interest is compelling.

C The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions... . For instance, if the majority were to give general application to the rule on which it decides this case, today’s decision would call into question the constitutionality of the statute making it illegal to threaten the life of the President. Surely, this statute, by singling out certain threats, incorporates a content-based distinction; it indicates that the Government especially disfavors threats against the President as opposed to threats against all others. But because the Government could prohibit all threats and not just those directed against the President, under the Court’s theory, the compelling reasons justifying the enactment of special legislation to safeguard the President would be irrelevant, and the statute would fail First Amendment review. To save the statute, the majority has engrafted the following exception onto its newly announced First Amendment rule: Contentbased distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is “the very reason the entire class of speech at issue is proscribable.” . . . The exception swallows the majority’s rule. Certainly, it should apply to the St. Paul ordinance, since “the reasons why [fighting words] are outside the First Amendment ... have special force when applied to [groups that have historically been subjected to discrimination].”

=

750

How TO INTERPRET THE CONSTITUTION

PARTIV

To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of communication, rather than a content-based category, and that the St. Paul ordinance has not singled out a particularly objectionable mode of communication. Again, the majority confuses the issue. A prohibition on fighting words is nota time, place, or manner restriction; it is a ban on a class of speech that conveys an overriding message of personal injury and imminent violence, a message that is at its ugliest when directed against groups that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority’s theory. As its second exception, the Court posits that certain content-based regulations will survive under the new regime if the regulated subclass “happens to be associated with particular ‘secondary effects’ of the speech.” ... Again, there is a simple explanation for the Court’s eagerness to craft an exception to its new First Amendment rule: Under the general rule the Court applies in this case, Title VII hostile work environment claims would suddenly be unconstitutional. Title VII makes it unlawful to discriminate “because of [an] individual’s race, color, religion, sex, or national origin,’ and the regulations covering hostile workplace claims forbid “sexual harassment,” which includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” which creates “an intimidating, hostile, or offensive working environment.” The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the “disfavored topic” of sexual harassment. In this way, Title VII is similar to the St. Paul ordinance . . . because it “imposes special prohibitions on those speakers who express views on disfavored subjects.” . . . Hence, the majority’s second exception, which the Court indicates would insulate a Title VII hostile work environment claim from an underinclusiveness challenge because “sexually derogatory ‘fighting words’ ... may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.” But application of this exception to a hostile work environment claim does not hold up under close examination. 2 First, the hostile work environment regulation ... would no more fall within a secondary effects exception than does the St. Paul ordinance. Second, the majority’s focus on the statute’s general prohibition on discrimination glosses over the language of the specific regulation governing hostile working environment, which reaches beyond any “incidental” effect on speech. If the relationship between the broader statute and specific regulation is sufficient ... then all St. Paul need do to bring its ordinance within this exception is to add some prefatory language concerning discrimination generally. As the third exception to the Court’s theory for deciding this case, the majority concocts a catchall exclusion to protect against unforeseen problems. ... This final exception would apply in cases in which “there is no realistic possibility that official suppression of ideas is afoot.” ... [T]his case does not concern the official suppression of ideas. The majority discards this notion out-of-hand. . .

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

II ... | would decide the case on overbreadth grounds. .. . In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court relied upon two of the categories of speech and expressive conduct that fall outside the First Amendment’s protective sphere: words that incite “imminent lawless action,” Brandenburg v. Ohio (1969), and “fighting” words, Chaplinsky.... [It] drew upon the definition of fighting words that appears in Chaplinsky—words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” However, [it] was far from clear in identifying the “injuries” inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized ... that “the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias.” I therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that “by its very utterance” causes “anger, alarm or resentment.” Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected. See United States v. Eichman (1990); Texas v. Johnson (1989); Hustler Magazine, Inc. v. Falwell (1988); Cohen v. California (1971). In the First Amendment context, “[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Houston v. Hill (1987). The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes: criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. The ordinance is therefore fatally overbroad and invalid on its face. ...

ms JUSTICE BLACKMUN, concurring in the judgment. ... .. [T]he Court seems to abandon the categorical approach, and inevitably to relax the level of scrutiny applicable to content-based laws. As Justice White points out, this weakens the traditional protections of speech. If all expressive activity must be accorded the same protection, that protection will be scant. ...It is sad that in its effort to reach a satisfying result in this case, the Court is willing to weaken First Amendment protections... .|I fear that the Court has been distracted from its proper mission by the temptation to decide the issue over “politically correct speech” and “cultural diversity,” neither of which is presented here|... I concur in the judgment ... because I agree with Justice White that this particular ordinance reaches beyond fighting words to speech protected by the First Amendment. a

JUSTICE

STEVENS,

with

whom

JUSTICE

WHITE

and

JUSTICE

BLACKMUN join as to Part I, concurring in the judgment. Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or

751

752

How To INTERPRET THE CONSTITUTION

PARTIV

a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team. There are legitimate, reasonable, and neutral justifications for such special rules. This case involves the constitutionality of one such ordinance. Because the regulated conduct has some communicative content—a message of racial, religious or gender hostility—the ordinance raises two quite different First Amendment questions. Is the ordinance “overbroad” because it prohibits too much speech? If not, is it “underbroad” because it does not prohibit enough speech? In answering these questions, my colleagues today wrestle with two broad principles: first, that certain “categories of expression [including fighting words] are ‘not within the area of constitutionally protected speech,” (White, J., concurring); and second, that “contentbased regulations [of expression] are presumptively invalid.” (Opinion of the Court.) Although in past opinions the Court has repeated both of these maxims, it has—dquite rightly—adhered to neither with the absolutism suggested by my colleagues. Thus, while I agree that the St. Paul ordinance is unconstitutionally overbroad for the reasons stated in Part II of Justice White’s opinion, I write separately to suggest how the allure of absolute principles has skewed the analysis of both the majority and concurring opinions.

I Fifty years ago, the Court articulated a categorical approach to First Amendment jurisprudence. Chaplinsky.... The Court today revises this categorical approach. It is not, the Court rules, that certain “categories” of expression are “unprotected,” but rather that certain “elements” of expression are wholly “proscribable.” To the Court, an expressive act, like a chemical compound, consists of more than one element. Although the act may be regulated because it contains a proscribable element, it may not be regulated on the basis of another (nonproscribable) element it also contains. Thus, obscene antigovernment speech may be regulated because it is obscene, but not because it is antigovernment. It is this revision of the categorical approach that allows the Court to assume that the St. Paul ordinance proscribes only fighting words, while at the same time concluding that the ordinance is invalid because it imposes a content-based regulation on expressive activity. As an initial matter, the Court’s revision of the categorical approach seems to me something of an adventure in a doctrinal wonderland, for the concept of “obscene antigovernment” speech is fantastical. ...

I am, however, even more troubled by the second step of the Court’s analysis—namely, its conclusion that the St. Paul ordinance is an unconstitutional content-based regulation of speech. Drawing on

broadly

worded

content-based

dicta, the Court

regulations

establishes

of expression

and

a near-absolute

holds

that

ban

the

on

First

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

Amendment prohibits the regulation of fighting words by subject matter. Thus, while the Court rejects the “all-or-nothing-at-all” nature of the categorical approach, it promptly embraces an absolutism of its own: within a particular “proscribable” category of expression, the Court holds, a government must either proscribe all speech or no speech at all. This aspect of the Court’s ruling fundamentally misunderstands the role and constitutional status of content-based regulations on speech, with conflicts of First Amendment nature the very JERE REDE, and disrupts well settled principles of First Amendment

aw.

Although the Court has, on occasion, declared that content-based

regulations

of speech

are “never

permitted,”

Police Dept. v. Mosley

(1972), such claims are overstated. ... Contrary to the broad dicta in

Mosley and elsewhere, our decisions demonstrate that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First

\mendment,

This is true at every level of First Amendment law. In broadest terms, our entire First Amendment jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is determined by the content of expressive activity: Although the First Amendment broadly protects “speech,” it does not protect the right to “fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort.” ... Similarly, “the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say.” American Mini Theatres (plurality opinion). Likewise, whether speech falls within one of the categories of “unprotected” or “proscribable” expression is determined, in part, by its content. Whether a magazine is obscene, a gesture a fighting word, or a photograph child pornography is determined, in part, by its content. Even within categories of protected expression, the First Amendment status of speech is fixed by its content. New York Times and Dun & Bradstreet establish that the level of protection given to speech depends upon its subject matter: speech about public officials or matters of public concern receives greater protection than speech about other topics.... Consistent with this general premise, we have frequently upheld content-based regulations of speech. For example, in American Mini Theatres, the Court upheld zoning ordinances that regulated movie theaters based on the content of the films shown. In Pacifica Foundation (plurality opinion), we upheld a restriction on the broadcast of specific indecent words. In Lehman (plurality opinion), we upheld a city law that permitted commercial advertising, but prohibited political advertising, on city buses. In Broadrick v. Oklahoma (1973), we upheld a state law that restricted the speech of state employees, but only as concerned partisan political matters. We have long recognized the power of the Federal Trade Commission to regulate misleading advertising and labeling, see, e.g., Siegel Co. v. FTC (1946), and the National Labor Relations Board’s power to regulate an employer’s election-related speech on the basis of its content. See, e.g., NLRB v.

753

754

How TO INTERPRET THE CONSTITUTION

Part IV

Gissel Packing (1969). It is also beyond question that the Government may choose to limit advertisements for cigarettes, but not for cigars; choose to regulate airline advertising, see Morales, but not bus advertising; or choose to monitor solicitation by lawyers, see Ohralik, but not by doctors. All of these cases involved the selective regulation of speech based on content—precisely the sort of regulation the Court invalidates today... . Disregarding this vast body of case law, the Court today goes beyond even the overstatement in Mosley and applies the prohibition on content-based regulation to speech that the Court had until today considered wholly “unprotected” by the First Amendment—namely, fighting words. This new absolutism in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment law.

Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of secondclass expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly “unprotected,” it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech. Yet in ruling that proscribable speech cannot be regulated based on subject matter, the Court does just that.... The Court today turns First Amendment law on its head: Communication that was once entirely unprotected (and that still can be wholly proscribed) is now entitled to greater protection than commercial speech—and possibly greater protection than core political speech. See Burson v. Freeman (1992). Perhaps because the Court recognizes these perversities, it quickly offers some ad hoc limitations on its newly extended prohibition on content-based regulations. ... [But] [j]ust as Congress may determine that threats against the President entail more severe consequences than other threats, so St. Paul’s City Council may determine that threats based on the target’s race, religion, or gender cause more severe harm to both the target and to society than other threats. This latter judgment—that harms caused by racial, religious, and gender-based invective are qualitatively different from that caused by other fighting words—seems to me eminently reasonable and realistic. .. .

Similarly, it is impossible to reconcile the Court’s analysis of the St. Paul ordinance with its recognition that “a prohibition of fighting words that are directed at certain persons or groups ... would be facially valid.” ... Whether the selective proscription of proscribable speech is defined by the protected target (“certain persons or groups’) or the basis of the harm (injuries “based on race, color, creed, religion or gender”) makes no constitutional difference: what matters is whether the

legislature’s selection is based on a legitimate, neutral, and reasonable distinction.

In sum, the central premise of the Court’s ruling—that “contentbased regulations are presumptively invalid”—has simplistic appeal, but lacks support in our First Amendment jurisprudence. To make matters worse, the Court today extends this overstated claim to reach categories of hitherto unprotected speech and, in doing so, wreaks havoc

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

in an area of settled law. Finally, although the Court recognizes exceptions to its new principle, those exceptions undermine its very conclusion that the St. Paul ordinance is unconstitutional. Stated directly, the majority’s position cannot withstand scrutiny.

Il _ Although I agree with much of Justice White’s analysis, I do not join Part I-A of his opinion because I have reservations about the “categorical approach” to the First Amendment.... Admittedly, the categorical approach to the First Amendment has some appeal: either expression is protected or it is not—the categories create safe harbors for governments and speakers alike. But this approach sacrifices subtlety for clarity and is... ultimately unsound... . Perhaps sensing the limits of such an all-or-nothing approach, the Court has applied its analysis less categorically than its doctrinal statements suggest. The Court has recognized intermediate categories of speech (for example, for indecent nonobscene speech and commercial speech) and geographic categories of speech (public fora, limited public fora, nonpublic fora) entitled to varying levels of protection.... [T]he history of the categorical approach is largely the history of narrowing the categories of unprotected speech.

Ifl ... Unlhke the Court, I do not believe that all content-based regulations are equally infirm and presumptively invalid; unlike Justice White, I do not believe that fighting words are wholly unprotected by the First Amendment. To the contrary, I believe our decisions establish a more complex and subtle analysis, one that considers the content and context of the regulated speech, and the nature and scope of the restriction on speech... .

In applying this analysis to the St. Paul ordinance, I assume arguendo—as the Court does—that the ordinance regulates only fighting words and therefore is not overbroad. Looking to the content and character of the regulated activity, two things are clear. First, by hypothesis the ordinance bars only low-value speech, namely, fighting words. ... Second, the ordinance regulates “expressive conduct [rather] than... the written or spoken word.” Texas v. Johnson.

Looking to the context of the regulated activity, it is again significant that the statute (by hypothesis) regulates only fighting words. Whether words are fighting words is determined in part by their context. Fighting words are not words that merely cause offense; fighting words must be directed at individuals so as to “by their very utterance inflict injury.” By-hypothesis, then, the St. Paul ordinance restricts speech in confrontational and potentially violent situations. The case at hand is illustrative. The cross-burning . . . —directed as it was to a single African-American family trapped in their home—was nothing more than a crude form of physical intimidation. That this cross-burning sends a message of racial hostility does not automatically endow it with complete constitutional protection. Significantly, the St. Paul ordinance regulates speech not on the basis of its subject matter or the viewpoint expressed, but rather on the basis of the harm the speech causes. In this regard, the Court fundamentally misreads the St. Paul ordinance. The Court describes

755

756

How To INTERPRET THE CONSTITUTION

PARTIV

the St. Paul ordinance as regulating expression “addressed to one of [several] specified disfavored topics,” as “policing disfavored subjects,” and as “prohibit[ing] ... speech solely on the basis of the subjects the speech addresses.” (Emphases supplied [by Justice Stevens].) Contrary to the Court’s suggestion, the ordinance regulates only a subcategory of expression that causes injuries based on “race, color, creed, religion or gender,” not a subcategory that involves discussions that concern those characteristics.!... Moreover, even if the St. Paul ordinance did regulate fighting words based on its subject matter, such a regulation would, in my opinion, be constitutional. .. . [S]ubject-matter regulations generally do not raise the same concerns of government censorship and the distortion of public discourse presented by viewpoint regulations. ... Contrary to the suggestion of the majority, the St. Paul ordinance does not regulate expression based on viewpoint. The Court contends that the ordinance requires proponents of racial intolerance to “follow the Marquis of Queensbury Rules” while allowing advocates of racial tolerance to “fight freestyle.” The law does no such thing. . . The St. Paul ordinance is evenhanded. In a battle between advocates of tolerance and advocates of intolerance, the ordinance does not prevent either side from hurling fighting words at the other on the basis of their conflicting ideas, but it does bar both sides from hurling such words on the basis of the target’s “race, color, creed, religion or gender.” To extend the Court’s pugilistic metaphor, the St. Paul ordinance simply bans punches “below the belt”—by either party. It does not, therefore, favor one side of any debate. Finally, it is noteworthy that the St. Paul ordinance is, as construed by the Court today, quite narrow. The St. Paul ordinance does not ban all “hate speech,” nor does it ban, say, all cross-burnings or all swastika displays. Rather it only bans a subcategory of the already narrow category of fighting words. Such a limited ordinance leaves open and protected a vast range of expression on the subjects of racial, religious, and gender equality. As construed by the Court today, the ordinance certainly does not “‘raise the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.’ ” Petitioner is free to burn a cross to announce a rally or to express his views about racial supremacy, he may do so on private property or public land, at day or at night, so long as the burning is not 1 The Court contends that this distinction is “wordplay,” reasoning that “what makes [the harms caused by race-based threats] distinct from [the harms] produced by other fighting words is... the fact that [the former are] caused by a distinctive idea.” (Emphasis added [by Justice Stevens].) In this way, the Court concludes that regulating speech based on the injury it causes is no different from regulating speech based on its subject matter. This analysis fundamentally miscomprehends the role of “race, color, creed, religion [and] gender” in contemporary American society. One need look no further than the recent social unrest in the Nation’s cities to see that race-based threats may cause more harm to society and to

individuals than other threats. [Stevens was referring to the riots that swept Los Angeles in April and May 1992 after a state jury acquitted four policemen of brutally beating Rodney King, a black man they had arrested—Kds.] Just as the statute prohibiting threats against the President is justifiable because of the place of the President in our social and political order, so a statute prohibiting race-based threats is justifiable because of the place of race in our social and political order. Although it is regrettable that race occupies such a place and is so incendiary an issue, until the Nation matures beyond that condition, laws such as St. Paul’s ordinance will remain reasonable and justifiable. [Footnote by Justice Stevens.]

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

so threatening and so directed at an individual as to “by its very [execution] inflict injury.” Such a limited proscription scarcely offends the First Amendment. ... Thus, were the ordinance not overbroad, I would vote to uphold 1t.

EDITORS’ NOTES (1) Query: The opinions in this case are passionate as well as prolix and require careful reading and rereading. What were the chief issues of disagreement among the justices? What role did the text itself play in the debate? Did originalism play any role in Justice Scalia’s opinion? (See his “Originalism: The Lesser Evil,” reprinted above, p. 231).

(2) Query: Did Scalia’s opinion focus single-mindedly on the First Amendment, to the exclusion of other textual provisions (and the values they serve) such as the Equal Protection Clause of the Fourteenth Amendment, to say nothing of the Thirteenth Amendment? For a critique along these lines, see Akhil Reed Amar, “The Case of the Missing Amendments: R.A.V. v. City of St. Paul,” 106 Harv.L.Rev. 124 (1992); for a response, see Alex Kozinski & Eugene Volokh, “A Penumbra Too Far,” 106 ibid. 1639 (1998). (83) Query: To what extent is it fair to say that Scalia accepted the notion that the First Amendment (and by implication the entire Constitution) requires governmental neutrality between those who advocate the goals and ideals of the Constitution (e.g., equal concern and respect for all citizens, and securing the status of equal citizenship for all) and those who would destroy those goals and ideals? (Cf. Holmes’s claim in Abrams, quoted above at pp. 697-698.) To the extent this characterization is correct, did Scalia reject (not only for judges but for all other public officials as well) an aspirational approach to constitutional interpretation that would empower them to seek to secure the status of equal citizenship for all?

(4) Query: Does the St. Paul ordinance discriminate on the basis of viewpoint, as Scalia argues? Who, in Scalia’s view, gets to “fight freestyle,” and who is required to “follow Marquis of Queensbury Rules” (to play fair)? Or, to the contrary, is the ordinance evenhanded, as Stevens argues? (5) Query: What does Blackmun mean when he expresses “the fear that the Court has been distracted from its proper mission by the temptation to decide the issue over ‘politically correct speech’ and ‘cultural diversity,’ neither of which is presented here”? Is his fear well founded?

(6) Query: Compare the Canadian Supreme Court’s decision in Queen v. Keegstra (1990), which sustained an anti-hate speech law very much like St. Paul’s. Amendments to that country’s constitutional text adopted in 1981 included § 2: Everyone has the following fundamental freedoms... (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. ...

757

758

How TO INTERPRET THE CONSTITUTION

ParRT IV

Still, a close 4-3 majority reasoned that the law was constitutional because it furthered democratic principles and because racial, ethnic, or religious slurs were not essential to the purposes of free expression. In stark contrast to Scalia’s opinion, Chief Justice Dickson stated for the majority:

While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as those other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of § 2(b). Which premise, Scalia’s that government must be neutral about the content of speech or Dickson’s that a free society need not be completely neutral, better fits with democratic theory? With constitutionalist theory aimed at securing equal concern and respect for all? With the best interpretation of the American Constitution? (7) Despite R.A.V., Wisconsin v. Mitchell (1993) unanimously upheld a statute imposing harsher sentences on criminals who intentionally select their victims on the basis of race, religion, color, disability, sexual orientation, national origin, or ancestry. But in Capital Square Review Bd. v. Pinette (1995), a 7-2 ruling held, under the First Amendment, that a municipality could not bar the Ku Klux Klan from erecting a cross on a public square open to other forms of private expression. (8) In Virginia v. Black (2003), the Court held 6—3 that states may make it a crime to burn a cross with a purpose to intimidate, provided that the law clearly puts the burden on prosecutors to prove that the act was intended as a threat and not as a form of symbolic expression. The Court, however, held that the Virginia statute at issue was unconstitutional. Three justices (Souter, Kennedy, and Ginsburg) argued that all cross burning laws are unconstitutional. Dissenting, Justice Thomas argued that the statute addressed only conduct, not speech, and so “there is no need to analyze it under any of our First Amendment tests.” He argued that the message of cross burning is a form of terror and intimidation that does not qualify as protected expression. Query: Did R.A.V. imply that cross burning could not be treated as a crime? In Black, Justice O’Connor’s opinion of the Court said that “[a] ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.” Notwithstanding O’Connor, does Black undercut or at least narrow R.A.V.?

C.

DEFAMATION OF PUBLIC OFFICIALS AND PUBLIC FIGURES “[Wle consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

sometimes unpleasantly public officials.”

sharp attacks

on government

and

[New York Times v. Sullivan] 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) _This case, involving a state’s power to award damages in a libel action brought by public officials against critics of their official conduct, 1s reprinted above, at p. 706.

D.

OFFENSIVE EXPRESSION “We cannot sanction the view that the Constitution little or no regard for that emotive function which often be the more important element in the message.”—Justice HARLAN “Cohen’s absurd and immature behavior was conduct and little speech.”—Justice BLACKMUN

... has ... may overall mainly

Cohen v. California 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) Paul Robert Cohen was sentenced to 30 days imprisonment for violating a state law against disturbing “the peace or quiet of any neighborhood or person.” To protest the draft and the war in Vietnam, he had gone to a state courthouse, wearing a jacket bearing the slogan, “Fuck the draft.” There was no evidence that he had spoken any words in the courthouse prior to his arrest. An appellate court sustained the conviction, the California supreme court refused review, and Cohen appealed to the U.S. Supreme Court. = MR.

JUSTICE HARLAN delivered the opinion of the Court... .

12% The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct” which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech,” not upon any separately identifiable conduct.... Cf. United States v. O’Brien (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent | to incite disobedience to or disruption of the draft, Cohen could not,|

consistently with the First and Fourteenth Amendments, be punished | for asserting the evident position on the inutility or immorality of the’

draft his jacket reflected. Yates v. United States (1957). Appellant’s conviction, then, rests squarely upon his exercise of the “freedom of speech” protected from arbitrary governmental interference by the

Constitution

and

can

be justified,

if at all, only as

a valid

regulation of the manner in which he exercised that freedom, not as a, permissible prohibition on the substantive message it conveys. This

759

760

How TO INTERPRET THE CONSTITUTION

PARTIV

does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here. In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail. ... In the second place ... this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case... . It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulationin anyone likely to be confronted with Cohen’s crudely defaced jacket. This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words.” ... Chaplinsky v. New Hampshire (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not “directed to the person of the hearer.” Cantwell v. Connecticut (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York (1951). There is ... no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result. Finally ... much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive.... Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. While this Court has recognized that government may properly act many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., Rowan y. Post Office Dept. (1970), we have at the same time consistently stressed that “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.” Ibid. a ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other wo: S, dependent upon a showing that substantial privacy interests are b g invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections. .. .

II wee [T]he issue flushed by this case stands out in bold relief. It is whether California can excise, as “offensive conduct,” one particular

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary. _ The rationale of the California court is plainly untenable. At most it reflects an “undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. . . Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. We think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.

... [W]e cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions ... to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and

intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely: into the hands of each of us, in the hope that use of such freedom will timately produce a more capable citizenry and more perfect polity and

in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California (1927) (Brandeis, J., concurring). To many, the immediate consequence of this freedom may often, appear to be only verbal tumult, discord, and even offensive utterance, These are, however, within established limits, in truth necessary side’ effects of the broader enduring values which the process of open debate:

permits us to achieve. That the air may at times seem filled with verbal , cacophony is, in this sense not a sign of weakness but of strength. . . .

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being

761

762

How TO INTERPRET THE CONSTITUTION

PARTIV

litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Additionally, we cannot overlook ... that much _ linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well: In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content. of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated... . Finally ... we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views... . Reversed.

= MR. JUSTICE BLACKMUN, with whom and MR. JUSTICE BLACK join.

the CHIEF JUSTICE

[BURGER]

I dissent. ... 1. Cohen’s absurd and immature behavior was mainly conduct and little speech. ... Further, the case appears to me to be well within the sphere of Chaplinsky.... As a consequence, this Court’s agonizing First Amendment values seems misplaced and unnecessary. 2. I am not at all certain that the California Court of Appeal’s construction of [the state statute] is now the authoritative California construction. ... = Mr. JUSTICE WHITE concurs in para. 2 of MR. JUSTICE BLACKMUN’S dissenting opinion. EDITORS’ NOTES

(1) Query: Recall that in Chaplinsky (1942; reprinted above, p. 732), the Court had listed “profane” and “insulting or ‘fighting’ words” as categories of unprotected expression. To what extent did Cohen undermine these categories and accord full protection under the First Amendment to such expression?

(2) Query: Did Chaplinsky presuppose that the First Amendment protects only the cognitive content of a message to the exclusion of its emotive force? Did Cohen reject this rationalistic model of freedom of expression?

(3) Query: What conception of self-government does Harlan’s opinion elaborate or presuppose? Does he imply that a “more capable citizenry” and a “more perfect polity” will consist of thick-skinned citizens who are capable of absorbing the “bombardment” of vulgar expression rather than squeamish, easily offended citizens? Does he make the case that such a conception of self-government is embodied in the Constitution? Are there

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

alternative conceptions of self-government (giving greater latitude to the government to act as “guardians of public morality”) that are plausibly attributable to the Constitution? (4) For discussions of Cohen, see David L. Paletz and William F. Harris II, “Four-Letter Threats to Authority,” 37 Jo. of Pols. 955 (1975); and Daniel Farber, “Civilizing Public Discourse: An Essay on Professor Bickel,

Justice Harlan, and 1980 Duke L.J. 288.

the Enduring

Significance

of Cohen

v. California,”

(5) The strongest dissent against the principles enunciated in Cohen came a year later, after Lewis F. Powell had replaced Hugo Black and William Rehnquist had taken John Marshall Harlan II’s place. The Court remanded three cases—Rosenfeld v. New Jersey (1972), Lewis v. New Orleans (1972), and Brown v. Oklahoma (1972)—to lower courts for reconsideration in light of Cohen and Gooding v. Wilson (1972; discussed above, p. 735). Powell, joined by Burger and Blackmun, dissented, noting that Rosenfeld had spoken before an audience of about 150 people, including about 40 children and 25 women, and had used “the adjective ™M. F ’ on four occasions, to describe the teachers, the school board, the town and his own country.” He had been convicted under a state statute making it disorderly conduct to utter indecent language in a public place. Powell added: The preservation of the right to free and robust speech is accorded high priority in our society and under the Constitution. Yet, there are other significant values. One of the hallmarks of a civilized society is the level and quality of discourse. We have witnessed in recent years a disquieting deterioration in the standards of taste and civility in speech. For the increasing number of persons who derive satisfaction from vocabularies dependent upon filth and obscenities, there are abundant opportunities to gratify their debased tastes. ... The shock and sense of affront, and sometimes the injury to mind and spirit, can be as great from words as from some physical attacks. ... Chief Justice foreboding:

Burger—joined

by Blackmun

and

Rehnquist—was

more

It is barely a century since men in parts of this country carried guns constantly because the law did not afford protection. In that setting, the words used in these cases, if directed toward such an armed civilian, could well have led to death or serious bodily injury. When we undermine the general belief that the law will give protection against fighting words and profane and abusive language such as the utterances involved in these cases, we take steps to return to the law of the jungle. ...

Query: Do cases like Cohen, Gooding, and Rosenfeld suggest that changes in American culture (from a more civilized to a more vulgar culture) have changed the meaning of the Constitution?

763

764

PART IV

How TO INTERPRET THE CONSTITUTION

E.

HARMFUL EXPRESSION “The Constitution forbids the state perspective right and silence opponents.”

to

declare

one

American Booksellers Association, Inc. v. Hudnut 771 F.2d 323 (U.S. Court of Appeals, 7th Cir. 1985)

The Supreme Court has held that “obscenity” is an unprotected category of expression. To be “obscene,” a publication “must, taken mae whole, appeal to the prurient interest, must contain patently offen, depictions or descriptions of specified sexual conduct, and on the w have no serious literary, artistic, political, or scientific value.” BUGERSt v. Spokane Arcades, Inc. (1985) (interpreting Miller v. California i973). Both offensiveness assessed by the standards of the community and an appeal to something other than “normal, healthy sexual desires” are essential elements of “obscenity.” Jd. Pornography as distinguished from obscenity, however, has historically received First Amendment protection.

Conceiving pornography as denigrating women, Catharine A. MacKinnon and Andrea Dworkin drafted an anti-pornography ordinance that the Minneapolis City Council adopted in 1983. The Mayor, however, vetoed it as infringing on freedom of speech and press. Subsequently, Indianapolis adopted a similar ordinance, which prohibited people to “traffic? in pornography, “coerce” others into performing in pornographic works, or “force” pornography on anyone. It also provided that anyone injured by someone who has seen or read pornography could sue the maker or seller. A number of distributors and readers of books, magazines, and films challenged the constitutionality of the ordinance, arguing that it violated the First Amendment. The district court held it unconstitutional. The City appealed to the Court of Appeals for the Seventh Circuit. s EASTERBROOK, CIRCUIT JUDGE. .

“Pornography” under the beazalth ce is “the graphic sexually explicit ‘subordination of women, whether in pictures or in words, that also includes [presenting women]”:

(1)... as sexual objects who enjoy pain or humiliation; or (2)... as sexual objects who experience sexual pleasure in being raped: or (3)... as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) ... as being penetrated by objects or animals; or (5)... in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) PY "as sexual objects for domination, conquest, violation,

exploitation, possession, or use, or through postures or positions of

servility or submission or display.

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

765

The statute provides that the “use of men, children, or transsexuals in the place of women in paragraphs (1) through (6) above shall also constitute pornography under this section.” The ordinance as passed in April 1984 defined “sexually explicit” to mean actual or simulated intercourse or the uncovered exhibition of the genitals, buttocks or anus. An amendment

term undefined.

in June

1984 deleted this provision, leaving the

The Indianapolis ordinance does not refer to the prurient interest, to offensiveness, or to the standards of the community. It demands attention to particular depictions, not to the work judged as a whole. It is irrelevant under the ordinance whether the work has literary, artistic, political, or scientific value. The City and many amici point to these omissions as virtues. They maintain that pornography influences attitudes, and the statute is a way to alter the socialization of men and women rather than to vindicate community standards of offensiveness. And as one of the principal drafters of the ordinance has asserted, “if a woman is subjected, why should it matter that the work has other value?” Catharine A. MacKinnon, “Pornography, Civil Rights, and Speech,” 20 Harv. Civ. Rts.—Civ.Lib.L.Rev. 1, 21 (1985). ... We do not try to balance the arguments for and against an ordinance such as this. The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way—in sexual encounters “premised on equality” (MacKinnon, supra, at 22)—is lawful no matter how sexually explicit. Speech treating women in the disapproved way—as submissive in matters sexual or as enjoying humiliation—is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole. The state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and_ silence opponents....

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. St. Bd. of Ed’n v. Barnette (1943). Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be.... A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful. The ideas of the Klan may be propagated. Brandenburg v. Ohio (1969). Communists may speak freely and run for office. De Jonge v. Oregon (1937). The Nazi Party may march through a city with a large Jewish population. Collin v. Smith (7th Cir.), cert. denied (1978).... People may teach religions that others despise. People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke the constitutional amendments granting the vote to blacks and women. They may do this because “above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas. .. .” Police Department v. Mosley (1972).

=

766

PaRTIV

How TO INTERPRET THE CONSTITUTION

Under the ordinance graphic sexually explicit speech is “pornography” or not depending on the perspective the author adopts. Speech that “subordinates” women ... is forbidden, no matter how great the literary or political value of the work taken as a whole. Speech that portrays women in positions of equality is lawful, no matter how graphic the sexual content. This is thought control. It establishes an “approved” view of women, of how they may react to sexual encounte of how the sexes may relate to each other. Those who espouse the approved view may use sexual images; those who do not, may not. Indianapolis justifies the ordinance on the _ ground that pornography affects thoughts. Men who see women depicted as subordinate are more likely to treat them so. Pornography is an aspect of dominance. It does not persuade people so much as change them. It works by socializing, by establishing the expected and the permissible. In this view pornography is not an idea; pornography is the injury. There is much to this perspective. Beliefs are also facts. People often act in accordance with the images and patterns they find around them. People raised in a religion tend to accept the tenets of that religion, often without independent examination. People taught from birth that black people are fit only for slavery rarely rebelled against that

creed;

beliefs

coupled

with

the

self-interest

of the

masters

established a social structure that inflicted great harm while enduring for centuries. Words and images act at the level of the subconscious before they persuade at the level of the conscious. Even the truth has little chance unless a statement fits within the framework of beliefs that may never have been subjected to rational study. Therefore we accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets.!... Yet this simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental intermediation. Pornography affects how people see the world, their fellows, and social relations. If pornography is what pornography does, so is other speech. Hitler’s orations affected how some Germans saw Jews. Communism is a world view, not simply a Manifesto by Marx and Engels or a set of speeches. Efforts to suppress communist speech in the United States were based on the belief that the public acceptability of such ideas would increase the likelihood of totalitarian government. Religions affect socialization in the most pervasive way.... Many people believe that the existence of television, apart from the content of specific programs, leads to intellectual laziness, to a penchant for violence, to many other ills. The Alien and Sedition Acts passed during the administration of John Adams rested on a sincerely held belief that disrespect for the government leads to social collapse and revolution—a ‘ MacKinnon’s article collects empirical work that supports this proposition. The social science studies are very difficult to interpret, however, and they conflict... . In saying that we accept the finding that pornography as the ordinance defines it leads to unhappy

consequences,

we

mean

only that

there

is evidence

to this effect,

that

this

evidence

is

consistent with much human experience, and that as judges we must accept the legislative resolution of such disputed empirical questions. See Gregg v. Georgia (1976) (opinion of Stewart, Powell, and Stevens, J.J.). [Footnote by the Court.]

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

belief with support in the history of many nations. Most governments of the world act on this empirical regularity, suppressing critical speech. In the United States, however, the strength of the support for this belief is irrelevant. Seditious libel is protected speech unless the danger is not only grave but also imminent. See New York Times Co. v. Sullivan (1964); cf. Brandenburg; New York Times Co. v. United States (1971). _ Racial bigotry, anti-semitism, violence on television, reporters’ biases—these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in the popular culture. Yet all is protected as speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us. Sexual responses often are unthinking responses, and the association of sexual arousal with the subordination of women therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious responses. Religious ceremonies condition their participants. Teachers convey messages by selecting what not to cover.... Television scripts contain unarticulated assumptions. People may be conditioned in subtle ways. If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech.

It is possible to interpret the claim that pornography is the harm in a different way. Indianapolis emphasizes the injury that models in pornographic films and pictures may suffer. The record contains materials depicting sexual torture, penetration of women by red-hot irons and the like. These concerns have nothing to do with written materials subject to the statute, and physical injury can occur with or without the “subordination” of women. [A] state may make injury in the course of producing a film unlawful independent of the viewpoint expressed in the film. The more immediate point, however, is that the image of pain is not necessarily pain. In Body Double, a suspense film directed by Brian DePalma, a woman who has disrobed and presented a sexually explicit display is murdered ... —yet no one believes that the actress suffered pain or died. In Barbarella a character played by Jane Fonda is at times displayed in sexually explicit ways and at times shown “bleeding, bruised, [and] hurt in a context that makes these conditions sexual’— and again no one believes that Fonda was actually tortured to make the film. In Carnal Knowledge a woman grovels to please the sexual whims of a character played by Jack Nicholson; no one believes that there was a real sexual submission, and the Supreme Court held the film protected by the First Amendment. Jenkins v. Georgia (1974). And this works both ways. The description of women’s sexual domination of men in Lysistrata was not real dominance. Depictions may affect slavery, 7 sexual roles, but a book about slavery is not itself slavery, or a

book about death by poison a murder. Much

of Indianapolis’s

argument

rests on the belief that when

that there is .a and the metaphor speech is “unanswerable,” does not Amendment First the apply, not does ideas” of “marketplace

apply either. The metaphor is honored; Milton’s Aeropagitica and John Stewart [sic] Mill’s On Liberty defend freedom of speech on the ground

767

768

PART IV

How TO INTERPRET THE CONSTITUTION

that the truth will prevail, and many of the most important cases under the First Amendment recite this position. The Framers undoubtedly believed it. As a general matter it is true. But the Constitution does not make the dominance of truth a necessary condition of freedom of speech. To say that it does would be to confuse an outcome of free speech with a necessary condition for the application of the amendment. A power to limit speech on the ground that truth has not yet prevailed and is not likely to prevail implies the power to declare truth. ... Under the First Amendment, however, there is no such thing as a false idea, Gertz v. Robert Welch, Inc. (1974), so the government may not restrict speech on the ground that in a free exchange truth is not yet dominant.... We come, finally, to the argument that pornography is “low value” speech, that it is enough like obscenity that Indianapolis may prohibit it. Some cases hold that speech far removed from politics and other subjects at the core of the Framers’ concerns may be subjected to special regulation. E.g., FCC v. Pacifica Foundation (1978); Young v. American Mini Theatres (1976) (plurality opinion); Chaplinsky (1942). [But t]hese cases do not sustain statutes that select among viewpoints... . At all events, “pornography” is not low value speech within the meaning of these cases.... But Indianapolis left out of its definition any reference to literary, artistic, political, or scientific value. The ordinance applies to graphic sexually explicit subordination in works great and small.2 The Court sometimes balances the value of speech against the costs of its restriction, but it does this by category of speech and not by the content of particular works. Indianapolis has created an approved point of view and so loses the support of these cases.

Any rationale we could imagine in support of this ordinance could not be limited to sex discrimination. Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. Culture is a powerful force of continuity; Indianapolis paints pornography as part of the culture of power. Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is... . Affirmed. = SWYGERT, SENIOR CIRCUIT JUDGE, concurring. .

2

Indianapolis

briefly argues

that

Beauharnais

v. Illinois

ordinance. In Collin, we concluded that cases such as New

.

(1952)

...

supports

York Times had so washed

the away

the foundations of Beawharnais that it could not be considered authoritative. If we are wrong

in this, however, the case still does not support the ordinance. It is not clear that depicting women as subordinate in sexually explicit ways, even combined with a depiction of pleasure in

rape, would fit within the definition of a group libel. The well received film Swept Away used explicit sex, plus taking pleasure in rape, to make a political statement, not to defame. Work must be an insult or slur for its own sake to come within the ambit of Beauharnais, and a ae on not be scurrilous at all to be “pornography” under the ordinance. [Footnote by the ourt.

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

EDITORS’ NOTES

(1) In 1986 the Supreme Court summarily affirmed the decision of the Seventh Circuit. Chief Justice Burger and Justices Rehnquist and O’Connor dissented, urging that the case be set for oral argument. (2) Easterbrook in Hudnut and, to some extent, Scalia in R.A.V. adopt Holmes’s position in Gitlow v. New York (1925) that the First Amendment requires government to be neutral to the outcomes of political debates. Query: Is this a sound interpretation of the First Amendment? Of the Constitution as a whole?

(3) Query: Is the remedy of more speech or writing, rather than enforced silence (Whitney [1927 (Brandeis, J., concurring); reprinted above, p. 713]), likely to be effective in protecting women against pornography? Some feminists argue that pornography (1) so denigrates women that it silences them and their voices will not be heard; and (2) operates on the subconscious, and is thus not directly answerable by more speech. (Such feminists point to parallels with racist speech.) Did Judge Easterbrook adequately respond to these arguments? (4) Query: Even assuming that efforts to control pornography limit freedom of communication, might a theory of reinforcing representative democracy support governmental efforts to secure the status of equal citizenship for women against practices that subordinate them? Might a constitutionalist theory concerned to secure equal concern and respect for women also justify such measures?

(5) Query: Is Easterbrook right to suggest that Beauharnais (1952; reprinted above, p. 735) is no longer good law? Is the Seventh Circuit right to say that cases like New York Times (1964; reprinted above, p. 706) have “washed away [its] foundations’? Or can Beauharnais be reconciled with such cases? (6) Enactment of MacKinnon and Dworkin’s §anti-pornography ordinance was the result of a remarkable coalition of strange bedfellows: radical feminists and the Moral Majority. See Donald A. Downs, The New Politics of Pornography (Chicago: University of Chicago Press, 1989). MacKinnon’s writings on pornography include Only Words (Cambridge: Harvard University Press, 1993); “Pornography as Defamation and Discrimination,” 71 B.U.L.Rev. 793 (1991); “Pornography, Civil Rights, and Speech,” 20 Harv.Civ.Rts.—Civ.Lib.L.Rev. 1 (1985), cited in the opinion above; and “Not a Moral Issue,” 2 Yale L. & Pol. Rev. 321 (1984). The latter two articles are reprinted in her Feminism Unmodified (Cambridge: Harvard University Press, 1987). Andrea Dworkin’s publications on the subject include Pornography: Men Possessing Women (New York: Perigee, 21 1981); and “Pornography Is a Civil Rights Issue for Women,” U.Mich.J.L.Ref. 55 (1987).

(7) In Butler v. The Queen (1992), the Supreme Court of Canada, while acknowledging that the country’s criminal obscenity law restricted freedom of expression, upheld the law on the ground that it was justifiable to ban pornography that harms women. The decision redefined “obscenity” as “sexually explicit material that involves violence or degradation.” In explicitly accepting the argument that pornography harms women, the

769

770

How TO INTERPRET THE CONSTITUTION

Part IV

Court stated: “If true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material.” Query: Which argument—that of Easterbrook or the Canadian Supreme Court—is more congruent with democratic theory? With constitutionalism? Does the best interpretation of the American Constitution preclude governmental measures to secure the status of equal citizenship for women against practices that harm and subordinate them? Does Kasterbrook’s opinion imply that Canada has slid down the slippery slope to a regime of “thought control”? If so, is this plausible? (8) Query: May Congress protect minors from “indecent” and “patently offensive” communications on the Internet? In the Communications Decency Act of 1996, Congress sought to do so. In Reno v. American Civil Liberties Union (1997), the Supreme Court, while acknowledging “the legitimacy and importance of protecting children from harmful materials,” held “that interest does not justify an unnecessarily broad suppression of speech addressed to adults” and that the Act’s “indecent, transmission” provision and its “patently offensive display” provision abridged the freedom of speech protected by the First Amendment. The Court observed that the statute’s “open-ended prohibitions” and “undefined terms ‘Indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value” and that “the ‘community standards’ criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message.” The Court also noted that the district court found that less restrictive alternatives—such as user-based software to enable parents to prevent their children from accessing material which they believe is inappropriate for them—“will soon be widely available.” Indeed, many are available now.

(9) Query: May Congress prohibit “virtual child pornography,” for example, pornography produced with computer-generated images of children who are or appear to be “engaging in sexually explicit conduct,”

rather than with actual child actors? In the Child Pornography Prevention Act of 1996, Congress attempted to do so. But in Ashcroft v. Free Speech Coalition (2002), the Supreme Court per Justice Kennedy found that the government’s justifications for the Act were insufficient and therefore invalidated it under the First Amendment on the ground that the “overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”

(10) Query: Should the Court recognize “new” categories of unprotected speech on the ground that certain types of speech are harmful? In United States v. Stevens (2010), the Court per Chief Justice Roberts declined to treat “depictions of animal cruelty, as a class, [as] categorically unprotected by the First Amendment.” (Stevens had challenged his indictment for distributing videos of dogfighting, which is illegal in all 50 states.) The Court found the statute was substantially overbroad and thus facially invalid. Justice Alito was the sole dissenter.

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

Similarly, in Brown v. Entertainment Merchants Ass’n (2011), the Court invalidated a California statute prohibiting the sale or rental of violent video games to minors. The majority opinion by Justice Scalia stated: “Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” Scalia continued: “That holding controls this case.”

F.

OUTRAGEOUS EXPRESSION “‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views.”

Hustler Magazine, Inc. v. Falwell* 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) In this case, involving Rev. Jerry Falwell’s lawsuit against Hustler Magazine based on its parody of him, the Supreme Court held that even “outrageous” parodies and caricatures that inflict severe emotional distress are protected by the First Amendment.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case... .”—Chief Justice ROBERTS

“Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered. In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.”—Justice ALITO

Snyder v. Phelps 562 U.S. __, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) a= CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

A jury held members of the Westboro Baptist Church lable for millions of dollars in damages for picketing near a soldier’s funeral *

Our edit of this case is available at www.princeton.edu/aci.

771

772

PART IV

How TO INTERPRET THE CONSTITUTION

service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case.

I A Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. [His] father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his-son’s funeral. Local newspapers provided notice of the time and location of the service.

Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You're Going to Hell,” and “God Hates You.” The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10—by 25-foot plot of public land adjacent to a public street, behind a temporary fence. That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.1

| A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. . . . [Footnote by the Court.]

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

B Phelps,

Snyder filed suit against Phelps’s daughters, and the Westboro Baptist Church (collectively Westboro or the church) in the United States District Court for the District of Maryland ... Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.... A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages.... The District Court remitted the punitive damages award to $2.1 million, but

left the jury verdict otherwise intact. [T]he Court of Appeals . concluded that Westboro’s statements were entitled to First Amendment protection. ...

II To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. The Free Speech Clause of the First Amendment—“Congress shall make no law . abridging the freedom of speech”—can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell (1988).? Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ ... is ‘at the heart of the First Amendment’s protection.” The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers (1983).

“Not all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous... . Deciding whether speech is of public or private concern requires us to examine the “‘content, form, and context’ ” of that speech, “‘as revealed by the whole record.” ... [N]o factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral 2

The

dissent

attempts

to draw

parallels

between

this case

and hypothetical

cases

involving defamation or fighting words. But, as the court below noted, there is “no suggestion that the speech at issue falls within one of the categorical” exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’ ” [Footnote by the Court.]

773

774

How TO INTERPRET THE CONSTITUTION

Part IV

conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed . . . to reach as broad a public audience as possible. And even if a few of the signs— such as “Youre Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public

issues. Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech—its connection with his son’s funeral— makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs,

displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” and the funeral setting does not alter that conclusion. . . Snyder [argues] that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” ... Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum.” That said, “[e]ven protected speech is not equally permissible in all places and at all times.” Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach— it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non—Violence (1984). Maryland now has a law imposing restrictions on funeral picketing, as do 43 other States and the Federal Government. To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.® . .

8 The Maryland law prohibits picketing within 100 feet of a funeral service or funeral ietaneer Westboro’s picketing would have complied with that restriction. [Footnote by the ourt.]

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

_ The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages. Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson (1989)... . The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler....

What Westboro

said, in the whole context of

how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous. For all these reasons, the jury verdict imposing tort liability on Westboro aside....

for intentional

infliction

of emotional

distress

must

be set

IV Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us... . Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech. Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

775

776

How TO INTERPRET THE CONSTITUTION

PART IV

That choice requires that we shield Westboro from tort liability for its picketing in this case.... = JUSTICE BREYER, concurring... . sw JUSTICE ALITO, dissenting. Our profound national commitment to free and open debate is nota license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son ... was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds.that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

I Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. ... It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or ITED). Hustler... .

Although the elements of the IIED tort are difficult to- meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence.... Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.

II ... I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by

means of speech. This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “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.” Chaplinsky v. New Hampshire (1942). When erave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

CHAPTER

12

FREEDOM

OF POLITICAL COMMUNICATION

III _ In this case, respondents brutally attacked Matthew Snyder, and this attack ... was central to respondents’ well-practiced strategy for attracting public attention. On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations.... But of course, a small group picketing at any of these locations would have probably gone unnoticed. The Westboro Baptist Church, however, has devised a strategy that remedies this problem. [C]hurch members have protested at nearly 600 military funerals. They have also picketed the funerals of police officers, firefighters, and the victims of natural disasters, accidents, and shocking crimes. And in advance of these protests, they issue press releases to ensure that their protests will attract public attention. This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9—-year—old girl killed in the shooting spree in Tucson—proclaiming that she was “better off dead’—their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest. Similarly,in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman. In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor—for a fag nation cursed by God.... Now in Hell— sine die.”... On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You” and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins... . Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual. After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!*4 4

The

Court refuses to consider the epic because

it was

not discussed in Snyder’s

petition for certiorari. The epic, however, is not a distinct claim but a piece of evidence that the

cette

778

PART IV

How To INTERPRET THE CONSTITUTION

Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly: God blessed you, Mr. and Mrs. Snyder, with a resource and his

name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil. © Jeni) je be

Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater. se

.

eee

Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that? In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not... .

IV ... The Court suggests that the assaults at funerals will be prevented by new laws that restrict picketing funeral. It is apparent, however, that substitute for the protection provided

wounds inflicted by vicious verbal or at least mitigated in the future within a specified distance of a the enactment of these laws is no by the established IIED tort....

The real significance of these new laws is not that they obviate the for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. ... Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern... . need

jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress. [Footnote by Justice Alito.]

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

VI Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered. In order to have a society in which public issues can be openly and vigorously debated, it 1s not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent. EDITORS’ NOTES (1) Query: What are the major differences between Chief Justice Robert’s and Justice Alito’s conceptions of the general framework for First Amendment analysis that the Court has applied? That the Court should apply? Which approach is more defensible? (2) In R.A.V. v. St. Paul (1992; reprinted above, p. 741), the Court suggested that, while content-based restrictions on expression are “presumptively invalid,” the government might be able to arrest speakers under general laws that were “content-neutral’ and “viewpoint-neutral) (e.g., the juvenile who burned a cross on the lawn of an African—American family might be prosecuted under general laws prohibiting arson, trespass, malicious mischief, terroristic threats, criminal damage to property, or the like). Query: Should the general tort of intentional infliction of emotional distress be viewed as a “content-based restriction” that is “presumptively invalid,” or as like those general laws that are “content-neutral”? (3) New

York Times

v. Sullivan

(1964; reprinted above, p. 706) gave

stringent protection to allegedly libelous criticism of public officials (even to speech that was false, provided that it was not made with “actual malice” or “reckless disregard” for whether it was false). Cases in its aftermath extended that stringent protection to criticism of “public figures,” but the Court declined to extend it more broadly to protect all allegedly lbelous statements that concern matters of public interest. (See Editors’ Note (4) to New York Times). Query: Does Chief Justice Roberts in effect make that extension here? (4) To prevail on a tort claim for intentional infliction of emotional distress, a plaintiff must show that the infliction was “outrageous.” Chief Justice Roberts writes: “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Query: Are Roberts’s worries about the subjectivity of “outrageous” warranted here? What would Justice Alito say?

(5) Query: Is Chief Justice Roberts’s expressed worry about public debate” through allowing persons like Matthew Snyder’s recover for intentional infliction of emotional distress here overblown? Is he giving absolute protection to First Amendment the exclusion of other important values? What would Justice Alito

“stif[ling] father to sound or values to say?

779

780

PART IV

How TO INTERPRET THE CONSTITUTION

G.

FALSE STATEMENTS OF FACT “Permitting the government to decree this speech to be a criminal offense ... would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. ... Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out.... [I]t would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”—Justice KENNEDY “(T]he Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumental purpose that the First Amendment might protect. Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.”—Justice ALITO

United States v. Alvarez 567 U.S. _, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) = JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join. Lying was his habit. Xavier Alvarez ... lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board .... in Claremont, California. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” None of this was true. For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal. Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor... . It is right and proper that Congress, over a century ago, established an award so the Nation can hold in its highest respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation,” Selective Draft Law Cases (1918), have acted with extraordinary honor. And it should be uncontested that this is a legitimate

Government

objective,

indeed

a

most

valued

national

aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

honor the brave must be consistent with the precepts of the Constitution for which they fought. The Government contends the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside. ...

II [I]In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage ... [based on] an ad hoc balancing of relative social costs and benefits.” United States v. Stevens (2010). Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expression] long familiar to the bar.’” Jd. Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio (1969); obscenity, see, e.g., Miller v. California (1973); defamation, see, e.g., New York Times Co. v. Sullivan (1964); Gertz v. Robert Welch, Inc. (1974); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co. (1949); so-called “fighting words,” see Chaplinsky v. New Hampshire (1942); child pornography, see New York v. Ferber (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976); true threats, see Watts v. United States (1969); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States (1971). These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules. Absent from those few categories where the law allows contentbased regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee. See Sullivan. The Government disagrees with this proposition. It cites language from some of this Court’s precedents to support its contention that false statements have no value and hence no First Amendment protection.... These quotations all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech at issue was

not irrelevant to our analysis, but neither was

it determinative.

The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.

781

782

PART IV

How TO INTERPRET THE CONSTITUTION

Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. See Sullivan... . The Government ... gives three examples of regulations on false speech that courts generally have found permissible: first, the criminal prohibition of a false statement made to a Government official; second, on the false and third, prohibitions perjury; laws punishing official or on Government a as speaking is one that representation behalf of the Government. These restrictions, however, do not establish a principle that all proscriptions of false statements are exempt from exacting First Amendment scrutiny. ... As our law and tradition show, then, there are instances in which the falsity of speech bears upon whether it is protected. ... This opinion does not imply that any of these targeted prohibitions are somehow vulnerable. But it also rejects the notion that false speech should be ina general category that is presumptively unprotected... .

Ill The probable, and adverse, effect of the Act on freedom of expression illustrates, in a fundamental way, the reasons for the Law’s distrust of content-based speech prohibitions. The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain. Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of

subjects the National Government or the States could single out.... Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill ... the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

IV The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. ... Although the objectives the Government seeks to further by the statute are not without significance, the Court ... find[s] the Act does not satisfy exacting scrutiny.

The Government is correct when it states military medals “serve the important public function of recognizing and expressing gratitude for acts of heroism and sacrifice in military service.”... In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its mission... . But to recite the Government’s compelling interests is not to end the matter. The First Amendment requires that the Government’s chosen restriction on the speech at issue be “actually necessary” to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented. The link between the Government’s interest in protecting the integrity of the military honors system and the Act’s restriction on the false claims of liars like respondent has not been shown... . It must be acknowledged that when a pretender claims the Medal to be his own, the le might harm the Government by demeaning the high purpose of the award, diminishing the honor it confirms, and creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may offend the true holders of the Medal.... Yet these interests do not satisfy the Government’s heavy burden when it seeks to regulate protected speech. The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. (Furthermore, the] Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a_ public meeting. ... Once the lie was made public, he was ridiculed online, his actions were reported in the press, and a fellow board member called for his resignation. There is good reason to believe that a similar fate would befall other false claimants. Indeed, the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose. . . The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.... See Whitney v. California (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from

783

784

How TO INTERPRET THE CONSTITUTION

PART IV

the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates... . It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s false claims would have been fully vindicated by the community’s expression of outrage, showing as it did the Nation’s high regard for the Medal. The same can be said for the Government’s interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradition. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication. In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restrictive means among available, effective alternatives.” There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this. . . [T]here has been no clear showing of the necessity of the statute, the necessity required by exacting scrutiny. Ctebc.

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment. a JUSTICE BREYER, with whom JUSTICE KAGAN joins, concurring in the judgment.

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis... . In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifications, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to determine whether

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

the statute works speech-related harm that is out of proportion to its justifications.

Sometimes the Court has referred to this approach as “intermediate scrutiny,” sometimes as “proportionality” review, sometimes as an examination of “fit,” and sometimes it has avoided the application of any label at all. Regardless of the label, some such approach 1s necessary if the First Amendment is to offer protection in the many instances in which a statute adversely constitutionally protected interests but warrants neither automatic condemnation (as “strict scrutiny” implies) nor automatic approval (as is implicit in “rational basis” review). used the term “proportionality” to describe this approach. But case, the Court’s term “intermediate scrutiny” describes what we should do. ...

proper affects near-

nearI have in this I think

[I] must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth. Sullivan (“Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and _ livelier impression of truth, produced by its collision with error’ (quoting J. Mill, On Liberty 15 (Blackwell ed.1947)). Moreover, ... the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby “chilling” a kind of speech that lies at the First Amendment’s heart. See, e.g., Gertz. Hence, the Court emphasizes mens rea requirements that provide “breathing room” for more valuable speech by reducing an honest speaker’s fear that he may accidentally incur liability for speaking. Further, the pervasiveness of false statements, made for better or for worse motives, made thoughtlessly or deliberately, made with or without accompanying harm, provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively. ... I also must concede that many statutes and common-law doctrines make the utterance of certain kinds of false statements unlawful. Those prohibitions, however, tend to be narrower than the statute before us, in that they limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm... .

785

786

PART IV

How TO INTERPRET THE CONSTITUTION

Statutes prohibiting false claims of terrorist attacks, or other lies about the commission of crimes or catastrophes, require proof that substantial public harm be directly foreseeable, or, if not, involve false statements that are very likely to bring about that harm.... Statutes prohibiting trademark infringement present, perhaps, the closest analogy to the present statute. Trademarks identify the source of a good; and infringement causes harm by causing confusion among potential customers (about the source) and thereby diluting the value of the mark to its owner, to consumers, and to the economy. Similarly, a false claim of possession of a medal or other honor creates confusion about who is entitled to wear it, thus diluting its value to those who have earned it, to their families, and to their country. But trademark

statutes are focused upon commercial and promotional activities that are likely to dilute the value of a mark. Indeed, they typically require a showing of likely confusion, a showing that tends to assure that the feared harm will in fact take place. [F]ew statutes, if any, simply prohibit without limitation the telling of a lie, even a lie about one particular matter. Instead, in virtually all these instances limitations of context, requirements of proof of injury, and the like, narrow the statute to a subset of lies where specific harm is more likely to occur. The limitations help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large, discouraging or forbidding the telling of the he in contexts where harm is unlikely or the need for the prohibition is small. The statute before us lacks any such limiting features. It may be construed to prohibit only knowing and intentional acts of deception about readily verifiable facts within the personal knowledge of the speaker, thus reducing the risk that valuable speech is chilled. But it still ranges very broadly. And that breadth means that it creates a significant risk of First Amendment harm... . We must therefore ask whether it is possible substantially to achieve the Government’s objective in less burdensome ways. In my view, the answer to this question is “yes.”... As is indicated by the limitations on the scope of the many other kinds of statutes regulating false factual speech, it should be possible significantly to diminish or eliminate these remaining risks by enacting a similar but more finely tailored statute. For example, not all military awards are alike. Congress might determine that some warrant greater protection than others. And a more finely tailored statute might ... insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm... . The Government has provided no convincing explanation as to why a more finely tailored statute would not work. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective. That being so, I find the statute as presently drafted works disproportionate constitutional harm. It consequently fails intermediate scrutiny, and so violates the First Amendment.... a JUSTICE

ALITO,

join, dissenting.

with

whom

JUSTICE

SCALIA

and

JUSTICE

THOMAS

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

Only the bravest of the brave are awarded the Congressional Medal

of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families. Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only

knowingly false statements about hard facts directly within a speaker’s personal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech.

By holding that the First Amendment nevertheless shields these hes, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law. [C]ongress passed the Stolen Valor Act in response to a proliferation of false claims concerning the receipt of military awards. For example, in a single year, more than 600 Virginia residents falsely claimed to have won the Medal of Honor. An investigation of the 333 people listed in the online edition of Who’s Who as having received a top military award revealed that fully a third of the claims could not be substantiated.

As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm...: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits. ... In other cases, the harm is less tangible, but nonetheless significant. The lies proscribed by the Stolen Valor Act tend to debase the distinctive honor of military awards. And legitimate award recipients and their families have expressed the harm they endure when an imposter takes credit for heroic actions that he never performed. One Medal of Honor recipient described the feeling as a “slap in the face of veterans who have paid the price and earned their medals.’ ” It is well recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs the “‘signal’ given out by the purchasers of the originals.” Landes & Posner, Trademark Law: An Economic Perspective, 30 J. Law & Econ. 265, 308 (1987). In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags... .

787

788

How TO INTERPRET THE CONSTITUTION

Part IV

Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value. Consistent with this recognition, many kinds of false factual statements have long been proscribed without “‘rais[ing] any Constitutional problem.’” Stevens (quoting Chaplinsky). Laws prohibiting fraud, perjury, and defamation, for example, were in existence when the First Amendment was adopted, and their constitutionality is now beyond question. See, e.g., Beauharnais (noting that the “prevention and punishment” of libel “have never been thought to raise any Constitutional problem”). We have also described as falling outside the First Amendment’s protective shield certain false factual statements that were neither illegal nor tortious at the time of the Amendment’s adoption. The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement, even though that tort did not enter our law until the late 19th century. And the Court concluded that the free speech right allows recovery for the even more modern tort of false-light invasion of DIIVAGCY:.cnas These examples amply demonstrate that false statements of fact merit no First Amendment protection in their own right. It is true, as Justice Breyer notes, that many in our society either approve or condone certain discrete categories of false statements, including false statements made to prevent harm to innocent victims and so-called “white les.” But respondent’s false claim to have received the Medal of Honor did not fall into any of these categories. ... Respondent’s claim, like all those covered by the Stolen Valor Act, served no valid purpose.... [W]e have recognized that it is sometimes necessary to “exten[d] a measure of strategic protection” to [false statements of fact] in order to ensure sufficient “ ‘breathing space’ ” for protected speech... . [T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mistaken. And in these contexts, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and _ livelier impression of truth, produced by its collision with error.” Sullivan (quoting J. Mill, On Liberty 15 (R. McCallum ed.1947)). ... In stark contrast..., the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumental purpose that the First

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

Amendment might protect. Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none. _ Neither of the two opinions endorsed by Justices in the majority claims that the false statements covered by the Stolen Valor Act possess either intrinsic or instrumental value. ... The plurality ... worries that a decision sustaining the Stolen Valor Act might prompt Congress and the state legislatures to enact laws criminalizing lies about “an endless list of subjects,” [e.g.] laws making it a crime to lie about civilian awards. ... This concern is likely unfounded. With very good reason, military honors have traditionally been regarded as quite different from civilian awards. Nearly a century ago, Congress made it a crime to wear a military medal without authorization; we have no comparable tradition eae such things as Super Bowl rings, Oscars, or Phi Beta Kappa eys. In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amendment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intrusive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct.... The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional... . The Stolen Valor Act is a narrow law enacted to address an important problem, and it presents no threat to freedom of expression. I would sustain the constitutionality of the Act, and I therefore respectfully dissent. EDITORS’ NOTES (1) Query: What are the major differences between Justice Kennedy’s and Justice Breyer’s conceptions of the general framework for First Amendment analysis that the Court has applied? That the Court should apply? Put another way, what are the important differences between what Kennedy calls “exacting scrutiny’ and what Breyer calls “intermediate scrutiny” or “proportionality” review? Which approach is more defensible? (2) Query: What are the major differences between Justice Kennedy’s and Justice Alito’s approaches to false statements of fact? Which is the more defensible account of what the Court has held? What it should hold? Assuming that the Court’s concerns about “chilling effect” have considerable force in the context of restrictions on or regulations of political or religious opinion, do they have much force in the context of restrictions on or regulations of what are undoubtedly, objectively, false statements of fact (like Alvarez’s lie about being awarded the Congressional Medal of Honor)? Should we worry about laws like the Stolen Valor Act chilling people like Alvarez from lying about military honors? Indeed, would such chilling be a good thing? What would Kennedy and Alito say?

(3) Some Supreme Court opinions justify stringent protection of freedom of speech on grounds of the affirmative good things promoted through protecting it, e.g., enabling self-government, facilitating the search

789

790

PART IV

How TO INTERPRET THE CONSTITUTION

for truth, or permitting the development of individual autonomy. Query: Does Kennedy invoke any of these grounds to justify protection of Alvarez’s false statements of fact? Or does he instead justify stringent protection of freedom of speech simply on grounds of distrust of governmental regulation as such? And worries about the slippery slope? Are Kennedy’s distrust of governmental regulation and worries about the slippery slope sound or overblown? Does Alito have a satisfactory response to Kennedy’s concerns about the slippery slope? (4) Query: Can Justice Scalia’s joining Justice Alito in dissent here be squared with his opinion of the Court in R.A.V. v. St. Paul (1992; reprinted above, p. 741). There he accorded stringent protection to arguably false speech out of distrust of governmental regulation (much as Kennedy does here).

VI. SYMBOLIC EXPRESSION ‘We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”—Chief Justice WARREN “The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war.”—Justice DOUGLAS

United States v. O’Brien 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) David O’Brien and three other protesters against the war in Vietnam burned their draft cards on the steps of the South Boston Courthouse before a large crowd, some of whose members began attacking the protesters. FBI agents arrested the protesters for violating the 1965 amendment to the Universal Military Training and Service Act of 1948, which provides criminal punishment for anyone who “knowingly destroys, [or] knowingly mutilates” a draft card. O’Brien was convicted, but the court of appeals reversed, holding the 1965 amendment violated the First Amendment. The Department of Justice obtained certiorari. a MR. CHIEF JUSTICE WARREN delivered the opinion of the Court... .

II O’Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected “symbolic speech” within the First Amendment. His argument is that the freedom of expression which the First Amendment guarantees includes all modes of “communication of ideas by conduct,” and that his conduct is within this definition because he did it in “demonstration against the war and against the draft.” We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

conduct intends thereby to express

an idea. However,

even

on

..

[O’Brien’s view], it does not necessarily follow that the destruction of a

registration certificate is constitutionally protected activity. This Court | has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental hmitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation. is sufficiently justified if it is within the constitutional power of the. Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(8) of the Universal Military Training and Service Act meets all of these. requirements. ... The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. Lichter v. United States (1948); Selective Draft Law Cases [1918]. The power of Congress to classify and conscript manpower for military service is “beyond question.” Lichter; Selective Draft Law Cases. Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals within reason to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system... . O’Brien . . . essentially adopts the position that such certificates are so many pieces of paper .. . to be retained or tossed in the wastebasket according to the convenience or taste of the registrant.... We agree that the registration certificate contains much information of which the registrant needs no notification. This circumstance, however, does not lead to the conclusion that the certificate serves no purposes but that, like the classification certificate, it serves purposes in addition to initial notification. Many of these purposes would be defeated by the certificates’ destruction or mutilation. Among these are: 1. The registration certificate serves as proof that the individual described thereon has registered for the draft... . [A]vailability of the certificates for such display relieves the Selective Service System of the administrative burden it would otherwise have in verifying the delinquents... . and classification of all suspected registration to each availability reasonable Additionally, in a time of national crisis, d uncomplicate and rapid a assures cards registrant of the two small . . induction. immediate for fitness his determining means for supplied on the certificates facilitates 2. The information communication between registrants and local boards, simplifying the system and benefiting all concerned. . . .

791

792

How TO INTERPRET THE CONSTITUTION

PART IV

3. Both certificates carry continual reminders that the registrant must notify his local board of any change of address, and other specified changes in his status... . 4. The regulatory scheme involving Selective Service certificates includes clearly valid prohibitions against the alteration, forgery, or similar deceptive misuse of certificates. The destruction or mutilation of certificates obviously increases the difficulty of detecting and tracing abuses such as these. Further, a mutilated certificate might itself be used for deceptive purposes. ... We think it apparent that the continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the system that Congress has: established to raise armies. We think it also apparent that the Nation has a vital interest in having a system for raising armies that functions with maximum efficiency and is capable of easily and quickly responding to continually changing circumstances. For these reasons, . the Government has a substantial interest in assuring the continuing availability of issued Selective Service certificates. It is equally clear that the 1965 Amendment specifically protects this substantial governmental interest. We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which . prohibits their wilful mutilation or destruction. Compare Sherbert v. Verner (1963), and the cases cited therein. The 1965 Amendment prohibits such conduct and does nothing more.... When O’Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted. ...

III O’Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the “purpose” of Congress was “to suppress freedom of speech.” We reject this argument because under settled principles the purpose of Congress, as O’Brien uses that term, is not a basis for declaring this legislation unconstitutional. It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. ... Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature,! because the benefit to sound decisionmaking in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of ‘The Court may make the same assumption in a very limited and well-defined class of cases where the very nature of the constitutional question requires an inquiry into legislative purpose. . . . [Footnote by the Court.]

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a “wiser” speech about it. . = MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases. = MR. JUSTICE HARLAN,

concurring.

The crux of the Court’s opinion, which I join, is of course its general statement that “a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an “incidental” restriction upon expression, imposed by a regulation which furthers an “important or substantial” governmental interest and satisfies the Court’s other criteria, in practice has the effect of entirely preventing a “speaker” from reaching a significant audience with whom he could not otherwise lawfully communicate... . a MR. JUSTICE DOUGLAS, dissenting. The Court states that the constitutional power of Congress to raise and support armies is “broad and sweeping” and that Congress’ power “to classify and conscript manpower for military service is ‘beyond question.” This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic. problem in this case, however, is whether conscription is permissible in | the absence of a declaration of war. That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling. I have discussed in Holmes v. United States [1968] the nature of the legal issue and it will be seen from my dissenting opinion in that case that this Court has never ruled on the question. It is time that we made a ruling. This case should be put down for reargument and heard with Holmes v. United States and with Hart v. United States, in which the Court today denies certiorari... . EDITORS’ NOTES (1) Query: How textualist was Warren’s approach? How could Hugo Black, the great literalist, have agreed with Warren? Is burning a draft card “conduct” outside the reach of the First Amendment rather than “speech”? What arguments support Warren’s refusal to accept “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea”?

(2) In other important cases, Warren was a strong proponent of judicial protection of rights that are crucial to the operation of representative self-government (e.g., Reynolds v. Sims [1964; reprinted

793

794

How TO INTERPRET THE CONSTITUTION

PART IV

below, p. 826]). Query: Can Warren’s opinion in O’Brien be reconciled with that general outlook?

(3) O’Brien is an important case in the development of a two-track framework for First Amendment analysis: (1) one track, involving contentbased restrictions on expression, triggers “strict scrutiny,” or the “most exacting scrutiny” (and is illustrated by United States v. Eichman [1990; reprinted below, p. 796] and R.A.V. v. St. Paul [1992; reprinted above, p. 741]), and (2) the other track, involving content-neutral regulations of conduct that only incidentally suppress expression, triggers the less stringent standard of the four-part test of O’Brien. Even so, on the latter track, the court engages in a form of “less-restrictive alternative analysis,” inquiring whether “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that [important or substantial governmental] interest.” (4) In inquiring whether there was a “less restrictive alternative” available, the Court writes: “We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful mutilation or destruction.” But the Court had just characterized the “substantial governmental interest” or end as “the smooth and proper functioning of the system that Congress has established to raise armies.” Query: Is the Court here engaging in a question-begging analysis by conceiving of the means—prohibiting wilful mutilation or destruction of draft cards—as itself the end? (5) In later rulings involving equal protection, the Court often said that administrative convenience is not a compelling governmental interest. See, e.g., Frontiero v. Richardson (1973; reprinted below, p. 1054) and Shapiro v. Thompson (1969; reprinted below, p. 1141). Here, however, the Court readily credited it as an important governmental interest. (6) The Court has not been nearly so consistent in closing its eyes to legislative motivation as Warren’s opinion would lead one to believe. See, e.g., Washington v. Davis (1976; discussed below, p. 983), espec. the concur. op. of Stevens, criticizing the Court’s use of this sort of inquiry and his similar critique dissenting in Rogers v. Lodge (1982; available at www.princeton.edu/aci); and Paul Brest, “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motivation,” 1971 Sup.Ct.Rev. 95. Some commentators, most notably John Hart Ely, have argued that the Court should look for legislative motivation in constitutional interpretation: “Legislative and Administrative Motivation in Constitutional Law,” 79 Yale L.J. 1205 (1970), critiquing O’Brien; and Democracy and Distrust (Cambridge: Harvard University Press, 1980), pp. 136-148. Ely, however, argues that “the inquiry’s most important ingredient by far must be the actual terms of the law or provision in issue, read in light of its foreseeable effects and a healthy dose of common sense, and not, though it can help occasionally, its legislative history.” (Democracy and Distrust, p. 130.)

Perhaps the root of the difficulty here lies in a failure to distinguish among (1) motivation, the factors working on and within a person to cause him or her to act in a particular way; (2) intent, what one immediately has

CHAPTER

12

FREEDOM

OF POLITICAL COMMUNICATION

in mind to accomplish; and (3) purpose, the larger objective one tries to attain by a certain action. The first, motivation, probably lies beyond the competence of judges, or even psychiatrists, to discover in a group the size of a legislature. The second and third are difficult to distinguish because in some respects intent may be a shorter-range form of purpose. But if it is correct to assume that legislators are rational people who mean to accomplish the results that logically follow from their actions, purpose can often be seen in what a legislature does. (7) Query: To what extent do the problems Warren saw in discerning legislative intent or motivation apply to quests for original intentions, understandings, or meanings of those who proposed and ratified the constitutional text of 1787-88 and its various amendments? Justice Scalia, who is a self-professed originalist in constitutional interpretation (see “Originalism: The Lesser Evil,” reprinted above, p. 231), is critical of

recourse to legislative history in statutory interpretation. See Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997). (8) A year after O’Brien, Tinker v. Des Moines (1969) presented another issue of symbolic speech. A small group of teen-aged students had planned to wear black armbands to classes to protest the war in Vietnam, but school principals forbade the demonstration and threatened to suspend students who disobeyed the order. Several students defied the principals’ edict and were suspended. Their families unsuccessfully sought an injunction from a U.S. district court forbidding the principals and the school district to discipline the children for their symbolic protest. The Court, reversing, held that the symbolic act of wearing an armband was “closely akin to ‘pure speech’... entitled to comprehensive protection under the First Amendment” and that the school authorities’ “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” The Court also proclaimed: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate.” Justices Black and Harlan dissented. (9) In Morse v. Frederick (2007), the Court held that a high school principal did not violate a student’s First Amendment rights by suspending him for displaying a banner proclaiming “Bong Hits 4 Jesus.” The Court stated: “It was reasonable for [the principal] to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge ... about how serious the school was about the dangers of illegal drug use.” It concluded: “The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.” Query: Is the Court here reviving the “bad tendency” test of Whitney v. California (1927; reprinted above, p. 713), at least as far as children in school are concerned?

(10) Query: Is the wearing of masks or hoods in public a form of symbolic expression that is protected by the First Amendment? Is there a constitutional right to make public statements anonymously? Or is a ban on wearing masks or hoods in public a permissible regulation of conduct

795

796

How TO INTERPRET THE CONSTITUTION

PART IV

that only incidentally burdens expression? Is forbidding members of the Ku Klux Klan to wear hoods tantamount to compelling them to disclose their membership in that organization, and to subject them to harassment and reprisals? In Knights of the Ku Klux Klan v. Martin Luther King Jr. Worshippers (M.D.Tenn.1990), a federal district judge struck down a statute that forbade marchers in a parade (in this instance members of the KKK) to wear “frightening masks.” See NAACP v. Alabama (1958; reprinted below, p. 865). Similarly, in Church of the American Knights of the Ku Klux Klan v. Kerik (S.D.N.Y. 2002), a federal district judge held that a statute prohibiting the wearing of masks at public gatherings violated the rights of the members of the organization to anonymous speech.

“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”— Justice BRENNAN : “(T]he flag uniquely symbolizes the ideas of liberty, equality, and tolerance.”—Justice STEVENS

United States v. Eichman 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990) In Texas v. Johnson (1989), the Supreme Court invalidated as an infringement on the First and Fourteenth Amendments a state statute that made it a crime knowingly to desecrate a state or national flag, defining “desecrate” as to “deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” Immediately thereafter, the U.S. Senate by a vote of 97-8 passed a resolution expressing “profound disappointment” with Johnson. The ‘House approved a similar resolution by a vote of 411—5. President George H.W. Bush called for a constitutional amendment to overrule Johnson by authorizing the states or the federal government to punish desecration of the flag. Others contended that the Supreme Court might uphold a carefully drawn federal statute designed to protect the physical integrity of the flag under all circumstances. The Flag Protection Act of 1989 was the compromise. Exempting burning of worn or soiled flags, the Act amended 18 USC § 700 and imposed criminal penalties on anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” an American flag. Shortly after passage, the government arrested several people who had, as part of political protests (against, among other things, the passage of the Flag Protection Act itself), burned American flags. The district judges held the Flag Protection Act unconstitutional, and the United States appealed directly to the Supreme Court.

= JUSTICE BRENNAN delivered the opinion of the Court... .

The Government concedes in this case, as it must, that appellees’ flag-burning constituted expressive conduct, but invites us to reconsider our rejection in [Texas v. Johnson (1989)] of the claim that flag-burning

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

as a mode of expression, like obscenity or “fighting words,” does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire (1942). This we decline to do. The only remaining question is whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees’ expressive conduct.

The Government contends that[,] unlike the statute addressed in Johnson, the Act does not target expressive conduct on the basis of the content of its message. The Government asserts an interest in “protect[ing] the physical integrity of the flag under all circumstances” in order to safeguard the flag’s identity “as the unique and unalloyed symbol of the Nation.” The Act proscribes conduct (other than disposal) _ that damages or mistreats a flag, without regard to the actor’s motive, his intended message, or the likely effects of his conduct on onlookers. By contrast, the Texas statute expressly prohibited only those acts of physical flag desecration “that the actor knows will seriously offend” onlookers, and the former federal statute prohibited only those acts of desecration that “cas[t] contempt upon” the flag. ' Although the Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is “related ‘to the suppression of free expression, ” and concerned

with the content of such expression. The

Government’s interest in protecting the “physical integrity” of a privately owned flag rests upon a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a _ particular physical manifestation

of the

symbol,

without

more,

does

not

diminish

or

otherwise affect the symbol itself in any way. For example, the secret destruction of a flag in one’s own basement would not threaten the flag’s recognized meaning. Rather, the Government’s desire to preserve the flag as a symbol for certain national ideals is implicated “only when a person’s treatment of the flag communicates [a] message” to others that is inconsistent with those ideals. Moreover, the precise language of the Act’s prohibitions confirms Congress’ interest in the communicative impact of flag destruction. The Act criminalizes the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag.” Each of the specified terms—with the possible | exception of “burns”—unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag’s symbolic value. And the explicit exemption for disposal of “worn or soiled” flags protects certain acts traditionally associated with patriotic respect for the flag.

1... We concede that the Government has a legitimate interest in preserving the flag’s function as an “incident of sovereignty,” though we need not address today the extent to which this interest may justify any laws regulating conduct that would thwart this core function, as might a commercial or like appropriation of the image of the United States flag. Amici do not, and cannot, explain how a statute that penalizes anyone who knowingly burns, mutilates, or

defiles any American flag is designed to advance this asserted interest in maintaining the association between the flag and the Nation. Burning a flag does not threaten to interfere with this association in any way; indeed, the flag-burner’s message depends in part on the viewer's ability to make this very association. [Footnote by the Court.]

797

798

How TO INTERPRET THE CONSTITUTION

PART IV

As we explained in Johnson: “[I]f we were to hold that a State may forbid flag-burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person ceremoniously burns a dirty flag—we would be ... permitting a State to ‘prescribe what shall be orthodox’ by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity’ [quoting West Virginia v. Barnette (1943)]. Although Congress cast the Act in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact. Despite the Act’s wider scope, its restriction on expression cannot be “ ‘justified without reference to the content of the regulated speech.’” Boos [v. Barry (1988)].... The Act therefore must be subjected to “the most exacting scrutiny,” Boos, and | for the reasons stated in Johnson, the Government’s interest cannot justify its infringement on First Amendment rights. We decline the Government’s invitation to reassess this conclusion in light of Congress’ recent recognition of a purported “national consensus” favoring a prohibition on flag-burning. Even assuming such a consensus exists, any suggestion that the Government’s interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment. ... We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, see Terminiello v. Chicago (1949), vulgar repudiations of the draft, see Cohen v. California (1971), and scurrilous caricatures, see Hustler Magazine, Inc. v. Falwell (1988). “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. The judgments of the District Courts are affirmed. m= JUSTICE STEVENS, with whom THE CHIEF JUSTICE JUSTICE WHITE and JUSTICE O’CONNOR join, dissenting.

[REHNQUIST],

The Court’s opinion ends where proper analysis of the issue should begin. Of course “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” ... But it is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker’s freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition. ... [I]t is now conceded that the Federal Government has a legitimate interest in protecting the symbolic value of the American flag. ... [That value] has at least these two components: In times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

importance; at all times, it serves as a reminder of the paramount importance of pursuing the ideals that characterize our society.

_ The first question the Court should consider is whether the interest in preserving the value of that symbol is unrelated to suppression of the ideas that the flag burners are trying to express. In my judgment the answer depends, at least in part, on what those ideas are. A flag burner might intend various messages. The flag burner may wish simply to convey hatred, contempt, or sheer opposition directed at the United States. ...A flag burner may also, or instead, seek to convey the depth of his personal conviction about some issue, by willingly provoking the use of force against himself. In so doing, he says that “my disagreement with certain policies is so strong that I am prepared to risk physical harm (and-perhaps imprisonment) in order to call attention to my views.” This second possibility apparently describes the expressive conduct of the flag burners in these cases. Like the protesters who dramatized their opposition to our engagement in Vietnam by publicly burning their draft cards—and who were punished for doing so—their expressive conduct is consistent with affection for this country and respect for the ideals that the flag symbolizes. There is at least one further possibility: A flag burner may intend to make an accusation against the integrity of the American people who disagree with him. By burning the embodiment of America’s collective commitment to freedom and equality, the flag burner charges that the majority has forsaken that commitment.... Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor. The idea expressed by a particular act of flag burning is necessarily dependent on the temporal and political context in which it occurs.... In Johnson, it apparently expressed opposition to the platform of the Republican Party. In these cases, the respondents have explained that it expressed their opposition to racial discrimination, to the failure to care for the homeless, and of course to statutory prohibitions of flag burning. In any of these examples, the protestors may wish both to say that their own position is the only one faithful to liberty and equality, and to accuse their fellow citizens of hypocritical indifference to—or even of a selfish departure from—the ideals which the flag is supposed to symbolize. ... The Government’s legitimate interest in preserving the symbolic value of the flag is, however, essentially the same regardless of which of many different ideas may have motivated a particular act of flag burning.... [T]he flag uniquely symbolizes the ideas of liberty, equality, and tolerance—ideas that Americans have passionately defended and debated throughout our history. The flag embodies the spirit of our national commitment to those ideals. The message thereby transmitted does not take a stand upon our disagreements, except to are best regarded as competing say that those disagreements interpretations of shared ideals. It does not judge particular policies, except to say that they command respect when they are enlightened by the spirit of liberty and equality. To the world, the flag is our promise that we will continue to strive for these ideals. To us, the flag is a that the struggle for liberty and equality is both reminder unceasing....

799

800

How To INTERPRET THE CONSTITUTION

PARTIV

the it should—protect may—indeed, Thus, the Government symbolic value of the flag without regard to the specific content of the flag burners’ speech. The prosecution in this case does not depend upon the object of the defendants’ protest. It is, moreover, equally clear that the prohibition does not entail any interference with the speaker’s . freedom to express his or her ideas by other means... Does the judgment. of question a to This case therefore comes down admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas . .. outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value.... [R]easonable judges may differ with respect to each of these judgments. The individual interest is unquestionably a matter of great importance. Indeed, it is one of the critical components of the idea of liberty that the flag itself is intended to symbolize. Moreover, it is buttressed by the societal interest in being alerted to the need for thoughtful response to voices that might otherwise go unheard. The freedom of expression protected by the First Amendment embraces not only the freedom to communicate particular ideas, but also the right to communicate them effectively. That right, however, is not absolute—the communicative value of a well-placed bomb in the Capitol does not entitle it to the protection of the First Amendment. Burning a flag is not, of course, equivalent to burning a public building. Assuming that the protestor is burning his own flag, it causes no physical harm to other persons or to their property. The impact is purely symbolic, and ... some thoughtful persons believe that impact, far from depreciating the value of the symbol, will actually enhance its meaning. I most respectfully disagree. Indeed, what makes this case particularly difficult for me is what I regard as the damage to the symbol that has already occurred as a result of this Court’s decision to place its stamp of approval on the act of flag burning. A formerly dramatic expression of protest is now rather commonplace. In today’s marketplace of ideas, the public burning of a Vietnam draft card is probably less provocative than lighting a cigarette. Tomorrow flag burning may produce a similar reaction... .

The symbolic value of the American flag is not the same today as it was yesterday.... [Some citizens] now have difficulty understanding the message that the flag conveyed to their parents and grandparents— whether born abroad and naturalized or native born. Moreover, the integrity of the symbol has been compromised by those leaders who seem to advocate compulsory worship of the flag even by individuals whom it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends.* And, as I have suggested, the residual value of the symbol after this Court’s decision in Johnson is surely not the same as it was a year ago.... The allusion was to George H.W. Bush’s attack during the presidential campaign of 1988 on his opponent for vetoing a state bill that would have forced public school teachers to lead students in saluting the flag —Eds.

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

EDITORS’ NOTES (1) Query: Is flag burning analogous to fighting words? In Texas v. Johnson (1989), the earlier flag-burning case discussed in the headnote to Eichman, the Court concluded it was not: “No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.” Nonetheless, should the Court treat flag burning as a new category of unprotected expression? What would be the arguments for and against doing so? (2) Query: Here, as in R.A.V. and similar cases, the Court required government to be neutral about the content of speech, including symbolic speech. How convincing is Stevens’s argument in dissent that the statute is neutral? On the other hand, would a legislative decision not to punish publicly burning a flag itself convey a message and thus not be “content neutral”?

(3) Query: Apparently in the early days of the Republic neither the federal government nor any state specifically criminalized publicly burning a flag. Would such an absence—in effect, a silent interpretation—lend originalist support to Eichman? (4) Query: In both Johnson and Eichman, Brennan wrote for the Court: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Yet in dissent in Johnson, Rehnquist claimed: “[s]urely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people.” Which view better accords with the analysis of the First Amendment in the cases in this chapter? (5) Query: Is Stevens right in stating that “[i]n today’s market-place of ideas, the public burning of a Vietnam draft card is probably less provocative than lighting a cigarette. Tomorrow flag burning may produce a similar reaction”? Is he suggesting that the Supreme Court, by “plac[ing] its stamp of approval on the act of flag burning,” has paradoxically cheapened its communicative impact?

(6) Smith v. Goguen (1974) reversed the conviction of a man who wore a small cloth version of the American flag on the seat of his jeans, and held that a Massachusetts statute that punished anyone who “treats contemptuously” the American flag was “void for vagueness.” That is, the statute’s terms were so unclear as to give no warning about the kind of conduct outlawed. (7) Eichman prompted renewed efforts to amend the constitutional text: “The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States.” In 1990, the proposal failed to secure the necessary two-thirds vote either in the House of Representatives (254-177, 34 votes short) or in the Senate (58-42, nine votes short). Since then, every Congress has included such proposals. The closest any proposal has come to success was in 2006, when the House

801

802

How TO INTERPRET THE CONSTITUTION

PART IV

endorsed the proposal by more than two-thirds (286-130) and the Senate endorsed it 66—34, only one vote short.

VII.

PRIOR RESTRAINT OF EXPRESSION “[L]iberty of the press, historically considered and taken up principally, meant, has Constitution, Federal by the previous from immunity exclusively, not although restraints or censorship.”—Chief Justice HUGHES “The decision of the court... gives to freedom of the press a recognized and not heretofore and a scope meaning construes ‘liberty’ in the due process clause of the 14th Amendment to put upon the states a Federal restriction that is without precedent.”—Justice BUTLER

Near v. Minnesota* 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) This case held that (1) freedom of speech and press are within the liberty safeguarded by the Fourteenth Amendment against state infringement and (2) judicial orders preventing speech constitute a prior restraint upon publication in violation of freedom of the press.

“ “Any system of prior restraints of expression comes to this Court bearing a heavy’ presumption against its constitutional validity.’ ”»—The COURT “The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions.”—Justice BLACKMUN

The Pentagon Papers Case (New York Times v. United States)™ 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) In 1971, the New York Times and the Washington Post obtained copies of a classified study stolen from the Department of Defense, History of U.S. Decision-Making Process on Viet Nam Policy, popularly called The Pentagon Papers. After some delay, the newspapers began publishing the documents. The Department of Justice sought injunctions against further publication. The Supreme Court held that *

Our edit of this case is available at www.princeton.edu/aci.

“Our edit of this case is available at www.princeton.edu/aci.

~

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

the government had not overcome the heavy presumption against prior restraint of expression.

VIII.

UNCONSTITUTIONAL

CONDITIONS

“The condition that federal funds will be used only to further the purposes of a _ grant does not violate constitutional rights.”—Chief Justice REHNQUIST “Whatever may be the Government’s power to condition the receipt of its largesse upon the _ relinquishment of rights, it surely does not extend to a constitutional condition that suppresses the recipient’s cherished freedom of speech based solely upon the content or viewpoint of that speech.”—Justice BLACKMUN

Rust v. Sullivan 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) As

amended,

Title

X of the Public

Health

Service

Act

of 1970

authorized the Secretary of the Department of Health and Human Services to assist in family planning by making grants to public and non-profit private organizations. Section 1008 provides, however: “None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” In 1988 the Secretary changed the department’s longstanding regulations explicitly to prohibit grantees from using federal funds to engage in activities that “encourage, promote or advise abortion as a method of family planning.” The Secretary also set down specific rules requiring an organization that did engage in such abortion-related activities to separate those activities—and personnel—from its federally financed operations. A group of doctors and organizations receiving grants sued in federal district court, challenging the regulations on the grounds that they were not authorized by Title X and that they violated the First and Fifth Amendments. The challengers lost in the district court and in the court of appeals, but obtained certiorari from the Supreme Court. a CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. ... [The Chief Justice concluded that the Secretary administrative regulations did not exceed his authority under the statute.]

Ill Petitioners contend that the regulations violate the First Amendment by impermissibly discriminating based on viewpoint because they prohibit “all discussion about abortion as a lawful option— including counseling, referral, and the provision of neutral and accurate information about ending a pregnancy—while compelling the clinic or counselor to provide information that promotes continuing a pregnancy to term.” ... Relying on Regan v. Taxation With Representation [1983], and Arkansas Writers v. Ragland (1987), petitioners also assert that while the Government may place certain conditions on the receipt of

803

804

How TO INTERPRET THE CONSTITUTION

PART IV

federal subsidies, it may not “discriminate invidiously in its subsidies in such a way as to ‘a[im] at the suppression of dangerous ideas. There is no question but that the statutory prohibition contained in § 1008 is constitutional. In Maher v. Roe [1977] we upheld a state welfare regulation under which Medicaid recipients received payments for services related to childbirth, but not for nontherapeutic abortions. ... The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.... “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Regan.... The challenged regulations implement the statutory prohibition by prohibiting counseling, referral, and the provision of information regarding abortion as a method of family planning. They are designed to ensure that the limits of the federal program are observed. The Title X program is designed not for prenatal care, but to encourage family planning. A doctor who wished to offer prenatal care to a project patient who became pregnant could properly be prohibited from doing so because such service is outside the scope of the federally funded program.... This is not a case of the Government “suppressing a dangerous idea,” but of a prohibition on a project grantee or its employees from engaging in activities outside of the project’s scope. ... Petitioners’ assertions ultimately boil down to the position that if the government chooses to subsidize one protected right, it must subsidize analogous counterpart rights. But the Court has soundly rejected that proposition. Regan; Maher. Within far broader limits than petitioners are willing to concede, when the government appropriates public funds to establish a program it is entitled to define the limits of that program.... Petitioners also contend that the restrictions on the subsidization of abortion-related speech contained in the . regulations are impermissible because they condition the receipt of a benefit ... on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. Relying on Perry v. Sindermann (1972) and FCC v. League of Women Voters of Cal. (1984), petitioners argue that “even though the government may deny [a] ... benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Petitioners’ reliance on these cases is unavailing, however, because here the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized. The Secretary’s regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. ...

CHAPTER 12

;

In

contrast,

FREEDOM OF POLITICAL COMMUNICATION

our

“unconstitutional

conditions”

cases

involve

situations in which the government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In League of Women Voters, we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not “engage in editorializing.” Under that law, a recipient of federal funds was “barred absolutely from all editorializing” because it “is not able to segregate its activities according to the source of its funding” and thus “has no way of limiting the use of its federal funds to all noneditorializing activities.” ... Similarly, in Regan we held that Congress could ... reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using taxdeductible contributions to support their lobbying efforts. In so holding, we explained that such organizations remained free “to receive deductible contributions to support . . . nonlobbying activit[ies].” ...The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights... . The same principles apply to petitioners’ claim that the regulations abridge the free speech rights of the grantee’s staff. ... The regulations, which govern solely the scope of the Title X project’s activities, do not in any way restrict the activities of those persons acting as private individuals. The employees’ freedom of expression is limited during the time that they actually work for the project; but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority. This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project,-is invariably sufficient to justify government control over the content of expression. For example, this Court has recognized that the existence of a Government “subsidy,” in the form of Government-owned property, does not justify the restriction of speech in areas that have “been traditionally open to the public for expressive activity,” United States v. Kokinda (1990); Hague v. CIO (1939) (opinion of Roberts, J.), or have been “expressly dedicated to speech activity.” Kokinda; Perry Education Assn. v. Perry Local Educators’ Assn. (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents (1967)....

IV.. addressed and

rejected claims that the [The Chief Justice Amendment's due process Fifth the violated regulations Secretary’s clause by interfering with women’s rights to obtain abortions.] Affirmed.

805

806

PART IV

How TO INTERPRET THE CONSTITUTION

a JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, with whom JUSTICE STEVENS joins as to Parts I and III, and with whom JUSTICE O’CONNOR joins as to Part I, dissenting. ...

Mae Because I conclude that a plainly constitutional construction of § 1008 “is not only ‘fairly possible’ but entirely reasonable,” Machinists [v. Street (1961)], I would reverse the judgment of the Court of Appeals on this ground without deciding the constitutionality of the Secretary’s Regulations. Il I also strongly disagree with the majority's disposition of petitioners’ constitutional claims, and because I feel that a response thereto is indicated, I move on to that issue.

A has upheld viewpoint-based Until today, the Court never suppression of speech simply because that suppression was a condition be the may Whatever of public funds. the acceptance upon Government’s power to condition the receipt of its largess upon the relinquishment of constitutional rights, it surely does not extend to a condition that suppresses the recipient’s cherished freedom of speech based solely upon the content or viewpoint of that speech.... Nothing in the Court’s opinion in Regan can be said to challenge this long-settled understanding. In Regan, the Court upheld a contentneutral provision of the Internal Revenue Code that disallowed a particular tax-exempt status to organizations that “attempt[ed] to influence legislation,” while affording such status to veterans’ organizations irrespective of their lobbying activities.... [T]he Court explained: “The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to ‘a[im] at the suppression of dangerous ideas.’ ” It cannot seriously be disputed that the counseling and referral provisions at issue in the present cases constitute content-based regulation of speech. Title X grantees may provide counseling and referral regarding any of a wide range of family planning and other topics, save abortion.

The Regulations are also clearly viewpoint-based. While suppressing speech favorable to abortion with one hand, the Secretary compels anti-abortion speech with the other. For example, the Department of Health and Human Services’ own description of the Regulations makes plain that “Title X projects are required to facilitate access to prenatal care and social services, including adoption services, that might be needed by the pregnant client to promote her well-being and that of her child, while making it abundantly clear that the project is not permitted to promote abortion by facilitating access to abortion through the referral process.” (Emphasis added [by Justice Blackmun].) Moreover, the Regulations command that a project refer for prenatal care each woman diagnosed as pregnant, irrespective of the ~ woman’s expressed desire to continue or terminate her pregnancy. If a client asks directly about abortion, a Title X physician or counselor is required to say, in essence, that the project does not consider abortion

CHAPTER 12

FREEDOM OF POLITICAL COMMUNICATION

to be an appropriate method of family planning. Both requirements are antithetical to the First Amendment. The Regulations pertaining to “advocacy” are even more explicitly viewpoint-based. These provide: “A Title X project may not encourage, promote or advocate abortion as a method of family planning.” (Emphasis added [by Justice Blackmun].) ... The Regulations do not, however, proscribe or even regulate anti-abortion advocacy. These are clearly restrictions aimed at the suppression of “dangerous ideas.” Remarkably, the majority concludes that “the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.” But the majority’s claim that the Regulations merely limit a Title X project’s speech to preventive or preconceptual services rings hollow in light of the broad range of nonpreventive services that the Regulations authorize Title X projects to provide.! By refusing to fund those family-planning projects that advocate abortion because they advocate abortion, the Government plainly has targeted a particular viewpoint. The majority’s reliance on the fact that the Regulations pertain solely to funding decisions simply begs the question. Clearly, there are some bases upon which government may not rest its decision to fund or not to fund. For example, the Members of the majority surely would agree that government may not base its decision to support an activity upon considerations of race. See, e.g., Yick Wo v. Hopkins (1886).... [O]ur cases make clear that ideological viewpoint is a similarly repugnant ground upon which to base funding decisions. ... [I]Jn addition to their impermissible focus upon the viewpoint of regulated speech, the provisions intrude upon a wide range of communicative conduct, including the very words spoken to a woman by her physician. By manipulating the content of the doctor/patient dialogue, the Regulations upheld today force each of the petitioners “to be an instrument for fostering public adherence to an ideological point of view [he or she] finds unacceptable.” Wooley v. Maynard [1977]....

B The Court concludes that the challenged Regulations do not violate the First Amendment rights of Title X staff members because any limitation of the employees’ freedom of expression is simply a consequence of their decision to accept employment at a federally funded project. But it has never been sufficient to justify an otherwise unconstitutional condition upon public employment that the employee may escape the condition by relinquishing his or her job. It is beyond question “that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment.” Abood v. Detroit Board of Education (1977), citing Elrod v. Burns (1976) and cases cited therein; Perry v. Sindermann (1972); Keyishian v. Board of Regents (1967). Nearly two decades ago, it was said: 1 In addition Regulations permit

to requiring referral for prenatal care and adoption general health services such as physical examinations,

services, the screening for

breast cancer, treatment of gynecological problems, and treatment for sexually transmitted diseases. None of the latter are strictly preventive, preconceptual services. [Footnote by Justice Blackmun.]

807

808

How TO INTERPRET THE CONSTITUTION

PART IV

For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests— especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Perry v. Sindermann, quoting Speiser v. Randall (1958). The majority attempts to circumvent this principle by emphasizing that Title X physicians and counselors “remain free ... to pursue abortion-related activities when they are not acting under the auspices of the Title X project.” ... Under the majority's reasoning, the First Amendment could be read to tolerate any governmental restriction upon an employee’s speech so long as that restriction is- limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past... .

C Finally, it is of no small significance that the speech the Secretary would suppress is truthful information regarding constitutionally protected conduct of vital importance to the listener. One can imagine no legitimate governmental interest that might be served by suppressing such information. Concededly, the abortion debate is among the most divisive and contentious issues that our Nation has faced in recent years. “But freedom to differ is not limited to things that

do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” W. Va. v. Barnette (1943)... . m JUSTICE STEVENS, dissenting. ... a JUSTICE O’CONNOR, dissenting... . EDITORS’ NOTES

(1) Query: Under the unconstitutional conditions doctrine, as commonly formulated, government may not “condition the grant of [governmental] benefits on the recipient’s relinquishment of his constitutional rights.” See, e.g., Brennan’s dissenting opinion in the abortion funding case, Harris v. McRae (1980; reprinted below, p. 1444). After Chief Justice Rehnquist’s opinion of the Court in Rust, is there anything left of the unconstitutional conditions doctrine? Has his earlier view—that it is the government’s money, and that its recipients “must take the bitter with the sweet” (Arnett v. Kennedy (1974)) (Rehnquist, J., plurality opinion)—triumphed?

(2) Query: Scalia joined the majority in this case. How could he square Rehnquist’s reasoning with his own in R.A.V. (1992; reprinted above, p. 741), where he argued that government could not prefer speech that fostered racial equality over hate speech? Did originalism play any role in Rehnquist’s opinion?

CHAPTER

12

FREEDOM OF POLITICAL COMMUNICATION

(3) Query: Consider Rust in light of cases like New York States (1992; reprinted above, p. 603), where the Court held that federal government may not coerce states to do something, it encourage states to do something by attaching conditions to the federal funds. Is the logic of the two types of cases the same?

v. United while the still may receipt of

(4) Query: Suppose Rust was wrongly decided (as many commentators have contended). Suppose also that the year is 1857, a few months after Dred Scott (reprinted above, p. 181), and new breeds of insects are ruining farms all across the United States. Would it then be constitutional for Congress to fund a program of agricultural assistance which forbids recipients, during the hours they are actually working under the federal grants, to teach the desirability, utility, or necessity of slavery? (5) Query: Under Rust, may the government stipulate that no federal funds be distributed to artists whose work is “offensive,” “indecent,” or “obscene”? The so-called Helms Amendment of 1989, which amended the statute funding the National Endowment for the Arts was prompted by controversy over NEA’s’ underwriting an_ exhibition of Robert Mapplethorpe’s works. The Helms Amendment provided: “None of the funds ... may be used to promote, disseminate, or produce materials which in the judgment of the National Endowment for the Arts ... may be considered obscene....” The next year, Congress enacted the Arts, Humanities, and Museum Amendments of 1990, which decreed that “obscenity ... shall not be funded,” but left the judgment of obscenity to the courts. It further provided that if NEA funds supported a work that a court subsequently determined to be obscene, the recipient would have to repay the funds and would not be eligible for additional financial assistance until those funds were fully repaid. The amendments also provided that the NEA should “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” In National Endowment for the Arts v. Finley (1998), the Supreme Court upheld these federal restrictions upon the funding of artists, concluding that they were viewpoint neutral. (6) For a more recent case illustrating the Court’s distinction between “sticks” and “carrots,” or policies that require action (e.g., not discriminating on the basis of race, gender, or sexual orientation) and those that withhold benefits (e.g., from groups that discriminate on such bases), see Christian Legal Society v. Martinez (2010; reprinted below, p. 889).

809

i

Th

vi

gees

wert

ep

IO

séaifiedk

era

i 4a, ziaaotk

spies eclentys § ng

by ots fal, Supls”

ae g A), Sires ie Dearne eho

ARB

josrpaet. beat terreoebkdo Vinatheesrd ditiantiegn

Lediintod ed oid hapehghicestieme oe MAtes uN?

nis qe oes

relrina)..V

aga ued jaraaial ition tells ix ve " ade

CORNER

dimpending.

idotted aoiuaisib een00 aa

It; PRPS Neopesy etiupsy.teat ee

ree

Xq!

front oe sen

eivcotiteinpel

a

ae

bedi, Cinting

Atha Chial pte xiiethitig Vile a ets

tice

yh iesyee

the liftier4 jhe

a.

ne

eae

CioOF eet

peed owtaletane Jaca bane AGM ode dat behivwey, iba eGesmriianatel

i

Arc

-

aphtay ake

art Y5O

pes

ABE

Tad

ittatgosa)

Wer euerty (Cieintl 4 brhurcrny dea sriafevaes Stl soopeaa

oe

ers

array

alts ere ene ‘yobinwrs ome hen! Rls leiigs:

taf yahrsird

ech

obs734

early rR ie: woth,

* meters let

Ath)

Seki Sede 5.

adh

f

bok waee

iii

Al

ee ae Reare REOEg Li,

,-

Caley 29art 10

ake apa he Daa

ay

dat

7

BIS ee

eed

RASA

hiarkioe

oe. Geeyoie

eat

el ‘Ka seall wer Gi¢h;! %,‘holes

108 Pe

=

varus

Ye

nF 2iat Epniet tore huni aaa ayy

Ab eG

Th.

nabier

=

Di

Ga

2:

;

Bae

lice

nadie

es

ie

rere:

£7)

Mi

rel

Roe here y!ieeodda ALAS

at

=

CHAPTER

13

POLITICAL PARTICIPATION Problems of freedom of political communication are intricate and fascinating in their own right, but they also highlight the question: HOW should the Constitution, whatever it encompasses, be interpreted? This pair of chapters focuses on one answer to that question: Judges’ proper approach to constitutional interpretation is to keep the political processes open, to reinforce representative democracy, so that popularly chosen officials can decide most of the substantive issues of public policy, even those issues involving constitutional interpretation. Chapter 3 discussed six minimal institutional conditions necessary for representative democracy: (1) popular election for limited terms of the most important policy makers to governmental offices that allow a majority to govern; (2) universal adult suffrage; (3) electoral districts of approximately equal population that are not skewed to give disproportionate advantages to particular political parties or interests; (4) free entry of citizens as candidates for electoral office; (5) freedom of political communication so that citizens can be as informed as they wish to be about issues and candidates competing for public office; and, closely related to several of these, (6) freedom to associate with other people to try to convince them of the rightness of one’s views and/or to join with others of similar views to influence campaigns (to electioneer) and officeholders (to lobby). This sixth category includes a right to privacy so that people who espouse unpopular causes may associate with each other without fear of governmental or societal reprisal. The problems of freedom of political communication that Chapter 12 considered are inseparable from the difficulties involved in achieving the other freedoms essential to representative democracy. One cannot effectively campaign, join with others, lobby, or even vote intelligently if government controls what may and may not be communicated. Most basically, if government controls all or even a large share of politically relevant information, elections become charades.

And, as with political communication, no regulation at all of the rights of political participation might well produce anarchy. A chaos of bribery, fraudulent voting, frivolous candidacies, and criminal conspiracies might flourish in the name of free political participation. At the very least, government must protect the rights to participate from interference by other private citizens, lest violence determine electoral results. In the United States, federalism and racial hatred have complicated matters;! but, after some initial hesitation, the Supreme Court sustained efforts of Reconstruction Congresses to protect black voters from violence. As the justices unanimously held in Ex parte Yarbrough (1884), affirming the conviction of a group of whites for beating up a black man who was trying to vote: 1

See, e.g., United States v. Reese (1876) and United States v. Cruikshank (1876).

811

812

How TO INTERPRET THE CONSTITUTION

PART IV

If [the federal] government is anything more than a mere aggregation of delegated agents of other States and governments . it must have the power to protect the elections on which its existence depends from open violence and insidious corruption.

The history of state, mostly but not exclusively southern, efforts to keep African Americans from voting is long and sordid. Southern influence in the Senate forced proponents of civil rights to wage their countercampaign in the federal courts. Although African Americans suffered significant defeats,? they finally succeeded in persuading the Supreme Court to invalidate the white primary,? which had once been the principal “legal” means of racial disfranchisement. It was not, however, until Brown v. Board of Education (1954; reprinted below, p. 967) helped trigger the Civil Rights Movement that Congress finally enacted a comprehensive statute, the Voting Rights Act of 1965 (amended in 1970, 1975, 1982, and 2006), to protect against both subtle and not-so-subtle forms of fraud that for much of a century had kept blacks (and often poor whites) from voting. South Carolina v. Katzenbach (1966) and its progeny‘ sustained the main provisions of the law, but Shelby County, Alabama v. Holder (2013; reprinted below, p. 850) invalidated the “coverage formula” of the Act on the ground that conditions had changed between 1965 and 2013. Protecting citizens against violence and fraud in the electoral processes are, as Yarbrough held, obvious governmental duties. But what else must or even may government do to protect or even enhance rights to political participation?

I. TO WHAT EXTENT DOES THE CONSTITUTION INCLUDE DEMOCRATIC THEORY? The reach of participatory rights and the degree to which they are protected by the Constitution are problematic. It takes a broad leap over text, history, and practice to claim that the Constitution fully incorporates democratic theory. Even assuming the validity of that claim, disagreement would remain concerning what conception of democratic theory one has in mind (see Chapter 3). For example, is it a theory of interest-group pluralism (in which individuals and groups pursuing their own interests clash and form coalitions in a veritable marketplace of ideas) or a theory of civic republicanism or deliberative democracy (in which public-spirited citizens deliberate about the common good)?> Or indeed under the text does there lurk a political 22

See,

e.g., Williams

v. Mississippi

(1898),

Giles

v. Harris

Townsend (1935).

(1903),

and

Grovey

v.

’ Smith v. Allwright (1944) and Terry v. Adams (1953). ‘ See the discussion in Editors’ Notes to Katzenbach v. Morgan (1966), above pp. 328— 331; Mobile v. Bolden (1980); Rome v. United States (1980); and Alexander Bickel, “The Voting Rights Cases,” 1966 Sup.Ct.Rev. 79. ® For theories of interest-group pluralism, see, e.g., David B. Truman, The Governmental Process (2d ed.; New York: Knopf, 1971) and Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956). For theories of civic republicanism

American Benjamin University Yale L.J.

or deliberative

democracy,

see,

e.g., Gordon

S. Wood,

The

Creation

of the

Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969); Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: of California Press, 1984); Cass R. Sunstein, “Beyond the Republican Revival,” 97 1539 (1988); Sunstein, The Partial Constitution (Cambridge: Harvard University

CHAPTER

13

POLITICAL PARTICIPATION

hybrid in which elements of these conceptions of democracy coexist in tension with each other as well as with constitutionalism? Originalism and textualism do not help much. The Federalists were wary of democracy, as evidenced by such patently non-majoritarian institutions as a Senate equally representing each state regardless of population, an electoral college skewed to overrepresent less populous states, and an appointed judiciary.

Even the constitutional status of the simple act of voting poses interpretive problems, for the text does not affirmatively provide for a right to cast a ballot. Article I provides that those eligible to vote for the most numerous house of their state legislature are eligible to vote for candidates for the House of Representatives; and the Seventeenth Amendment, ratified in 1913, set the same standards for senatorial elections. All the document’s other provisions, however, are negative: The Fifteenth Amendment forbids discrimination against potential voters on account of race, the Nineteenth on account of sex, the Twentysixth on account of age for those over eighteen, and the Twenty-fourth, which applies only to senatorial, congressional, and presidential elections, on account of failure to pay a tax.6 Thus a narrow, literal interpretation of the Constitution would produce the same result today as the Court’s ruling in 1875 that “the Constitution of the United States does not confer the right of suffrage on any one....”’ Bush v. Gore (2000; reprinted below, p. 1619) reaffirmed that proposition.

A theory of representative democracy may also demand electoral districts of equal population, but the constitutional text itself says nothing directly about such a requirement. Both the Founders and those who proposed and ratified the Fourteenth and Fifteenth Amendments were intimately familiar with gerrymandering. Indeed, Elbridge Gerry, for whom the American practice of deliberately drawing unfair electoral lines was named, was himself a member of the Philadelphia Convention. Moreover, the framers of the Fourteenth Amendment apparently did not think that the Equal Protection Clause applied to suffrage, for they quickly proposed the Fifteenth Amendment, which forbids discrimination among prospective voters, but only on the basis of race or previous condition of servitude; it does not mention other factors, such as maldistricting.§ Structuralists architectural

Press,

1993); Frank

and

scheme

democratic of

Michelman,

the

theorists

document

“Foreword:

as

might well

argue as

Traces of Self-Government,”

the

that

the

historical

100 Harv.L.Rev.

4

(1986); and Michelman, “Law’s Republic,” 97 Yale L.J. 1493 (1988). 6 Harper v. Virginia (1966; reprinted above, p. 206) went further, holding that the Equal Protection Clause forbids making the right to vote depend on the payment of any tax, and so applies to elections of state as well as federal officers. 7 Minor v. Happersett (1875), sustaining a state constitutional provision limiting the suffrage to males. The Nineteenth Amendment, adopted in 1920, formally changed the constitutional rule, although by that time most states allowed women to vote. 8 For an argument that “suffrage was intentionally excluded from the rights that the Fourteenth Amendment and Civil Rights Act of 1866 were to guarantee,” in order to reduce political opposition to Reconstruction measures, see Robert Kaczorowski, “Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction,” 61 N.Y.U.L.Rev.

82 (1986).

863, 881—

813

814

How TO INTERPRET THE CONSTITUTION

PART IV

development of the political system require “one person, one vote.”9 But the advent of that principle in American constitutional law is quite recent. (See Baker v. Carr [1962; reprinted below, p. 820] and Reynolds v. Sims [1964: reprinted below, p. 826].) And Warren’s opinion for the Court in Reynolds, like Douglas’s in Gray v. Sanders (1963)—which first set out the principle of “one person, one vote’—had much deeper roots in contemporary conceptions of democratic theory than in the constitutional document or the history of the political system. Thus, to a considerable extent, the Supreme Court in the past half century has taken the leap across text, history, and practice to read much, though not all, of democratic theory into the Constitution. Stone’s footnote four in Carolene Products (1938; reprinted above, p. 691) was by no means the first decision to stress the importance of the political processes in protecting all constitutional rights, but it marked it out as the judiciary’s special responsibility to keep the political processes open. And Warren’s opinion in Reynolds highlighted the linkage between constitutional interpretation and democratic theory: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” In dissent, Harlan eloquently protested that the Court was applying a particular version of democratic theory, not a doctrine found in the explicit terms of the constitutional document or in the system’s accepted practices. And he challenged imposition of that form of democratic theory by unelected judges as itself anti-democratic. In sum, Warren and Harlan disagreed fundamentally about the Court’s function, about whether it should interpret the constitutional text so as to include democratic theory, and about whether it could articulate specific standards to “reinforce representative democracy.” Warren and Harlan also-differed profoundly on the interpretation of democratic theory, illustrating that even agreement about the text’s democratic character does not automatically eliminate interpretive uncertainty. Ironically, Hugo Black, the great literalist, was on Warren’s side, not Harlan’s; but, as we have suggested, Black laced his literalism with political theory.1° -

® Like structuralists, democratic theorists have to confront the harsh fact that weighting votes equally may exclude minorities from having effective representation in governmental institutions chosen by popular election. United Jewish Organizations v. Carey (1977) presented this problem, but the Court brushed it aside. See also Rogers v. Lodge (1982: p. 836,

available at www.princeton.edu/aci), Mobile v. Bolden (1980; cited in Rogers and discussed in

the Editors’ Notes to that case), and Shaw v. Reno (1993; reprinted below, p. 837). Interpreters who endorse majoritarian theories of democracy often rely on either “virtual” representation to protect such minorities or cross-cutting cleavages with the community that can make the political power of even small groups significant. See the discussion in Chapter 3, above, at pp.

37-88.

10 Black even wrote the opinion of the Court in Wesberry v. Sanders applied the principle of “one person, one vote” to congressional districting.

(1964), which

CHAPTER 13

II. PRACTICAL

A.

POLITICAL PARTICIPATION

PROBLEMS

VOTING: PROBLEMS OF DISTRICTING, LITERACY, AND RESIDENCE

Interpreters who accept the principle of “one person, one vote” face many practical problems. First, the mobility of the American people makes it impossible to draw electoral lines that encompass equal populations or, given the diversity of the country, that do not somehow give an advantage to particular interests or parties. How much deviation from the norm is permissible? The Warren Court seemed to be moving to near mathematical uniformity,!! but later the justices have been less strict, allowing variations in districts that reached as high as sixteen percent,!2 but not those that reached twenty per cent.!3 Even assuming exactly equal population among districts, gerrymandering presents judges with even thornier problems, and so far the Court has warily entered this particular corner of the “political thicket” of apportionment. See Davis v. Bandemer (1986; p. 837, available at www.princeton.edu/aci) (involving political gerrymandering) and Shaw v. Reno reprinted (1993; below, racial p. (involving 837) gerrymandering).1!4 Second, does the Constitution, even if liberally suffused with democratic theory, allow government to condition voting on literacy in English? The document is utterly silent on the point, except insofar as the Equal Protection Clause may be involved. The argument in favor of the limitation is that it may increase the likelihood that voting (which has an impact on all citizens’ lives, not merely that of the voter) will be an informed act. There are two arguments against it: (1) Literacy is not a legitimate basis on which to distinguish among citizens; and (2) literacy tests lend themselves to discriminatory administration. Recent constitutional debate has centered more on the second than the first point. Around the turn of the twentieth century, the Court upheld such tests, even though it was obvious that southern states were unfairly administering them to exclude blacks. In 1959, the Court unanimously reiterated this view, holding that it was not unreasonable for North Carolina to conclude that only those who could read English were likely to be politically informed.!6 Congress later concluded that

11 Swann v. Adams (1967) and Kirkpatrick v. Preisler (1967). 12 Mahan v. Howell (1973). 13 Chapman v. Meier (1975). 14 See also Wright v. Rockefeller (1964), United Jewish Organizations v. Carey (1977), and Karcher v. Daggett (1983). In Gaffney v. Cummings (1973), the Court upheld, against a charge of political gerrymandering, a state redistricting scheme formulated in a bipartisan effort to provide political representation approximately proportional to the strength of political parties in the state. Shaw v. Reno (1993; reprinted below, p. 837) and its progeny (discussed in the Editors’ Notes following Shaw) involved racial gerrymandering to create “safe” electoral districts where a majority of the voters were black. 15 Giles v. Harris (1903) and Guinn v. United States (1915). See also Williams v.

Mississippi (1898).

16 Lassiter v. Northampton Election Bd. (1959). The Court, however, became much more cynical about requirements that prospective voters show registrars that they “understood” or

815

816

How TO INTERPRET THE CONSTITUTION

ParRT IV

state officials were often using literacy tests so as to deny some citizens equal protection and, interpreting the Constitution for itself, forbade states to refuse the ballot to anyone who had completed six years of education in the United States or Puerto Rico. This provision provoked a furious debate within the Court about WHO was the authoritative interpreter of the Constitution, but Katzenbach v. Morgan (1966; reprinted above, p. 324) upheld the validity of the clause. In 1970 Congress suspended for five years all literacy tests as prerequisites to voting—sustained by Oregon v. Mitchell (1970)—and five years later made the suspension permanent.!” A third difficulty involves residency and registration requirements for voting. If government had no such requirements, nothing would prevent people from voting two or more times in the same election, a rather common occurrence in large cities before enactment of laws requiring registration of voters. But demanding long periods of residence may deprive citizens of equal protection. How long is too long? Dunn v. Blumstein (1972) held that Tennessee’s requirement of one year’s residence to vote in state elections infringed the.rights to vote and to travel freely. Thirty days’ residence, the Court noted, was the period Congress set in the Voting Rights Act of 1970 for eligibility to vote in presidential elections, and that “appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud—and a year, or three months, too much.” But then Marston v. Lewis (1973) and Burns v. Fortson (1973) sustained state claims that fifty days were necessary to complete accurate voting lists. While these cases differ in detail, they do agree on two points: (1) To protect against fraud, states may require a minimum period of residency; and (2) “minimum” is measured in weeks, not months, lest it interfere with the rights to vote and to move one’s residence freely within the country. In recent years, many states have passed voter identification laws. For example, a 2005 Indiana law required citizens voting in person to present a government-issued photo identification as a condition of voting. (The law permitted those who did not have a photo identification to cast a provisional ballot that would be counted if the person brought a photo ID to the circuit county clerk’s office within 10 days or signed an affidavit stating that they were indigent and unable to obtain proof of identification.) Proponents defend such measures as necessary to prevent voter fraud; critics argue that they are motivated by a desire to suppress voter turnout by low-income citizens who may be less likely to have such identification (and who may be more likely to vote Democratic). The latter criticize voter identification requirements as a modern-day analogue to the poll tax invalidated in Harper v. Virginia State Board of Elections (1966; reprinted above, p. 206). In Crawford v. Marion County Election Board (2008), the Supreme Court upheld the Indiana law.

could “interpret” the state or national constitutions. Giles and Williams sustained such tests, but Louisiana yv. United States (1965) struck them down.

7

42 U.S.C. § 1973b(e)(2).

CHAPTER

B.

13

POLITICAL PARTICIPATION

THE RIGHT TO ASSOCIATE At first glance, the right to associate seems free of such difficulties.

It is fundamental to representative democracy, and the First Amendment specifically recognizes “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” But rights to assemble and petition may be more limited than a general right to associate. Do these rights encompass association for all political purposes? Do they include a right of communists to form a political party that would preach the propriety and necessity of forcefully overthrowing the constitutional system? (See Barenblatt v. United States [1959; p. 869, available at www.princeton.edu/aci.) Do these rights allow small, unpopular groups who advocate peaceful change to keep their membership secret lest supporters be subject to community pressures? (See NAACP vy. Alabama [1958; reprinted below, p. 865].) May the Ku Klux Klan assert such a right to secrecy? (See New York ex rel. Bryant v. Zimmerman [1928; discussed below, p. 869], available at www.princeton.edu/aci].) Does the Constitution protect freedom of intimate association as well as freedom of expressive association? (See Roberts v. United States Jaycees [1984; reprinted below, p. 870].) To what extent does the right to associate entail the right not to associate, e.g., with women (Roberts) or with homosexuals (Boy Scouts of America v. Dale [2000; reprinted below, p. 879] and Christian Legal Society v. Martinez [2010; reprinted below, p. 889])?

C.

MONEY AND POLITICS: CONTRIBUTING AND SPENDING

Money poses special dangers for democratic politics. The costs of political campaigning are astronomical. Do rights of political participation allow wealthy individuals or groups to contribute as much money as they wish to particular candidates? Do those rights allow wealthy candidates, individuals, or groups to spend however much money it takes to blanket the mass media with communications to try to influence voters? For government to limit the amount of money one may contribute or spend certainly limits the capacity of candidates and their partisans to communicate freely. On the other hand, does representative democracy have a “compelling interest” in making certain that elections are held rather than bought, or more generally protecting the political processes against both corruption and the appearance of corruption? The Court wrestled with these issues in Buckley v. Valeo (1976; reprinted below, p. 900), First National Bank v. Bellotti (1978; p. 907, available at www.princeton.edu/aci), and continues to do so. (see Citizens United v. Federal Election Commission (2010; reprinted below, p. 908).

D.

REGULATION OF THE MASS MEDIA TO IMPROVE THE POLITICAL PROCESS

Closely related to questions about campaign finance is the issue of access to mass media of communications, an aspect of the larger to question whether the government may regulate the mass media station television or radio a improve the political process. To operate and perhaps even more so a newspaper of any size requires huge amounts of capital. Consequently, control over these media is typically

817

818

How TO INTERPRET THE CONSTITUTION

ParRTIV

highly concentrated and so gives the owners immense advantages in government May opinions. their with public the reaching constitutionally require the owners of such mass media to accord equal space and time to allow those whom they criticize to respond? (See Miami Herald v. Tornillo [1974; p. 930, available at www.princeton. edu/aci], involving a newspaper, and Red Lion Broadcasting Co. v. FCC [1969], involving radio and television stations.) May government condition a broadcaster’s receipt of federal funds upon its agreement not to engage in editorializing? (See FCC v. League of Women Voters [1984].)

E.

LOBBYING

Lobbying raises similar issues. It is a right closely connected to rights of free political communication—who better to communicate ideas to than one who holds power? And, human nature being what it is, lobbying is much more likely to be effective when the lobbyist has something besides sweet reason to offer. His or her vote and those of associates are, of course, at stake; but what about money, perhaps contributions to campaign chests? The line between lobbying—we would now!’ all agree essential to representative democracy—and bribery can be fine indeed. Where can one legitimately draw it? To what extent may government regulate such activities? If there is a right to lobby legislators and executives, is there also a right to “lobby” judges in the sense of instituting lawsuits to bring the power of the courts to bear to protect particular rights and interests? After all, constitutional interpretation makes a substantial difference not only in the general ways the polity operates but also in the specific policies it pursues. One need only watch the flurry of political activity that precedes and accompanies the selection of judges to realize how well leaders of interest groups understand the importance of judicial decisions for public policy. And organizational support is often available—in fact, sometimes to seek out and recruit litigants—to use the courts to achieve public policy goals. Groups like the NAACP, the National Association of Manufacturers, and the AFL-CIO stand ready to support litigants who share their interests, just as the American Civil Liberties Union and the Center for Individual Rights often assist in cases that raise constitutional issues.

For people or groups who have no hope of achieving influence in the legislative process, courts may stand as the only havens against oppression. (See the third paragraph of Carolene Products’ footnote 4, p. 691.) For individuals acting on their own to go to court to protect their rights seems unproblematic. But does the situation change when people, who have used their right to associate to form organizations, bring their collective resources, financial and otherwise, to bear in the judicial process? The Court first fully confronted the issues of judicial Nee in NAACP vy. Button (1963; p. 870, available at www.princeton.

edu/aci).

18 See, however, Trist v. Child (1874), which, in effect, held lobbying to be against public morals and voided a contract by which a client agreed to pay a lobbyist. The case is discussed in a note to NAACP v. Button (1963; p. 870, available at www.princeton.edu/aci).

CHAPTER 13

F.

POLITICAL PARTICIPATION

TERM LIMITATIONS

Term limitations on members of Congress raise complex issues for the approach of reinforcing representative democracy: Through such measures, the people would limit their own power to reelect representatives or senators in order to enhance democracy. The Twentysecond Amendment, ratified in 1951 (after Franklin D. Roosevelt was four times elected to the presidency), imposes a limit of two four-year terms upon the President. It is commonplace to observe that people attack Congress, yet love their own representatives and senators and repeatedly reelect them. In recent years, it has been the usual result that more than 90 per cent of incumbents who choose to run are reelected. Term limitations are a response to this situation. Like Ulysses, who bound himself to the mast of his ship so he could hear the sirens singing but could not steer into the rocks, the people bind themselves so they will not succumb to their incumbents’ pleas to be reelected repeatedly. The Supreme Court invalidated term limitations that a state imposed upon members of Congress elected from that state and clearly indicated that a constitutional amendment would be necessary to institute such measures.!9

III. REINFORCING REPRESENTATIVE REDUCING JUDICIAL DISCRETION

DEMOCRACY AND

No less than for freedom of communication, defining the existence and extent of other rights essential to representative democracy poses difficult problems for constitutional interpretation. Because of the document’s silence, one must first read a version or versions of democratic theory into the Constitution to derive from that instrument many basic participatory principles such as “one person, one vote.” As compared with theories of maintaining constitutional democracy through courts protecting fundamental rights such as_ property, religious liberty, and privacy (Chapters 16-18), theories of reinforcing representative democracy evidently seek to limit judicial discretion and judicial policy making. But this approach by no means eliminates either. Indeed, this answer to the question of HOW to interpret is grounded on the legitimacy of judges’ making three great and related interpretive decisions that are not commanded by the document’s plain words: (1) that the Constitution includes or is based on a theory of representative democracy; (2) that judges therefore have a special obligation to insure the political processes are open, so the electorate in fact has the opportunity to choose public officials to represent their views on public policy; and (3) that judges must thereafter defer on most other issues, including many of substantive constitutional interpretation, to the judgment of such elected officials. The first decision responds to the interrogative WHAT is the Constitution, the second and third to the interrogative WHO shall 19 U.S. Term Limits, Inc. v. Thornton (1995). For a spirited defense of term limits, specifically on the ground that they will help to restore deliberation in democracy, see George F. Will, Restoration: Congress, Term Limits, and the Recovery of Deliberative Democracy (New York: Free Press, 1992).

819

820

How To INTERPRET THE CONSTITUTION

Part IV

interpret it. Proponents of maintaining constitutional democracy through protecting fundamental rights might largely accept the first and second decisions as correct, though incomplete, but consider the third an abdication of responsibility.

IV. THE RIGHT TO VOTE AND HAVE ONE’S VOTE COUNTED EQUALLY “IT]he mere fact that the suit seeks protection of a political right does not mean it presents a political question.”— Justice BRENNAN “In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.”—Justice FRANKFURTER

Baker v. Carr 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) The Supreme Court squarely confronted the issue of malapportionment of legislative districts in Colegrove v. Green (1946). For many decades the rural, Republican legislature of Illinois had declined to reapportion the state, thus maintaining district lines that did not reflect the great shift in population from farms to cities. Three professors from the Chicago area sued in a federal district court, claiming that this gerrymandering-by-default of congressional districts deprived them of an equal right to vote: Some districts in and around Chicago had nine times the population of those in rural regions. The district court dismissed the suit and the professors appealed. One would have expected that, when the case reached the Supreme Court, Chief Justice Stone as author of footnote four of Carolene Products (reprinted above, p. 691) would have invoked the second paragraph of that footnote and asserted a special judicial role to protect a right of citizens to have their votes counted equally. He, however, wanted no part of this controversy and told the conference “This isn’t court business.” Stone died before the decision in Colegrove was announced and Justice Jackson did not participate—he was at Nuremberg serving as chief Allied prosecutor at the trials of Nazi leaders. As the senior justice in the 4—3 majority for affirming, Frankfurter announced the judgment of the Court; but, because Rutledge had his own reasons, Frankfurter’s

opinion was not that of the Court. Still, because of the power and eloquence of that opinion, most commentators assumed that the Court had treated districting as a political question. And, indeed, the Court later dismissed several other challenges to malapportioned systems. Then in 1960 Gomillion v. Lightfoot struck down, as a violation of the Fifteenth Amendment, Alabama’s efforts to redraw the electoral districts in Tuskegee so as to exclude most African—American residents. Many observers construed Gomillion, especially since Frankfurter had written the opinion of the Court, as signalling a reversal of Colegrove;

CHAPTER

13

POLITICAL PARTICIPATION

quickly new attacks on maldistricting began. The first to reach the Supreme Court came from Tennessee, which had not redrawn the lines for state legislative districts since 1901. = MR. JUSTICE BRENNAN delivered the opinion of the Court... . IV Justiciability In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green [1946] and subsequent ber curiam cases. We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a “political question” and was therefore nonjusticiable. .. . Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection “is little more than a play upon words.” Nixon v. Herndon (19271: Rather, it is argued that apportionment cases . . . can involve no federal constitutional right except one resting on the guaranty of a republican form of government, and that complaints based on that clause have been held to present political questions which are nonjusticiable. We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause... . Our discussion . . . requires review of a number of political question cases, in order to expose the attributes of the doctrine—attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness.... That review reveals that in the Guaranty Clause cases and in the other “political question” cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the “political question.”

We have said that “in determining whether a question falls within [the political question] category, appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Coleman v. Miller [1939]. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case. Foreign relations. There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy

821

822

ParRTIV

How TO INTERPRET THE CONSTITUTION

judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action... . Dates of duration of hostilities. Though it has been stated broadly that “the power which declared the necessity is the power to declare its cessation,

and what the cessation requires,” Commercial

Trust

Co. v.

Miller [1923], here too analysis reveals isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has political in the for finality need is the Dominant ended. . determination.... Validity of enactments. In Coleman this Court held that the to the Federal questions of how long a proposed amendment Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp... . The status of Indian tribes. This Court’s deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions ... also has a unique element in that “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else... .” Cherokee Nation v. Georgia [1831]... . It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identifies it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence. The doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority... .

CHAPTER

13

POLITICAL PARTICIPATION

But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution’s guaranty, in Art. IV, § 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a “political question,” and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization... .

[The opinion then reviewed at length Luther v. Borden (1849) and other cases involving the “republican form of government” issue.] We come, finally to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable “political question” bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action... . Reversed and remanded.

= MR. JUSTICE WHITTAKER case.

did not participate in the decision of this

a MR. JUSTICE DOUGLAS, concurring...

.

= MR. JUSTICE CLARK, concurring... . a MR. JUSTICE STEWART, concurring... . = MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE HARLAN joins, dissenting. ... We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a state-wide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court’s admonition. This is not only a euphoric hope. It implies a sorry confession of judicial impotence in place of a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief.... In this situation as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through

823

824

How TO INTERPRET THE CONSTITUTION

Part IV

‘ ; ; an aroused popular conscience that sears the conscience of the people’s representatives. ... In sustaining appellants’ claim ... this Court’s uniform course of decision over the years is overruled or disregarded. ... The Colegrove doctrine ... represents long judicial thought and experience. From its earliest opinions this Court has consistently recognized a class of controversies which do not lend themselves to judicial standards and judicial remedies. ... 1. The cases concerning war or foreign affairs, for example, are usually explained by the necessity of the country’s speaking with one voice in such matters. While this concern alone undoubtedly accounts for many of the decisions, others do not fit the pattern. .. . A controlling factor in such cases is that, decision respecting these kinds of complex matters of policy being traditionally committed not to courts but to the political agencies of government for determination by criteria of political expediency, there exists no standard ascertainable by settled judicial experience or process by reference to which a political decision affecting the question at issue between the parties can be judged... . 2. The Court has been particularly unwilling to intervene in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court’s ordinary approach to issues of state power challenged under broad federal guarantees. ... 3. The cases involving Negro disfranchisement are no exception to the principle. ... For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. ... 4. The Court has refused to exercise its jurisdiction to pass on “abstract questions of political power, of sovereignty, of government.” Massachusetts v. Mellon [1923].... The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade....

5. The influence of these converging considerations—the caution not to undertake decision where standards meet for judicial judgment are lacking, the reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate, the unwillingness to make courts arbiters of the broad issues of political organization historically committed to other institutions and for whose adjustment the judicial process is illadapted—has been decisive of the settled line of cases, reaching back more than a century, which holds that Art. IV, § 4, of the Constitution, guaranteeing to the States “a Republican Form of Government,” is not enforceable through the courts... . The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the

CHAPTER 13

POLITICAL PARTICIPATION

Fourteenth Amendment rather than Art. IV, § 4, where, in fact, the gist of their complaint is the same. ... . Here appellants attack “the State as a State....” Their complaint is that the basis of representation of the Tennessee Legislature hurts them. They assert that “a minority now rules in Tennessee,” that the apportionment statute results in a “distortion of the constitutional system,” that the General Assembly is no longer “a body representative of the people of the State of Tennessee,” all “contrary to the basic principle of representative government. ...” Accepting appellants’ own formulation of the issue, one can know this handsaw from a hawk. Such a claim would be non-justiciable not merely under Art. IV, § 4, but under any clause of the Constitution, by virtue of the very fact that a federal court is not a forum for political debate. ... But appellants, of course, do not rest on this claim simpliciter. In invoking the Equal Protection Clause, they assert that the distortion of representative government complained of is produced by systematic discrimination against them, by way of “a debasement of their votes. ...”

... Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful. ... What is actually asked of the Court in this case is to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union. ... This is not a case in which a State has, through a device however oblique and sophisticated, denied Negroes or Jews or redheaded persons a vote, or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot [1961].... What Tennessee illustrates is an old and still widespread method of representation— representation by local geographical division, only in part respective of population—in preference to others, others, forsooth, more appealing. Appellants contest this choice and seek to make this Court the arbiter

of the disagreement. They would make the Equal Protection Clause the charter of adjudication, asserting that the equality which it guarantees comports, if not the assurance of equal weight to every voter’s vote, at least the basic conception that representation ought to be proportionate to population, a standard by reference to which the reasonableness of apportionment plans may be judged. To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection is to rewrite the Constitution. ... = Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE

FRANKFURTER joins. . . . EDITORS’ NOTES

(1) Query: In his Memoirs (New York: Doubleday, 1977), p. 306, Earl Warren said that not Brown v. Board of Education (1954; reprinted below,

825

826

How TO INTERPRET THE CONSTITUTION

PART IV

p. 967), but Baker v. Carr “was the most important case of my tenure on the Court.” In what view of the Constitution does that claim make sense? How justified was the claim?

(2) Query: Arguments about “political questions” are a subspecies of arguments about the interrogative WHO may interpret the Constitution. In Baker the Court referred to itself “as the ultimate interpreter of the Constitution.” Does that claim appear as uncontestable now as it did when we first encountered it in Chapter 7? (3) Query: What approach(es) to constitutional interpretation did Frankfurter employ? How much did he argue from considerations of prudence? Brennan’s approach, Frankfurter claimed, required the justices to choose “among competing theories of political philosophy.” To what extent was he correct? To what extent did Brennan’s and Frankfurter’s disagreement stem from different conceptions of democracy, and to what extent from different conceptions of the proper roles of courts? Who was more faithful to the text of the constitutional document?

(4) The expectation that the Court would receive more cases involving reapportionment was quickly fulfilled. See Reynolds v. Sims (1964; reprinted next) and accompanying notes. (5) Art. IV, § 4 of the constitutional text reads: “The United States shall guarantee to every State in this Union a Republican Form of Government.” Luther v. Borden (1849) held that the question of which of two rival groups was the lawful state government was a nonjusticiable, political question for Congress to decide. Baker explicitly rejected Colegrove’s view that legislative apportionment raised a political question but explicitly adhered to Luther’s holding that claims under the Guarantee Clause are nonjusticiable. Although the Guarantee Clause itself thus has been virtually a dead letter for constitutional adjudication since Luther, the Court sometimes seems to draw inferences from political theories of a republican form of government. For analyses of the Guarantee Clause, see William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca, NY: Cornell University Press, 1972); Note, “A Niche for the Guarantee Clause,” 94 Harv.L.Rev. 681 (1981).

“[R]epresentative government is in essence self-government ... and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies.”—Chief Justice WARREN

“The Constitution is not a panacea for every blot upon the public welfare, nor should this Court ... be thought of as a general haven for reform movements.”—Justice HARLAN

Reynolds v. Sims 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) Soon after Baker v. Carr, the Court was presented with opportunities to decide the substantive constitutional issues presented

CHAPTER

13

POLITICAL PARTICIPATION

by maldistricting. Announcing for the first time the principle of “one person, one vote,” Gray v. Sanders (1963) invalidated Georgia’s “county unit” system, under which votes of residents of rural counties counted for more than those in urban areas. Wesberry v. Sanders (1964) applied that principle to congressional districting. Quickly the Court faced fourteen cases challenging other aspects of legislative districting. In Reynolds, a group of citizens challenged Alabama’s apportionment of seats in the state legislature. That apportionment had not changed since the census of 1900. According to the 1960 census, population in districts for the lower house ranged from 6,700 to 104,000, and for the senate from 15,000 to 634,000. The U.S. district court rejected several state proposals for redistricting because they still included wide disparities in population and ordered state officials to carry out the court’s own plan for reapportionment. For different reasons, both the private citizens and the state appealed to the U.S. Supreme Court. = MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. ...

II Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear... . And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. .. .

Ill A predominant consideration in determining whether a State’s legislative apportionment scheme _ constitutes an _ invidious discrimination violative of rights asserted under the Equal Protection Clause is that the rights allegedly impaired are individual and personal in nature.... Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.... [I]n Yick Wo v. Hopkins [1886] the Court referred to “the political franchise of voting” as “a fundamental political right, because preservative of all rights.” Legislators represent people, not trees or acres. Legislators are or cities or economic interests. As long a 1 OL g

hey

happe

mer

Ad

h

OU!

an

y seems justifiable.

must be ever aware that the n forbids “sophisticated as well as simple-minded modes of discrimination.” Lane v. Wilson [1939]... .

827

828

PART IV

How TO INTERPRET THE CONSTITUTION

legislatures

State

representative

are,

government

in

historically,

fountainhead

the

country....

this

But

_of

representative

government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full andeffective participation by all citizensin sta vemovero ment requires herefore, that pachi eth zen, have an equa effective

voice in

the

election no of

yembers

inser? and 2igele state governmen

otehis

sta

cenraia

Eo

demands, no less, [In a_ society ostensibly grounded on _ representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators. To conclude differently . would appear to deny majority rights in a way that far surpasses any possible denial of minority pee poet might otherwise be thought to result. Since legislatures are respOuelyss fs or enacting law by unl ail citizens are to be governed, ch bod

tively

respons

pop

ill.

atovsetivnn has peek eradinionelly viewed” as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live... . [T]he Equal Protection Clause guarantees the Boda pla for equal participation by all voters

based upo: ha : 1 v. Board [1954], or economic Stabs: Griffin v. “Minois 11956), Douglas v. California [1963]. Our constitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures... . We are told that the matter of apportioning representation in a state legislature is a complex and many faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering, Anto political thickets and Bot eae Cae res. One

s

this:: a denial of constit itionally p

demands

To the cent that a citizen’s rei to oe is debased, i isaint much less a citizen. The fact that an individual lives here or there iis not a legitimate reason for overweighting or diluting the efficacy of his vote.... Representation schemes once fair and equitable become archaic and outdated. ut $ 1 7

the meant ofLincoln’ SVvision of ERC ' ETEof Phaneophe: by the peoples [and] for the people.” The Equal Protection Clause demands no less. for all citizens, of all places as well as of all races... .

CHAPTER 13

POLITICAL PARTICIPATION

V _. ++ [We] find the federal analogy inapposite and irrelevant to state legislative districting schemes. ... The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic. Arising from unique historical circumstances, it is based on the consideration that in establishing our type of federalism a group of formerly independent States bound themselves together under one national government... . Political subdivisions of States—counties, cities, or whatever— never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. ... The right of a citizen to equal representation and to have his vote weighted equally with those of all other citizens in the election of members of one house of a bicameral state legislature would amount to little if States could principle equal-population in the submerge effectively the apportionment of seats in the other house... . We do not believe that the concept of bicameralism is rendered anachronistic and meaningless when the predominant basis of representation in the two state legislative bodies is required to be the same—population. A prime reason for bicameralism, modernly considered, is to insure mature

revent precipitate action on, g

id

i

no

and deliberate consideration of, and to

proposed legislative measures. Simply '

oy

TQ

the co

ak

e

two

bodies.

D could be composed of single-member districts while the other could have at least some multimember districts. The length of terms of the legislators in the separate bodies could differ. The numerical size of the two bodies could be made to differ, even significantly, and the geographical size of districts ... could also be made to differ. And

apportionment in one house could be arranged so as to balance off minor inequities in the representation of certain areas in the other....

VI

ure, as nearly of equal pop | )

ear 3

bs

Nn}

* ]

1€ nt. Shere

A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or

829

830

PART IV

How TO INTERPRET THE CONSTITUTION

historical boundary lines, may be little more than an open invitation to partisan gerrymandering. ... _.. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible. ... But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation.

Citizens, not history or economic interests, cast votes. Considerations of

area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. Modern developments and improvements in transportation and communications make rather hollow, in the mid—1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. . . . A consideration that appears to be of more substance in justifying in state representation population-based from deviations some as subdivisions, political to voice some insuring of that is legislatures political subdivisions.... In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision Howeveer: . . if even lines to deter the possibilities of gerrymandering. re

CSULT

O

)

C

VII One of the arguments frequently offered as a basis for upholding a State’s legislative apportionment arrangement, despite substantial disparities from a population basis in either or both houses, is grounded on congressional approval, incident to admitting States into the Union, of state apportionment plans containing deviations from the equalpopulation principle. Proponents of this argument contend that congressional approval of such schemes ... indicates that such arrangements are plainly sufficient as establishing a “republican form of government.” As we stated in Baker [v. Carr (1962)], some questions raised under the Guaranty Clause are nonjusticiable, where “political” in nature and where there is a clear absence of judicially manageable standards.

Nevertheless,

it is not inconsistent with this view to hold

that, despite congressional approval of state legislative apportionment plans at the time of admission into the Union ... the Equal Protection Clause can and does require more. And an apportionment scheme in which both houses are based on population can hardly be considered as failing to satisfy the Guaranty Clause requirement. Congress presumably does not assume, in admitting States into the Union, to pass on all constitutional questions relating to the character of state governmental organization. In any event, congressional approval, however

state

well-considered,

legislative

could

hardly

apportionment.

validate

Congress

an

unconstitutional

simply

lacks

the

CHAPTER 13

POLITICAL PARTICIPATION

constitutional power to insulate States from attack with alleged deprivations of individual constitutional rights. . . . [Affirmed.] = MR. JUSTICE HARLAN, dissenting. . ..

respect

to

... Whatever may be thought of this holding as a piece of political ideology—and even on that score the political history and practices of this country from its earliest beginnings leave wide room for debate (see the dissenting opinion of Frankfurter, J., in Baker)—I think it demonstrable that the Fourteenth Amendment does not impose this political tenet on the States or authorize this Court to do so. ... Stripped of aphorisms, the Court’s argument boils down to the assertion that appellees’ right to vote has been invidiously “debased” or “diluted” by systems of apportionment which entitle them to vote for fewer legislators than other voters, an assertion which is tied to the Equal Protection Clause only by the constitutionally frail tautology that “equal” means “equal.” woul

to inhibit the

U

qu al Protection

States in

choosing any

(¢ ause was

democrati

never intended’

d

they

pleased'

for the apportionment of t es. This is shown by the language of the Fourteenth Amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the political practices of the States at the time the Amendment was adopted. It is confirmed by numerous state and congressional actions since the adoption of the Fourteenth Amendment, and by the common understanding of the Amendment as evidenced by subsequent constitutional amendments and decisions of this Court before Baker made an abrupt break with the past in 1962.... ... Since it can ... be shown beyond doubt that state legislative apportionments ... are wholly free of constitutional limitations, save such as may be imposed by the Republican Form of Government Clause (Art. IV, § 4), the Court’s action now bringing them within the purview of the Fourteenth Amendment amounts to nothing less than an exercise of the amending power by this Court....

I [Harlan then examined in great detail the history of the adoption of the Fourteenth Amendment and concluded:] The facts recited above show beyond any possible doubt: (1) that Congress, with full awareness of and attention to the possibility that the States would not afford full equality in voting rights to all their citizens, nevertheless deliberately chose not to interfere with the States’ plenary power in this regard when it proposed the Fourteenth Amendment;

(2) that Congress did not include in the Fourteenth Amendment restrictions on the States’ power to control voting rights because it

believed that if such restrictions were included, the Amendment would not be adopted; and (3) that at least a substantial majority, if not all, of the States

which ratified the Fourteenth Amendment

did not consider that in so

831

832

PAaRTIV

How To INTERPRET THE CONSTITUTION

doing, they were accepting limitations on their freedom, never before questioned, to regulate voting rights as they chose..

II The

indicates

Court’s

how

elaboration

far—and

how

of

its

new

aie te

“constitutional”

has

strayed

doctrine

from the

Although the Court—necessarily, as | believe—provides only generalities in elaboration of its main thesis, its opinion nevertheless fully demonstrates how far removed these problems are from fields of judicial competence. Recognizing that “indiscriminate districting” is an invitation to “partisan gerrymandering,” the Court nevertheless excludes virtually every basis for the formation of electoral districts other than “indiscriminate districting. ” _.. (1) history; (2) “economic or other sorts of group interests’; (8) area; (4) geographical consideration (5) a desire “to insure effective representation for sparsely settled areas”; (6) “availability of access of citizens to their representatives’; (7) theories of bicameralism (except those approved by the Court); (8) occupation; (9) “an attempt to balance urban and rural power”; (10) the preference of a majority of voters in the State. So far as presently appears, the only factor which a State may consider, apart from numbers, is political subdivisions. But even “a clearly rational state policy” recognizing this factor is unconstitutional if “population is submerged as the controlling consideration. ‘ I know of no principle of logic or practical or theoretical politics, still less any constitutional principle, which establishes all or any of these exclusions.... So far as the Court says anything at all on this score, it says only that “legislators represent people, not trees or acres’; that “citizens, not EU or economic interests, cast votes”; that pastures, vote.” All this ai be conceded.

ve. or indeed even attempt to ee a case for the proposition that conflicting interests within a State can only be adjusted by disregarding them when voters are grouped for purposes of representation.

CONCLUSION . What is done today deepens my conviction that judicial entry

into” ‘this

realm is

impermissible

profoundl that

ill-Sar 1

ms \

pls is

ystel

These decisions also cut deeply into the fabric of our federalism. What must follow from them may eventually appear to be the product of

;

CHAPTER

13

POLITICAL PARTICIPATION

state legislatures. N U

aa

:

d

Federal

Gov

ent,

I y tk diciary. Only one who has an overbearing Impatience with the federal system and its political processes will believe that that cost was not too high or was inevitable. Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. is Iti

da

fl

Cll,

in

1S

5

tNat

oti

sovernment

to act., The Constitution is not a panacea for every blot upon the

public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This ilnis & Court, 1m

J

e when

mpatie

nini

with

it exceeds

the slow

a

its

|

authority.

workings of the

even

political

»

AC

atis

ified

proces

in

the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.... = MR. JUSTICE STEWART, whom MR. JUSTICE CLARK joins, dissenting.*

What the Court has done is to convert a particular political philosophy into a constitutional rule, binding upon each of the 50 States.... My own understanding of the various theories of representative government is that no one theory has ever commanded unanimous assent among political scientists, historians, or others who have considered the problem. But if it were ight that the rule ”

-

=

incea

|

tn

today

7

1 in | Representative

government

en

of its demo

is a process

institutions. of accommodating

. group

interests through democratic institutional arrangements.... Appropriate legislative apportionment, therefore, should ideally be designed to insure effective representation in the State’s legislature, in cooperation with other organs of political power, of the various groups and interests making up the electorate. ... [L]egislators do not represent faceless numbers. They represent ... people with identifiable needs and interests ... which can often be * — Justices Stewart companion cases, WMCA that dissent here.—Eds.

and Clark concurred in the result in Reynolds, but dissented in v. Lomenzo and Lucas v. Colorado (1964). We reprint portions of

833

834

How To INTERPRET THE CONSTITUTION

PART IV

geographical residence is irrelevant, :as the Gout sugges s, and the bat is solely that of equally “weighted” votes, I do not understand why the Court’s constitutional rule does not require the abolition of districts and the holding of all soe at lange

a

1 e. And the farther fact | is that piri eensourAienae site epoutmiiaente of State Legislatures have reflected the strongly felt American tradition that the public interest is composed of many diverse interests, and that in the long run it can better be expressed by a medley of component voices than by the majority monolithic command. What constitutes a rational plan reasonably designed to achieve this objective will vary from State to State, since each State is unique, in terms of topography, geography, demography, history, heterogeneity and concentration of population, variety of social and economic interests, and in the operation and interrelation of its political institutions. But so long as a State’s apportionment plan reasonably achieves, in the light of the State’s own characteristics, effective and balanced representation of all substantial interests, without sacrificing the principle of effective majority rule, that plan cannot be considered irrational. .

this, Ithink there is nothing in the Federa erence to prevent a State from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people. . . EDITORS’ NOTES

(1) Query: What are the fundamental differences between Warren and Harlan? Where do Stewart and Clark fit into this debate? To what extent was the debate ultimately about choices among competing political theories? Are such choices inevitable? To what extent was the debate here about WHO shall interpret? (2) Query: Minor v. Happersett (1875) ruled that “the Constitution of the United States does not confer the right of suffrage on any one... .” Yet in Reynolds, Warren stated: “Undeniably the Constitution of the United States protects the right of all qualified citizens to vote....” The plain

CHAPTER

13

POLITICAL PARTICIPATION

words of the document do not affirmatively enumerate the right to vote. Was Warren interpreting the Constitution as embodying a political theory for a republican form of government? Does the very structure of the republican form of government embodied in the Constitution necessarily entail a right to vote? Even if so, does it necessarily entail a principle of “one person, one vote”? For an argument that Reynolds and the principle of “one person, one vote” are best understood as a “joint product” of the Republican Form of Government Clause and the Equal Protection Clause, see John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980), p. 122. (But see Editors’ Note (5) to Baker v. Carr [1962; reprinted above, p. 820] regarding claims under the former clause being “political questions.”) (3) In Reynolds Warren denied that the Court was requiring mathematical exactness, but during the next few years several rulings came close to demanding such equality. More recent decisions have taken a somewhat looser attitude, though the Court did invalidate a districting scheme that contained variations in population of twenty per cent. (4) Sophisticated computer programs can carve out districts of approximately equal populations to give particular office holders, parties, or interests great advantages. In Gomillion v. Lightfoot (1960; discussed above at p. 820) the justices boldly faced up to racial gerrymandering. For cases involving political gerrymandering, see Karcher v. Daggett (1983), Davis v. Bandemer (1986; p. 837, available at www.princeton.edu/aci), and Vieth v. Jubelirer (2004). For cases involving racial gerrymandering under the Voting Rights Act of 1965 to create “majority-minority” districts, see, e.g., Shaw v. Reno (1998; reprinted below, p. 837) and accompanying notes. (5) United States Dep’t of Commerce v. Montana (1992) unanimously sustained the constitutionality of a federal law determining the allocation of congressional districts among the states. The law, a district court had concluded, ignored the Court’s principle of “equal representation for equal numbers of people.” The Supreme Court held that the lower court had mistakenly transplanted the principle of one person, one vote from the context of districting within states to the context of districting between states.

“[Wlealth or fee paying has ... no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”

[Harper v. Virginia State Board of Elections] 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) This case, invalidating as a denial of equal protection Virginia’s requirement that voters in state elections pay a tax of $1.50, is reprinted above, p. 206.

835

836

How TO INTERPRET THE CONSTITUTION

PART IV

EDITORS’ NOTES (1) Query: Paraphrasing Warren in Reynolds, Douglas said in Harper that “the right to vote in federal elections is conferred by Art. I, § 2 of the Constitution.” Douglas was thus more textualist than Warren, but does that provision explicitly confer a right to vote? (2) Query: In his famous dissent in Lochner v. New York (1905; reprinted below, p. 1230), Justice Holmes argues that “a constitution is not intended to embody a particular economic theory.” Nonetheless, does the American Constitution embody a political theory or combination of political theories? To what extent did Douglas’s reasoning in Harper and Warren’s in Reynolds (1964; reprinted above, p. 826) depend on inferences from a political theory of a republican form of government? In Harper, both Douglas for the majority and Black and Harlan in dissent invoke Holmes’s dissent. Who has the better argument? (3) See also the Editors’ Notes concerning Harper on p. 210.

“At-large voting schemes and multimember districts tend to minimize the voting strength of minority groups.... [But] this Court has repeatedly held that they are not unconstitutional per se.”—Justice WHITE “A constitutional standard that gave special protection to political groups identified by racial characteristics would be inconsistent with the basic tenet of the Equal Protection Clause.”—Justice STEVENS

Rogers v. Lodge* 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982)

This case affirmed lower court decisions that the political system of a Georgia county that elected its governing board from the county as a whole, without division into subunits, violated the Equal Protection Clause. The justices debated the proper standards to apply when faced with a policy that produced an adverse impact on a racial minority.

“[U]nconstitutional vote dilution ... occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.’—Justice

WHITE

“The rights asserted in this case are group rights to an equal share of political power and representation.”—Justice O’CONNOR “Computer technology now enables gerrymanderers to achieve their purpose while adhering perfectly to the *

Our edit of this case is available at www.princeton.edu/aci.

CHAPTER 13

POLITICAL PARTICIPATION

requirement that districts be of equal population.”—Justice POWELL

Davis v. Bandemer* 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) This case involved a lawsuit by several Indiana Democrats alleging that a reapportionment plan constituted a political gerrymander that violated their right to equal protection of the laws.

“(W]e believe that reapportionment is one area in which appearances do matter. A reapportionment plan _ that includes in one district individuals who belong to the same race, but -who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.”—Justice O CONNOR “[T]he notion that North Carolina’s plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants’ constitutional rights is both a fiction and a_ departure from _ settled equal protection principles. ...”—Justice WHITE “The Court says its new cause of action is justified by what I understand to be some ingredients of stigmatic harm.... [I]t seems utterly implausible to me to presume, as the Court does, that North Carolina’s creation of this strangely shaped majority-minority district ‘generates’ within the white plaintiffs here anything comparable to ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ ”—Justice SOUTER

Shaw v. Reno 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) a JUSTICE O’CONNOR delivered the opinion of the Court. This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional “right” to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups. As a result of the 1990 census, North Carolina became entitled to a 12th seat in the United States House of Representatives. The General Assembly enacted a reapportionment plan that included *

Our edit of this case is available at www.princeton.edu/aci.

837

838

PARTIV

How TO INTERPRET THE CONSTITUTION

one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to § 5 of the Voting Rights Act of 1965, the General Assembly passed new legislation creating a second majority-black district. Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional racial gerrymander. The question before us is whether appellants have stated a cognizable claim. I The voting age population of North Carolina is approximately 78% white, 20% black, and 1% Native American; the remaining 1% is predominantly Asian. The black population is relatively dispersed; blacks constitute a majority of the general population in only 5 of the State’s 100 counties. ... The largest concentrations of black citizens live in the Coastal Plain, primarily in the northern part. The General Assembly’s first redistricting plan contained one majority-black district centered in that area of the State. ... The first of the two majority-black districts contained in the revised plan, District 1, is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with finger-like extensions, it reaches most part of the State near the South Carolina been compared to a “Rorschach ink-blot test,” and windshield,” Wall Street Journal, Feb. 4, 1992, p.

far into the southernborder. District 1 has a “bug splattered on a A14.

The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas “until it gobbles in enough enclaves of black neighborhoods.” Northbound and southbound drivers on I-85 sometimes find themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 38 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that “‘[i]Jf you drove down the interstate with both car doors open, you’d kill most of the people in the district.’ ” Washington Post, Apr. 20, 1998, p. A4. The district even has inspired poetry: “Ask not for whom the line is drawn; it is drawn to avoid thee.” Grofman, Would Vince Lombardi Have Been Right If He Had Said: “When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing”?, 14 Cardozo L.Rev. 1237, 1261, n. 96 (1998).

The Attorney General did not object to the General Assembly’s revised plan. But numerous North Carolinians did. The North Carolina Republican Party and individual voters brought suit in Federal District Court, alleging that the plan constituted an unconstitutional political gerrymander under Davis v. Bandemer [1986]. That claim was dismissed, and this Court summarily affirmed... .

TESS. 3 ... Our focus is on appellants’ claim that the State engaged in unconstitutional racial gerrymandering. That argument strikes a

CHAPTER

13

POLITICAL PARTICIPATION

powerful historical chord: It is unsettling how closely the North ee plan resembles the most egregious racial gerrymanders of the

past.

An understanding of the nature of appellants’ claim is critical to our resolution of the case. In their complaint, appellants did not claim that the General Assembly’s reapportionment plan unconstitutionally “diluted” white voting strength. They did not even claim to be white. [The Court elsewhere noted “that appellants are white.”—Eds.] Rather, appellants’ complaint alleged that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a “color-blind” electoral process. on This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification. [Wle conclude that appellants have stated a claim upon which relief can be granted under the Equal Protection Clause. ...

Ld aie B Appellants contend that redistricting legislation that is so bizarre on its face that it is “unexplainable on grounds other than race,” Arlington Heights v. Metropolitan Housing Dev. Corp. (1977), demands the same close scrutiny that we give other state laws that classify citizens by race. Our voting rights precedents support that conclusion. ... A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. Moreover, redistricting

differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. [W]hen members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions. See Reynolds v. Sims (1964). The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race. Moreover, it seems clear to us that proof sometimes will not be difficult at all. In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to “segregatle] ... voters” on the basis of race. Gomillion v. Lightfoot (1960), in which a tortured municipal boundary line was drawn to exclude black voters, was such a case. So, too, would be a case in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for

839

840

PART IV

How TO INTERPRET THE CONSTITUTION

political subdivisions. We emphasize that these criteria are important not because they are constitutionally required—they are not—but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group— regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract. The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy. As Justice Douglas explained in his dissent in Wright v. Rockefeller [1964] nearly 30 years ago: ... When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.

For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the

separation lacks sufficient justification. It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majorityminority districts, without more,” always gives rise to an equal protection claim. We hold only that, on the facts of this case, appellants aaye. sides a claim sufficient to defeat the state appellees’ motion to ismiss.

C ... Justice Souter apparently believes that racial gerrymandering is harmless unless it dilutes a racial group’s voting strength. As we have explained, however, reapportionment legislation that cannot be understood as anything other than an effort to classify and separate

CHAPTER

13

POLITICAL PARTICIPATION

voters by race injures voters in other ways. It reinforces racial stereotypes and threatens to undermine our system of represen tative democracy by signaling to elected officials that they represen t a particular racial group rather than their constituency as a whole.. .. The dissenters make two other arguments that cannot be reconciled with our precedents. First, they suggest that a racial gerrymander of the sort alleged here is functionally equivalent to gerrymanders for nonracial purposes, such as political gerrymanders. See Davis. But nothing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion. Second, Justice Stevens argues that racial gerrymandering poses no constitutional difficulties when district lines are drawn to favor the minority, rather than the majority. We have made clear, however, that

equal protection analysis “is not dependent on the race of those burdened or benefited by a particular classification.” Richmond v. J.A. Croson (1989) (plurality opinion); see also id., (Scalia, J., concurring in judgment). Finally, nothing in the Court’s highly fractured decision in United Jewish Organizations of Williamsburgh, Inc. v. Carey (1977) (UJO)— and which the dissenters evidently believe controls, forecloses the claim we recognize today. UJO concerned New York’s revision of a reapportionment plan to include additional majority-minority districts in response to the Attorney General’s denial of administrative preclearance under § 5....UJO set forth a standard under which white voters can establish unconstitutional vote dilution. But ... nothing in the decision precludes white voters (or voters of any other race) from bringing the analytically distinct claim that a reapportionment plan rationally cannot be understood as anything other than an effort to segregate citizens into separate voting districts on the basis of race without sufficient justification. ...

IV Justice Souter contends that exacting scrutiny of racial gerrymanders under the Fourteenth Amendment is inappropriate because reapportionment “nearly always require[s] some consideration of race for legitimate reasons.” ... That racial bloc voting or minority political cohesion may be found to exist in some cases, of course, is no reason to treat all racial gerrymanders differently from other kinds of racial classification. Justice Souter apparently views racial gerrymandering of the type presented here as a special category of “benign” racial discrimination that should be subject to relaxed judicial review. As we have said, however, the very reason that the Equal Protection Clause demands strict scrutiny of all racial classifications is because without it, a court cannot determine whether or not the discrimination truly is “benign.” Thus ... the District Court must determine whether the General Assembly's reapportionment plan satisfies strict scrutiny. We therefore consider what that level of scrutiny requires in the reapportionment context.

841

842

How TO INTERPRET THE CONSTITUTION

PAaRTIV

The state appellees suggest that a covered jurisdiction may have a compelling interest in creating majority-minority districts in order to comply with the Voting Rights Act. The States certainly have a very strong interest in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and as applied. But in the context of a Fourteenth Amendment challenge, courts must bear in mind the difference between what the law permits and what it requires. For example, on remand North Carolina might claim that it adopted the revised plan in order to comply with the §5 “nonretrogression” principle. Under that principle, a proposed voting change cannot be precleared if it will lead to “a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States (1976). ... Although the Court concluded that the redistricting scheme at issue in Beer was nonretrogressive, it did not hold that the plan, for that reason, was immune from constitutional challenge. The Court expressly declined to reach that question. ... Thus, we do not read Beer or any of our other § 5 cases to give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression. A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression. The state appellees alternatively argue that the General Assembly’s plan advanced a compelling interest entirely distinct from the Voting Rights Act. We previously have recognized a significant state interest in eradicating the effects of past racial discrimination. See, e.g., Croson (opinion of O’Connor, J., joined by Rehnquist, C.J., and White, J.); id. (Kennedy, J., concurring in part and concurring in judgment). But the State must have a “ ‘strong basis in evidence for [concluding] that remedial action [is] necessary.’ ” Croson.

Vv Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny. In this case, the Attorney General suggested that North Carolina could have created a reasonably compact second majority-minority district in the south-central to southeastern part of the State. We express no view as to whether appellants successfully could have challenged such a district under the Fourteenth Amendment. We also do not decide whether appellants’ complaint stated a claim under constitutional provisions other than the Fourteenth Amendment. Today we hold only that appellants have stated a claim under the Equal Protection Clause by alleging that the North Carolina General Assembly adopted a reapportionment scheme so irrational on its face

CHAPTER 13

POLITICAL PARTICIPATION

that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification. If the allegation of racial gerrymandering remains uncontradicted, the District Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest. Accordingly, we reverse the judgment of the District Court and remand the case for further proceedings consistent with this opinion. It is so ordered.

a

JUSTICE

WHITE,

with

whom

JUSTICE

BLACKMUN

and

JUSTICE

STEVENS join, dissenting. .. [T]he notion that North Carolina’s plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants’ constitutional rights is both a fiction and a departure from settled equal protection principles. . . . The grounds for my disagreement with the majority are simply stated: Appellants have not presented a cognizable claim, because they have not alleged a cognizable injury. To date, we have held that only two types of state voting practices could give rise to a constitutional claim. The first involves direct and outright deprivation of the right to vote, for example by means of a poll tax or literacy test... . The second type of unconstitutional practice is that which “affects the political strength of various groups,” Mobile v. Bolden (1980) (Stevens, J., concurring in judgment), in violation of the Equal Protection Clause. As for this latter category, we have insisted that members of the political or racial group demonstrate that the challenged action have the intent and effect of unduly diminishing their influence on the political process.... To distinguish a claim that alleges that the redistricting scheme has discriminatory intent and effect from one that does not has nothing to do with dividing racial classifications between the “benign” and the malicious—an enterprise which, as the majority notes, the Court has treated with skepticism. Rather, the issue is whether the classification based on race discriminates against anyone by denying equal access to the political process... .

... It strains credulity to suggest that North Carolina’s purpose in creating a second majority-minority district was to discriminate against members of the majority group by “impair[ing] or burden [ing their] opportunity ... to participate in the political process.” UJO (Stewart, J., concurring in judgment). The State has made no mystery of its intent, which was to respond to the Attorney General’s objections, by improving the minority group’s prospects of electing a candidate of its choice. I doubt that this constitutes a discriminatory purpose as defined in the Court’s equal protection cases—i.e., an intent to aggravate “the unequal distribution of electoral power.” But even assuming that it does, there is no question that appellants have not alleged the requisite discriminatory effects. Whites constitute roughly 76% of the total population and 79% of the voting age population in North Carolina. Yet, under the State’s plan, they still constitute a voting majority in 10 (or

843

844

PART IV

How TO INTERPRET THE CONSTITUTION

83%) of the 12 congressional districts. Though they might be dissatisfied at the prospect of casting a vote for a losing candidate—a lot shared by many, including a disproportionate number of minority voters—surely they cannot complain of discriminatory treatment.? Lacking support in any of the Court’s precedents, the majority's novel type of claim also makes no sense. As I understand the theory that is put forth, a redistricting plan that uses race to “segregate” voters by drawing “uncouth” lines is harmful in a way that a plan that uses race

to distribute

voters

differently is not, for the former

to political apartheid.” The

“bears

an

distinction is

uncomfortable resemblance untenable. Racial gerrymanders come in various shades: At-large voting schemes; the fragmentation of a minority group among various districts “so that it is a majority in none,” otherwise known as “cracking;” the “stacking” of “a large minority population concentration ... with a larger white population;” and, finally, the “concentration of [minority voters] into districts where they constitute an excessive majority,” also called “packing.” In each instance, race is consciously utilized by the legislature for electoral purposes; in each instance, we have put the plaintiff challenging the district lines to the burden of demonstrating that the plan was meant to, and did in fact, exclude an identifiable racial group from participation in the political process. Not so, apparently, when the districting “segregates” by drawing odd-shaped lines.? In that case, we are told, such proof no longer is needed. Instead, it is the State that must rebut the allegation that race was taken into account, a fact that, together with the legislators’ consideration of ethnic, religious, and other group characteristics, I had thought we practically took for granted. Part of the explanation for the majority's approach has to do, perhaps, with the emotions stirred by words such as “segregation” and “political apartheid.” But their loose and imprecise use by today’s majority has, I fear, led it astray. ... The other part of the majority’s explanation of its holding is related to its simultaneous discomfort and fascination with irregularly shaped

districts.... But ... given two districts drawn on similar, race-based grounds, the one does not become more injurious than the other simply by virtue of being snake-like, at least so far as the Constitution is

concerned and absent any evidence of differential racial impact. The majority's contrary view is... shortsighted ..., for a regularly shaped district can just as effectively effectuate racially discriminatory gerrymandering as an odd-shaped one. By focusing on looks rather than impact, the majority “immediately casts attention in the wrong 1 This is not to say that a group that has been afforded roughly proportional representation never can make out a claim of unconstitutional discrimination. Such districting might have both the intent and effect of “packing” members of the group so as to deprive them of any influence in other districts. Again, however, the equal protection inquiry should look at the group’s overall influence over, and treatment by, elected representatives and the political process as a whole. [Footnote by Justice White.]

2 I borrow the term “segregate” from the majority, but, given its historical connotation, believe that its use is ill advised. Nor is it a particularly accurate description of what has occurred. The majority-minority district that is at the center of the controversy is, according to the State, 54.71% African—American.

Even if racial distribution was a factor, no racial group

can be said to have been “segregated”—i.e., “set apart” or “isolate[d].” Webster’s Dictionary 1063 (9th ed. 1983). [Footnote by Justice White.]

Collegiate

CHAPTER

13

POLITICAL PARTICIPATION

direction—toward superficialities of shape and size, rather than toward

the political realities

of district composition.”

R. Dixon,

Democratic

Representation: Reapportionment in Law and Politics 459 (1968). __... When, as is the case here, the creation of a majority-minority district does not unfairly minimize the voting power of any other group, the Constitution does not justify, much less mandate, such obstruction. ... a JUSTICE BLACKMUN, dissenting. I join Justice White’s dissenting opinion. . . . It is particularly ironic that the case in which today’s majority chooses to abandon settled law and to recognize for the first time this “analytically distinct” constitutional claim is a challenge by white voters to the plan under which North Carolina has sent black representatives to Congress for the first time since Reconstruction. m JUSTICE STEVENS, dissenting. Fcr the reasons stated by Justice White, the decision of the District Court should be affirmed. I add these comments to emphasize that the two critical facts in this case are undisputed: First, the shape of District 12 is so bizarre that it must have been drawn for the purpose of either advantaging or disadvantaging a cognizable group of voters; and, second, regardless of that shape, it was drawn for the purpose of facilitating the election of a second black representative from North Carolina.

These unarguable facts, which the Court devotes most of its opinion to proving, give rise to three constitutional questions: Does the Constitution impose a requirement of contiguity or compactness on how the States may draw their electoral districts? Does the Equal Protection Clause prevent a State from drawing district boundaries for the purpose of facilitating the election of a member of an identifiable group of voters? And, finally, if the answer to the second question is generally “No,” should it be different when the favored group is defined by race? The first question is easy. There is no independent constitutional requirement of compactness or contiguity, and the Court’s opinion (despite its many references to the shape of District 12) does not suggest otherwise. The existence of bizarre and uncouth district boundaries is powerful evidence of an ulterior purpose behind the shaping of those boundaries—usually a purpose to advantage the political party in control of the districting process. Such evidence will always be useful in cases that lack other evidence of invidious intent. In this case, however, we know what the legislators’ purpose was: The North Carolina Legislature drew District 12 to include a majority of African—American voters. Evidence of the district’s shape is therefore convincing, but it is also cumulative, and, for our purposes, irrelevant.

As for the second question, I believe that the Equal Protection Clause is violated when the State creates the kind of uncouth district boundaries seen in Karcher v. Daggett (1983), Gomillion, and this case, for the sole purpose of making it more difficult for members of a minority group to win an election. The duty to govern impartially is abused when a group with power over the electoral process defines electoral boundaries solely to enhance its own political strength at the

845

846

How TO INTERPRET THE CONSTITUTION

PART IV

expense of any weaker group. That duty, however, is not violated when the majority acts to facilitate the election of a member of a group that lacks such power because it remains underrepresented in the state legislature—whether that group is defined by political affiliation, by common economic interests, or by religious, ethnic, or racial characteristics. The difference between constitutional and unconstitutional gerrymanders has nothing to do with whether they are based on assumptions about the groups they affect, but whether their purpose is to enhance the power of the group in control of the districting process at the expense of any minority group, and thereby to strengthen the unequal distribution of electoral power. When an assumption that people in a particular minority group (whether they are defined by the political party, religion, ethnic group, or race to which they belong) will vote in a particular way is used to benefit that group, no constitutional violation occurs. Politicians have always relied on assumptions that people in particular groups are likely to vote in a particular way when they draw new district lines, and I cannot believe that anything in today’s opinion will stop them from doing so in the future. Finally, we must ask whether otherwise permissible redistricting to benefit an underrepresented minority group becomes impermissible when the minority group is defined by its race. The Court today answers this question in the affirmative, and its answer is wrong. If it is permissible to draw boundaries to provide adequate representation for rural voters, for union members, for Hasidic Jews, for Polish Americans, or for Republicans, it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the Equal Protection Clause.1 A contrary conclusion could only be described as perverse. Accordingly, I respectfully dissent. = JUSTICE SOUTER, dissenting.

... In my view there is no justification for the Court’s determination to depart from our prior decisions by carving out this narrow group of cases for strict scrutiny in place of the review customarily applied in cases dealing with discrimination in electoral districting on the basis of race. Until today, the Court has analyzed equal protection claims involving race in electoral districting differently from equal protection claims involving other forms of governmental conduct. ... Unlike other contexts in which we have addressed the State’s conscious use of race, see, e.g., Croson (city contracting); Wygant v. Jackson Bd. of Ed. (1986) (teacher layoffs), electoral districting calls for decisions that nearly always require some consideration of race for legitimate reasons where there is a racially mixed population. As long as members of racial groups have the commonality of interest implicit in our ability to talk about concepts like “minority voting strength,” and “dilution of minority votes,” and as long as racial bloc voting takes place, legislators will have 1 The Court’s opinion suggests that African—Americans may now be the only group to which it is unconstitutional to offer specific benefits from redistricting. Not very long ago, of course, it was argued that minority groups defined by race were the only groups the Equal Protection Clause protected in this context. See Mobile (Stevens, J., concurring in judgment). [Footnote by Justice Stevens. ]

CHAPTER

13

POLITICAL PARTICIPATION

to take race into account in order to avoid dilution of minority voting strength in the districting plans they adopt.! One need look no further than the Voting Rights Act to understand that this may be required, and we have held that race may constitutionally be taken into account in order to comply with that Act. A second distinction ... is that those other decisions using racial criteria characteristically occur in circumstances in which the use of race to the advantage of one person is necessarily at the obvious expense of a member of a different race. Thus, for example, awarding government contracts on a racial basis excludes certain firms from competition on racial grounds. See Croson. And when race is used to supplant seniority in layoffs, someone is laid off who would not be otherwise. Wygant (plurality opinion). . . In districting, by contrast, the mere placement of an individual in one district instead of another denies no one a right or benefit provided to others. All citizens may register, vote, and be represented. In whatever district, the individual voter has a right to vote in each election, and the election will result in the voter’s representation. ... The Court offers no adequate justification for treating the narrow category of bizarrely shaped district claims differently from other districting claims.” ... Since there is no justification for the departure here from the principles that continue to govern electoral districting cases generally in accordance with our prior decisions, I would not respond to the seeming egregiousness of the redistricting now before us by untethering the concept of racial gerrymander in such a case from the concept of harm exemplified by dilution. .. . I respectfully dissent. EDITORS’ NOTES (1) Query: What exactly is the harm allegedly brought about by the reapportionment plan that troubles the majority? What, if any, “message” does such districting send and what, if anything, is “pernicious” about it? (2) Query: Are the majority opinion’s analogies between the reapportionment plan at issue here and “political apartheid” and “segregation” apt? Those terms ordinarily imply separate treatment of a racial caste on the ground that it is inferior to the dominant racial group. Do the majority-minority districts imply that African Americans are inferior to whites? That the whites challenging the districts are inferior to African Americans? Does the majority adequately answer Justice Souter’s argument that it “seems utterly implausible ... to presume, as the Court 1 Recognition of actual commonality of interest and racially polarized bloc voting cannot be equated with the “ ‘invocation of race stereotypes’ ” described by the Court and forbidden by our case law. [Footnote by Justice Souter.] 2 The Court says its new cause of action is justified by what I understand to be some

ingredients of stigmatic harm, and by a “threa[t] to ... our system of representative democracy.” To begin with, the complaint nowhere alleges any type of stigmatic harm. [I]t seems utterly implausible to me to presume, as the Court does, that North Carolina’s creation of this strangely shaped majority-minority district “generates” within the white plaintiffs here anything comparable to “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education (1954). As for representative democracy, I have difficulty seeing how it is to threatened (indeed why it is not, rather, enhanced) by districts that are not even alleged ] Souter. Justice by [Footnote dilute anyone’s vote.

847

848

How To INTERPRET THE CONSTITUTION

PARTIV

does, that North Carolina’s creation of this strangely shaped majorityminority district ‘generates’ within the white plaintiffs here anything comparable to ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ Brown v. Board of Education (1954)”? (3) The majority also expresses the concern that the reapportionment plan at issue here “reinforces the perception that members of the same racial group ... will prefer the same candidates at the polls” and refers to such perceptions as “impermissible racial stereotypes.” Consider the following statistics drawn from the Statistical Abstracts of the United States and the Roper Center: In 1992, 94% of African Americans who voted in the presidential election voted for the Democratic candidate (Bill Clinton); in 1996, the figure was 99% (for Clinton); in 2008, it was 99% (for Barack Obama); in 2012, it was 93% (for Obama). The figures are similar for voting in congressional elections. Query: Is the majority saying that anyone in American politics who acts on the basis of these statistics is engaging in “impermissible racial stereotypes”?

(4) Query: Is the majority taking sides in a culture war between proponents of an assimilationist vision of the country, on the one hand, and proponents of a multiculturalist vision, on the other? The majority endorses the view that the Constitution seeks to “weld together as one” the “multiracial, multireligious communities” that make up our country. Is the Court saying that a “multiculturalist” vision of the country—in which race should continue to matter as a significant basis of identity, pride, and association—is “at war with the democratic ideal” and “altogether antithetical to our system of representative democracy’? (5) In Shaw v. Hunt (1996) (Shaw IJ), after remand in this case (Shaw I), the Court was faced with the question whether the trial court had properly decided that the justifications for the redistricting plan (although significantly based on race) were sufficiently compelling to withstand strict scrutiny. The Court held that they were not. But the Court specifically did not reach the question “whether under the proper circumstances compliance with the Voting Rights Act, on its own, could be a compelling state interest.”

(6) In Easley v. Cromartie (2001), the Supreme Court finally did uphold one of the North Carolina majority-minority districts, on the theory that it was a partisan, rather than a racial, gerrymander. Justice Breyer wrote for a five-member majority that included Justice O’Connor (the author of Shaw J), concluding that plaintiffs had not carried their burden of showing that “the legislature’s motive was predominantly racial, not political.” Breyer stated that the “districting decision is one that ordinarily falls within a legislature’s sphere of competence [and] courts must ‘exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.’” He added that “[c]aution is especially appropriate in this case, where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.” For analysis, see John Hart Ely, “Confounded by Cromartie: Are Racial Stereotypes Now Acceptable Across the Board or Only When Used in

CHAPTER

13

POLITICAL PARTICIPATION

Support of Partisan Gerrymanders?,” 56 U. Miami L. Rev. 489 (2002). Justice Thomas, joined by Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy, dissented, objecting that “[i]t is not a defense that the legislature merely may have drawn the district based on the stereotype that blacks are reliable Democratic voters.”

(7) There is much controversy concerning whether the interests of historically disadvantaged racial minority groups are better served through creating “majority-minority districts” or through creating districts in which they do not constitute a majority but nonetheless make up a substantial enough bloc that representatives must take their interests into account if they wish to be reelected. For analyses of such issues, see Carol M. Swain, Black Faces, Black Interests: The Representation of African Americans in Harvard University Press, 1993) and Justice Congress (Cambridge: Thomas’s dissent in Johnson v. De Grandy (1994), which argued that the Court has consistently misinterpreted the Voting Rights Act of 1965.

“The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And § 4... applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.... [A] [congressional] statute’s ‘current burdens’ [on the states] must be justified by ‘current needs,’ and any ‘disparate geographic coverage’ must’ be ‘sufficiently related to the problem it targets.’ The coverage formula met that test in 1965, but no longer does so.”—Chief Justice ROBERTS “While the Court claims to ‘issue no holding on § 5 itself, its own opinion ... demonstrates that Congress has failed to justify ‘current burdens’ with a record demonstrating ‘current needs.’ ... I would find §5 unconstitutional.”— Justice THOMAS “In the Court’s view, the very success of §5 of the VRA demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this as_ currently whether, decides is who presents case operative, § 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation.’... Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”— Justice GINSBURG

849

850

PARTIV

How To INTERPRET THE CONSTITUTION

Shelby County, Alabama v. Holder 570 U.S. _ , 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) = CHIEF JUSTICE ROBERTS delivered the opinion of the Court. The Voting Rights Act of 1965 [VRA] employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And § 4... applied that requirement only to some States— an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach (1966). As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder (2009). Since that time, Census Bureau data indicate that African— American voter turnout has come to exceed white voter turnout in five of the six States originally covered by § 5, with a gap in the sixth State of less than one half of one percent. At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. “[T]he Act imposes current burdens and must be justified by current needs.” Northwest Austin.

I A The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it gives Congress the “power to enforce this article by appropriate legislation.”

“The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure.” Northwest Austin. In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African— Americans from voting. Katzenbach.

CHAPTER

13

POLITICAL PARTICIPATION

Inspired to action by the civil rights movement, Congress responded in 1965 with the VRA. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or procedure . .. imposed or applied ... to deny or abridge the right of any citizen of the United States to vote on account of race or color.” The current version forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” . . . Section 2 is permanent, applies nationwide, and is not at issue in this case.

Other sections targeted only some parts of the country. At the time of the Act’s passage, these “covered” jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like. A covered jurisdiction could “bail out” of coverage if it had not used a test or device in the preceding five years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. In those jurisdictions, § 4 of the Act banned all such tests or devices. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D.C.—either the Attorney General or a court of three judges. A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.” Sections 4 and 5 were intended to be temporary; they were set to expire after five years. In Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address “voting discrimination where it persists on a pervasive scale.” In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in § 4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. That swept in several counties in California, New Hampshire, and New York. Congress also extended the ban in § 4(a) on tests and devices nationwide. In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972. Congress also amended the definition of “test or device” to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than

English. As a result of these amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California, Florida, Michigan, New York, North Carolina, and South Dakota, became

covered jurisdictions. Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis of membership in a language minority group, in addition to discrimination on the basis of

851

852

Part IV

How TO INTERPRET THE CONSTITUTION

race or color. Finally, Congress made the nationwide ban on tests and devices permanent. In 1982, Congress reauthorized: the Act for 25 years, but did not alter its coverage formula. Congress did, however, amend the bailout provisions, allowing political subdivisions of covered jurisdictions to bail out. Among other prerequisites for bailout, jurisdictions and their subdivisions must not have used a forbidden test or device, failed to receive preclearance, or lost a § 2 suit, in the ten years prior to seeking bailout. We upheld each of these reauthorizations against constitutional challenge. See Georgia v. United States (1973); City of Rome v. United States (1980); Lopez v. Monterey County (1999). In 2006, Congress again reauthorized the VRA for 25 years, again without change to its coverage formula. Congress also amended § 5 to prohibit more conduct than before. Section 5 now forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, “to elect their preferred candidates of choice.” . . .

B Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the Attorney General has recently objected to voting changes proposed from within the county. Instead, in 2010, the county sued the Attorney General in Federal District Court in Washington, D.C., seeking a declaratory judgment that sections 4(b) and 5 of the VRA are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act. The court found that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing the § 4(b) coverage formula. The Court of Appeals for the D.C. Circuit affirmed... .

II In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” These basic principles guide our review of the question before us.

A The Constitution and laws of the United States are “the supreme Law of the Land.” U.S. Const., Art. VI, cl. 2. State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to “negative” state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. See 1 Records of the Federal Convention of 1787, pp. 21, 164-168 (M. Farrand ed. 1911); 2 id., at 27-29, 390-392. Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers

CHAPTER 13

POLITICAL PARTICIPATION

not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the

States.” Bond v. United States (2011). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Id.

More specifically, “‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft (1991). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, § 4, cl. 1. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” Carrington v. Rash (1965)... . Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin (emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith (1911). Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.

The VRA sharply departs from these basic principles. It suspends “all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D.C.” Id. States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own.... And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties)... . All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” Katzenbach. We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not otherwise appropriate” could be justified by “exceptional conditions.” We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, and represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government,” Presley v. Etowah County Comm’n (1992). As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.”

B In system voting” nearly

1966, we found these departures from the basic features of our of government justified. The “blight of racial discrimination in had “infected the electoral process in parts of our country for a century.” Katzenbach. Several States had enacted a variety of

853

854

PARTIV

How To INTERPRET THE CONSTITUTION

requirements and tests “specifically designed to prevent” African— litigation had proved from voting. Id. Case-by-case Americans in voting, in part ion discriminat racial inadequate to prevent such not covered devices ory discriminat to switched “merely States because by the federal decrees,” “enacted difficult new tests,” or simply “defied and evaded court orders.” Id. Shortly before enactment of the VRA, only 19.4 percent of African—Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Those figures were roughly 50 percentage points or more below the figures for whites. In short, we concluded that “[u]Jnder the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.” Id. We also noted then and have emphasized since that this extraordinary legislation was intended to be temporary, set to expire after five years. At the time, the coverage formula ... made sense. We found that “Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Katzenbach.... The formula ensured that the “stringent remedies [were] aimed at areas where voting discrimination ha[d] been most flagrant.” Id.

C Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[vJoter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40

years. Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[slignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” The House Report elaborated that “the number of African—Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982,” and noted that “[ijn some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” That Report also explained that there have been “significant increases in the number of African— Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African—American elected officials in the six States originally covered by the VRA....

There is no doubt because of the VRA....

that these

improvements

are

in large part

Yet the Act has not eased the restrictions in § 5 or narrowed the scope of the coverage formula in § 4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if

CHAPTER 13

POLITICAL PARTICIPATION

nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period. Congress also expanded the prohibitions in § 5.... Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dissuades covered jurisdictions from engaging in discrimination that they would resume should § 5 be struck down. Under this theory, however, § 5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions,

the argument could always be accounted for the good behavior.

made

that

it was

deterrence

that

The provisions of § 5 apply only to those jurisdictions singled out by § 4. We now consider whether that coverage formula is constitutional in light of current conditions.

III A When upholding the constitutionality of the coverage formula in 1966, we concluded that it was “rational in both practice and theory.” Katzenbach. The formula looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, we concluded that the “coverage formula raise[d] serious constitutional questions.” Northwest Austin. As we explained, a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” Id. The coverage formula met that test in 1965, but no longer does so. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach. There is no longer such a disparity. In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the VRA continues to treat it as if it were.

B [T]he Government [argues] that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then—regardless of how that discrimination compares to discrimination in States unburdened by coverage. This argument does not look to “current political conditions,” Northwest Austin, but instead relies on a comparison between the States in 1965....

855

856

PART IV

How TO INTERPRET THE CONSTITUTION

But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[{ ]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the VRA, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs. The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano (2000). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions..It cannot rely simply on the past. ...

C In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data from the record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before reauthorizing the VRA....

But ... Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40—year—old facts having no logical relation to the present day. The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the § 4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that. we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today....

D [T]here is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way

based

on

40-year-old

data,

when

today’s

statistics

tell an

entirely

different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done. kK *

CHAPTER

13

POLITICAL PARTICIPATION

Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the VRA when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare § 4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2. We issue no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. . . = JUSTICE THOMAS, concurring. I join the Court’s opinion in full but write separately to explain that I would find § 5 of the VRA unconstitutional as well. ...

While the Court claims to “issue no holding on § 5 itself,” its own opinion compellingly demonstrates that Congress has failed to justify “current burdens’” with a record demonstrating “ ‘current needs.’” See ante (quoting Northwest Austin)... .

m JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

BREYER,

JUSTICE

In the Court’s view, the very success of § 5 of the VRA demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, § 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, § 5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.

I “V]oting discrimination still exists; no one doubts that.” Ante. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The VRA has worked to combat voting discrimination where other remedies had been tried and _ failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the

857

858

How TO INTERPRET THE CONSTITUTION

PARTIV

most aggravated records of rank discrimination against minority voting rights. A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” Katzenbach. Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly “variety and persistence” encountered of laws the remarkable disenfranchising minority citizens. Id.... Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. ... Answering that need, the VRA became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history. Requiring federal preclearance of changes in voting laws in the covered jurisdictions—those States and localities where opposition to the Constitution’s commands were most virulent—the VRA provided a fit solution for minority voters as well as for States.... Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the _ preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated. City of Rome. Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.” Id. See also Shaw v. Reno (1993). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as “second-generation barriers” to minority voting. Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id. Another is adoption of a system of at-large voting in lieu of district-bydistrict voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes. A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority-white areas into city limits, thereby decreasing the effect of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw. In response to evidence of these substituted barriers, Congress reauthorized the VRA for five years in 1970, for seven years in 1975,

CHAPTER

13

POLITICAL PARTICIPATION

and for 25 years in 1982. Each time, this Court upheld the reauthorization as a valid exercise of congressional power. As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclearance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions.

_ Congress did not take this task lightly. .. . In the long course of the legislative process, Congress “amassed a sizable record.” . . . After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access, leading to a marked increase in minority voter registration and turnout and the number of minority elected officials. But despite this progress, “second generation barriers constructed to prevent minority voters from fully participating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. Extensive “[e]vidence of continued discrimination,” Congress concluded, “clearly show[ed] the continued need for Federal oversight” in covered jurisdictions. The overall record demonstrated to the federal lawmakers that, “without the continuation of the VRA of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” Based on these findings, Congress reauthorized preclearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective. The question before the Court is whether Congress had the authority under the Constitution to act as it did.

II In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins (1886). When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height. The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”! In choosing this language, the Amendment’s 1 The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty—Fourth, and Twenty—Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our equally real constitutional structure, Congress holds the lead rein in making the right to vote to Congress assigned role special the with line in are Amendments for all U. §. citizens. These Art. I, in protecting the integrity of the democratic process in federal elections. U. S. Const.,

859

860

How TO INTERPRET THE CONSTITUTION

PAaRTIV

framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause: ‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland (1819) (emphasis added). It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion, or in Northwest Austin, is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping enforcement powers ... to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan

(1966). Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.” . . .

This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” Ex parte Virginia (1880)... . § 4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”). [Footnote by Justice Ginsburg. ]

CHAPTER 13

POLITICAL PARTICIPATION

In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rationalmeans test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislature’s legitimate objective.

Ill The 2006 reauthorization of the VRA fully satisfies the standard stated in McCulloch: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. [I] is implausible to suggest otherwise.

A I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discriminatory changes to voting laws. See City of Rome (identifying “information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General” as a primary basis for upholding the 1975 reauthorization). On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).... All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. ... True, conditions in the South have impressively improved since passage of the VRA. Congress noted this improvement and found that the VRA was the driving force behind it. But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome.

B I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in § 4(b). Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just in _ blocking efficacy continuing preclearance’s of described, constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions. ...

IV Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court's opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on

861

862

PART IV

How TO INTERPRET THE CONSTITUTION

increases in voter registration and turnout as if that were the whole story. Without even identifying a standard of review, the Court dismissively brushes

off arguments

based on “data from the record,”

and declines to enter the “debat[e about] what [the] record shows.” One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation... .

AVS B The Court stops any application of § 5 by holding that § 4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the

fundamental principle of equal sovereignty.” In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared” (emphasis added). [B]ut the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty “remains highly pertinent in assessing subsequent disparate treatment of States.” In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach.... Today’s unprecedented extension of the equal sovereignty principle outside its proper domain—the admission of new States—is capable of much mischief. Federal statutes that treat States disparately are hardly novelties. ... Do such provisions remain safe given the Court’s expansion of equal sovereignty’s sway? Of gravest concern, Congress relied on our pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to believe that the Act’s limited geographical scope would weigh in favor of, not against, the Act’s constitutionality. See, e.g., United States v. Morrison (2000) (confining preclearance regime to States with a record of discrimination bolstered the VRA’s constitutionality). Congress could hardly have foreseen that the VRA’s limited geographic reach would render the Act constitutionally suspect... .

C [G]iven a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it

belongs: in Congress’ bailiwick. Instead, the Court strikes § 4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. Volumes of evidence supported Congress’ determination that the

prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

the

[T]he Court disregards what Congress set about to do in enacting VRA. That extraordinary legislation scarcely stopped at the

CHAPTER

13

POLITICAL PARTICIPATION

particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizenship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as

attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions. The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed... . In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.

Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the VRA, progress once the subject of a dream has been achieved and continues to be made. The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 years’ he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). After exhaustive evidencegathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision. ... EDITORS’ NOTES

(1) Query: Dissenting, Justice Ginsburg observed that Congress had reauthorized the Voting Rights Act four times since its enactment, finding each time that the preclearance requirement was needed to prevent “second

generation” forms of discrimination (like discriminatory voter identification laws) and prevent backsliding into first generation forms of discrimination (like discriminatory literacy tests). Justice Ginsburg added that when trying to protect “the most fundamental right in our democratic system,” the right to vote, “Congress’s power to act is at its height” and “warrants [judicial] deference.” Which part of Justice Ginsburg’s substantial did the majority reject: That the right to vote was contention constitutionally more fundamental than the right of states to regulate their elections? Or that deferring to Congress was warranted in light of

863

864

How TO INTERPRET THE CONSTITUTION

PART IV

Congress’s express power under section 2 of the Fifteenth Amendment? Could one decide either of these questions by appealing to the intentions of the framers? What would evidence of their intentions be? And which framers would we be referring to: the framers of Article I and the Tenth Amendment? Or the framers of the Civil War Amendments? (2) Query: What tells the majority in this case that the framers of the Civil War Amendments would have agreed that the Civil War Amendments must be interpreted to accommodate a states’ rights reading of the Tenth Amendment, even in matters relating to racial discrimination? Put another way, to what extent is the disagreement between Chief Justice Roberts and Justice Ginsburg a disagreement about the basic structure of federalism: with Roberts taking the view that principles of federalism and a states’ rights reading of the Tenth Amendment enshrined in the original Constitution limit Congress’s powers under the Fifteenth Amendment, and with Ginsburg taking the view that the Civil War Amendments changed the basic structure of federalism, so that the Fifteenth Amendment

limits

any states’ rights? (3) Query: At one point in his opinion, Chief Justice Roberts states: “The Federal Government does not... have a general right to review and veto state enactments before they go into effect.” For this conclusion he cites the Constitutional Convention’s rejection of a proposal to give Congress a veto over state laws. Yet Roberts also holds that in extraordinary circumstances involving racial discrimination Congress can require the preclearance of state laws. Did the Chief Justice contradict himself, as Justice Thomas suggests? Or, as Thomas also suggests, was he implicitly ruling out any future preclearance requirement as a violation of state sovereignty? (4) Query: Does Chief Justice Roberts assume that racism is a thing of the past? To what extent is the disagreement between Roberts and Justice Ginsburg a fundamental disagreement about the very character of the racially discriminatory practices that violate the Constitution: with Roberts taking the view that it is discrete practices that have been proven to be racially discriminatory, and Ginsburg taking the view that it is a systematic, pervasive practice of racism seeking to suppress or dilute voting by African—American citizens (with the “Hydra” head of new “second generation” practices springing up as the “first generation” practices are eradicated)? Does this disagreement affect their judgments concerning whether the old coverage formula should still apply?

V.

THE RIGHT TO ASSOCIATE “[S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

CHAPTER

13

POLITICAL PARTICIPATION

NAACP

v. Alabama

357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)

Following the National Association for the Advancement of Colored People’s great victory in Brown v. Board of Education (1954; reprinted below, p. 967), ten southern states began a concerted counter-attack against the organization, branding it, among other things, a communist-inspired group. (See, for example, the two-volume pamphlet issued by the Georgia Education Commission, Communism and the NAACP.) These states convened legislative investigations, began lawsuits to produce membership lists and prosecutions for allegedly “fomenting” litigation and failing to register under Anti-Ku Klux Klan laws, similar to that upheld in New York ex rel. Bryant v. Zimmerman statute A Louisiana (1928; available at www.princeton.edu/aci). threatened to dismiss any public school teacher who was found “advocating or in any manner performing any act toward bringing about integration of the races within the public school system,” and Georgia would have punished such advocacy or action by revoking the teacher’s license “forever.” Alabama’s attack was the first to reach the U.S. Supreme Court. The attorney general asked a state court to enjoin the NAACP from carrying on activities in the state because it had failed to provide its records and membership lists. The trial judge issued a temporary injunction and also ordered the Association to produce its records and membership lists. The NAACP gave all the records requested except the names of rank-and-file members, who, it said, would be subjected to hurtful harassment in communities hostile to desegregation. (During the proceedings, the judge won re-election on a platform promising to drive the NAACP out of the state; after the election he refused to disqualify himself from presiding at the rest of the trial.) When the Association did not comply with the order regarding membership lists, the judge held it in contempt and fined it $100,000. The Alabama supreme court twice refused to review the ruling, and the NAACP obtained certiorari from the U.S. Supreme Court. = MR. JUSTICE HARLAN delivered the opinion of the Court... .

II The Association both urges that it is constitutionally entitled to resist official inquiry into its membership lists, and that it may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure by the State of their affilation with the Association as revealed by the membership lists. We think that

petitioner argues more appropriately the rights of its members, and that its nexus with them is sufficient to permit that it act as their we reject before this Court. In so concluding, representative respondent’s argument that the Association lacks standing to assert here constitutional rights pertaining to the members, who are not of course parties to the litigation. To limit the breadth of issues which must be dealt with in particular litigation, this Court has generally insisted that parties rely only on constitutional rights which are personal to themselves. Tileston v. Ullman [1943]. This rule is related to the broader doctrine that

865

866

PART IV

How TO INTERPRET THE CONSTITUTION

constitutional adjudication should where possible be avoided. See Ashwander v. Tennessee Valley Authority (concurring opinion) [1938]. The principle is not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court. See Barrows v. Jackson [1953]; Joint Anti—Fascist Refugee Committee v. McGrath (concurring opinion) [1951]. If petitioner’s rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are in every practical sense identical... . Cf. Pierce v. Society of Sisters [1925].

III We thus reach petitioner’s claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment... . Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon [1937]; Thomas v. Collins [1945]. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. See Gitlow v. New York [1925]; Palko v. Connecticut [1937]; Cantrell: Vi Commer Paleo ita: v. pees bebeh ‘Ob ee it 1s

ct

to the ake ee

The fact that Alabama... has taken no direct action, to restrict the right of petitioner’s members to associate poo does not end inoe into the effect of the production order. the domain of indispe rs ab his Cour _rx whether aisneage press,

vernr ACTON. «4 nisi ae aacighees “ot eee pa teeter eRe pennies of the free exercise of the right to advocate underlay this Court’s narrow construction of the authority of a congressional committee investigating lobbying and of an Act regulating lobbying, although in neither case was there an effort to

suppress Ro

-2

es States v. Rumel Pood:; United States v. may appear tobe governmental action chal

unre hecberitee. Statutes imposing taxes upon Sean fratpro bine perticn ar activity have been struck down when perceived to have the consequence of unduly curtailing the liberty of freedom of press assured under the Fourteenth Amendment. Grosjean v. American Press Co. [1936]; Murdock v. Pennsylvania [1943].

;

CHAPTER 13

POLITICAL PARTICIPATION

_It is hardly a novel perception that compelled disclosure of affihation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has

repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action but from private Ry

4

5

J

yy

jyr

jaa.

NO

UNE

2

1nve

AV

>

;

We turn to the final question whether Alabama has demonstrated an interest in obtaining the disclosures ... which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioners members of their constitutionally protected right of association. Such a “*. C su inatil t of the State must becompelling,” Sweezy v. N.H. 1957]. It is not of mome nt that the State has here acted (concur. op. solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize. It is important to bear in mind that petitioner asserts no right to absolute immunity from state investigation, and no right to disregard Alabama’s laws. ... Petitioner has not objected to divulging the identity of its members who are employed by or hold official positions with it. It has urged the rights solely of its ordinary rank-and-file members. .. . bne

3}


” The Sas: : in‘the s

ie

Obviously, the eseduelOath and Law do not expressly mention sexuality or sexual orientation. And the fo0s eee see and

881

882

PART IV

How To INTERPRET THE CONSTITUTION

homosexual conduct is contrary to being “morally straight” and “clean.” The Boy Scouts says it falls within the latter category.

The New Jersey Supreme Court analyzed the Boy Scouts’ beliefs and found that the “exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy Scouts’ commitment to a diverse and ‘representative’ membership ... [and] contradicts Boy Scouts’ overarching objective to reach ‘all eligible youth.’” ... But our cases reject this sort of inquiry; it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent. The Boy Scouts asserts that it “teach[es] that homosexual conduct is not morally straight,” and that it does “not want to promote homosexual conduct as a legitimate form of behavior.” We accept the

yromote homosexual

conduct as a legit imate form |

1avior.” As we

give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its expression. That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have “become leaders in their community and are open and honest about their sexual orientation.” Dale was the copresident of a gay and lesbian organization at college and remains a

rights a 4»

ale’s

LOrce

presence

1

Boy

§

1Z

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) is illustrative on this point. There we considered whether the application of Massachusetts’ public accommodations law to require the organizers of a private St. Patrick’s Day parade to include among the marchers an Irish-American gay, lesbian, and bisexual group, GLIB, violated the parade organizers’ First Amendment rights. We noted that the parade organizers did not wish to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner. ... Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a legitimate form of behavior.” As the presence of GLIB in Boston’s St. Patrick’s Day parade would have interfered with the parade organizers’ choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scouts’ choice not to propound a point of view contrary to its beliefs... . Having

cdeterm1

1

that

t

Bo

COU

-

i

an

40)

as
vy

ues!

ROA

$40 tak

Dathd » bepretgitete: ; Re

an

fecesTe

Gut Rpapeenl- srg: eh

vy

nate lads tiaiddo Aas neal aL bnutieor to.

bie

ft AG

Py

)

)7spcnrbate 4! 5S) aha ante tite

justify judges’ taking an active role in defining and enforcing only rights of political participation, equality of government’s treatment of people under its jurisdiction, and such rights as are specifically listed in the constitutional document or implicit in representative democracy. Elected officials would define all other rights. Thus the protection, even the existence, of most unlisted rights would depend on changing public moods to a degree unacceptable to many constitutional democrats. And here, of course, we are revisiting a familiar battlefield. Public officials and commentators who stress constitutionalism in a hybrid system of constitutional democracy tend to accept, as did Gouverneur Morris, the judiciary as “that fortress of the Constitution” and judges as its “noble guards,”36 and so to endorse a significant judicial role in defining the nature and scope of unlisted rights. As with the question of WHAT is the Constitution, some jurists like James Wilson, William H. Rehnquist, and Antonin Scalia, not to mention Hugo Black, have challenged judges’ authority to carry on such tasks; but the Supreme Court has tended to accept, if not to explicate and justify, a role for

itself as the principal (though hardly exclusive) constitutional interpreter. (Recall the analyses of the interrogative WHO shall interpret in Chapters 7 and 8.) Still, the debate goes on, though in truncated form. Dissenting in an abortion case, Akron v. Akron Center for Reproductive Health (1983), Justice O'Connor quoted Lewis Powell, author of the majority opinion in Akron, quoting Oliver Wendell Holmes, Jr.: In determining whether the State imposes an “undue burden” [ona woman’s right to choose an abortion], we must keep in mind that 34 Thayer himself would have allowed judges great discretion when determining the constitutionality of state action. Justice Frankfurter, however, extended Thayer’s theory to federal judicial review of state authority. See, e.g., his opinion for the Court in Minersville School Dist. v. Gobitis (1940; reprinted above, p. 1298); and his dissent in West Virginia v. Barnette (1943; reprinted above, p. 1307) against the Court’s overruling Gobitis. 35 Democracy and Distrust (Cambridge: Harvard University Press, 1980). See also Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1998). 36 Senate Debates on the Judiciary Act of 1802; reprinted above, p. 289.

1419

1420

PARTIV

How TO INTERPRET THE CONSTITUTION

when we are concerned with extremely sensitive issues, such as the

one involved here, “the appropriate forum for their resolution in a democracy is the legislature. We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ ”

III. HOW TO INTERPRET? HOW one interprets is critical to this enterprise, and is bound up with one’s conception of WHAT is the Constitution. A positivist theory of constitutional meaning based on plain words of the amended text of 1787-88, even if augmented by an inquiry into original understanding or meaning, would impose on interpreters a form of intellectual schizophrenia. As we have often remarked, the Ninth Amendment orders interpreters not to act as narrow positivists, that is, not to construe the Constitution to protect only those rights enumerated in the text.

The specific purposive approach around which this block of three chapters is organized, that of protecting fundamental rights, addresses the problem of HOW by stressing that one of the, if not the, central purposes of a constitutional democracy is to defend certain basic rights of individual human beings against government as well as against fellow citizens. This approach is to some extent textualist, drawing not only on the Preamble and the Ninth Amendment but also on the Bill of Rights, later amendments

such as the Thirteenth

and Fourteenth,

as

well as on protections in Article I against bills of attainder and ex post facto laws and in Article VI against religious oaths. Moreover, protecting fundamental rights is to some extent a philosophic approach, relying on concepts of human dignity, autonomy, and equality and perhaps, insofar as it harkens back to the Declaration of Independence, to a theory of natural rights as well. In any event, it prescribes a special role for judges in defending minorities against policies that may have overwhelming and thoughtful public approval.3” Protecting fundamental rights also links to a doctrinal approach in that, at least since Calder v. Bull (1798; reprinted above; p. 114), judges have been asserting a judicial duty to protect certain basic rights, including some whose textual grounding is only through the abstract word “liberty.” In addition, because doctrines of natural rights were popular within the founding generation, protecting fundamental rights also links to originalism. Curiously, however, many current originalists, such as Antonin Scalia, deny the constitutional relevance of natural rights and are at war with the very idea of “unenumerated” rights. Like other conceptions of HOW to interpret, protecting fundamental rights offers neither definitive answers to many critical questions, nor have its defenders been able to supply absolutely persuasive justifications for its use. It may be true, as Justice Louis D. Brandeis

once

claimed,

that

the

term

87 Because of this special judicial responsibility, addresses the question WHO interprets.

“liberty”

encompasses

protecting fundamental

“all

rights also

CHAPTER

18

AUTONOMY AND PERSONHOOD

fundamental rights,”88 but so saying tells us precious little about what those rights include and how far they reach. As articulated by judges and commentators, this quest has required judgment and cannot be reduced to a formula or code. Formulations such as a “disinterested inquiry pursued in the spirit of science”? into “history and tradition,”4° deciding whether an asserted right is “implicit in the concept of ordered liberty,” or “deeply rooted in this Nation’s history and tradition,”41 or grounded in “reasoned judgment,”2 do little to straighten what an eighteenth century critic called “the Crooked Cord of a Judge’s Discretion in matters of the greatest moment and value.”42 As Justice White protested in dissent in Moore v. East Cleveland (1977; reprinted below, p. 1482): “What the deeply rooted traditions of the country are is arguable; which of them deserve the protection of the Due Process Clause is even more debatable.” Indeed, Justice Scalia has gone so far as to suggest that the answers to questions lke these are “neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.”44

Serious reservations about judges’ performing such interpretation need not be rooted in democratic theory; they may stem from the diversity and pluralism of our society. In a pluralistic society such as that of the United States, disagreements with the practical wisdom and moral values that inform judges’ choices are inevitable. It would hardly be irrational to be disturbed by judges’ finding within the Constitution a right of a woman to decide to have an abortion (Roe v. Wade [1973; reprinted below, p. 1433]) or not finding a right to a decent reputation (Paul v. Davis [1976]). Faced with the awesome responsibility of deciding WHAT is included in the substantive liberties protected by the Fourteenth Amendment, the joint opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey (1992; reprinted below, p. 1453) acknowledged that it was “tempting” to suppose that such liberty “encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments” (Black’s view) or that the Due Process Clause “orotects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified” (Scalia’s view). The joint opinion, however, resisted both of these temptations, stating instead: “The inescapable fact is-that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have 38 39 40

Whitney v. California, concur. op. (1927; reprinted above, p. 713). Rochin v. California (1952; p. 1432, available at www.princeton.edu/aci). Griswold v. Connecticut, Harlan, J., concur. op. (1965; reprinted above, p. 137). Palko v. Connecticut (1937; reprinted above, p. 122); Moore v. Kast Cleveland

(1977 41 [plurality opinion]; reprinted below, p. 1482). 42 Planned Parenthood v. Casey (1992 [joint opinion]; reprinted below, p. 1453). 43 Quoted in Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), p. 18. 44 Cruzan, concur. op. (at 1548).

1421

1422

How TO INTERPRET THE CONSTITUTION

PARTIV

exercised: reasoned judgment.” Scalia angrily retorted: “The Court’s temptation is in the quite opposite and more natural direction—toward systematically eliminating checks upon its own power, and _ it succumbs.” He asserted that “reasoned judgment” was no more than “pyhilosophical predilection and moral intuition.” He insisted that constitutional interpretation should be a matter of studying relatively uncontroversial “historical facts,” not a matter of making highly controversial “value judgments.” If, however, definiteness were the sole criterion for choosing among theories of constitutional interpretation, all but the most banal would fail. More important, discarding the protection of unlisted fundamental rights would mean discarding much of constitutionalism itself as well as much of constitutional law. The difficulties outlined here and in the cases that follow present constitutional interpretation with a challenge: HOW to identify rights essential to personal liberty, autonomy, and dignity, protect those rights without harming the rights of others, and accomplish both goals without allowing the “crooked cord” of judicial discretion to become a noose around society’s neck. .

IV. PERSONAL LIBERTY: ANTECEDENTS OF LOCHNER V. NEW YORK

FROM THE ERA

“(T]he individual has certain fundamental must be respected.”—Justice MCREYNOLDS

rights

which

“[The law] appears to me to present a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the United States prevents the experiment being tried.”—Justice HOLMES

Meyer v. Nebraska 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) As part of a general xenophobia that pulsed in America during the first and second decades of this century and more particularly of antiGerman feeling engendered by World War I, Nebraska in 1919 enacted a statute forbidding teaching in, or the teaching of, a modern language other than English to pupils who had not successfully completed eight years of schooling. Meyer, a parochial school instructor, was convicted for violating this act by teaching German to a ten-year-old boy. After the state supreme court sustained his conviction, Meyer sought and obtained review by the U.S. Supreme Court. w MR. JUSTICE MCREYNOLDS delivered the opinion of the Court. ... The problem for our determination is whether the statute as construeand d applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall... deprive any person of life, liberty, or property, without due process of law.” _ While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and

CHAPTER 18

AUTONOMY AND PERSONHOOD

some of the included things have been definitely stated

an. eae Cases [1873]; Vick Wo v. opkins 1886). Meandenis v. Barber [1890]; Allgeyer v. Louisiana [1897]; Lochner v. New York [1905]; Twining v. New Jersey [1908]; Truax v. Raich [1915]: Children’s SOE Bay: oe Adams v. Tanner a Uo Hospital BAe >| k : be 1 ii doctrine

Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. Lawton v. Steele [1894].

The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. . .. Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life; and nearly all the States, including Nebraska, enforce this obligation by compulsory laws. Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been repanded as useful and honorable, pees aS to 28 paths elas. Mere k ¢ 1e G

It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and “that the English language should be and become the mother tongue of all children reared in this state.” It is also affirmed that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the most useful type and the public safety is imperiled. That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the EEE

has certain fundamental te

EAN must UN

peepee

ayy Perna it would

y advantageous if a

understanding of our ordinary oe

ad mathe but this paisa b e coerced by

1423

1424

Part IV

How TO INTERPRET THE CONSTITUTION

For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent.... The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be. In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution. The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every—characteristic of truculent

1a

vere

Certaln

qaomestic

tra

UU

L

ve

SNo

1)

The power of the State to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the State’s power to prescribe a curriculum for institutions which it supports. Adams pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, ]

although regulation nN

whicl

anda

m

1

roper.

gency

1.

As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child....

Reversed. a Mr. JUSTICE HOLMES, dissenting.

CHAPTER

18

AUTONOMY AND PERSONHOOD

_We all agree ... that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one. The only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment. ... I cannot bring my mind to believe that in some circumstances and circumstances existing it is said in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result. The part of the act with which we are concerned deals with the teaching of young children. Youth is the time when familiarity with a language is established and if there are sections in the State where a child would hear only Polish or French or German spoken at home I am not prepared to say that it is unreasonable to provide that in his early years t if it 1 he shall hear and speak only English at school.

the fiat.”

c and a: Purity Extract & Tonic J

1 character ofamerely arbitrary Lynch [1912]. Hebe v. Shaw [1919]. h

h

Co. v. Jacob Ruppert v. Caffey [1920]. I think I appreciate the objection to the law but it appears to me to present a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the United States prevents the experiment being tried... . a MR. JUSTICE SUTHERLAND concurs in this opinion. EDITORS’ NOTES

(1) Query: Chapter 9 and the introductory essay to this Part of the book (as well as the three individual chapters within it) have spoken of a particular purposive approach to constitutional interpretation, protecting fundamental rights. To what extent did McReynolds take a doctrinal approach, simply calling the roll of earlier decisions? To what extent did he follow the path of protecting fundamental rights, articulating a general theory for deciding what liberty is included in the constitutional text and, more specifically, in the Fourteenth Amendment? Does he intimate a fundamental theory of the relation between the individual and the state that prohibits the state from crafting its vision of ideal citizens?

specific constitutional right(s) did the Court What (2) Query: parents’ “right to contract” with the teacher? The The Meyer? in recognize teacher’s “right to teach”? The parents’ right, and corresponding “natural duty,” to control the upbringing and education of their children? All of the above? At what level of generality did McReynolds conceive the right(s) recognized in Meyer? Quite specifically or quite abstractly? Reconsider this question after reading Pierce v. Society of Sisters (1925; the next case) and after rereading Michael H. v. Gerald D. (1989; reprinted above, p. 148).

(3) Query: McReynolds spoke of constitutionally protected “liberty” as consisting of the “privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” What was the constitutional relevance of such long recognition “at common law”? And what was the

1425

1426

Part IV

How TO INTERPRET THE CONSTITUTION

constitutional relevance of those privileges being “essential to the orderly pursuit of happiness by free men”? Compare Justice Cardozo’s formulation in Palko v. Connecticut (1937; reprinted above, p. 122) (“implicit in the concept of ordered liberty”) and Chief Justice Warren’s formulation in Loving v. Virginia (1967; reprinted above, p. 978) (“essential to the orderly pursuit of happiness by free men”). (4) Query: What approach(es) did Justice Holmes follow? How did his jurisprudence here and in his dissent in Lochner v. New York (1905; reprinted above, p. 1230), differ from Stone’s jurisprudence outlined in Carolene Products (1938; reprinted above, p. 687)? Does he follow Thayer’s jurisprudence of deferring to representative democracy (reprinted above, p. 680)? (5) McReynolds was one of the justices most closely associated with economic laissez faire and the era of Lochner v. New York (1905; reprinted above, p. 1230); after 1937, the Court spent a good deal of time undoing the constitutional jurisprudence that he and his brethren had constructed. But Meyer is a precedent from the era of Lochner that has survived. In the plurality opinion in Moore v. East Cleveland (1977; reprinted below, p. 1482), Justice Powell cited Meyer and Pierce v. Society of Sisters (1925; the next case below) to support a decision defending the rights of an extended family to live together against a municipal zoning ordinance. Quoting Harlan’s dissent in Poe v. Ullman (1961; reprinted above, p. 129) to the effect that the American constitutional tradition is a “living thing” and that a decision “which builds on what has survived is likely to be sound,” Powell added a footnote: This explains why Meyer and Pierce have survived and enjoyed frequent reaffirmance, while other substantive due process cases of the same era have been repudiated—including a number written, as were Meyer and Pierce, by Mr. Justice McReynolds. Perhaps another reason why Meyer and Pierce have survived is that the Court has retrospectively reconstrued them as involving rights protected by the letter and spirit of the First Amendment, not merely the “liberty of contract” that the Court protected in the era of Lochner. Sée, e.g., Griswold v. Connecticut (1965; reprinted above, p. 137).

“The child is not the mere

creature of the state.”

Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) In 1922 Oregon enacted a law that required parents to send all their children between the ages of 8 and 16, with limited exceptions, to public schools. The Society of Sisters of Holy Names, a Catholic religious order that operated several parochial schools in Oregon, and the Hill Military Academy, a private school, brought suit in a federal district court for an injunction against enforcement of the act. The state defended the statute as a reasonable means of insuring that its citizens

CHAPTER

18

AUTONOMY AND PERSONHOOD

would be educated and as a means of insuring separation of church and state. The district court granted the writ and Oregon appealed. = Mr. JUSTICE MCREYNOLDS delivered the opinion of the Court... . Under the doctrine of Meyer v. Nebraska [1923], we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the

competency of the state. State

to

standardl

from pu state; those who

its

The

fundamental

chilaren

by

t! rcing

of il 1

i

LC

yt

instruction

; only. The child is not the mere creature of the nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare him for additional obligations.

hy [1921];

by . action. Truax v. Raich Terrace v. Thompson [1923]. ...

[

5]:

wax V. Corrigan

[Affirmed.]

EDITORS’ NOTES (1) Query: Did McReynolds offer more than a doctrinal justification for Pierce? Did he move any closer than in Meyer toward an articulation of a justification for an approach of protecting fundamental rights? Does he further sketch a fundamental theory of the relation between the individual and the state, intimated in Meyer, that forbids the state to standardize its citizens on the basis of its vision of ideal citizens?

(2) Query: What constitutional right(s) did the Court recognize here? How, if at all, did they differ from those in Meyer? At what level of generality did McReynolds conceive the rights recognized here? Quite specifically or quite abstractly? Reconsider this question after rereading Michael H. v. Gerald D. (1989; reprinted above, p. 148). (3) Like Meyer, Pierce illustrates the intertwining of economic and other kinds of personal liberty. Since the Court repudiated special judicial protection for economic liberties under the Due Process Clause in West Coast Hotel v. Parrish (1937; reprinted above, p. 1243), it generally has sought to distinguish economic liberties from other personal liberties. See, e.g., Griswold v. Connecticut (1965; reprinted above, p. 137). Query: To what extent is that distinction constitutionally viable? Why should other personal rights deserve greater judicial solicitude than economic rights? Think back on the cases in Chapter 16.

1427

1428

PART IV

How TO INTERPRET THE CONSTITUTION

(4) Query:

“The

child is not the mere

creature

of the state,” Pverce

said. Did McReynolds imply that the child is the mere creature of her or his parents? See Barbara Woodhouse. “Who Owns the Child? Meyer and Pierce and the Child as Property,” 33 Wm. & Mary L. Rev. 995 (1992). Consider Pierce in relation to the Amish school case, Wisconsin reprinted above, p. 1314), espec. Douglas’s partial dissent.

v. Yoder

(1972;

V. THE RIGHT TO CITIZENSHIP: THE RIGHT TO HAVE RIGHTS “Citizenship is misbehavior....”

not

a_

license

that

expires

upon

[Trop v. Dulles] 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) This case, invalidating a federal statute that revoked American citizenship for desertion in time of war, is reprinted above, p. 200. There was no opinion of the Court; it was not until Afroyim v. Rusk (1967) that a majority of the Court held that the government could not strip a person of citizenship. “The very nature of our free government,” the majority said, “makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.” Notwithstanding this general pronouncement, the Court has continued to rule that the federal government can revoke the citizenship of a person who was naturalized if he or she obtained that citizenship through fraud. See, for example, Fedorenko v. United States (1981).

VI. THE RIGHT TO BODILY INTEGRITY “There are manifold restraints to which necessarily subject for the common good.”

every

person

is

[Jacobson v. Massachusetts] 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) This case, upholding a local ordinance against smallpox, is reprinted above, p. 119.

requiring

vaccinations

“It is better ..., if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

CHAPTER 18

AUTONOMY AND PERSONHOOD

Buck v. Bell 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927)

a MR. JUSTICE HOLMES delivered the opinion of the Court. .. . Carrie Buck is a feeble minded white woman who was committed to the State mental hospital. She was the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the latter part of 1924. An Act of Virginia recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, & c.; that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, & c. The statute then enacts that whenever the superintendent of certain institutions ... shall be of opinion that it is for the best interests of the patients and of society that an inmate under his care should be sexually sterilized, he may have the operation performed upon any patient afflicted with hereditary forms of insanity, imbecility, etc., on complying with the very careful provisions by which the act protects the patients from possible abuse. ... The attack[, however,] is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck “is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,” and thereupon makes the order. In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts [1905]. Three generations of imbeciles are enough. But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is

1429

1430

Part IV

How TO INTERPRET THE CONSTITUTION

the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached. Judgment affirmed. a MR. JUSTICE BUTLER

dissents.

EDITORS’ NOTES (1) Justice Holmes said Carrie Buck’s daughter was “feeble minded.” In fact, she “would [not] be considered mentally deficient by today’s standards.” Stephen J. Gould, The Mismeasure of Man (New York: Norton, 1981), p. 336. See also Paul A. Lombardo, “Three Generations, No Imbeciles: New Light on Buck v. Bell,” 60 N.Y.U.L.Rev. 30 (1985). On the 75th anniversary of Buck, the governor of Virginia formally apologized for the state’s use of eugenics, denouncing the practice under which some 8,000 people were involuntarily sterilized between 1927 and 1979. William Branigin, “Virginia Apologizes to the Victims of Sterilization,” Wash. Post, May 3, 2002, p. B1. The total number of involuntary sterilizations under similar eugenics laws in 30 states has been estimated at 65,000. (2) Query: Holmes wrote: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Does his claim hold? By Holmes’s reasoning, would that principle also sustain compulsory abortion? Compulsory childbearing? (3) Query: What sort of political theory, if any, did Holmes Constitution as embodying?

see the

(4) Holmes had given his personal views on eugenics a dozen years before Buck: I believe that the wholesale social regeneration which so many now seem to expect, if it can be helped by conscious, co-ordinated human effort, cannot be affected appreciably by tinkering with the institutions of property, but only by taking in hand life and trying to build a race. That would be my starting point for an ideal for the law. [Quoted in Walter Berns, “Buck v. Bell: Due Process of Law?” 6 West.Pol.Q. 762 (1958).]

At the time of the litigation, Holmes wrote to a friend that he “took pleasure” in sustaining Virginia’s law. James B. Peabody, ed., The Holmes-— Einstein Letters (New York: St. Martin’s, 1964), p. 267.

(5) Query: To what extent did Skinner v. Oklahoma above, p. 1185) implicitly undermine Buck? ©

(1942; reprinted

(6) Congress has passed a series of statutes to protect mental patients, developmentally disabled persons, and disabled adults as well as children. See, e.g., the Developmental Disabilities Assistance and Bill of Rights Act

CHAPTER 18

AUTONOMY AND PERSONHOOD

of 2000 (42 U.S.C. § 15001) and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101). (7) In Cleburne v. Cleburne Living Center (1985; reprinted above, p. 1175), the Court held that classifications based on “mental retardation” are neither suspect nor “quasi-suspect” and therefore do not warrant heightened judicial scrutiny. The Court reasoned that recent federal and state legislation attempting to ameliorate the condition of the mentally retarded “belie[d] a continuing antipathy or prejudice” against such persons. The Court, however, put some “bite” into its scrutiny of laws that reflect “animus” against or a “bare desire to harm” a politically unpopular group.

(8) In the Matter of Lee Ann Grady (1981) presented the Supreme Court of New Jersey with a variation on Buck. In Grady, the parents and physician of a 19-year-old woman suffering from Down’s Syndrome—her IQ was below 40—sought to have her sterilized. The hospital refused and the family sued. The state supreme court held that the constitutional right to privacy (see Griswold v. Connecticut [1965; reprinted above, p. 137]; and Roe v. Wade [1973; reprinted below, p. 1433]) included a right to sterilization, but that the decision to exercise that right for a mentally retarded person would have to be made by a judge, not by parents or guardians. The judge, the court said, must weigh many factors, including the risks of pregnancy, the dangers to the retarded person’s health of a pregnancy and of sterilization, the feasibility of less drastic means of contraception, and a showing that those who sought the sterilization were seeking it for the good of the retarded person and not for their own or the public’s convenience. See George J. Annas, “Sterilization of the Mentally Retarded,” 11 The Hastings Center Report 18 (August, 1981), and literature cited. (9) In Buck, Holmes disparagingly referred to arguments under the Equal Protection Clause as “the usual last resort of constitutional arguments.” Recall the equal protection cases reprinted in Chapters 14 and 15. Query: Do they suggest that, although the Clause enjoys a higher status now than it did in 1927, some justices still share Holmes’s view? If so, who?

‘We are dealing here with legislation which involves the basic civil rights of man.... [S]trict scrutiny classification which a state makes in a sterilization are discriminations essential, lest ... invidious against groups or types of individuals in violation constitutional guaranty of just and equal laws.”

one of of the law is made of the

[Skinner v. Oklahoma] 316 U.S. 535, 62 §.Ct. 1110, 86 L.Ed. 1655 (1942) This case, which invalidated a state statute requiring habitual criminals to be sterilized, is reprinted above, p. 1135.

some

1431

1432

Part IV

How TO INTERPRET THE CONSTITUTION

“The vague contours of the Due Process Clause do not leave judges at large.... [Its] limits are derived from considerations that are fused in the whole nature of our judicial process ... considerations deeply rooted in reason and in the compelling traditions of the legal profession.... This is conduct FRANKFURTER

that

shocks

the

conscience.”’—Justice

“I long ago concluded that the accordion-like qualities of this philosophy must inevitably imperil all the individual liberty. safeguards enumerated in the Bill of Rights.”— Justice BLACK

Rochin v. California*® 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) This case holds that use by police of a stomach pump to regain evidence that a suspect had swallowed violated the Due Process Clause of the Fourteenth Amendment. The case features a classic debate between Justices Frankfurter and Black concerning what the Constitution includes in general and how to interpret the Due Process Clause in particular. The poles of that debate are encapsulated in the quotations above.

VII.

THE RIGHT TO PRIVACY “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

[Griswold v. Connecticut] 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) This ruling, striking down a Connecticut statute that made it a crime to use or to aid, abet, or counsel use of “any drug, medicinal article or instrument for the purpose of preventing conception,” is reprinted above, p. 137.

“The right of privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”—Justice BLACKMUN A find nothing in the language or history of the

Gono

ue

E *

to

support

the

Court’s

judgment.”— Justice

Our edit of this case is available at www.princeton.edu/aci.

CHAPTER 18

AUTONOMY AND PERSONHOOD

“While the Court’s opinion quotes from the dissent of Mr. Justice Holmes in Lochner, the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case.”—Justice REHNQUIST

Roe v. Wade 410 U.S. 1138, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)

= MR. JUSTICE BLACKMUN delivered the opinion of the Court... . We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe,

are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional measurement free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortive procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now vindicated dissent in Lochner v. New York (1905). [The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

I The Texas statutes ... make it a crime to “procure an abortion,” as therein defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States. ...

VI It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws ... are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. ... [Justice Blackmun devoted 18 pages to surveying the history of abortion under eight subheadings: ancient attitudes; the Hippocratic Oath; the common law; the English statutory law; the American law; the position of the American Medical Association; the position of the American Public Health Association; and the position of the American

1433

1434

How To INTERPRET THE CONSTITUTION

ParRT IV

Bar Association. We reprint here only portions from his discussion of the common law and the American law.—Eds.] 3. The common law. It is undisputed that at the common law, abortion performed before “quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense. ... There was agreement ... that prior to this point the fetus was to be regarded as part of the mother and its destruction, therefore, was not homicide. ... Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. [Coke and Blackstone took the position that abortion of a quick fetus was not murder but a lesser offense.—Eds.] ... A recent view of the common law precedents argues, however, that ... even post-quickening abortion was never established as a common law crime. This is of some importance because while most American courts ruled ... that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a “misprision,” a term they translated to mean “misdemeanor.” That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum ... makes it now appear doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus... . 5. The American law. In this country the law in effect in all but a few States until mid—19th century was the pre-existing English common law.... It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. ... Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s a large majority of the States banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.... In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws. ... It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ...

VII Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification .. . and it appears that no court or commentator has taken the argument seriously. ...

CHAPTER 18

AUTONOMY AND PERSONHOOD

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis.... Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940’s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. Modern medical techniques have altered this situation.... Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure ... has largely disappeared. Of course, important state interests in the area of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. ... The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy. The third reason is the State’s interest—some phrase it in terms of duty—in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. ally, of cour eg in st in this area need

VIll The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the Court or individual Justices have indeed found at least the roots of that right in

the First Amendment, Stanley v. Georgia (1969); in the Fourth and Fifth Amendments, Terry v. Ohio (1968), Katz v. United States (1967), Boyd v. United States (1867), see Olmstead v. United States (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut (1965); in the Ninth Amendment, id. (Goldberg, J., concurring); or in the concept of ordered liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska

1435

1436

PaRTIV

How TO INTERPRET THE CONSTITUTION

(1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia (1967); procreation, Skinner v. Oklahoma (1942); contraception, Eisenstadt v. Baird [1972]; family relationships, Prince v. Massachusetts (1944); and child rearing and education, Pierce v. Society of Sisters (1925), Meyer.

rmined.1n

1

ane direct harm medically diagnosable even in penepregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases ... the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. . [A]ppellant and some amici argue that the woman’s right is absolute.... With this we do not agree.... The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. ... [A] state may properly assert important interests in safe-guarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently Lr BE AEE to sustain regulation of the factors that govern the abortion ecision

ive enacrmen

le sts at st Griswold: ee v. State (1964): ‘Cannell v. Connecticut (1940). .

IX.. A The appellee and certain amici argue-that the fetus is a “person” within the language and meaning of the Fourteenth Amendment... . If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ viet to life is then guaranteed specifically by the amendment....On the other hand, the appellee

CHAPTER

18

AUTONOMY AND PERSONHOOD

conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define “person” in so many words. Sec. I of the Fourteenth Amendment contains three references to “person”... . “Person” is used in other places in the Constitution.... But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation ... that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. ... This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations. B The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus.... The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene Titas a sonable material, or marri ocreation, or educat 1 ate f

B

1OQ

hat

at

Cas

”U

CU

ACCU

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life

10wledge,

1

in

a pos

to

spe

2

as

to

the

answey.

It should

be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. ... In the areas other than criminal abortion the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth... . In most States recovery is said to be permitted only if the fetus was viable or at least quick when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live

1437

1438

How TO INTERPRET THE CONSTITUTION

PARTIV

birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

This means, on the one hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his judgment the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

viability thus has both log and. b: cations. If the State s interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code ... sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. ... : This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. decisioh Ss

tne

pt 9

lor

Ac

‘

r€

=

:

a

o the recognized sta terest. (The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.] Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility. for it must rest with the physician. If an individual practitioner abuses the privilege of ‘exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. ... e ‘ = MR. CHIEF JUSTICE BURGER, concurring... . = MR. JUSTICE DOUGLAS, concurring. . . .

CHAPTER 18

AUTONOMY AND PERSONHOOD

= MR. JUSTICE STEWART, concurring.. a Mr. JUSTICE dissenting..

WHITE,

with

whom

MR. JUSTICE

REHNQUIST

joins,

steed find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus on the one hand See a pee oe Laer es ee. on the LOGUE: on ie other

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life

a MR. JUSTICE REHNQUIST, dissenting....

.. Lhave difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas ... bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” which the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution which the Court has referred to as embodying a right to privacy.. If the Court means by the term “privacy” no more ees that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been pine ie in our earlier pevieon on the basis of that bert i | ay

1439

1440

How TO INTERPRET THE CONSTITUTION

ParRTIV

mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson.... But the Court's sweeping invalidation of any restrictions on abortion during the first trimest impossible to justify under that standard, an e cons S of competins T

ee

—

_———

Nartiel

;

DUT

O

AYU

ay

c

The decision here to break the term of pregnancy terms and to outline the permissible restrictions the in each one, for example, partakes more of judicial does of a determination of the intent of the drafters

=aaee

wd

at= Tan

into three distinct State may impose legislation than it of the Fourteenth

Amendment.

ital Vv

Even today, when society’s views on abortion are : changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted. ... To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. ... By the time of the adoption of the Fourteenth Amendment in 1868 there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. ....

EDI TORS’ NOTES

(1) Query: To what extent did Justice Blackmun follow an approach of protecting fundamental rights? Is the Court’s ruling that a fetus is not, in the legal sense, a “person” compatible with such an approach? To what extent did Blackmun also follow a doctrinal approach? How strongly does

CHAPTER

18

AUTONOMY AND PERSONHOOD

the text of the Constitution support Blackmun’s claim that a right to privacy is “found in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action”? Is his account of the “roots of that right” persuasive? Did this conclusion follow from cases like Meyer v. Nebraska (1923; reprinted above, p. 1422) and Griswold v. Connecticut (1965; reprinted above, p. 137)? (2) Query: What justification(s) did Blackmun offer for dividing a pregnancy—and the strength of a woman’s right to privacy in her decision whether to have an abortion—into trimesters? Is the trimester framework more plausible as a legislative resolution of competing claims than as a judicial interpretation of the Constitution?

(3) Query: What approach to constitutional interpretation did White take? Rehnquist? To what extent did either rely on an originalist approach? (4) Query: How is the history of the law of abortion that Blackmun chronicled in Part VI of his opinion relevant to his reasoning? In Michael H. v. Gerald D. n.6 (1989; reprinted above, p. 148), Scalia wrote: “In Roe, we spent about a fifth of our opinion negating the proposition that there was a longstanding tradition of laws proscribing abortion.” Did Scalia grasp Blackmun’s point? Incidentally, Blackmun’s recital of the history of the common law on abortion has been challenged as inaccurate and misleading. See, for example, John Keown, Abortion, Doctors, and the Law (New York: Cambridge University Press, 1988). (5) Query: In a widely cited critique of Roe,

John Hart Ely wrote:

What is frightening about Roe is that [this] super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interest that legislatively prevailed over it.... And that, I believe, ... is a charge that can responsibly be leveled at no other decision [since 1937].... The Court continues to disavow the philosophy of Lochner v. New York. Yet ... it is impossible candidly to regard Roe as the product of anything else. [“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920, 935-36, 939 (1973).]

Was Ely correct that Roe cannot be justified on the basis of any of the sources of constitutional rights that he listed? Does his litany exhaust the legitimate sources from which to derive constitutional meaning? Was he correct in claiming that Roe “Lochnered”? Can one persuasively distinguish Roe’s reasoning and approach from those of Lochner? Those of Brown v. Board (1954; reprinted above, p. 967) from either? (6) Query: Robert H. Bork wrote about Roe: “Unfortunately, in the entire opinion there is not one line of explanation, not one sentence that qualifies as a legal argument.” The Tempting of America (New York: The 1990), p. 112. On what conception of constitutional Free Press, (both WHAT is the Constitution and HOW to interpret it) on interpretati did Bork’s criticism rest? How persuasive is that critique? In what ways does it differ from those of White, Rehnquist, and Ely?

1441

1442

ParRTIV

How TO INTERPRET THE CONSTITUTION

(7) Query: To what extent has the debate surrounding Roe been a dispute about WHO shall interpret? See, for example, the arguments about one form of a “Human Life Amendment,” S. 158 (1981; reprinted above, p. 331). Borrowing from James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law” (1893; reprinted above, p. 680), some observers (on both the political right and left) have contended that, when the Court decided Roe, many state legislatures were liberalizing their laws restricting abortion. Roe, however, cut short those political processes and polarized the controversy. See, e.g., Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge: Harvard University Press, 1987); Gerald N. Rosenberg, The Hollow Hope (2d ed.; Chicago: University of The Partial Constitution Chicago Press, 2008); Cass R. Sunstein, (Cambridge: Harvard University Press, 1993); Justice Scalia’s opinion in Planned Parenthood v. Casey (1992; reprinted below, p. 1453); and Ruth Bader Ginsburg’s comments in “Speaking in a Judicial Voice,” 67 1185 (1993). For forceful criticisms of such views, see N.Y.U.L.Rev. Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: Norton, 1990); Ronald Dworkin, Life’s Dominion (New York: Knopf, 1993). Did Roe actually debilitate the political processes or galvanize them? (8) The Papers of Justice Thurgood Marshall reveal that Blackmun’s first draft of an opinion of the Court in Roe would have invalidated Texas’s statute on the ground that its exception for abortions “for the purpose of saving the life of the mother” was unconstitutionally vague: It did not give physicians sufficient notice of what the statute prohibited and permitted. (Library of Congress, Manuscripts Division, Case File 99.) The draft opinion did not reach the question whether the Due Process Clause or the Ninth Amendment embraced a woman’s right to decide whether to have an abortion. Would such reasoning have been more satisfactory—whether from the standpoint of constitutional interpretation or political prudence— than the course the Court ultimately took? Marshall’s papers also reveal that Blackmun’s second draft chose the end of the first trimester rather than viability as the crucial line for accommodating the interests involved. Marshall urged instead drawing the line at viability. After a long discussion, Blackmun’s trimester framework appeared in the opinion.

(9) Roe is among the most controversial decisions of the Supreme Court. It was followed by a spate of additional decisions as well as efforts to overturn them by constitutional amendment—see the Hearings on S. 158 (reprinted above, p. 331)—to limit their effect by restricting use of federal money to fund abortions—see Harris v. McRae (1980; reprinted as the next case)—and to outflank them by new legislation and regulations. The leading decisions between Roe and Planned Parenthood v. Casey (1992; reprinted below, p. 1453) were:

(a) Akron

v.

Akron

Center

for

Reproductive

Health

(1983)

reaffirmed Roe 6—3; O’Connor, who had replaced Stewart, a member of the majority in Roe, dissented. Akron struck down five provisions of an ordinance: (1) requiring all abortions after the first trimester be “performed in a hospital,” thus preventing late abortions in out-patient clinics; (2) prohibiting abortions on unmarried minors under 15, without consent from one of her parents or an order from a court; (3) demanding, for “truly informed consent,” a pregnant woman seeking

CHAPTER 18

AUTONOMY AND PERSONHOOD

an abortion be “orally informed by her attending physician” (rather than by other professional counsellors) that: (i) “the unborn child is a human life from the moment of conception,” (11) physical and emotional complications may result from an abortion, and (iii) governmental and private agencies were ready to assist a pregnant woman with respect to birth control, childbirth, and adoption; (4) mandating a 24-hour waiting period between signing a consent form and having an abortion; and (5) requiring physicians who perform abortions to “insure that the remains of the unborn child are disposed of in a humane and sanitary manner.”

(b) Thornburgh v. American College of Obstetricians and Gynecologists (1986), reaffirmed Roe 5—4 (Burger, one of the majority in Roe, dissented) and invalidated, among other provisions: (1) requirements for “informed consent” and “printed information” like those struck down in Akron, on the ground that they were “designed not to inform the woman’s consent but rather to persuade her to withhold it altogether”; (2) reporting regulations, because they “raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right”; and (8) requiring physicians performing post-viability abortions to use the technique that provides the best opportunity for the “unborn child” to remain alive unless it “would present a significantly greater risk to the life or health of the pregnant woman,” on the ground that it “fails to require that maternal health be the physician’s paramount consideration.” (c) Webster v. Reproductive Health Services (1989) marked a significant turning point, upholding, with Chief Justice Rehnquist writing the plurality opinion, a state law that prohibited the use of public facilities or employees “to perform or assist in an abortion not necessary to save the life of the mother” and required physicians to conduct viability tests prior to performing an abortion on a woman whom they have reason to believe is 20 or more weeks pregnant. Four justices (certainly Rehnquist, White, and Scalia and possibly Kennedy) apparently wished to overrule Roe, and four justices (Brennan, Marshall, Blackmun, and Stevens) definitely wished to reaffirm it, leaving O’Connor as the swing vote. The Papers of Justice Marshall suggest that the Court nearly overruled Roe, but O’Connor declined to join the relevant parts of Rehnquist’s opinion, instead merely concurring in the judgment and stating that a “fundamental rule of judicial restraint” required the Court to avoid reconsidering Roe. Scalia attacked O’Connor for refusing to overrule Roe. Her view regarding judicial restraint, he said, “cannot be taken seriously.” “It appears that the mansion of constitutionalized abortion-law, constructed overnight in Roe v. Wade, must be disassembled door-jamb by door-jamb, and never entirely brought down, no matter how wrong it may be.” (d) Planned Parenthood v. Casey (1992; reprinted below, p. 1453), partially overruled Akron and Thornburgh but reaffirmed the

“essential holding” of Roe.

1443

1444

How TO INTERPRET THE CONSTITUTION

PART IV

(10) Ever since the Court decided Roe, many commentators have supported the decision but criticized the Court’s justification for it. They have sought, as it were, to “rewrite” Roe. See Jack M. Balkin, ed., What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (New York: New York University Press, 2005). For the similar phenomenon with respect to Brown, see Editors’ Note (9) to Brown (at p. 967). (11) Roe and its progeny have sired a vast number of legal, ethical, and theological analyses. Some of this material is collected in U.S. Senate, Subcommittee on the Separation of Powers, Hearings on S. 158, 97th Cong., 1st Sess. (1981), 2 vols. See also the bibliography available at www.princeton.edu/aci.

(12) Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s, 1977), ch. 12, reprints cases from Canada and West Germany as well as the United States and includes a long bibliography. For a fictionalized account of American justices’ struggling over the legal, political, and moral issues surrounding the constitutionality of laws restricting abortion, see Walter F. Murphy, The Vicar of Christ (New York: Macmillan, 1979), Part II, ch. 9.

“(I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”—Justice STEWART “The fundamental flaw in the Court’s due process analysis . is its failure to acknowledge that the discriminatory distribution of the benefits of governmental largesse can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions.”—Justice BRENNAN “I do not believe that legislation that imposes a crushing burden on indigent women can be treated with the same deference given to legislation distinguishing among business interests.”—Justice MARSHALL

Harris v. McRae 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) Through the Medicaid Program, enacted in 1965 as Title XIX of the Social Security Act, Congress had provided for federal assistance to states that set up programs to help pay the costs for medical care of the poor. Thus, following Roe, federal money became available to the states to pay for poor women to have abortions. Between 1976 and 1980, however, Congress each year attached a rider—known as “the Hyde Amendment”’—to the appropriations bill limiting the circumstances under which federal money could be spent to subsidize abortions. The terms of those limitations varied from year to year; in fiscal 1980, the

CHAPTER 18

AUTONOMY AND PERSONHOOD

rider allowed federal funding only when the pregnancy was the result of rape or threatened the life of the mother. Maher v. Roe (1977) upheld Connecticut’s limiting state financing of abortions to those “medically necessary,” but did not discuss the Hyde Amendment. A year earlier, Cora McRae, a pregnant woman otherwise eligible for benefits under Medicaid, had filed suit in a federal district court, alleging violation of her rights under the First, Fourth, Fifth, and Ninth amendments. The suit was later joined by other pregnant women and interested parties. The district court invalidated the Hyde tee peste and the government appealed directly to the Supreme ourt.

= MR.

JUSTICE STEWART delivered the opinion of the Court... . Ill It is well settled that, quite apart from the guarantee of equal protection, if a law “impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.” Mobile v. Bolden [1980] opinion). (plurality Accordingly, before turning to the equal protection issue in this case, we examine whether the Hyde Amendment violates any substantive rights secured by the Constitution.

A We address first the appellees’ argument that the Hyde Amendment, by restricting the availability of certain medically necessary abortions under Medicaid, impinges on the “liberty” protected by the Due Process Clause as recognized in Roe v. Wade [1973] and its progeny. ... The constitutional underpinning of Wade was a recognition that the “liberty” protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life. This implicit constitutional liberty, the Court in Wade held, includes the freedom of a woman to decide whether to terminate a pregnancy....

In Maher vy. Roe [1977], the Court was presented with the question whether the scope of personal constitutional freedom recognized in Wade included an entitlement to Medicaid payments for abortions that are not medically necessary. At issue in Maher was a Connecticut welfare regulation under which Medicaid recipients received payments for medical services incident to childbirth, but not for medical services incident to nontherapeutic abortions. ... ... The doctrine of Wade, the Court held in Maher, ... did not translate into a constitutional obligation of Connecticut to subsidize abortions. [T]he Court cited the “basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State’s power to encourage actions deemed to be in the public interest is necessarily far broader.” .. . So

Py SSS

|

OT

Sw

eee

OTT

EE

OuULatTIon al

1445

1446

Part IV

How TO INTERPRET THE CONSTITUTION

¢

Q]

]

,

0

0

eC

PUDITC

erest.

e

present case does differ factually from Maher insofar as that case involved a failure to fund nontherapeutic abortions, whereas the Hyde Amendment withholds funding of certain medically necessary abortions. Accordingly, the appellees argue that because the Hyde Amendment affects a significant interest not present or asserted in Maher—the interest of a woman in protecting her health during pregnancy—and because that interest lies at the core of the personal constitutional freedom recognized in Wade, the present case is constitutionally different from Maher.... 1

es

|

oT

LOA AGO.

the

ful

range

of

protected

choices... The financial constraints that

restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.... [T]he Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all....

... To translate the limitation on governmental power implicit in the Due Process Clause into an affirmative funding obligation would require Congress to subsidize the medically necessary abortion of an indigent woman even if Congress had not enacted a Medicaid program to subsidize other medically necessary services. Nothing in the Due Process Clause supports such an extraordinary result. Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement. e that the Hye iue

process

liperty

recc

B The appellees also argue that the Hyde Amendment contravenes rights secured by the Religion Clauses of the First Amendment.... [They argue that it] violates the Establishment Clause because it incorporates into law the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences. Moreover, insofar as a woman’s decision to seek a medically necessary abortion may be a product of her religious beliefs under certain Protestant and Jewish tenets, the appellees assert that the funding limitations of the Hyde Amendment impinge on the freedom of religion guaranteed by the Free Exercise Clause. ... [T]he Hyde Amendment does not run afoul of the Kstablishment Clause. State on the Federal

CHAPTER 18

AUTONOMY AND PERSONHOOD

sqme.ot all.religions(’ McGowan v. Maryland [1961]. That the Judeo— ristian religions oppose stealing does not mean that a State or the Federal Government may not consistent with the Establishment Clause enact law prohibiting larceny. The Hyde Amendment ... is as much a reflection of “traditionalist” values toward abortion, embodiment of the views of any particular religion. .. .

as

it is

an

_ [The Court also rejected the argument that the Hyde Amendment violates the Free Exercise Clause.—Eds.]

C It remains to be determined whether the Hyde Amendment violates the equal protection component of the Fifth Amendment. This challenge is premised on the fact that, although federal reimbursement is available under Medicaid for medically necessary services generally, the Hyde Amendment does not permit federal reimbursement of all medically necessary abortions... .

validity, however, disappears if a statutory classification is predicated on criteria that are, in a constitutional sense, “suspect,” the principal example of which is a classification based on race, e.g., Brown v. Board of Ed. [1954]. ... [W]e have already concluded that the Hyde Amendment violates no constitutionally protected substantive rights. We now conclude as well that it is not predicated on a constitutionally suspect

classification... . ]

in

Maher,

the

principa

2

The remaining question then is whether the Hyde Amendment is rationally related i a legitimate governmental objective... . In Wade, the Court recognized that the State has “an important and legitimate interest in protecting the potentiality of human life.” ... Moreover, in Maher, the Court held that Connecticut’s decision to fund the costs associated with childbirth but not those associated with nontherapeutic abortions was a rational means of advancing the legitimate state interest in protecting potential life by encouraging childbirth. ie . SL

UPEeCIU

easey masten IAN}?

UClrCUUllista

e...ot.._.protecting

potentlalt

subsidizing the medical expenses of indigent women who pregnancies to term while not subsidizing the comparable (except those whose abortions who undergo women threatened), Congress has established incentives that make more attractive alternative than abortion for persons

Iie

carry their expenses of lives are childbirth a eligible for

1447

1448

PART IV

How To INTERPRET THE CONSTITUTION

Medicaid. ... Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves, it (jt is mot the=mission < purposeful termina thi

ourt,.or,

tin

any

tha y Ss | ( interests judgment the to subscribed has who Justice every not mission, our were of the Court today could have done so. But we cannot, in the name of the Constitution, overturn duly enacted statutes simply “because they school may be unwise, improvident or out of harmony with a particular ith

[1955]. Ra Optical Co.

[Reversed. | a MR. JUSTICE WHITE, concurring. ... a MR. JUSTICE BRENNAN,

with whom

MR. JUSTICE MARSHALL

and MR.

JUSTICE BLACKMUN join, dissenting. I agree entirely with my Brother Stevens. ... I write separately to express my continuing disagreement with the Court’s mischaracterization of the nature of the fundamental right recognized in Wade, and its misconception of the manner in which that right is infringed by federal and state legislation withdrawing all funding for medically necessary abortions... .

... Wade and its progeny established that the pregnant woman has

a right to be free from state interference with her choice to have an abortion....

OU

yt

They

WISE

:

C1CCU

at

ases

stand thus is

not

QO

When viewed in the context of the Medicaid program to which it is appended, it is obvious that the Hyde Amendment is nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Wade said it could not do directly. ... atte

=

aT

itive Br:

g Rit

ga

rs

CHAPTER 18

AUTONOMY AND PERSONHOOD rT

than

1n

Most

OUne

... [What the Court fails to appreciate is that it is not simply the woman’s indigency that interferes with her freedom of choice, but the combination of her own poverty and the government’s unequal subsidization of abortion and childbirth. A poor woman in the early stages of pregnancy confronts two alternatives: she may elect either to carry the fetus to term or to have an abortion. In the abstract, of course,

this choice is hers alone. ... ... [But] as a practical matter, many poverty-stricken women will choose to carry their pregnancy to term simply because the government provides funds for the associated medical services, even though these same women would have chosen to have an abortion if the government had also paid for that option, or indeed if the government had stayed out of the picture altogether and had defrayed the costs of neither procedure.

hose rights Ud h crimine atory sanctions. Implicit Court’s reasoning is the notion that as long as the government is not obligated to provide its citizens with certain benefits or privileges, it may condition the grant of such benefits on the recipient’s relinquishment of his constitutional rights.

... [W]e have heretofore never hesitated to invalidate any scheme of granting or withholding financial benefits that incidentally or intentionally burdens one manner of exercising a constitutionally protected choice. ... ; = MR. JUSTICE MARSHALL dissenting... . _.. The Court’s decision today marks a retreat from Wade and represents a cruel blow to the most powerless members of our society. ... The Court resolves the equal protection issue in this case through a relentlessly formalistic catechism. . I continue. eve that the

This case is perhaps the most dramatic illustration to date of the deficiencies in the Court’s obsolete “two-tiered” approach to the Equal Protection Clause. ... Heightened scrutiny of legislative classifications [is] designed to protect groups “saddled with such disabilities or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio. And while it is now clear that traditional “strict scrutiny” is against classifications that disfavor poor unavailable to protect the SS aE ] EF RR eh T a the them, Dandridge, I fe | =

1449

1450

How TO INTERPRET THE CONSTITUTION

Part IV

The Hyde Amendment ... distinguishes between medically necessary abortions and other medically necessary expenses. ... [S]uch classifications must be assessed by weighing “‘the importance of the governmental benefits denied, the character of the class, and the asserted state interests.’” Under that approach, the Hyde Amendment is clearly invalid. As in Maher, the governmental benefits at issue here are “of absolutely vital importance in the lives of the recipients.” An indigent woman denied governmental funding for a medically necessary abortion is confronted with two grotesque choices. First, she may seek to obtain “an illegal abortion that poses a serious threat to her health and even her life.” Alternatively, she may attempt to bear the child, a course that may both significantly threaten her health and eliminate any chance she might have had “to control the direction of her own life.” The class burdened by the Hyde Amendment women,

a substantial proportion

|

States

v.

Carolene

Prodi

of whom

consists of indigent

are members

of minority

Co., n.4.(44938).*For this reason,

continue to believe that “a showing that state action has a devastating impact on the lives of minority racial groups must be relevant” for purposes of equal protection analysis. Jefferson v. Hackney (1972) (Marshall, J., dissenting). Lj

il

1 ene

A

ynal right of e nportance to “poor an | minorit vomen.. ... The governmental interest in the present case is substantially weaker than in Maher, for under the Hyde Amendment funding is refused even in cases in which normal childbirth will not

... The Court treats this case as though it were controlled by ' Maher. To the contrary, this case is the mirror image of Maher. The result in Maher turned on the fact that the legislation there under consideration discouraged only nontherapeutic, or medically unnecessary, abortions. In the Court’s view, denial of Medicaid funding for nontherapeutic abortions was not a denial of equal protection because Medicaid funds were available only for medically necessary procedures. Thus the plaintiffs were seeking benefits which were not available to others similarly situated ... [But respondents here] are protesting their exclusion from a benefit that is available to all others similarly situated. This, it need hardly be said, is a crucial difference for equal protection purposes. Under Title XIX and the Hyde Amendment, funding is available for essentially all necessary medical treatment for the poor. Respondents

CHAPTER 18

AUTONOMY AND PERSONHOOD

have met the statutory requirements for eligibility, but they are excluded because the treatment that is medically necessary involves the exercise of a fundamental right, the right to choose an abortion. ... In such circumstances the Hyde Amendment must be invalidated because it does not meet even the rational-basis standard of review... . a MR. JUSTICE BLACKMUN, dissenting... . a MR. JUSTICE STEVENS, dissenting.

_ “The federal sovereign, like the States, must govern impartially....” Hampton v. Mow Sun Wong (1976). When the sovereign provides a special benefit or a special protection for a class of persons, it must define the membership in the class by neutral criteria; it may not make special exceptions for reasons that are constitutionally insufficient. . Individuals who satisfy two neutral statutory criteria— financial need and medical need—are entitled to equal access to [the

pool of benefits =

under

Title XIX].

The

1S

hetr

———

If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she woul t

focu

Ly

the

Nor can it be argued that the exclusion of this type of medically necessary treatment of the indigent can be justified on fiscal grounds.... [T]he cost of an abortion is only a small fraction of the costs associated with childbirth. Thus, the decision to tolerate harm to indigent persons who need an abortion in order to avoid “serious and long-lasting health damage” is one that is financed by draining money out of the pool that is used to fund all other necessary medical procedures. Unlike most invidious classifications, this discrimination harms not only its direct victims but also the remainder of the class of needy persons that the pool was designed to benefit. . . . _.. In my judgment, these amendments constitute an unjustifiable, and indeed blatant, violation of the sovereign’s duty to govern impartially.... EDITORS’ NOTES

(1) Query: There is a striking similarity between Stewart’s reasoning in Harris v. McRae and Harlan’s dissenting opinion in Griffin v. Illinois cases involving wealth as a of modern (1956), the grandparent classification. There the Court invalidated as a denial of equal protection a state law that required indigent prisoners to pay for transcripts of their trials in order to appeal their convictions. Harlan wrote: “Nor is this a case

1451

1452

How TO INTERPRET THE CONSTITUTION

PART IV

where the State’s own action has prevented a defendant from appealing. All that Illinois has done is to fail to alleviate the consequences of the differences [in wealth] that exist wholly apart from any state action.” Is there a difference relevant to constitutional interpretation between requiring an indigent prisoner to pay for a transcript as a condition for appealing a conviction and requiring an indigent pregnant woman to pay for an abortion if she exercises her right to decide to have one? (2) Query: How convincing as a matter of constitutional interpretation is Brennan’s argument that it violates equal protection for the government to subsidize a live birth but not an abortion? Did the Hyde Amendment impose an “unconstitutional condition,” that is, did it condition indigent women’s receipt of governmental benefits upon their relinquishment of their constitutional right to decide to have an abortion? See the discussion of the doctrine of “unconstitutional conditions” in the Editors’ Notes following Rust v. Sullivan (1991; reprinted above, p. 808). (3) Despite much opposition to the Hyde Amendment, Congress has continued to enact versions of it since the Supreme Court decided this case.

“The condition that federal funds will be used further the purposes of a grant does not constitutional rights.”

only to violate

[Rust v. Sullivan] 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) This case upheld an administrative regulation prohibiting organizations that accepted federal funding to advise people on family planning to use that money to “encourage, promote or advise abortion as a method of family planning.” The opinions are reprinted above, p. 808.

“[{S]ubstantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment.”—Justices O?;CONNOR, KENNEDY, and SOUTER “The societal costs of overruling Roe at this late date would be enormous.”—Justice STEVENS “[A]uthentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact.”—Chief

Justice REHNQUIST “The emptiness of the ‘reasoned judgment’ that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort ... the best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a

CHAPTER

18

AUTONOMY AND PERSONHOOD

collection of adjectives that simply choice.”—Justice SCALIA

... conceal

a political

Planned Parenthood v. Casey 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) Roe v. Wade (1973; reprinted above, p. 1433) marked the beginning, not the end, of struggle over abortion. Hundreds of lawsuits attacked the constitutionality both of old laws and the wave of new regulations many state legislatures enacted to try to channel Roe’s impact. The Court’s initial reaction was almost uniformly hostile to any regulation of the right Roe defined. Later, as new justices replaced members of the majority in Roe, the Court upheld several state regulations. Still, the justices did not overrule Roe. Ronald Reagan’s and later George H. W. Bush’s staffs tried to select justices who would cut Roe’s life short. Indeed, on six occasions during the Reagan and Bush administrations, the United States asked the Court to overrule Roe—a course some justices found appealing. Not only did White and Rehnquist remain convinced that Roe was wrong, but two of the younger justices seemed to agree. Dissenting in Akron v. Akron Center (1983), Sandra Day O’Connor declared that the logic of Roe’s trimester framework was “on a collision course with itself.” Concurring in Webster v. Reproductive Health Services (1989), Antonin Scalia explicitly said Roe should be overruled. Supposedly the other three new justices, Anthony M. Kennedy, David Souter, and Clarence Thomas, shared those views, though to varying degrees. In 1989, in his dissenting opinion in Webster, Harry Blackmun, the author of Roe, went so far as to predict the ruling’s imminent demise. In this case from Pennsylvania, five abortion clinics and a physician who performed abortions filed suit in federal district court attacking the constitutionality of state regulations amended in 1988 and 1989. This statute required that, unless a medical emergency were present: (1) a woman seeking an abortion be provided with certain information so she could give “informed consent,” then wait 24 hours before having an abortion; (2) a minor obtain the consent of one parent or the approval of a judge; (3) a married woman, under most circumstances, sign a statement saying she had notified her husband of her intended abortion; and (4) those performing abortions file certain reports. The district court invalidated all these provisions, but the Court of Appeals reversed, except for the requirement to inform the husband. The Supreme Court granted certiorari. and JUSTICE SOUTER = JUSTICE O’CONNOR, JUSTICE KENNEDY, the opinion of the delivered announced the judgment of the Court and an opinion with VI, and V-C, V-A, III, II, I, Court with respect to Parts and an opinion joins, STEVENS JUSTICE which in V-E, Part to respect with respect to Parts IV, V-B, and V-D.

I Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1978), that definition of liberty is still questioned. Joining the respondents as

1453

1454

How TO INTERPRET THE CONSTITUTION

Part IV

amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.... [WJe acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding.... State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. ... After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe should be retained and once again reaffirmed.

Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the case before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, ... at least since Mugler v. Kansas (1887), the Clause has been understood to contain a substantive component as well.... The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California (1947) (Black, J., dissenting). But of course this Court has never accepted that view. It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D. n.6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected

CHAPTER 18

AUTONOMY AND PERSONHOOD

against state interference by the substantive component of the Due Process Clause in Loving v. Virginia (1967). Similar examples may be found in Turner v. Safley (1987); in Carey v. Population Services Int’l (1977); in Griswold v. Connecticut (1965) ...; in Pierce v. Society of Sisters (1925); and in Meyer v. Nebraska (1923).

Harlan recognized:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points.... It is a rational continuum which ... includes a freedom from all substantial arbitrary impositions and purposeless restraints ... and which also recognizes ... that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman [1961] (Harlan, J., dissenting). ... [T]he Court adopted his position four Terms later in Griswold ... [which] held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey. It is settled now, as it was when the Court heard arguments in Roe, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood ... as well as_ bodily integrity.... an

A

cou

f

aveya| nent.) Its boundaries are not susceptible o reasoned jt ised: e expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed: Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that .. . it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be

1455

1456

How To INTERPRET THE CONSTITUTION

PART IV

sound. No formula could serve as a substitute, in this area, for judgment and restraint. Poe (Harlan, J., dissenting). See also Rochin v. California [1952] (Frankfurter, J., writing for the Court) (“To believe that this judicial exercise of judgment could be avoided by freezing ‘due process of law’ at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges”).

Men and women of good conscience can disagree ... about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest. It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. See, e.g., Ferguson v. Skrupa (1963); Williamson v. Lee Optical (1955). That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty... . Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt (emphasis in original).... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for [abortion] is more than a philosophic exercise. Abortion is a unique act ... fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others

CHAPTER 18

AUTONOMY AND PERSONHOOD

1457

and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold, Eisenstadt, and Carey afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.... While we appreciate the weight of the arguments made on behalf of the State ... [which] conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We now turn to that doctrine.

Iil A that the ... [I]t is common wisdoma

“inexorable

Nu

1. Although Roe has engendered opposition, it has in no sense proven “unworkable,” see Garcia v. San Antonio Metropolitan Transit Authority (1985). ... [T]he required determinations fall within judicial competence.

2. The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, where advance planning of great precision 1s most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.... To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity.

1458

How To INTERPRET THE CONSTITUTION

PART IV

But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman’s Choice 109, 133, n.7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. 3. No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973. ... Roe stands at an intersection of two lines of decisions.... The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e.g., Carey; Moore v. East Cleveland (1977). Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe’s view that a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health (1990); see also, e.g., Rochin; Jacobson v. Massachusetts (1905).

Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 19838, see Akron v. Akron Center for Reproductive Health, Inc. (1983), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists (1986). ... More recently, in Webster v. Reproductive Health Services (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today (Rehnquist C. J., joined by White, and Kennedy, JJ.); (O'Connor, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman’s liberty. The latter aspect of the decision fits comfortably within the framework of the Court’s prior decisions including Skinner v. Oklahoma (1942), *Griswold, Loving v. Virginia (1967), and Eisenstadt... .

CHAPTER

18

AUTONOMY AND PERSONHOOD

The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman’s interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. .. . 4. ... [T]ime has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron, and advances in neonatal care have advanced viability to a point somewhat earlier. But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding. ... The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy. ... Whenever it may occur, the attainment of viability may continue to serve as the critical fact.... 5. The sum of the precedential inquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips....

B [S]tare decisis analysis could ... stop at the point we have reached. But the sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies. ... The first example is that line of cases identified with Lochner v. New York (1905), which imposed substantive limitations on legislation and _ welfare in favor of health autonomy economic limiting regulation.... The Lochner decisions were exemplified by Adkins v. Children’s Hospital (1923), in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish (1937) signalled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel... .

1459

1460

PART IV

How TO INTERPRET THE CONSTITUTION

The second comparison that 20th century history invites is with the cases employing the separate-but-equal rule.... They began with Plessy v. Ferguson (1896) . . . [which held] “the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” ... But this understanding of the facts and the rule it was stated to justify were repudiated in Brown v. Board of Ed. (1954). ... The Court in Brown ... observ[ed] that whatever may have been the understanding in Plessy’s time of the power of segregation to stigmatize those who were segregated with a “badge of inferiority,” it was clear by 1954 that legally sanctioned segregation had just such an effect... . While we think Plessy was wrong the day it was decided, we must also recognize that the Plessy Court’s explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required. West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions... . CC shtful

part

of

the

Natior

... Because neither the factual underpinnings of Roe’s central holding nor our understanding of it has changed . . . the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. See, e.g., Mitchell v. W.T. Grant (1974) (Stewart, J., dissenting). (“A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.”)

C ... Our analysis would not be complete . .. without explaining why overruling Roe’s central holding ... would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law... . The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to

CHAPTER 18

determine demands.

AUTONOMY AND PERSONHOOD

what

the

Nation’s

law

means

and

to

declare

what

it

re | 1 by the Nation! The need for principled action to be perceived as such is implicated to some degree whenever this, or any other appellate court, overrules a prior case. ... People understand that some of the Constitution’s language is hard to fathom and that the Court’s Justices are sometimes able to perceive significant facts or to understand principles of law that eluded their predecessors. ... [T]he country can accept some correction of error without necessarily questioning the legitimacy of the Court.

In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith.... There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. That first circumstance can be described as othetical; the ance© of its irin the = her, man second_is to the point here and 2

ae

L.

a

=

_.. [W]hen the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation.... [O]nly the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. ... Cf. Brown v. Board of Ed. (1955) (Brown Il)... . The country’s loss of confidence in the judiciary would be reasonable and _ equally certain equally an by underscored and under ly unnecessari overruling in failing another for on condemnati pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision’s results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain

1461

1462

Part IV

How TO INTERPRET THE CONSTITUTION

steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From ‘the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters. . . . Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people 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. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible. The Court’s duty in the present case is clear.... A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.

IV ... [I]t follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.... The woman’s liberty is not so unlimited,

however,

that from the outset

the State

cannot show its concern for the life of the unborn, and at a later point in fetal development the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted. That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. ... We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. Fi > doctri stare) decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh; Akron. Although we must overrule those parts of Thornburgh and Akron which ... are inconsistent with Roe’s statement that the State has a legitimate interest in promoting the life or

CHAPTER

18

AUTONOMY AND PERSONHOOD

potential life of the unborn, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today. 1

Stc

€

10n

that

Is

that

O*'

é

iP

NS

[

(

n

is no line other than viability which is more workable... . The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child. The woman’s right to terminate her pregnancy before viability is the most central principle of Roe.... On the other side of the equation is the interest of the State in the protection of potential life.... That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e.g., Akron. Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases. Roe

established

a trimester st

NO

framework. ... regulation

at

Uni

all

informed! Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. . . . It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe’s central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the E

essential

acter fi

yhnien

Vv

Noldin

As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to

right... that ment an infringeof

nat al

1463

1464

PART IV

How To INTERPRET THE CONSTITUTION

... [D]espite the protestations contained in the original Roe opinion to the effect that the Court was not recognizing an absolute right, the Court’s experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far... . Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe’s terms, in practice it undervalues the State’s interest in the potential life within the woman.... The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pre v1 n le jE

V undue

ik

/

Inter

e woman’s constitutional]; tected liberty. The concept of an burden has been utilized by the Court as well as individual

members

of the

Court,

including

two

of us,

in ways

that

could

be

considered inconsistent.... Because we set forth a standard ... to which we intend to adhere, it is important to clarify what [it means].... AA

LO

Tina

IntOorM

the

Some guiding principles should emerge. What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. (Regulations which.do no more than create structural.

PNE,

LIEN

mechanism

by

U

Ui

v

a

state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden. _ Even when jurists reason from shared premises, some disagreement is inevitable. ... We do not expect it to be otherwise with respect to the undue burden standard. We give this summary: _ (a)... An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. (b) We reject the rigid trimester framework of Roe. To promote the State’s profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman’s choice is

CHAPTER

18

AUTONOMY AND PERSONHOOD

informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right. (c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. _ (d)... Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. (e) We also reaffirm Roe’s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary ... for the preservation of the life or health of the mother.” These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions.

Wits [The joint opinion stated that the reasoning just offered led to the following conclusions: (1) The statute’s definition of “medical emergencies,” which would allow

a

woman

to

omit

the

24-hour

waiting

period,

was

not

so

restrictive as to impose an undue burden. (2) The requirement of “informed consent’”—that at least 24 hours before performing an abortion a physician must inform a woman seeking an abortion of the nature of the procedure, the health risks of abortion and of childbirth, and provide her with certain medical information—did not constitute an undue burden. (3) The requirement that a minor child obtain the consent of at least one parent—or if she could show that obtaining such consent was not feasible, the permission of a court—was also valid for the same reason. (4) The requirement that hospitals, clinics, and physicians keep certain records about abortions was also valid for the same reason.

(5) The requirement that a wife notify her husband did impose an undue burden and was therefore unconstitutional. On each of these five points, the plurality picked up enough votes from other justices to make Part V of their opinion that of the Court.—Eds.]

VI Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution’s written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution’s own promise, the promise of liberty. ...

1465

1466

PARTIV

How TO INTERPRET THE CONSTITUTION

a JUSTICE STEVENS, concurring in part and dissenting in part. The portions of the Court’s opinion that I have joined are more important than those with which I disagree... .

I The Court is unquestionably correct in concluding that the doctrine of stare decisis has controlling significance in a case of this kind, notwithstanding an individual justice’s concerns about the merits.! The central holding of Roe has been a “part of our law” for almost two decades. It was a natural sequel to the protection of individual liberty established in Griswold. The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.... I also accept ... Roe’s explanation of why the State’s obligation to protect the life or health of the mother must take precedence over any duty to the unborn. The Court in Roe carefully considered, and rejected, the State’s argument “that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” ... From this holding, there was no dissent; indeed, no member of the Court has ever questioned this fundamental proposition. Thus, as a matter of federal constitutional law, a developing organism that is not yet a “person” does not have what is sometimes described as a “right to life.”2 This has been and, by the Court’s holding today, remains a fundamental premise of our constitutional law governing reproductive autonomy.

II My disagreement with the joint opinion begins with its understanding of the trimester framework.... First, ... to be legitimate, the State’s interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest. Moreover ... the state interest in potential human—— life is not vo

1 Jt is sometimes useful to view the issue of stare decisis from a historical perspective. In the last nineteen years, fifteen Justices have confronted the basic issue presented in Roe. Of those, eleven have voted as the majority does today. ... Only four—all of whom happen to be on the Court today—have reached the opposite conclusion. [Footnote by Justice Stevens.] 2 Professor Dworkin has made this comment on the issue: “The suggestion that states are free to declare a fetus a person ... assumes that a state can curtail some persons’ constitutional rights by adding new persons to the constitutional population. The constitutional rights of one citizen are of course very much affected by who or what else also has constitutional rights, because the rights of others may compete or conflict with his. So any power to increase the constitutional population by unilateral decision would be, in effect, a power to decrease rights the national Constitution grants to others. “... Ifa fetus is not part of the constitutional population . .. then states have no power to overrule that ... arrangement by themselves declaring that fetuses have rights competitive with'the constitutional rights of pregnant women.” Dworkin, Unenumerated Rights: Whether ah ce Roe Should be Overruled, 59 U.Chi.L.Rev. 381, 400-401 (1992). [Footnote by Justice tevens.

CHAPTER

18

AUTONOMY AND PERSONHOOD

In counterpoise is the woman’s constitutional interest in liberty. One aspect of this liberty is a right to bodily integrity, a right to control one’s person. See e.g., Rochin; Skinner. This right is neutral on the question of abortion: The Constitution would be equally offended by an absolute requirement that all women undergo abortions as by an absolute prohibition on abortions... . The woman’s constitutional liberty interest also involves her freedom to decide matters of the highest privacy and the most personal nature. Cf. Whalen v. Roe (1977).... The authority to make such traumatic and yet empowering decisions is an element of basic human dignity. ... [A] woman’s decision to terminate her pregnancy is nothing less than a matter of conscience. . . Weighing the State’s interest in potential life and the woman’s liberty interest, I agree ... that the State may “ ‘expres[s] a preference for normal childbirth, ” that the State may take steps to ensure that a woman’s choice “is thoughtful and informed,” and that “States are free to enact laws to provide a reasonable framework for a woman to make a

decision

that

has

such prof

Serio

1€ of it is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual’s freedom to make such judgments... . ... Under these principles, §§ 3205(a)(2)()—(ii) of the Pennsylvania statute are unconstitutional. Those sections require a physician or counselor to provide the woman with a range of materials clearly designed to persuade her to choose not to undergo the abortion. While the State is free to produce and disseminate such material, the State may not inject such information into the woman’s deliberations just as she is weighing such an important choice. Under this same analysis, §§ 3205(a)(1)G@) and (iu) of the Pennsylvania statute are constitutional. Those sections, which require the physician to inform a woman of the nature and risks of the abortion procedure and the medical risks of carrying to term, are neutral requirements comparable to those imposed in other medical procedures. Those sections indicate no effort by the State to influence the woman’s choice in any way. If anything, such requirements enhance, rather than skew, the woman’s decisionmaking.

Ill The [requirement of a] 24-hour waiting period raises even more serious concerns. ... [I]t may be argued that... delay ... furthers the State’s interest in ensuring that the woman’s decision is informed and thoughtful. But there is no evidence that the mandated delay benefits women or that it is necessary to enable the physician to convey any appears delay thus ndatory TE relevant information to the patient. L 0

lec belief that

Ol

and unacceptable

cle

NAMKEC

g ¢ a woman

ty

ofwomen.;.. must

consult

as

nptions

about

l

the

Just as we have left behind the

her husband

before undertaking

1467

1468

PART IV

How TO INTERPRET THE CONSTITUTION

serious matters, so we must reject the notion that a woman is less capable of deciding matters of gravity. Cf. Reed v. Reed (1971). In the alternative, the delay requirement may be premised on the belief that the decision to terminate a pregnancy is presumptively wrong. This premise is illegitimate.... No person undertakes such a decision lightly—and States may not presume that a woman has failed to reflect adequately merely because her conclusion differs from the State’s preference. A woman who has, in the privacy of her thoughts and conscience, weighed the options and made her decision cannot be forced to reconsider all, simply because the State believes she has come to the wrong conclusion. Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term. The mandatory waiting period denies women that equal respect. ... ... [W]hile I disagree with Parts IV, V-B, and V-D of the joint opinion, I join the remainder of the Court’s opinion.” = JUSTICE BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part.

I join parts I, I, II, V-A, V-C, and VI of the joint opinion of Justices O’Connor, Kennedy, and Souter.™

Three years ago, in Webster, four Members of this Court appeared poised to “cast into darkness the hopes and visions of every woman in this country” who had come to believe that the Constitution guaranteed her the right to reproductive choice. (Blackmun, J., dissenting). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. But now, just when so many expected the darkness to fall, the flame has grown bright. ... I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

I Make no mistake, the joint opinion is an act of personal courage and constitutional principle. ... What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch. ...

II Today, no less than yesterday, the Constitution and decisions of this Court require that a State’s abortion restrictions be subjected to the strictest of judicial scrutiny.... Under this standard, the Pennsylvania statute’s provisions requiring content-based counseling, a

*

Part V-B upheld the statute’s requirement of informed consent, and V-D upheld the provision regarding parental consent.—Eds. Part V-A involved the definition of “medical emergency,” and V-C required a pregnant woman to notify her spouse before undergoing an abortion.—Eds.

CHAPTER 18

AUTONOMY AND PERSONHOOD

24-hour delay, informed parental consent, and reporting of abortionrelated information must be invalidated. _The Court today reaffirms the long recognized rights of privacy and bodily integrity. ... State restrictions on abortion violate a woman’s right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman’s right to bodily integrity. ... Further, .. . it deprives a woman of the right to make her own decision about reproduction and family planning—critical life choices that this Court long has deemed central to the right to privacy.... Because motherhood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life. . . . A State’s restrictions . . . also implicate constitutional guarantees of gender equality. ... By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption—that women can simply be forced to accept the “natural” status and incidents of motherhood—appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause. See, e.g., Mississippi Univ. for Women v. Hogan (1982); Craig v. Boren (1976).1 The joint opinion recognizes that these assumptions about women’s place in society “are no longer consistent with our understanding of the family, the individual, or the Constitution.”

Ill ... If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from The Chief Justice’s opinion. ... [His] criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court’s personal-liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy. This constricted view is reinforced by The Chief Justice’s exclusive reliance on tradition as a source of fundamental rights.... [P]leople using contraceptives seem the next likely candidate for his list of outcasts.

Even more shocking ... is [The Chief Justice’s] complete omission of any discussion of the effects that compelled childbirth and motherhood have on women’s lives.... [H]is view of the State’s compelling interest in maternal health has less to do with health than it does with compelling women to be maternal. Nor does The Chief Justice give any serious consideration to the doctrine of stare decisis. ... The Chief Justice’s narrow conception of individual liberty and stare decisis 1 A growing number of commentators are recognizing this point. See, e.g., L. Tribe, American Constitutional Law § 15-10 (2d. ed. 1988); Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” 44 Stan.L.Rev. 161 (1992); Sunstein, “Neutrality in Constitutional Law,” 92 Colum.L.Rev. 1 (1992); MacKinnon, “Reflections on Sex Equality Under Law,” 100 Yale L.J. 1281 (1991); cf. Rubenfeld, “The Right of Privacy,” 102 Harv.L.Rev. 737 (1989) (similar analysis under the rubric of privacy). [Footnote by Justice Blackmun.]

1469

1470

PARTIV

How TO INTERPRET THE CONSTITUTION

leads him to propose the same standard of review proposed by the plurality in Webster... .? But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box. IV In one sense, the Court’s approach is worlds apart from that of The Chief Justice and Justice Scalia. And yet, in another sense, the distance

between the two approaches is short—the distance is but a single vote. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.” = CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part. The joint opinion, following its newly-minted variation on stare decisis, retains the outer shell of Roe, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster and uphold the challenged provisions of the Pennsylvania statute in their entirety. ...

II ... Instead of claiming that Roe was correct as a matter of original constitutional interpretation, the [joint] opinion ... contains an elaborate discussion of stare decisis ... [which] appears to be almost entirely dicta, because the joint opinion does not apply that principle in 2 Justice Scalia urges the Court abortion entirely to the States. Putting of an abdication by the Court of uncharacteristically naive if he thinks

to “get out of this area” and leave questions regarding aside the fact that what he advocates is nothing short its constitutional responsibilities, Justice Scalia is that overruling Roe and holding that restrictions on a woman’s right to an abortion are subject only to rational-basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would differences among States in their approaches to abortion have on a woman’s right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions? [Footnote by Justice Blackmun. ] * When Casey was decided, George H. W. Bush was still in the White House and, allegedly, was choosing judges who were opposed to Roe. Blackmun did not retire until William J. Clinton was President. To replace Blackmun, Clinton nominated Stephen Breyer, who did not appear to be opposed to Roe. Clinton’s first nominee, Ruth Bader Ginsburg, had criticized the opinion in Roe—see the citations in Editors’ Note (9), below at p. 1479—but had

said she believed that a woman had a constitutional right to an abortion grounded in equal protection.—Eds.

CHAPTER 18

AUTONOMY AND PERSONHOOD

dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to “strict scrutiny” and could be justified only in the light of “compelling state interests.” The joint opinion rejects that view. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court’s decisionmaking for 19 years. The joint opinion rejects that framework. ... Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Decisions following Roe, such as Akron and Thornburgh, are frankly overruled in part under the “undue burden” standard. ... [AJuthentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact.... Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depart from a proper understanding” of the Constitution. Garcia... . The joint opinion ... points to the reliance interests involved in this context in its effort to explain why precedent must be followed for precedent’s sake.... [But] any traditional notion of reliance is not applicable here.... The joint opinion thus turns to what can only be described as an unconventional—and unconvincing—notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to “two decades of economic and social developments” that would be undercut if the error of Roe were recognized. The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their “places in society” in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men. .. [T]he joint opinion’s argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have “ordered their thinking and living around” it.... However, the simple fact that a generation or more had grown used to [Lochner and Plessy] did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here. See Brown; West Coast Hotel. ... The joint opinion picks out and discusses two prior Court rulings [Lochner and Plessy] that it believes are of the “intensely divisive” variety, and concludes that they are of comparable dimension to Roe. It appears to us very odd indeed that the joint opinion chooses as benchmarks two cases in which the Court chose not to adhere to erroneous constitutional precedent, but instead enhanced its stature by acknowledging and correcting its error, apparently in violation of the joint opinion’s “legitimacy” principle. See West Coast Hotel; Brown.... The joint opinion agrees that the Court’s stature would have been seriously damaged if in Brown and West Cost Hotel it had dug in its heels and refused to apply normal principles of stare decisis to the

1471

1472

How TO INTERPRET THE CONSTITUTION

Part IV

earlier decisions. But the opinion contends that the Court was entitled to overrule Plessy and Lochner in those cases ... only because both the Nation and the Court had learned new lessons in the interim. This is at best a feebly supported, post hoc rationalization for those decisions. .. . When the Court finally recognized its error in West Coast Hotel, it did not engage in the post hoc rationalization that the joint opinion attributes to it today; it did not state that Lochner had been based on an economic view that had fallen into disfavor, and that it therefore should be overruled. Chief Justice Hughes in his opinion for the Court simply recognized what Justice Holmes had previously recognized in his Lochner dissent, that “the Constitution does not speak of freedom of contract.” ... Although the Court did acknowledge in the last paragraph of its opinion the state of affairs during the then-current Depression, the theme of the opinion is that the Court had been mistaken as a matter of constitutional law when it embraced “freedom of contract” 32 years previously. The joint opinion also agrees that the Court acted properly in rejecting the doctrine of “separate but equal” in Brown.... [It] concludes that such repudiation was justified only because of newly discovered evidence that segregation had the effect of treating one race as inferior to another. But [t]he Court in Brown simply recognized, as Justice Harlan had recognized beforehand [dissenting in Plessy], that the Fourteenth Amendment does not permit racial segregation. . . The sum of the joint opinion’s labors . . . is this: Roe stands as a sort of judicial Potemkin Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor “legitimacy” is truly served by such an effort. pluralit

[W]e think that the correct analysis is that set forth by ne opinion in Webster. 10

st sth Williamson v. Lee Optical (1955). . [W]e therefore would hold that each of the challenged provisions of ‘the Pennsylvania statute is consistent with the Constitution..

m JUSTICE

SCALIA,

with whom

THE

eens JUSTICE

[REHNQUIST],

JUSTICE WHITE, and JUSTICE THOMAS join, concurring in the judgment in part and dissenting

1n part..

... The issue is whether (“the power of a woman to abort her unborn child”] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe ond of the mystery of human life.” eS

mt Ue

Tan)

CHAPTER 18

Al

AUTONOMY AND PERSONHOOD

ta

The Court destroys the proposition, evidently meant to represent my position, that “liberty” includes “only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.” That is not, however, what Michael H. says; it merely observes that, in defining “liberty,” we may not disregard a specific, “relevant tradition protecting, or denying protection to, the asserted right.” .. . The Court’s statement that it is “tempting” to acknowledge the authoritativeness of tradition in order to “cur[b] the discretion of federal judges,” is of course rhetoric rather than reality; no government official is “tempted” to place restraints upon his own freedom of action, which is why Lord Acton did not say “Power tends to purify.” The Court’s temptation is in the quite opposite and more natural direction—towards eliminating checks upon its own power; and it succumbs.

systematically

[A]pplying the rational basis test, I would uphold the Pennsylvania statute in its entirety. I must, however, respond to a few of the more outrageous arguments in today’s opinion. .. .

“The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment.” Assuming that the question before us is to be resolved at such a level of philosophical abstraction, in such isolation from the traditions of American society, as by simply applying “reasoned judgment,” I do not see how that could possibly have produced the answer the Court arrived at in Roe.... “[R]Jeasoned judgment” does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere “potentiality of human life.” The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its “balancing” is bound to be wrong, unless it is correct that the human fetus 1s 1n some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so. . [I]Jn their exhaustive discussion of all the factors that go into the determination of when stare decisis should be observed ... they 1 The Court’s suggestion that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text—an Equal Protection Clause that explicitly establishes racial equality as a constitutional value. See Loving. The enterprise launched in Roe, by contrast, sought to establish—in the teeth of a clear, contrary tradition—a value found nowhere in the constitutional text. There is, of course, no comparable tradition barring recognition of a “liberty interest” in carrying one’s child to term free from state efforts to kill it. For that reason, it does not follow that the Constitution does not protect childbirth simply because it does not protect abortion. The Court’s contention that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor.... [Footnote by Justice Scalia.]

1473

1474

How TO INTERPRET THE CONSTITUTION

PART IV

never mention “how wrong was the decision on its face?” ... Roe was plainly wrong—even on the Court’s methodology of “reasoned judgment,” and even more so (of course) if the proper criteria of text and tradition are applied. The emptiness of the “reasoned judgment” that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in this and other cases, the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to-rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. ... The right to abort, we are told, inheres in “liberty” because it is among “a person’s most basic decisions,” ... it involves “intimate relationships,” and notions of “personal autonomy and bodily integrity.” ... But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today’s majority), see Bowers, has held are not entitled to constitutional protection—because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, ... all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court’s decision; only personal predilection. .. . “Liberty finds no refuge in a jurisprudence of doubt.” One might have feared to encounter this august and sonorous phrase in an opinion defending the real Roe, rather than the revised version fabricated today by the authors of the joint opinion. The shortcomings of Roe did not include lack of clarity: Virtually all regulation of abortion before the third trimester was invalid. But to come across this phrase in the joint opinion—which calls upon federal district judges to apply an “undue burden” standard as doubtful in application as it is unprincipled in origin—is really more than one should have to bear. ... [T]he standard is inherently manipulable and will prove hopelessly unworkable in practice. . . . The joint opinion is flatly wrong in asserting that “our jurisprudence relating to all liberties save perhaps abortion has recognized” the permissibility of laws that do not impose an “undue burden.” ... I agree, indeed I have forcefully urged, that a law of general applicability which places only an incidental burden on a fundamental right does not infringe that right, see R.A.V. v. St. Paul (1992); Employment Div’n v. Smith (1990), but that principle does not establish the quite different (and quite dangerous) proposition that a law which directly regulates a fundamental right will not be found to violate the Constitution unless it imposes an “undue burden.” It is that, of course, which is at issue here. .. . The “undue burden” standard is. . . a unique concept created specially for this case, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at

CHAPTER

18

einer an effort to preserve what they deem OYNis Wass

AUTONOMY AND PERSONHOOD

the “central holding in

... Reason finds no refuge in this jurisprudence of confusion. “While we appreciate the weight of the arguments .. that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.” The Court’s reliance upon stare decisis can best be described as contrived. ... It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied to Marbury v. Madison (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts. . . . “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe ..., its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe was decided. Profound disagreement existed among our citizens over the issue ... but that disagreement was being worked out at the state level.... [T]he division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre—Roe, moreover, political compromise was possible.

Roe’s mandate for abortion-on-demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. (“If the Constitution guarantees abortion, how can it be bad?”—not an accurate line of thought, but a natural one.) ... But to portray Roe as the statesmanlike “settlement” of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by

1475

1476

PART IV

How TO INTERPRET THE CONSTITUTION

keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court's new majority decrees. “To overrule under fire ... would subvert the Court’s legitimacy....” “To all those who will be ... tested by following, the Court implicitly undertakes to remain steadfast.... The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and... the commitment [is not] obsolete....” “(The American people’s] belief in themselves as... a people [who aspire to live according to the rule of law] 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. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.” The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges ... with the somewhat more modest role envisioned for these lawyers by the Founders. The judiciary ... has ... no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment. ... The Federalist No. 78. Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ... with the more democratic views of a more humble man: The candid citizen must confess that 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. A. Lincoln, First Inaugural Address (Mar. 4, 1861). It is particularly difficult, in the circumstances of the present decision, to sit still for the Court’s lengthy lecture upon the virtues of “constancy,” of “remaining steadfast,” of adhering to “principle.” .. . The only principle the Court “adheres” to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law ... but a principle of Realpolitik—and a wrong one at that. ... 1 am appalled by [ ] the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced—against overruling, no less—by the substantial and continuing public opposition the decision has generated... . In my history-book,

the Court

was

covered

with

dishonor

and

deprived

of

legitimacy by Dred Scott v. Sandford (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel (1937), which produced the famous “switch in time” from the

CHAPTER 18

AUTONOMY AND PERSONHOOD

Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal. (Both Dred Scott and one line of the cases resisting the New Deal rested upon the concept of “substantive due process” that the Court praises and employs today. Indeed, Dred Scott was “very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner and Roe.” D Currie, The Constitution in the Supreme Court 271 (1985).) _But whether it would “subvert the Court’s legitimacy” or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning; that the Ninth Amendment’s reference to “other” rights is not a disclaimer, but a charter for action; and that the function of this Court is to “speak before all others for [the people’s] constitutional ideals” unrestrained by meaningful text or tradition—then the notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. . .

Of course ... we have been subjected to what the Court calls “political pressure” by both sides of this issue. Maybe today’s decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception ... the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled. ... How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides ...) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution and are enforceable by this Court—not just those mentioned in the text or established in the traditions of our society. Why even the Ninth Amendment ... is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at “rights,” definable and enforceable by us, through “reasoned judgment.” What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the

1477

1478

How TO INTERPRET THE CONSTITUTION

Part IV

public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, [if] ... our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into questionand-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it... . We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining. EDITORS’ NOTES (1) In the U.S. Reports, the full opinions in this case take up more than a hundred pages studded with personal invective and strained efforts to strike quotable phrases—indications both of the importance of the issues and the intensity of the justices’ reactions. Casey displayed within its heated corners many critical problems of constitutional interpretation, and the justices attempted to carry on several arguments simultaneously: (1) the correctness of Roe; (2) the best approach to interpreting the Due Process Clause; (38) the meaning and application of stare decisis; (4) how often the Court should look over its shoulder to see what the public is thinking about its work; and (5) the relevance and authority of competing demands of a constitutionalist concern for individual liberty and a democratic concern for deference to the political processes.

(2) Query: To what extent was the disagreement between the five justices who voted to reaffirm the central holding of Roe and the four who voted to overrule it a disagreement about WHAT is the Constitution? To what extent does that text contain an exhaustive list of rights? To what extent is the Constitution a scheme of abstract principles as opposed to a code of specific enumerated rights? How did each justice respond, implicitly or explicitly, to these issues?

(3) Query: interpret?

To what extent was

the disagreement

about WHO

shall

(4) Query: To what extent did the joint opinion follow the approach of protecting fundamental rights? Does the joint opinion differ from the concurring opinions of Justices Stevens and Blackmun in this respect?

CHAPTER 18

AUTONOMY AND PERSONHOOD

(5) Query: How does the joint opinion’s notion of “undue burden” (as opposed to “strict scrutiny”) under the Due Process Clause differ from the “intermediate scrutiny” we saw in the cases on equal protection in Chapter 15? Was Scalia correct in referring to the joint opinion’s test as a form of balancing? (6) Query: The joint opinion characterized “reasoned judgment” as “that same capacity which by tradition courts always have exercised” in interpreting the Constitution, whereas Scalia referred to it as “a new mode of constitutional adjudication,” which “turns out to be nothing but philosophical predilection and moral intuition.” Who had the better argument on this subquestion of HOW? Is Scalia’s distinction between studying historical “facts” and making “value judgments” sustainable in constitutional interpretation? To what extent does all constitutional interpretation involve value judgments? (7) Query: The joint opinion said that it is “tempting, as a means of curbing the discretion of federal judges,” to limit liberty to those rights specified in the express provisions of the Constitution (Justice Black’s view), or to “only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified” (Justice Scalia’s view). Scalia spoke of the Court’s being tempted “towards systematically eliminating checks upon its own power; and it succumbs.” Who has the more cogent analysis of constitutional “temptation,” the joint opinion or Scalia? Do we find evidence of judges succumbing both to the temptation to abdicate responsibility and to the temptation to eliminate checks upon power? (8) Query: Did the joint opinion in Casey provide a_ stronger constitutional justification for a woman’s right to decide whether to terminate a pregnancy than did Roe? Simply a fuller explication of the same basic rationale? Does the “right of privacy,” as distinguished from autonomy and bodily integrity, disappear in Casey in favor of a right to make the “ultimate decision”? What role did the physician play in Roe? To what extent did Casey replace the physician, whose role the Court emphasized in Roe, with the state as the guarantor of women’s responsible decisionmaking? See Linda C. McClain, “The Poverty of Privacy?” 3 Colum.J.Gender & L. 119 (1992); James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Cambridge: Harvard University Press, 2013), chapter 3.

(9) Query: Do arguments from the Equal Protection Clause, such as those invoked by Blackmun and alluded to by Stevens and the joint opinion, provide a firmer basis for a right to abortion than do arguments from autonomy or bodily integrity under the Due Process Clauses? See, in addition to the material Blackmun cited, two articles by Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 No.Car.L.R. 375 (1985), and “Speaking in a Judicial Voice,” 67 N.Y.U.L.Rev. 1185 (1993). To what extent do arguments about sexual equality meet objections (such as those advanced by Bork and Ely) to the Court’s protecting “unenumerated” fundamental rights through the,.Due Process Clauses? (See Eds.’ Notes (5) and (6) following Roe v. Wade (1973; reprinted above, p. 1441).)

1479

1480

How TO INTERPRET THE CONSTITUTION

PART IV

(10) In invalidating as an undue burden the requirement that a married woman seeking an abortion notify her husband, the joint opinion accepted the district court’s finding that for “the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision.” Observing that our understanding of the family, the individual, and the Constitution has changed since Bradwell v. Illinois (1873) said that “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state,” the joint opinion concluded: “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.” Query: What about the argument that a requirement of notification represents an effort to protect the right of the husband, as the putative father, to express an opinion about whether the wife should terminate the pregnancy? To what extent did the justices in the majority implicitly deny that husbands have a right to a voice in that decision? Would such a denial accord equal protection of the laws? (11) Query: Which arguments about stare decisis and overruling are more persuasive, those of the joint opinion or those of Rehnquist and Scalia? Reread the _ significant decisions overruling longstanding precedents—West Coast Hotel v. Parrish (1937; reprinted above, p. 12438) and Brown v. Board of Education (1954; reprinted above, p. 967)—and consider whether the joint opinion’s framework for overruling precedents or the approach of Rehnquist and Scalia better accounts for the justifications offered in those decisions for overruling, respectively, Lochner v. New York (1905; reprinted above, p. 1230) and Plessy v. Ferguson (1896; reprinted above, p. 957). (12) Query: Stevens explicitly said and the joint opinion implied that Roe was “the natural sequel” to Griswold and the later cases dealing with birth control. Even assuming that Roe did not contradict Griswold, to what extent did Roe follow from Griswold? Is there a constitutionally relevant difference between using contraceptives and having an abortion?

(13) Query: “The whole argument of abortion opponents,” Scalia said, “is that what the Court calls the fetus and what others call the unborn child is a human life.” Did Scalia himself explicitly contend that the fetus is a child? Was he attacking Stevens’s claim that none of the fifteen justices who had been on the Court when the issue was raised had argued that a fetus was, for purposes of the Fourteenth Amendment, a person?

(14) Query: What was the relevance of Scalia’s discussion of the Ninth Amendment? Did the joint opinion, as published, rely on the Ninth Amendment, actually or potentially treating it as “a literally boundless source of additional, unnamed, unhinted-at ‘rights,’” as Scalia charged? 34 (15) Query: Scalia likened Roe to Dred Scott. On the other hand, the joint opinion intimated that Roe was like Brown. To what extent is either (or each) analogy persuasive?

CHAPTER 18

AUTONOMY AND PERSONHOOD

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”—Justice KENNEDY “(T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices.... Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D & E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions the under and family in the place women’s about Constitution-ideas that have long since been discredited. ... Casey.”—Justice GINSBURG

Gonzales v. Carhart* 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) In Stenberg v. Carhart (2000), the Supreme Court, 5—4, invalidated a Nebraska statute making criminal the performance of a “partial birth abortion.” The Court did so on two grounds: (1) that the statute lacked any exception “for the preservation of the ... health of the mother” (quoting Casey) and (2) that it imposed an undue burden on a woman’s ability to choose a D & E (dilation and evacuation) abortion, and therefore unduly burdened the right to make an abortion decision itself. Justices Scalia, Kennedy, and Thomas, joined by Chief Justice Rehnquist, furiously dissented. Subsequently, Congress passed a similar law banning “partial birth abortion,” and President George W. Bush signed it into law. The major difference was that authors of the new ban attempted to answer the Court by including congressional findings that the procedure is never warranted to protect the health of the pregnant woman. (The other major difference is that Justice O'Connor had retired and been replaced by Justice Alito.) In Gonzales v. Carhart (2007), the Supreme Court upheld that law.

*

Our edit of this case is available at www.princeton.edu/aci.

1481

1482

PART IV

How To INTERPRET THE CONSTITUTION

VIII.

THE RIGHT TO FAMILY INTEGRITY

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

[Loving v. Virginia] 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) This case, invalidating a state law prohibiting interracial marriage on the grounds that it denied both equal protection and due process, 1s reprinted above, p. 978.

“IT]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”—Justice

POWELL “The Judiciary ... is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”—Justice WHITE

Moore v. East Cleveland 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) An ordinance of East Cleveland, Ohio limited occupancy of each dwelling unit to members of a single family, with “family” defined essentially as parents and their children. (The ordinance, however, permitted grandparents to live with their children and their children’s children, provided that all of the grandchildren were siblings rather than cousins.) The ordinance also provided an administrative procedure to request variances. Without following this procedure, Inez Moore shared her home with her son and two grandsons who were cousins rather than brothers. She was convicted of violating the ordinance and state appellate courts affirmed her conviction. She then appealed to the U.S. Supreme Court. = Mr. JUSTICE POWELL announced the judgment of the Court and delivered an opinion in which MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN joined. . .

II The city argues that our decision in Village of Belle Terre v. Boraas (1974) requires us to sustain the ordinance attacked here. Belle Terre, like East Cleveland, imposed limits on the types of groups that could occupy a single dwelling unit. Applying the constitutional standard announced in this Court’s leading land-use case, Euclid v. Ambler (1926), we sustained the Belle Terre ordinance on the ground that it bore a rational relationship to permissible state objectives. _But one overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed

CHAPTER

18

AUTONOMY AND PERSONHOOD

all who were related by “blood, adoption, or marriage” to live together, and in sustaining the ordinance we were careful to note that it promoted “family needs” and “family values.” ... East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face it selects certain categories of relatives who may live together and declares that others may not... . When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid governs; the usual judicial deference to the legislature is inappropriate. “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd. of Ed. v. LaFleur (1974). A host of cases, tracing their lineage to Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), have consistently acknowledged a “private realm of family life which the state cannot enter.” Prince v. Massachusetts (1944). See, e.g., Roe v. Wade (1973); Wisconsin v. Yoder (1972); Stanley v. Illinois (1972); Ginsberg v. New York (1968); Griswold v. Connecticut (1965); Poe v. Ullman (1961) (Harlan, J., dissenting); cf. Loving v. Virginia (1967); May v. Anderson (1953); Skinner v. Oklahoma (1942). Of course, the family is not beyond regulation. See Prince. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe (Harlan, J., dissenting). When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland’s school system. Although these are legitimate goals, the ordinance before us serves them marginally, at best. ...

Ill The city would distinguish the cases based on Meyer and Pierce. It . suggests that any constitutional right to live together as a family extends only to the nuclear family—essentially a couple and its dependent children. To be sure, these cases did not expressly consider the family relationship presented here. ... But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case. Understanding those reasons requires careful attention to this Court’s function under the Due Process Clause. Mr. Justice Harlan described it eloquently: Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that ... it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation

1483

1484

How TO INTERPRET THE CONSTITUTION

PARTIV

might take them. The balance ... is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe (dissenting opinion). Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary—the boundary of the nuclear family. Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful “respect for the teachings of history [and] solid recognition of the basic values that underlie our society.” Griswold (Harlan, J., concurring). Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.

Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. ... Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. . . . Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon

CHAPTER 18

AUTONOMY AND PERSONHOOD

law requiring all children to attend the State’s public schools, holding that the Constitution “excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” By the same token the Constitution prevents East Cleveland from standardizing its children—and its adults—by forcing all to live in certain narrowly defined family patterns. Reversed. Co

m= MR. JUSTICE concurring....

= Mr.

BRENNAN,

with whom

MR. JUSTICE MARSHALL

joins,

JUSTICE STEVENS concurring in the judgment.

_... [T]he critical question ...is whether East Cleveland’s housing ordinance is a permissible restriction on appellant’s right to use her own property as she sees fit. ... There appears to be no precedent for an ordinance which excludes any of an owner’s relatives from the group of persons who may occupy his residence on a permanent basis. Nor does there appear to be any justification for such a restriction on an owner’s use of his property. The city has failed totally to explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins. Since this ordinance has not been shown to have any “substantial relation to the public health, safety, morals or general welfare” of the city of East Cleveland, and since it cuts so deeply into a fundamental right normally associated with the ownership of residential property—that of an owner to decide who may reside on his or her property—it must fall under the limited standard of review of zoning decisions which this Court preserved in Euclid. Under that standard, East Cleveland’s unprecedented ordinance constitutes a taking of property without due _ process and _ without just compensation. ... = MR. CHIEF JUSTICE BURGER, dissenting [on procedural grounds]... . a MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins, dissenting... . The Belle Terre decision ... disposes of the appellant’s contentions to the extent they focus not on her blood relationships with her sons and grandsons but on more general notions about the “privacy of the home.” ... To suggest that the biological fact of common ancestry necessarily gives related persons constitutional rights of association superior to those of unrelated persons is to misunderstand the nature of the associational freedoms that the Constitution has been understood to protect. Freedom of association has been constitutionally recognized because it is often indispensable to effectuation of explicit First Amendment guarantees. See NAACP v. Alabama [1958]; ... NAACP v. Button [1963]. 2°. The “association” in this case is not for any purpose relating to the promotion of speech, assembly, the press, or religion. And wherever the outer boundaries of constitutional protection of freedom of association may eventually turn out to be, they surely do not extend to those who assert no interest other than the gratification, convenience, and economy of sharing the same residence. .. .

1485

1486

How To INTERPRET THE CONSTITUTION

PaRTIV

_.. When the Court has found that the Fourteenth Amendment placed a substantive limitation on a State’s power to regulate, it has been in those rare cases in which the personal interests at issue have been deemed “ ‘implicit in the concept of ordered liberty.’” The interest that the appellant may have in permanently sharing a single kitchen and a suite of contiguous rooms with some of her relatives simply does not rise to that level. To equate this interest with the fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Due Process Clause beyond recognition. ... _.. 1 do not think East Cleveland’s definition of “family” offends the Constitution. The city has undisputed power to ordain single-family residential occupancy. Belle Terre; Euclid. And that power plainly carries with it the power to say what a “family” is. Here the city has defined “family” to include not only father, mother, and dependent children, but several other close relatives as well. The definition is rationally designed to carry out the legitimate governmental purposes identified in the Belle Terre opinion... . = MR. JUSTICE WHITE, dissenting... . The emphasis of the Due Process Clause is on “process.” ... Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated’ product of judicial interpretation.... This is not to suggest ... that any of these cases should be overruled, or that the process by which they were decided was illegitimate or even unacceptable, but only to underline Mr. Justice Black’s constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable....

... That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930’s and 1940’s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority. ... ; ... Under

our cases, the Due Process Clause extends

substantial

protection to various phases of family life, but none requires that the claim made here be sustained. I cannot believe that the interest in residing with more than one set of grandchildren is one that calls for any kind of heightened protection under the Due Process Clause....

CHAPTER 18

AUTONOMY AND PERSONHOOD

The present claim is hardly one of which it could be said that “neither liberty nor justice would exist if it were sacrificed.” Palko. Mr. Justice Powell would apparently construe the Due Process Clause to protect from all but quite important state regulatory interests any right or privilege that in his estimate is deeply rooted in the country’s traditions. For me, this suggests a far too expansive charter for this Court. ... What the deeply rooted traditions of the country are is arguable; which of them deserve the protection of the Due Process Clause is even more debatable. The suggested view would broaden enormously the horizons of the Clause; and, if the interest involved here is any measure of what the States would be forbidden to regulate, the courts would be substantively weighing and very likely invalidating a wide range of measures that Congress and state legislatures think appropriate to respond to a changing economic and social order. Mrs. Moore’s interest in having the offspring of more than one dependent son live with her qualifies as a liberty protected by the Due Process Clause; but, because of the nature of that particular interest, the demands of the Clause are satisfied once the Court is assured that the challenged proscription is the product of a duly enacted or promulgated statute, ordinance, or regulation and that it is not wholly lacking in purpose or utility... . EDITORS’ NOTES

(1) Thurgood Marshall’s papers reveal that, at the justices’ conference on Moore, the Court initially voted to uphold the ordinance. Potter Stewart drafted what was to be the opinion of the Court and Powell circulated a dissent. Then, after reflecting on home owners’ property rights, Stevens changed his vote. Stewart’s opinion became a dissent and Powell’s the opinion of the plurality. (Library of Congress, Manuscripts Division, the Papers of Justice Thurgood Marshall, Case File 194.) (2) Query: Speaking for the Court in Palko v. Connecticut (1937; reprinted above, p. 122), Cardozo framed the inquiry under the Due Process Clause of the Fourteenth Amendment as being whether an asserted fundamental right was “implicit in the concept of ordered liberty.” In Moore, Powell for the plurality formulated the inquiry as being whether it is “deeply rooted in this Nation’s history and tradition.” How, if at all, do these formulations differ? How does Powell determine what “this Nation’s” traditions are? To what extent in Moore did differences between Powell and White about HOW to interpret the Constitution depend on different views about WHAT is the Constitution and WHO shall interpret it? (3) White worries that the Court “is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” Presumably, in White’s view, the specter of Lochner v. New York (1905; reprinted below, p. 1230) lurks here. Query: Suppose Powell had argued that whatever “unenumerated” rights are “deeply rooted in this Nation’s history and tradition” do have “cognizable roots” in “the design of the Constitution.” Would that reformulation have met White’s objections?

1487

1488

How To INTERPRET THE CONSTITUTION

ParRTIV

(4) Stewart saw the right of association as limited to democratic purposes. In Roberts v. United States Jaycees (1984; reprinted above, p. 870), the Court stated that it has long recognized not only “freedom of expressive association” for democratic purposes, but also “freedom of intimate association,” citing cases such as Meyer v. Nebraska (1923; reprinted above, p. 1422), Pierce v. Society of Sisters (1925; reprinted above, p. 1426), Griswold v. Connecticut (1965; reprinted above, p. 137%), and Moore. The term “freedom of intimate association” derives from Kenneth L. Karst, “The Freedom of Intimate Association,” 89 Yale L.J. 624 (1980).

“When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”

[Zablocki v. Redhail] 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)

This decision, striking down a state law that prohibited people who had fallen behind in court-ordered child support to remarry, is reprinted above, p. 1163.

“Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a_ relevant tradition protecting, or denying protection to, the asserted right can be identified.”—Justice SCALIA “The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hide-bound document steeped in the prejudices and superstitions of a time long past.”—Justice BRENNAN

[Michael H. v. Gerald D.] 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)

This decision upheld a state decision that the biological father of a child, conceived when the mother was married to another man, had no constitutionally protected “liberty interest” that would support his asking a court to protect his relationship with his child. The opinions are reprinted above, p. 148.

CHAPTER

18

AUTONOMY AND PERSONHOOD

1489

IX. THE RIGHTS TO SAME-SEX INTIMATE ASSOCIATION AND MARRIAGE “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”— Justice WHITE “[T] his case is about ‘the most comprehensive of rights and the right most valued by civilized men, namely, ‘the right to be let alone.’ ”— Justice BLACKMUN Bowers v. Hardwick 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) In 1982, police charged Michael Hardwick with engaging in oral sex in his own bedroom with a consenting, adult male. Georgia Code Ann. § 16—6—2 (1984) provided, in pertinent part: (a) “A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. ... [and] (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years....”

The district attorney decided not to prosecute. Hardwick then brought suit in federal district court, seeking an injunction forbidding Georgia to enforce the statute. He asserted that, as a practicing homosexual, he was in imminent danger of arrest for violating this statute—a threat which deprived him of the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment. The district court dismissed the suit, but a divided panel of the Court of Appeals for the Eleventh Circuit reversed, holding that the Georgia statute violated Hardwick’s fundamental rights because his homosexual sexual activity was a private and intimate association beyond the reach of state regulation. The Court of Appeals stated: “For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.” The judges invoked the Ninth Amendment as well as the Due Process Clause. Georgia then obtained review from the U.S. Supreme Court.

= JUSTICE WHITE delivered the opinion of the Court... . This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is ©

whether the Federal Constitution confers a fundamental right upon

homosexuals to engage in sodomy and hence invalidates the laws of.

[many] States....1 The case also calls for some judgment about the

limits of the Court’s role in carrying out its constitutional mandate.

1... The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the

|

1490

ParRTIV

How TO INTERPRET THE CONSTITUTION

We first register our disagreement ... that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy.... The reach of this line of cases was sketched in Carey v. Population Services Int’ (1977). Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923) were described as dealing with child rearing and education; Prince v. Massachusetts (1944) with family relationships; Skinner v. Oklahoma (1942) with procreation; Loving v. Virginia (1967) with marriage; Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) with contraception; and Roe v. Wade (1973) with abortion. ... .._ [W]e think it evident that none of the rights announced in those

cases [bears any resemblance]to

the claimed

constitutional

right of

homosexuals to engage in acts of sodomy.... No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated. ... Moreover, any claim

that these cases nevertheless stand for the proposition that any, kindat private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court’s

opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. Precedent aside, however, respondent would have us announce... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process

Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been eee have substantive content.... Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey. Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of

the rights qualifying for heightened judicial protection. In Palko Connecticut (1937), it was said that this category includ hi fundamental

liberties

that are

“implicit

in the concept

of ordered

liberty,” such that “neither liberty nor justice would exist if [they] were

sacrificed.” A different description of fundamental liberties appearedin Moore v. East Cleveland (1977) (opinion of Powell, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s

history a

It is obvious to us fundamental right to sodomy. Proscriptions was a criminal offense the original 13 States when the Fourteenth

that neither of these formulations would extend a homosexuals to engage in acts of consensual against that conduct have ancient roots. Sodomy at common law and was forbidden by the laws of when they ratified the Bill of Rights. In 1868, Amendment was ratified, all but 5 of the 37

constitutionality of the Georgia statute as applied to other acts of sodomy. [Footnote by the Court (moved by Editors).|

CHAPTER

18

AUTONOMY AND PERSONHOOD

States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of

Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to: claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and aegitiont or “implicit in the concept of ordered liberty” is, at best, facetious. Nor are we inclined to take a more expansive view of our authority

to discover new

fundamental

rights imbedded

in the Due Process:

Clause. The Court is most vulnerable and comes nearest to illegitimacy | when it deals with judge-made constitutional law having little or no '

cognizable roots in the language or design of the Constitution. That this

is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of seat Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express

constitutional authority... . Respondent,

however,

asserts

that the result should

be different

where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one’s home... . Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First

Amendment. The right pressed upon us here has no similar support in the text of the

Constitution, and it does not qualify for recognition

under the prevailing principles for construing_ the Fourteenth Amendment.\Its limits are also difficult to discern) Plainly enough,

erwise illegal conduct is not always immunized whenever it occurs in” the home. Victimless crimes, su the possession and use of illegal drugs,do not escape the | committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. And if

respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would bedifficult, except by fiat, to limit:

the claimed right to homosexual conduct while leaving exposed to,

prosecution

adultery, incest, and other sexual crimes even though they»

are committed in the home, We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notionsof © morality, and if all laws representing essentially moral choices are to b

invalidated under the Due Process Clause, the courts will be very bus

indeed. Even respondent makes no such claim, but insists that majority

1491

1492

PARTIV

How TO INTERPRET THE CONSTITUTION

sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis. Reversed. = CHIEF JUSTICE BURGER, concurring.... ... [T]he proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao— Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation ... the first English statute criminalizing sodomy was passed. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries at 215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the

statute at issue here, and that statute has been continuously in force in

one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would aside millennia of moral teaching. . .

be to cast

= JUSTICE POWELL, concurring.

... l agree with the Court that there is no fundamental right—.e., no substantive right under the Due Process Clause—such as that claimed by respondent Hardwick.... This is not to suggest, however, that respondent may not be protected by the Eighth Amendment. ... The Georgia statute ... authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. I duration—would create a serious Eighth Amendment

issue.

. . .

In this case, however, respondent has not been tried, much less convicted and sentenced. Moreover, respondent has not raised the

Kighth Amendment issue below. For these reasons argument is not before us. m

JUSTICE

BLACKMUN,

with

whom

JUSTICE

this constitutional

BRENNAN,

JUSTICE

MARSHALL, and JUSTICE STEVENS join, dissenting.

_ This case is no more about “a fundamental right to eng age in

homosexual sodomy” . . . than Stanley was about a fundamental right to watcn

obscene movies,

or

Katz Ma

United

States

1967)

Was

abot it a

fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the

right most valued by civilized men,” namely, “the right to be let alone.” Olmstead v. United States (1928) (Brandeis, J., dissenting). The statute ... denies individuals the right to decide f themselves whether to engage in particular forms of private, consensu sexual activity. The Court concludes that § 16-6—2 is valid essentially because “the laws of... many States ... still make such conduct illegal and have done so for a very long time.” But the fact that the moral judgments expressed by statutes like § 16-6—2 may be “ ‘natural and

CHAPTER

18

AUTONOMY AND PERSONHOOD

familiar ... ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’” Roe, quoting Lochner v. New York (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that “[it] is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we He wets respondent Pipe Ra claim in esSeeht of the \ _ that underlie the

emade j is an

666

“GHiNABIE: crime not fit to be

ened, thechoicethey have,

I . A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents. First, the Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. Rather, Georgia has provided that “[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person to the mouth or anus of another.” The sex or status of the persons who “engage in the act is irrelevant.... [T]o the extent I ca iscern a leg e purpose forGeorgia’s 1968 enactment t of § 16-6-2, that purpose seems to have beer n the coverage of the law to reach heterosexual as well as oioseaaal! activity. I therefore see no basis for the Court’s decision to treat this case as an “as applied” challenge to § 16—6—2, or for Georgia’s attempt ... to defend § 16—6-2 solely on the grounds that it prohibits homosexual activity. Michael

Hardwick’s ... claim that § 16-6— nconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation. Second, I disagree with the Court’s refusal to consider whether § 16—-6—2 runs afoul of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment. Respondent’s complaint expressly invoked the Ninth Amendment, and he relied heavily before this Court on Griswold, which identifies that Amendment as one of the specific constitutional provisions giving “life [NJeither the and substance” to our understanding of privacy.. is so clearly Clause Protection Equal Eighth Amendment nor the irrelevant that a claim resting on either provision should be peremptorily dismissed.! The Court’s cramped reading of the issue 1 Jn Robinson v. California (1962), the Court held that the Eighth Amendment. barred convicting a defendant due to his “status” as a narcotics addict, since that condition was “apparently an illness which may be contracted innocently or involuntarily.” ... Despite historical views of homosexuality, it is no longer viewed by mental health professionals as a “disease” or disorder. But, obviously, neither is it simply a matter of

1493

1494

PAarRTIV

How TO INTERPRET THE CONSTITUTION

before it makes persuasive one.

for a short opinion, but it does little to make for a

II “Our cases long have recognized that the Constitution embodies a

promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.” Thornburgh v. American g the right In College of Obstetricians & Gynecologists (1986). construin sbat cistingy somewhat two to privacy, the Court has proceeded along

complementary,

lines. First, it

has

decisions

toce certain referen

recognized a privary interest

wi

for the individual are properly

to

make. E.g., Roe; Pierce. Second, it has recognized a privacy interest

with

reference

for the particula to certain places without regard

which the ix inies activit

United States v. Karo

(1

; Payton

v.

hem are engaged. E.g.,

New York (1980); Ios

States (1960). The case before us implicates spatial aspects of the right to privacy. —

iN

v.

U ited the

A ... While ... four earlier] cases may be characterized by their connection to protection of the family, the Court’s conclusion that they extend no further than this boundary ignores the warning in Moore (plurality opinion), against “[closing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause.” Weprotect those righ ot because they contribute, in some direct and material

way, to the gener aleDHnLG welfare, but because they form so centrala part of an individual’s life. “[The] concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.” Thornburgh (Stevens, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub. Affrs 288-289 (1977). And so we protect the decision whether to marry precisely because marriage “is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold. We protect the decision whether to have a child because parenthood alters so dramatically an individual’s selfdefinition, not because of demographic considerations or the Bible’s deliberate personal election. Homosexual orientation may well form part of the very fiber of an individual’s personality. Consequently, under Justice White’s analysis in Powell [v. Texas (1968)], the Eighth Amendment may pose a constitutional barrier to sending an individual to prison for acting on that attraction regardless of the circumstances. An individual’s ability to make constitutionally protected “decisions concerning sexual relations,’ Carey (Powell, J., concurring in part and concurring in judgment), is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy. With respect to the Equal Protection Clause’s applicability to § 16—-6—2, I note that Georgia’s exclusive stress before this Court on its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement, questions that cannot be disposed of before this Court on a motion to dismiss. See Yick Wo v. Hopkins (1886). The legislature having decided that the sex of the participants is irrelevant to the legality of the acts, I do not see why the State can defend § 16—6—2 on the ground that individuals singled out for prosecution are of the same sex as their partners. Thus

...aclaim under the Equal Protection Clause may well be available without having to reach the more controversial question whether homosexuals are a suspect class. See, e.g., Rowland v. Mad River Local School Dist. (1985) (Brennan, J., dissenting from denial of cert.); Note, “The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification,” 98 Harv.L.Rev. 1285 (1985). [Footnote by Justice Blackmun.]

CHAPTER

18

AUTONOMY AND PERSONHOOD

command to be fruitful and multiply. And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore (plurality opinion). The Court recognized in Roberts [v. U.S. Jaycees (1984)] that the “ability independently to define one’s identity that is central to any concept of liberty” cannot truly be exercised in a vacuum; we all depend on the “emotional enrichment from close ties with others.”

__. Only the most willful blindness could obscure the fact that sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,” Paris Adult Theatre I v. Slaton (1973); see also Carey. The fact that individuals define themselves in a significant way through

their intimate

sexual relationships with

uggests, in a

Nation as

diverse as ours, that there may be many “right” ways of conducting. those relationships, and that much of the richness of a relationship will.

come

from the freedom an individual has to choose the form and nature |

of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt; Roe.

In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: “There can be no assumption that today’s majority is ‘right? and the Amish and others like them are ‘wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is

different.” Wisconsin v. Yoder (1972). The Court claims that its decision

ey merely refuses to recognize a fundamental right to engage in the Court really has refused to recognize is 1omosexual sodomy; what the fundamental interest all individuals have in controlling the nature’

of their intimate associations with others. B The behavior for which Hardwick faces prosecution occurred in his own

home,

a place to which the Fourth Amendment

attaches

special

significance. The Court’s treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there.... The Court’s interpretation of the pivotal case of Stanley is entirely unconvincing. .. . According to the majority here, Stanley relied entirely not on the First Amendment, and thus ... sheds no light on cases its d anchore Court Stanley the ... But s. material involving printed al individu the for on protecti special ent’s Amendm Fourth the in holding in his home. ... . dissent in The central place that Stanley gives Justice Brandeis’ Stanley that shows claim, ment Amend First no Olmstead, a case raising

1495

1496

PART IV

How TO INTERPRET THE CONSTITUTION

rested as much on the Court’s understanding of the Fourth Amendment as it did on the First. Indeed, in Paris Adult Theatre I, the Court suggested that reliance on the Fourth Amendment not only supported the Court’s outcome in Stanley but actually was necessary to lt... . “The people to be secure in their ... houses a expressly right of the ost “textual yf nendment, is perhaps guaranteed by the F ndin o of understa our inform that s provision the various constitutional t statemen t’s Co the with agree cannot I thus and privacy, to the right rt in the text of that “[the] right pressed upon us here has no.. S

1n

the

er

Inde

the Constitution.”

in

he Constitut

of

¢

ividual

to

co

im

i

Ill The Court’s failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question whether... [Georgia] has justified [its] infringement on these interests. . . . ” The core of petitioner’s defense of § 16—6—2 ... is that respondent and others who engage in the conduct prohibited by § 16—6—2 interfere with Georgia’s exercise of the “ ‘right of the Nation and of the States to maintain a decent society,” Paris Adult Theatre I, quoting Jacobellis v. Ohio (1964) (Warren, C. J., dissenting). Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in § 16—-6—2 “for hundreds of years, if not thousands, have been uniformly condemned as immoral” is a sufficient reason to permit a State to ban them today. I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s scrutiny. See, e.g., Roe; Loving; Brown v. Bd. of Ed. (1954).3 As Justice Jackson wrote so eloquently for the Court in West Virginia Bd. of Ed. v. Barnette (1943), “we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. ... [Freedom] to differ is not limited to things that do not 2... [I]t does seem to me that a court could find simple, analytically sound distinctions between certain private, consensual sexual conduct, on the one hand, and adultery and incest (the only two vaguely specific “sexual crimes” to which the majority points), on the other....A

State might define the contractual commitment necessary to become eligible for [mutual] benefits to include a commitment of fidelity and then punish individuals for breaching that contract. Moreover, a State might conclude that adultery is likely to injure third persons, in particular, spouses and children of persons who engage in extramarital affairs. With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted. Notably, the Court makes no effort to explain why it has chosen to group private, consensual homosexual activity with adultery and incest rather than with private, consensual heterosexual activity by unmarried persons or, indeed, with oral or anal sex within marriage. [Footnote by Justice Blackmun.] 3 The parallel between Loving and this case is almost uncanny. There, too, the State relied on a religious justification for its law. ... There, too, defenders of the challenged statute relied heavily on the fact that when the Fourteenth Amendment was ratified, most of the States had similar prohibitions. There, too, at the time the case came before the Court, many of the States still had criminal statutes concerning the conduct at issue. Yet the Court held, not only that the invidious racism of Virginia’s law violated the Equal Protection Clause, but also that the law deprived the Lovings of due process by denying them the “freedom of choice to marry” that had “long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” [Footnote by Justice Blackmun. ]

CHAPTER 18

AUTONOMY AND PERSONHOOD

matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” It is precisely becathe use issue raised by this case. touches the heart of what makes individuals what t are that we should be especially s the majority. The assertion that “traditional Judeo—Christian values proscribe” the conduct involved cannot provide an adequate justification for § 16— 6—2. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends

instead on whether the State can advance some justification for its law

beyond its conformity to religious doctrine. See, e.g., McGowan v. Maryland (1961); Stone v. Graham (1980). Thus, far from buttressing. his case, petitioner’s invocation of Leviticus, Romans, St. Thomas.

‘Aquinas, and sodomy’s heretical status

during

the Middle Ages

undermines his suggestion that § 16—6—2 represents a legitimate use of

secular coercive power. A State can no more punish private behavior

because because

of religious intolerance than it can punish such behavior of racial animus. “The Constitution cannot control such

prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti (1984). No matter how uncomfortable a certain group may make the majority of this Court, we have held that “[mere] public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” O’Connor v. Donaldson (1975). See also Cleburne v. Cleburne Living Center, Inc. (1985).

Nor can § 16—6—2 be justified as a “morally neutral” exercise of Georgia’s power to “protect the public environment,” Paris Adult Theatre I. Certainly, some private behavior can affect the fabric of society as a whole. Reasonable people may differ about whether particular sexual acts are moral or immoral, but “we have ample evidence for believing that people will not abandon morality, will not think any better of murder, cruelty and dishonesty, merely because some private sexual practice which they abominate is not punished by the law.” H. L. A. Hart, Immorality and Treason, reprinted in The Law as Literature 220, 225 (L. Blom—Cooper ed. 1961). Petitioner and the Court fail to see the difference between laws that protect public sensibilities and those that enforce private morality. [T]hat intimate behavior may be punished when it takes place in public cannot dictate how States can regulate intimate behavior that occurs in intimate

nce with the rights of others, for , wey e to one’ s value ;

1.

5

va"

LlOUSES,

and minds of citizens who choose to live their lives differently.’

IV It took but three years for the Court to see the error in its analysis in Minersville v. Gobitis (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly

1497

1498

PART IV

How TO INTERPRET THE CONSTITUTION

outweighed by the threat to those same values posed by compelling such a salute. See West Virginia v. Barnette (1943). I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent. =

JUSTICE

STEVENS,

with

whom

JUSTICE

BRENNAN

and

JUSTICE

MARSHALL join, dissenting. Like the statute that is challenged in this case, the rationale of the Court’s opinion applies equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes.... The history of the Georgia statute before us clearly reveals this traditional prohibition of heterosexual, as well as homosexual, sodomy. Indeed, at one point in the 20th century,

Georgia’s law was construed to permit certain sexual conduct between homosexual women even though such conduct was prohibited between heterosexuals. The history of the statutes cited by the majority as proof for the proposition that sodomy is not constitutionally protected, similarly reveals a prohibition on heterosexual, as well as homosexual, sodomy.! Because the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: First, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? . . .

I Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.2 Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Griswold. Moreover, this protection extends to intimate choices by unmarried as well as married persons. Carey; Eisenstadt.

In consideration of claims of this kind, the Court has emphasized the individual interest in privacy, but its decisions have actually been animated by an even more fundamental concern. As I wrote some years ago: 1 A review of the statutes cited by the majority discloses that, in 1791, in 1868, and today, the vast majority of sodomy statutes do not differentiate between homosexual and heterosexual sodomy. [Footnote by Justice Stevens.] 2 See Loving. Interestingly, miscegenation was once treated as a crime similar to sodomy. [Footnote by Justice Stevens.]

CHAPTER

18

AUTONOMY AND PERSONHOOD

These cases ... [deal] with the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny. The Court has referred to such decisions as implicating “basic values,” as being “fundamental,” and as being dignified by history and tradition. The ... Court’s language in these cases brings to mind the origins of the American heritage of freedom—the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience ... federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases. Fitzgerald v. Porter Memorial Hospital (7th Cir.1975), cert. denied (1976). Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and

disadvantages of different forms of intimate expression. But whe individual married couples are isolated from observation by others, the

they volun arily choose to conduct their intimate relations way in which is a matter for them—not the State—to decide. The essential “liberty”

of the law in cases that animated the development

like

Griswold,

Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral. . + ... sodomy indeed, events, prohibit

[OJur prior cases thus establish that a State may not prohibit within “the sacred precincts of marital bedrooms,” Griswold, or, between unmarried heterosexual adults. Eisenstadt. In all it is perfectly clear that the State of Georgia may not totally the conduct proscribed by § 16—6—2.

II If the Georgia statute cannot be enforced as it is written ... the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in “liberty” that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others. The first possibility is plainly unacceptable. Although the meaning of the principle that “all men are created equal” is not always clear, it surely must mean that every free citizen has the same interest in “liberty” that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life... . The second possibility is similarly unacceptable. A policy of selective application must be supported by a neutral and legitimate interest—something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute “the presumed belief of a majority

1499

1500

How TO INTERPRET THE CONSTITUTION

PART IV

of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.” But the Georgia electorate has expressed no such belief—instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment. ... EDITORS’ NOTES

(1) Query: To what extent was the disagreement between Justices White and Blackmun a disagreement about WHAT the Constitution is? In particular, a disagreement about the level of generality at which we should conceive the constitutional right of liberty? Did White’s opinion anticipate Scalia’s interpretive method for cabining substantive due process outlined in footnote 6 of Michael H. v. Gerald D. (1989; reprinted above, p. 148)? Was Michael Hardwick urging the Court to “discover new fundamental rights” or simply asking it to extend a fundamental right of heterosexuals to homosexuals? (2) Query: What was White’s (and Burger’s) conception of constitutionally relevant “tradition”? Was it merely a notion of concrete historical practices embodied in statute books and the common law, like Scalia’s in Michael H. (1989; reprinted above, p. 148), or was it a notion of tradition as a “living thing,” like Harlan’s in his dissenting opinion in Poe v. Ullman (1961; reprinted above, p. 129)?

(3) Query: Do the “traditions” that White and Burger invoked condemn only homosexual sodomy or all sodomy (as Stevens suggested)? Did the majority’s analyses imply that a statute criminalizing sodomy between married heterosexuals would be constitutional? Would Griswold’s principles imply that such a statute would be unconstitutional? In Bowers itself, Georgia conceded at oral argument that such a statute would be unconstitutional. What would White and Burger have said? (4) Query: Stevens said: “Although the meaning of the principle that ‘all men are created equal’ is not always clear, it surely must mean that every free citizen has the same interest in ‘liberty’ that the members of the majority share.” The words “all men are created equal” do not, of course, appear in the constitutional text of 1787-88 as amended, but in the Declaration of Independence. (Cf. his remark, dissenting in Meachum v. Fano [1976]: “I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights.”) Was Stevens implying that the Declaration is part of the Constitution?

(5) The Papers of Justice Thurgood Marshall indicate that in Bowers, Powell initially voted to affirm the decision below on the basis of the Eighth Amendment’s prohibition of cruel and unusual punishment, but subsequently changed his vote. (The Library of Congress, Manuscripts Division, Case File 393.) For a critique of Bowers based on the Eighth Amendment, see Kendall Thomas, “Beyond the Privacy Principle,” 92 Colum.L.Rev. 1481 (1992).

CHAPTER 18

AUTONOMY AND PERSONHOOD

Several years later, after he had retired, Powell publicly remarked, “I think I probably made a mistake” in voting with the majority in Bowers. See Linda Greenhouse, “When Second Thoughts In Case Come Too Late,” N.Y. Times, Nov. 5, 1990, p. A14. He had come to believe the majority opinion in Bowers “was inconsistent in a general way” with Roe v. Wade (1973; reprinted above, p. 1433). Query: Were Powell’s second thoughts about a conflict between Bowers and Roe sound? At the time Powell cast his decisive vote in Bowers, he stated to one of his clerks that he had never met a homosexual. See John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994), pp.

511-30. In fact, Jeffries reports, the clerk to whom Powell was speaking was gay, as were many of his other previous clerks. Powell simply was not aware of this. Query: Had he been aware of this, might it have changed his perceptions concerning homosexuality and whether there was any resemblance or analogy between heterosexual intimate association Are in Griswold) of homosexuals? (safeguarded such that and considerations regarding the real life knowledge and experience of justices appropriate in constitutional interpretation?

(6) Query: Did Bowers leave open the possibility of challenges to discrimination against homosexuals under the Equal Protection Clause? In 1992, the voters of Colorado adopted an amendment to their state constitution forbidding both state and local governments to enact laws protecting gay men and lesbians from discrimination. In Romer v. Evans (1996; reprinted above, p. 1090), the Supreme Court held that the amendment violated the Equal Protection Clause. Instead of upholding the amendment as an attempt to preserve traditional sexual morality—a state objective presumably legitimate according to Bowers—the Court viewed it as evincing a “bare ... desire to harm a politically unpopular group” and thus as not furthering a legitimate governmental objective. The opinion of the Court did not mention Bowers. Justice Scalia angrily dissented, arguing that Bowers was “unassailable,” chastising the Court for not even mentioning it, and suggesting that Bowers practically decided the case. Query: Was Scalia right? Or are the two cases distinguishable? Or indeed does Romer imply that Bowers was wrongly decided? (7) Some state courts construed their state constitutions to invalidate criminal sodomy statutes notwithstanding the Supreme Court's interpretation of the U.S. Constitution in Bowers. Notably, the Georgia Supreme Court invalidated, on state constitutional grounds, the very Georgia law upheld in Bowers. Powell v. State (Ga. 1998). It ruled that private consensual sodomy between adults is protected within the right of privacy guaranteed by the Georgia Constitution’s due process clause. (8) Lawrence Bowers.

“The

v. Texas

central

(2008; reprinted

holding

of Bowers

as the next case), overruled

has

been

brought

in

question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”—Justice KENNEDY

1501

1502

ParRTIV

How TO INTERPRET THE CONSTITUTION

sodomy is not a “Bowers’ conclusion that homosexual Nation’s history this in rooted ‘deeply right fundamental and tradition’ is utterly unassailable.”—Justice SCALIA

Lawrence v. Texas 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) = JUSTICE KENNEDY delivered the opinion of the Court. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

I The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2008). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute

defines “[d]eviate sexual intercourse” as follows: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object. § 21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25.

The Court of Appeals for the Texas Fourteenth District considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. .. .

CHAPTER 18

AUTONOMY AND PERSONHOOD

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it Been to reconsider the Court’s holding in Bowers v. Hardwick

1986). There

are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters (1925), and Meyer v. Nebraska (1923); but the most ae beginning point is our decision in Griswold v. Connecticut

1965).

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons [under the Equal Protection Clause] ...: It is true that in Griswold the right of privacy in question inhered in the marital relationship.... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court

held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting

her destiny and confirmed once more

that the protection

of libe y

ntal significance in defining the rights of the person.’ ... Both Eisenstadt and ... the holding and rationale in Roe confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers. The facts in Bowers

had some

similarities

to the instant case. ah

police officer ... observed Hardwick, in his own bedroom, engaging in intimate

sexual conduct with another adult male. The conduct was in

1503

1504

Part IV

How TO INTERPRET THE CONSTITUTION

violation of a Georgia statute making it a criminal offense to engage In sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of to the same sex, while the Texas statute, as we have seen, applies only Justice by opinion an in Court, The ... sex. same participants of the White, sustained the Georgia law. ... The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage ae intercourse. The la

b

consequences, to

priv

right

to have

sexual

purport to thattes ‘statu behavior, and in the most private of places, seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The lberty protected by the Constitution allows homosexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae; Brief for American Civil Liberties Union et al. as Amici Curiae; Brief for Professors of History et al. as Amici Curiae. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that history in this country of laws directed at distinct matter. Beginning in colonial times sodomy derived from the English criminal instance by the Reformation Parliament

there is no longstanding homosexual conduct as a there were prohibitions of laws passed in the first of 1533. The English

CHAPTER

18

AUTONOMY AND PERSONHOOD

prohibition was understood to include relations between men and women as well as relations between men and men. Nineteenth-century commentators similarly read American sodomy, buggery, and crimeagainst-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g., J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D’Emilio & EK. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual

persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault... . Instead

of targeting relations between consenting adults in private, 19thcentury sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. ... In all events that infrequency [of prosecutions] makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. [F]Jar from possessing “ancient roots,’ Bowers, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880— 1995 are not always clear in the details, but a significant number involved conduct in a public place. It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. Post—Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

1505

1506

PART IV

How TO INTERPRET THE CONSTITUTION acKnowl

making the broader poi

have be

voices to condemn homosexual conduct as immoral. The condemnation

by religious beliefs, conceptions of right and acceptable has been shaped For many persons these for thetraditional family. respect behavior, and

are not

trivial

concerns

but

pr

nd and

deep convictions accepted as

ethical and moral principlesto which they aspire nang which thus determine the course of their lives. Theseconsiderations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao—Christian moral and ethical standards.” As with Justice White’s assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our lays and traditions in the past half century are of most relevance here. [These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex) “[H]istory and tradition are

the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis (1998) (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model (Tent: Draft Nos 4.1955). >.

Penal

Code,

Commentary

277—280

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court’s decision 24 States and the District of Columbia had sodomy laws. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. (“The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”). The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament

CHAPTER

18

AUTONOMY AND PERSONHOOD

recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Kur. Ct. H. R. (1981). Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 138, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances.

Two principal cases decided after Bowers cast its holding into even

more doubt. In Casey,

the Court

reaffirmed the substantive force of the

liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, om SARA In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. post-Bowers case of principal relevance is Romer v.

Evans

ne (1996). Thererethe

Cou struck Court

down

class-based legislation

Equal Protection Clause. of the at homosexuals as a violation directed Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” and

1507

1508

How TO INTERPRET THE CONSTITUTION

deprived them of protection under state antidiscrimination

1e

PART IV

laws. We

provision was “born of animosity toward the class of r that it had no rational relation to a

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Equality of treatment and the due process right to demand

r¢

for conduct protected by thesubstantive guarantee of liberty are linked

important respects, and a decision on the latter point advances both in interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions.... We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration [of sex offenders] laws of a least four States were he or she to be subject to their jurisdiction. This underscores the consequential nature of the punishment and the statesponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-850 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado (Ark. 2002); Powell v. State (Ga. 1998); Gryczan v. State (Mont. 1997); Campbell v. Sundquist (Tenn. App. 1996); Commonwealth v. Wasson (Ky. 1992).

CHAPTER 18

AUTONOMY AND PERSONHOOD

__ To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. ... Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. In Casey we noted that when a Court

is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions: Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons. Justice Stevens’s analysis, in our view, should have been controlling in Bowers and should control here.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual

1509

1510

PART IV

How TO INTERPRET THE CONSTITUTION

conduct a crime. Their ri

: engag to gives them the full right of thegovernment. “It is a promise of the Constitution that there 1s a

realm of personal liberty which the government may not sensi Casey.

which can no legitimate state interest The Texas statute furthers individual. the of life private and personal the into intrusion justify its Had those who drew and ratified the Due Process Clauses of the known _ the Amendment or the Fourteenth Fifth Amendment have been might they , possibilities manifold its components of liberty in knew They insight. this have to presume not did They specific. more times can blind us to certain truths and later generations can see that

laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

[Reversed.] = JUSTICE O’CONNOR, concurring in the judgment. The Court today overrules Bowers. I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional. Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.

The Equal Protection

Clause

essentially a direction that all

of the Fourteenth

Amendment

“is

persons similarly situated should z

treated alike.” Cleburne v. Cleburne Living Center, Inc. (1985); see also Plyler v. Doe (1982). Under our rational basis standard of reviev

“legislation

is presumed

to be

valid

and

be sustained

classification drawn by the statute is rationally |

‘
to she group, 1s an interest that is insufficient to satisfy rational Base review ender the Equal Protection Clause. See, e.g., Moreno; Romer. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that

eae

among groups of Boer ers:

eee inde ah - Equal P ecause legal c must not be “drawn for hes ieilreose of one ae the group bur lened by the law.” Romer. Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” Id. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id... . The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales (“[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination agpang them in a variety of pENEN aeseved to the. criminal law”).... In Romer, we res to

Ene nor re cfetdags lca citizens.ra Weusane pies v! Ferguson (1896) (Harlan, J. dissenting)).’ Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins (1886), would violate the substantive component of the Due Process Gieuse is an issue that need not be geeeseat am comenture aibat soane as theey

1511

1512

PART IV

How TO INTERPRET THE CONSTITUTION

would not long stand in our democratic society. In the words of Justice Jackson: The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Railway Express Agency, Inc. v. New York (1949) (concurring opinion). Chat this. s applied to private, consensual conduct is

unconstitutional under the Equal Protection Cmeeancaionneen that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

A law branding one class of persons as criminal solely based on the

State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and t ual Protection

wew Clause, under any standardof review. os

.

plat

oe

I ther

ee + = sae

5

the Court’s judgment that Texas’ sodomy law banning

i

“dex

intercourse” between consenting adults of the same sex, t between consenting adults of different sexes, is unconstitutional:

mw JUSTICE SCALIA, with whom THE CHIEF JUSTICE JUSTICE THOMAS join, dissenting.

[REHNQUIST]

and

“Liberty finds no refuge in a jurisprudence of doubt.” Casey. That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe. The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers, is very different. The need for stability and certainty presents no barrier... . I begin with Bowers....

the Court’s

I surprising readiness

to reconsider

..

... It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. ... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the

CHAPTER

18

AUTONOMY AND PERSONHOOD

rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. ... To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.

II _ Having decided that it need not adhere to stare decisis, the Court stili must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due

Process Clause,

‘he Fourteenth

th

day’: Stat repeatedly makes that claim.

Amendment expressly allows States

to deprive their

citizens of “liberty,” so long as “due process of law” is provided: “No state shall ... deprive any person of life, liberty, or property, without due

process of law.” (emphasis added). Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg (1997). We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection—that is, rights which are “ ‘deeply rooted in this Nation’s history and tradition,’” ibid. See Reno v. Flores (1993) (fundamental liberty interests must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental”). See also Michael H. v. Gerald D. (1989) (““[W]e have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’... but also that it be an interest traditionally protected by our society’); Moore v. East Cleveland (1977) (plurality opinion); Meyer v. Nebraska (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)). All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause. Noting that “Iplroscriptions against that conduct have ancient roots,” that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” and that

1513

1514

How To INTERPRET THE CONSTITUTION

PART IV

many States had retained their bans on sodomy, Bowers concluded that a right to engage in homosexual sodomy was not “ ‘deeply rooted in this Nation’s history and tradition.’ ” The Court today does not overrule this holding. Not once does it right” or a as a “fundamental sodomy homosexual describe “fundamental liberty interest,” nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is “‘deeply rooted in this Nation’s history and tradition,” the Court concludes that the application of Texas’s statute to petitioners’ conduct fails the rational-basis test, and overrules Bowers’ holding to the contrary... . I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers’ conclusion that homosexual sodomy is not a “fundamental right”—even though, as I have said, the Court does not have the boldness to reverse that conclusion.

1 8See After discussing the history of antisodomy laws, the Court proclaims that, “it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.” This observation in no way casts into doubt the “definitive [historical] conclusion,” on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples... . It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

... Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable. Realizing that fact, the Court instead says: “[W]le think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” (emphasis added). Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”:

prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for

consensual, adult, homosexual sodomy. W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999). In relying, for evidence of an “emerging recognition,” upon the American Law

CHAPTER 18

AUTONOMY AND PERSONHOOD

Institute’s 1955 recommendation not to criminalize “ ‘consensual sexual relations conducted in private,” the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.” Gaylaw 159. In any event,an “emerging awareness” is by definition not “deep] rooted in this Nation’s history and tradition|[s],” as we have ond ~ “fundamental right” status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” but rather rejected the claimed right to sodomy on the ground that such a right was not ““deeply rooted in this Nation’s history and tradition,” (emphasis added). Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization.” The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court ... should not impose foreign moods, fads, or fashions on Americans.” Foster v. Florida (2002) (Thomas, J., concurring in denial of certiorari).

IV I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know— that it requires little discussion. The Texas

statute undeniably

seeks

to further the belief of its

citizens that certain forms of sexual behavior are “immoral unacceptable,”Bowers B eal e same interest 3 t furtlfurthered criminal unacceptable,” ered by by criminal

against

fornication,

bigamy, adultery, adult piscel esd aly

Se PRE rors

and

1 laws

and

obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” (emphasis added). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

Vv Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with

1515

1516

PAaRTIV

How TO INTERPRET THE CONSTITUTION

other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex. The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White

Supremacy.” A racially discriminatory purpose is always

subject

rict

suffici

0

scrutiny, even a facially neutral law that makes

no mention of race. See Washington v. Davis (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers— society’s belief that certain forms of sexual behavior are “immoral and unacceptable.” This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage. Justice O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. Of course the same could be said of any law. A law against public nudity targets “the conduct that is closely correlated with being a nudist,” and hence “is targeted at more than conduct”; it is “directed toward nudists as a Class.” But be that as it may. Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.... Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer.

CHAPTER

18

AUTONOMY AND PERSONHOOD

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” utis clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders

in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress ...; that in some cases such “discrimination” is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to such cases’ that in some acts); and in homosexual engage “discrimination” is a constitutional right, see Boy Scouts of America v. Dale (2000). Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts.

But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new egret atioan right” by a Court that is impatient of democratic change. It is indeed true that “later

generations can see that laws once thought necessary and proper in fact serve only to oppress;” and when that happens, later generations can emise of our system that those repeal those laws. But it is the e people, and not imposed by a judgments are to be

governing caste that knows best. —

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian

1517

1518

How TO INTERPRET THE CONSTITUTION

PART IV

Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.). At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case “does not involve whether the government must give formal recognition to.any relationship that homosexual persons seek to enter.” Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[pJersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do” (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring;” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court’s resolution are only three: of sodomy prohibiti Texas’s on neither infringes a “fundamental right” does not dispute), nor is unsupported (which the Court by a rational

rela ion to what the Constitution consi ders alegitimate state interest, nor denies the equal protection of the laws. I dissent. s JUSTICE THOMAS, dissenting. I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is ... uncommonly silly.” Griswold (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” Id. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution al general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions.”

CHAPTER

18

AUTONOMY AND PERSONHOOD

EDITORS’ NOTES (1) Query: What is the majority opinion’s conception of “history and tradition” in interpreting the Due Process Clause? How does it differ from Justice Scalia’s notion in his plurality opinion in Michael H. v. Gerald D. (1989; reprinted above, p. 148)? From Justice Harlan’s conception of history and tradition as a “living thing” in dissent in Poe v. Ullman (1961; reprinted above, p. 129)? Is the majority’s conception an understanding of evolving consensus more than of backward-looking historical practice? (2) Query: What role do the Court’s references to a “wider civilization” play in justifying the decision here? Historically, the Court has been reluctant to engage in comparative constitutional analysis. Does Justice Scalia give good reasons for such reluctance? Note here that the Court not only refers to decisions of courts and legislatures in other countries but also to decisions of state supreme courts interpreting state constitutions in this country.

(3) The Court states that the present decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Yet Justice O’Connor in concurrence and Justice Scalia in dissent are clearly worried about the implications of the Court’s decision for same-sex marriage. Query: What, if anything, are those implications? Is Scalia right to state that “[t]oday’s opinion dismantles the structure of constitutional law that has permitted a distinction

to be

made

between

heterosexual

and

homosexual

unions,

insofar as formal recognition in marriage is concerned”? (4) Query: What, if anything, are the implications of the decision here for “morals legislation” generally? Is Scalia right to charge that the decision “effectively decrees the end of all morals legislation”? Is there really no moral distinction between homosexual intimate association, on the one hand, and, to quote Scalia’s list, “fornication, bigamy, adultery, adult incest, bestiality, and obscenity’? Can the Court avoid drawing moral distinctions among these activities? (5) Query: Which clause provides a firmer ground for striking down the Texas law, the Due Process Clause (as held by the majority) or the Equal Protection Clause (as argued by O’Connor in concurrence)? Assume that O’Connor’s opinion is not a concurrence but the opinion of the Court. In what sense would her opinion, based on the Equal Protection Clause, leave Bowers standing? What, more generally, is the relationship between the Due Process Clause and the Equal Protection Clause?

“We hold only that plaintiffs are entitled under Chapter I, Article 7, of the Vermont Constitution to obtain the same law to benefits and protections afforded by Vermont infringe to purport not do We married opposite-sex couples. upon the prerogatives of the Legislature to craft an constitutional this of addressing means appropriate mandate, other than to note that the record here refers to a

1519

1520

How TO INTERPRET THE CONSTITUTION

PAaRTIV

number of potentially constitutional statutory schemes from other jurisdictions.”—Chief Justice AMESTOY “I concur with the majority’s holding, but I respectfully dissent from its novel and truncated remedy, which in my view abdicates this Court’s constitutional duty to redress violations of constitutional rights.... We should simply enjoin the State from denying marriage licenses to plaintiffs based on sex or sexual orientation.”—Justice JOHNSON

[Baker v. State of Vermont] 170 Vt. 194, 744 A.2d 864 (Supreme Court of Vermont, 1999)

This case, in which the Vermont Supreme Court invalidated, under the Common Benefits Clause of the Vermont Constitution, a Vermont statute denying same-sex couples of the statutory benefits and protections that it provided to opposite-sex married couples, is reprinted above, p. 1108.

“The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of secondclass citizens.”—Chief Justice MARSHALL “The plaintiffs are members of our community, our neighbors, our coworkers, our friends.... We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new _ status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do.”—Justice GREANEY “Because a conceivable rational basis exists upon which the Legislature could conclude that the marriage statute furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children, it is a valid exercise of the State’s police power.”—Justice CORDY

Goodridge v. Department of Public Health 440 Mass. 309, 798 N.E.2d 941 (Supreme Judicial Court of Massachusetts, 2003)

a MARSHALL, C.J.

Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may

CHAPTER 18

AUTONOMY AND PERSONHOOD

not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples. We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that samesex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Lawrence v. Texas (2003), quoting Planned Parenthood v. Casey (1992). Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, where it was not an issue. There, the Court affirmed that the core concept of common human dignity protected by the Fourteenth Amendment to the United States Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner. The Court also reaffirmed the central role that decisions whether to marry or have children bear in shaping one’s _identit \

198

atta

(

]

if

e

The plaintiffs are fourteen individuals from five Massachusetts counties. As of April 11, 2001, the date they filed their complaint, the plaintiffs Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fiftytwo years old, had been in a committed relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirtyfive years old, and Richard Linnell, thirty-seven years old, had been ina

1521

1522

How TO INTERPRET THE CONSTITUTION

PARTIV

committed relationship for thirteen years and lived with their eight year old daughter and Richard’s mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old, and Edward Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in a committed relationship for four years and had cared for David’s mother in their home after a serious illness until she died. The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups. They have employed such legal means as are available to them—for example, joint adoption, powers of attorney, and joint ownership of real property—to secure aspects of their relationships. Each plaintiff attests a desire to marry his or her partner in order to affirm publicly their commitment to each other and to secure the legal protections and benefits afforded to married couples and their children. In March and April, 2001, each of the plaintiff couples attempted to obtain a marriage license from a city or town clerk’s office. ... In each case, the clerk either refused to accept the notice of intention to marry or denied a marriage license to the couple on the ground that Massachusetts does not recognize same-sex marriage. ... On April 11, 2001, the plaintiffs filed suit in the Superior Court against the [Department of Public Health] . . . alleg[ing] violation of the laws of the Commonwealth, including but not limited to their rights under ... the Massachusetts Constitution!. ... A Superior Court judge ruled for the department.... [P]laintiffs appealed. Both parties requested direct appellate review, which we eranted....

Ill A is whether,

The larger question as the department claims, government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the State’s authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution. We have recognized the long-standing statutory understanding, derived from the common law, that “marriage” means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.

1 Article 1, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides: “All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” ... Article 10 provides, in relevant part: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws....”... [Footnote by the Court.]

CHAPTER

18

plaintif The fs’

AUTONOMY AND PERSONHOOD

claim that the marriage

restriction

violates

the

Massachusetts Constitu can be analyzed in two ways. Does it offend tion

the /onstitution’s guarantees of equality before the law? Or do the liberty and due process provisions ... secure the plaintiffs’ right to marry their chosen partner? In matters implicating marriage, family life, and the upbringing of children, the two constitutional concepts frequently overlap, as they do here. See Lawrence (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests”); Bolling v. Sharpe (1954) (racial segregation in District of Columbia public schools violates the Due Process Clause of Fifth Amendment to United States Constitution), decided the same day as Brown v. Board of Educ. of Topeka (1954) (holding that segregation of public schools in States violates Equal Protection Clause of Fourteenth Amendment). Much of what we say concerning one standard applies to the other. We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. No religious ceremony has ever been required to validate a Massachusetts marriage. In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.... Civil marriage is created and regulated through exercise of the police power. ... In broad terms, it is the Legislature’s power to enact rules to regulate conduct, to the extent that such laws are “necessary to secure the health, safety, good order, comfort, or general welfare of the community.”

Without question, civil marriage enhances the “welfare of the community.” It is a “social institution of the highest importance.” Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data. Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of selfdefinition. ... The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that “hundreds of statutes” are related to marriage and to marital benefits. With no attempt to be comprehensive, we note that some of the statutory benefits conferred by the Legislature on

1523

1524

How TO INTERPRET THE CONSTITUTION

PaRTIV

those who enter into civil marriage include, as to property: joint Massachusetts income tax filing; tenancy by the entirety; extension of the benefit of the homestead protection to one’s spouse and children; automatic rights to inherit the property of a deceased spouse who does not leave a will; entitlement to wages owed to a deceased employee; the right to share the medical policy of one’s spouse; thirty-nine week continuation of health coverage for the spouse of a person who is laid off or dies; preferential options under the Commonwealth’s pension system; preferential benefits in the Commonwealth’s medical program; access to veterans’ spousal benefits and preferences; the equitable division of marital property on divorce; temporary and permanent alimony rights; the right to separate support on separation of the parties that does not result in divorce; and the right to bring claims for wrongful death and loss of consortium, and for funeral and burial expenses and punitive damages resulting from tort actions. Exclusive marital benefits ... not directly tied to property rights include the presumptions of legitimacy and parentage of children born to a married couple; and evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations. ... Where a married couple has children, their children are also directly or indirectly ... the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth’s strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, the fact remains that marital children reap a measure of family stability and economic security based on their parents’ legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one’s parentage. It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a “civil right.” See, e.g., Loving v. Virginia (1967) (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”), quoting Skinner v. Oklahoma (1942); see also Baehr v. Lewin (Haw. 19938) (identifying marriage as “civil right[ ]”); Baker v. State (Vt. 1999) (Johnson, J., concurring in part and dissenting in part) (same). The United States Supreme Court has described the right to marry as “of fundamental importance for all individuals” and as “part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment’s Due Process Clause.” Zablocki v. Redhail (1978). See Loving (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”).? 2 Civil marriage enjoys a dual and in some sense paradoxical status as both a Stateconferred benefit (with its attendant obligations) and a multi-faceted personal interest of “fundamental importance.” Zablocki. As a practical matter, the State could not abolish civil marriage without chaotic consequences. The “right to marry” is different from rights deemed “fundamental” for equal protection and due process purposes because the State could, in

CHAPTER

18

AUTONOMY AND PERSONHOOD

Without the right to marry—or more properly, the right to choose to marry—one is excluded from the full range of human experience and denied full protection of the laws for one’s “avowed commitment to an intimate and lasting human relationship.” Baker. Because civil marriage 1s central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual’s right to marry against undue government incursion. Laws may not “interfere directly and substantially with the right to marry.” Zablocki. . . .

B For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharpe (Ca. 1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving. As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance—the institution of marriage—because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.‘

The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that theory, abolish all civil marriage while it cannot, for example, abolish all private property rights. [Footnote by the Court.] 3 The department argues that the Loving decision did not profoundly alter the by-then common conception of marriage because it was decided at a time when antimiscegenation statutes were in “full-scale retreat.” But the relationship the department draws between popular consensus and the constitutionality of a statute oppressive to a minority group ignores the successful constitutional challenges to an antimiscegenation statute, initiated some twenty years earlier. When the Supreme Court of California decided Perez, a precursor to Loving, racial inequality was rampant and normative, segregation in public and private institutions was commonplace, the civil rights movement had not yet been launched, and the “separate but equal” doctrine of Plessy v. Ferguson (1896) was still good law. The lack of popular consensus favoring integration (including interracial marriage) did not deter the Supreme Court of California from holding that that State’s antimiscegenation statute violated the plaintiffs’ constitutional rights. Neither the Perez court nor the Loving Court was content to permit an unconstitutional situation to fester because the remedy might not reflect a broad social consensus. [Footnote by the Court.] 4 Recently, the United States Supreme Court has reaffirmed that the Constitution prohibits a State from wielding its formidable power to regulate conduct in a manner that demeans basic human dignity, even though that statutory discrimination may enjoy broad public support. The Court struck down a statute criminalizing sodomy. See Lawrence. [Footnote by the Court.]

1525

1526

ParRTIV

How TO INTERPRET THE CONSTITUTION

“state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Arizona v. Evans (1995).

var

state

s I

01]

n

good

Both’

S volved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family— these are among the most basic of every individual’s liberty and due process rights. See, e.g., Lawrence; Casey; Zablocki; Roe v. Wade (1973); Loving. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage.... The plaintiffs challenge the marriage statute on both equal protection and due process grounds. With respect to each such claim, we must first determine the appropriate standard of review. te

he

n

tundan

1 ttCa ‘

]

‘or

ay di

Cleburne Living Ctr., Inc. (1985) (Stevens,

The department

argues

t class

Q

|

Cleburne

v.

J., concurring).®

that no fundamental

right or “suspect”

e here,® and rational basis is the appropriate standard of he plaintiffs’ a rguments that this

10 Ol fay [W]e do not case merits strict judicial

scrutiny. The department posits three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a “favorable setting for procreation”; (2) ensuring the optimal setting for child rearing, which the department defines as “a two-parent family with one parent of each sex”; and (3) preserving scarce State and _ private financial

resources....

» Not every asserted rational relationship is a “conceivable” one, and rationality review is not “toothless.” Statutes have failed rational basis review even in circumstances where no fundamental right or “suspect” classification is implicated. . . . [Footnote by the Court.] ine Article 1 of the Massachusetts Constitution specifically prohibits sex-based discrimination. We have not previously considered whether “sexual orientation” is a “suspect” rahi catigucs Our resolution of this case does not require that inquiry here. [Footnote by the ourt.]

CHAPTER

18

AUTONOMY AND PERSONHOOD

The judge in the Superior Court endorsed the first rationale, holding that “the state’s interest in regulating marriage is based on the traditional concept that marriage’s primary purpose is procreation.” This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a : se attestto their ability or intention to conceive childr oitus. Fertility is not a condition of marriage, nor is grounds it for

divorce. People who have never consummated their marriage, and never

plan to, may be and stay married. People who cannot stir from their deathbed may marry. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether

the parent

or her partner

is heterosexual,

homosexual,

or

bisexual. If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means.... The “marriage is procreation” argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like “Amendment 2” to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly “identifies persons by a single trait and then denies them protection across the board.” Romer v. Evans (1996). In so doing, the State’s action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. The department’s first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the “optimal” setting. Protecting the welfare of

lren is a sex couples,

paramount State policy. Restricting marriage to oppositehowever, untior CSA further this olen The

demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly 7 tis hardly surprising that civil marriage developed historically as a means to regulate heterosexual conduct and to promote child rearing, because until very recently unassisted heterosexual relations were the only means short of adoption by which children could come into the world, and the absence of widely available and effective contraceptives made the link between heterosexual sex and procreation very strong indeed. Punitive notions of illegitimacy, and of homosexual identity, see Lawrence, further cemented the common and legal understanding of marriage as an unquestionably heterosexual institution. But it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been. . . . [Footnote by the Court.]

1527

1528

How To INTERPRET THE CONSTITUTION

ParRTIV

(2000). Granville v. Troxel household.” to household from of realities changing “the to supportively Massachusetts has responded the American family,” id., and has moved vigorously to strengthen the modern family in its many variations. Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. The “best interests of the child” standard does not turn on a parent’s sexual orientation or marital status. The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the “optimal” child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be “excellent” parents. These couples (including four of the plaintiff couples) have children for the reasons others do—to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. Given the wide range of public benefits reserved only for married couples, we do not credit the department’s contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. E | na ill no

v

hi

dissenting).

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” (Cordy, J., dissenting). In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a

CHAPTER 18

marriage license.

AUTONOMY AND PERSONHOOD

It cannot

be rational under our laws, and indeed it is

not permitted, to penalize chilby dren depriving them of State ponsets because the State disapproves of their parents’ sexual orientation. ©

The third rationale advanced by the department is that limiting marriage to opposite-sex couples furthers the Legislature’s interest in conserving scarce State and private financial resources. The marriage restriction is rational, it argues, because the General Court logically could assume that same-sex couples are more financially independent than married couples and thus less needy of public marital benefits, such as tax advantages, or private marital benefits, such as employerfinanced health plans that include spouses in their coverage. An absolute statutory ban on same-sex marriage bears no rational relationship to the goal of economy. First, the department’s conclusory generalization . . . ignores that many same-sex couples, such as many of the plaintiffs in this case, have children and other dependents (here, aged parents) in their care.... Second, Massachusetts marriage laws do not condition receipt of public and private financial benefits to Pe ee individuals on a demonstration of financial dependence on each other...

The department suggests additional rationales.... It argues that broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society. Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.® If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.9 8 Justice Cordy suggests that we have “transmuted the ‘right’ to marry into a right to change the institution of marriage itself’ (Cordy, J., dissenting), because marriage is intimately tied to the reproductive systems of the marriage partners and to the “optimal” mother and father setting for child rearing. That analysis hews perilously close to the argument, long repudiated by the Legislature and the courts, that men and women are so innately and fundamentally different that their respective “proper spheres” can be rigidly and universally delineated. An abundance of legislative enactments and decisions of this court negate any such stereotypical premises. [Footnote by the Court.] 9 We are concerned only with the withholding of the benefits, protections, and obligations of civil marriage from a certain class of persons for invalid reasons. Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage. Our concern, rather, is whether historical, ,

1529

1530

Part IV

How To INTERPRET THE CONSTITUTION

It has been argued that, due to the State’s strong interest in the institution of marriage as a stabilizing social structure, only the Legislature can control and define its boundaries. ... These arguments Constitution requires that miss the point. The Massachusetts legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. ... The Legislature in the first instance, and the courts in the last instance, must ascertain whether that of : eel rational Wee exists.

The feo af Ae eretiaeel ae ‘is the Te oe the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia (1996) (construing Equal Protection Clause of Fourteenth Amendment to prohibit. categorical exclusion of women from public military institute). This statement is as true in the area of civil marriage as in any other area of civil Ee See, e.g., mrameptT

U

‘

1

it

fundamenta

adigm. The common aw -is an evolving importance, civ ma was exceptiona. y harsh toward women uo became wives: a woman’s legal identity all but evaporated into that of her husband... . But since at least the middle of the Nineteenth Century, both the courts and the Legislature have acted to ameliorate the harshness of the common-law regime. ... Alarms about the imminent erosion of the “natural” order of marriage were sounded over the demise of antimiscegenation laws, the expansion of the rights of married women, and the introduction of * no-

We also reject the argument suggested by the department ... that expanding the institution of civil marriage in Massachusetts to include same-sex couples will lead to interstate conflict. We would not presume to dictate how another State should respond to today’s decision. But neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution. The genius of our Federal system is that each State’s Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the Fourteenth Amendment, each State is free to address difficult issues of individual liberty in the manner its own Constitution demands. Several amici suggest that prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral. Yet Massachusetts has a strong affirmative Ene of Reco discrimination on the basis of sexual orientation..

any reasoner

colananeire Fecen in the reason. 1 an absolute

cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry. [Footnote by the Court.]

CHAPTER 18

AUTONOMY AND PERSONHOOD

disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti (1984) (construing Fourteenth Amendment). Limiting the protections, benefits, and obligations of civil marriage to oppositesex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

IV We consider next the plaintiffs’ request for relief. ...1° We face a problem similar to one that recently confronted the Court of Appeal for Ontario,

the

highest

court

of

that

Canadian

province,

when

it

considered the constitutionality of the same-sex marriage ban under Canada’s Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City) (2003). Canada, like the United States, adopted the common law of England that civil marriage is “the voluntary union for life of one man and one woman, to the exclusion of Id. In holding that the limitation of civil marriage to

x

vering a

cou

:

court

the

Charter, the Court of Appeal refined oi eke aah ee , riage. We concur

wit

ablished principlesof jurisprudenc

to refinea c ommon-law principle in light of!

‘ing constitutional standards. ;

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature’s broad discretion to regulate marriage.

... We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. ... We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. m GREANEY, J. (concurring). I agree with the result reached by the court, the remedy ordered, and much of the reasoning in the court’s opinion. In my view, however, the case is more directly resolved using traditional equal protection analysis. (a)... Because our marriage statutes intend, and state, the ordinary understanding that marriage under our law consists only of a 10 [N]o one argues that the restrictions on incestuous or polygamous marriages are so dependent on the marriage restriction that they too should fall if the marriage restriction falls. Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamy prohibitions of our marriage laws. [Footnote by the Court.]

1531

1532

PaRTIV

How TO INTERPRET THE CONSTITUTION

they create a statutory and a woman, union between a man classification based on the sex of the two people who wish to marry. See Baehr (plurality opinion) (Hawaii marriage statutes created sex-based classification); Baker (Johnson, J., concurring in part and dissenting in part) (same). That the classification is sex based is self-evident. The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants’ gender. As a factual matter, an individual’s choice of marital partner is constrained because of his or her own sex. Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law. A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner because of the traditional opposite-sex restriction, a violation of art. 1 has occurred. I find it disingenuous, at best, to suggest that such an individual’s right to marry has not been burdened at all, because he or she remains free to chose another partner, who is of the opposite sex.

The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia’s antimiscegenation laws and unveiled in the decision of Loving. In its landmark decision striking down Virginia’s ban on marriages between Caucasians and members of any other race on both equal protection and substantive due process grounds, the United States Supreme Court soundly rejected the proposition that the equal application of the ban (1.e., that it applied equally to whites and blacks) made unnecessary the strict scrutiny analysis traditionall required of statutes drawing classifications according to race.... That 6(

ce

al

Mm

]

V

not

The rights of couples to have children, to adopt, and to be foster parents, regardless of sexual orientation and marital status, are firmly e

d. [T]he

St

SaLt

cord

|

i

of

A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom

it never has been accessible, is conclusory

CHAPTER 18

AUTONOMY AND PERSONHOOD

and bypasses the core question we are asked to decide. This case calls for a higher level of legal analysis. Precisely, the case requires that we confront ingrained assumptions with respect to historically accepted roles of men and women within the institution of marriage and requires that we reexamine these assumptions in light of the unequivocal language of art. 1, in order to ensure that the governmental conduct challenged here conforms to the supreme charter of our Commonwealth. ... I do not doubt the sincerity of deeply held moral or religious beliefs that make inconceivable to some the notion that any change in the common-law definition of what constitutes a legal civil marriage

is now,

or

ever

would

be, warranted. But,

as matter of:

constitut law, neither the mantra of tradition, nor individual, ional eeaecen justify the perpetuation of a hierarchy in which couples:

of the same sex and their families are deemed less worthy of social and

legal recognition than couples of the opposite sex and their families. See Lawrence (O’Connor, J., concurring) (moral disapproval, with no other valid State interest, cannot justify law that discriminates against groups of persons); Casey (“Our obligation is to define the liberty of all, not to mandate our own moral code’). (b)I1 am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court’s authority to adjudicate the matter. My hope is more liberating. The plaintiffs are members of our community, our neighbors, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do. The union of two people contemplated by G.L. c. 207 “is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Griswold. Because of the terms of art. 1, the plaintiffs will no longer be excluded from that association. = SPINA, J. (dissenting, with whom SOSMAN and CORDY, JJ., join). ...

ie

Equal protection

sexes, but applies

... G.L. c. 207 does not unconstitutionally

al bre to men and

é

women

scrimination©

netion between the 4 in precisely the same way. It does

not create any disadvantage identified with gender, as both men and

women are similarly limited to marrying a person of the opposite sex. Similarly, the marriage statutes do not discriminate on the basis of sexual orientation. ... The[y] do not disqualify individuals on the basis a) | of sexual orientation from entering into marriage. All individuals, with © ~ ©

1533

1534

PART IV

How TO INTERPRET THE CONSTITUTION

certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court.... ... This court should not have invoked even the most deferential standard of review within equal protection analysis because no individual was denied access to the institution of marriage. 2. Due process. The marriage statutes do not impermissibly burden a right protected by our constitutional guarantee of due process. ... There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing person of the opposite Sex. . ... Same-sex marriage, or the “right to marry the person of one’s choice” as the court today defines that right, does not fall within the fundamental right to marry. Same-sex marriage is not “deeply rooted in this Nation’s history,” and the court does not suggest that it is. Except for the occasional isolated decision in recent years, see, e.g., Baker, same-sex marriage is not a right, fundamental or otherwise,. recognized in this country. ... In this Commonwealth and in this country, the roots of the institution of marriage are deeply set in history as a civil union

between a single man and a single woman. There is no basis for the court to recognize same-sex marriage as a constitutionally protected Tight

ae a Spe rpose of substanti e due process is t rights, - O_o. skeate pew rights. Its aim is t

C

ernme

;

intrusion, not invite it: The court asserts t chusetts Declaration of Rights serves to guard against government intrusion into each individual’s sphere of privacy. ... The statute in question does not seek to regulate intimate activity within an intimate relationship, but merely gives formal recognition to a particular marriage. The State has respected the private lives of the plaintiffs, and has done nothing to

intrude in the relationships that each of the plaintiff couples enjoy. Cf. Lawrence (case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”). Ironically, by extending the marriage laws to same-sex couples the court has turned substantive due process on its head and used it to interject government into the plaintiffs’ lives. = SOSMAN, J. (dissenting, with whom SPINA and CORDY, Jd., join). ... Reduced to its essence, the court’s opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples. Of course, many people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents. That does not mean that the Legislature must accord the full benefits of marital status on every household raising children. Rather, the Legislature need only have some rational basis for concluding that, at present, those alternate family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as

CHAPTER 18

AUTONOMY AND PERSONHOOD

a_ successful one over a period of centuries. People are of course at liberty to raise their children in various family structures, as long as they are not literally harming their children by doing so. That does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits. .. . _... Conspicuously absent from the court’s opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results. ... The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question it now faces: are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes? Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief but may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution.

As a matter of social history, today’s opinion may represent a great turning point that many will hail as a tremendous step toward a more

just society. As a matter of constitution

however, the

|

t does, the court has’

ortuy the rational basis test beyond r n. 4 fully appreciate the net ptation is particular law unconstitutional—there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare o national and inte ional publicit . In my view. cl id

Or}

justificatior

@

or

a

ticat:

in

test in the manner the legis] e scheme. . .. Applying that deferential it is customarily applied, the exclusion of gay and lesbian couples from the institution of civil marriage passes constitutional muster. I respectfully dissent. a CORDY, J. (dissenting, with whom SPINA and SOSMAN, JJ., join)... . The Massachusetts marriage statute does not impair the exercise of a recognized fundamental right, or discriminate on the basis of sex in violation of the equal rights amendment to the Massachusetts C

7

a

1535

1536

How TO INTERPRET THE CONSTITUTION

PART IV

Constitution. Consequently, it is subject to review only to determine whether it satisfies the rational basis ent sehr pepo meri

rational basis exists upon which the Legislature could conclude th marriage statute Frcchers the legitimate State ee ensur e bearing structure promoting, and supporting an optimal social and raising of children, it is a valid exercise of the State’s police power. A. Limiting marriage to the union of one man and one woman does not impair the exercise of a fundamental right.... As the court notes in its opinion, the institution of marriage is “the legal union of a man and woman as husband and wife,” and it has always been so under Massachusetts law, colonial or otherwise.

The plaintiffs contend that because the right to choose to marry is a “fundamental” right, the right to marry the person of one’s choice, including a member of the same sex, must also be a “fundamental” right. While the court stops short of deciding that the right to marry someone of the same sex is “fundamental” such that strict scrutiny must be applied to any statute that impairs it, it nevertheless agrees with the plaintiffs that the right to choose to marry is of fundamental importance and would be “hollow” if an individual was foreclosed from “freely choosing the person with whom to share... the... institution of civil marriage.” Hence, it concludes that a marriage license cannot be denied to an individual who wishes to marry someone of the same sex. In reaching this result the court has transmuted the “right” to marry into a right to change the institution of marriage itself. This feat of reasoning succeeds only if one accepts the proposition that the definition of the institution of marriage as a union between a man anda woman is merely “conclusory” rather than the basis on which the “right” to partake in it has been deemed to be of fundamental importance. In other words, only by assuming that “marriage” includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the “right” of same-sex couples to “marry.” . . Supreme Court cases that have described marriage or the right to marry as “fundamental” have focused primarily on the underlying interest of every individual in procreation, which, historically, could only legally occur within the construct of marriage because sexual intercourse outside of marriage was a criminal act.... Because samesex couples are unable to procreate on their own, any right to marriage they may possess cannot be based on their interest in procreation. .. . The marriage statute, which regulates only the act of obtaining a marriage license, does not implicate privacy in the sense that it has found constitutional protection under Massachusetts and Federal law. It does not intrude on any right that the plaintiffs have to privacy in their choices regarding procreation, an intimate partner or sexual relations. The plaintiffs’ right to privacy in such matters does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.... — While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not. No matter how personal or intimate a decision to marry someone of the same sex might be, the right to make it is not guaranteed by the right of personal autonomy.

CHAPTER I18 —

AUTONOM Y AND AND PERSONH _LAAUTON OMY PERSONHOOD OOD

SSS.

Finally, the constitutionally protected interest in child rearing... is not implicated or infringed by the marriage statute here. The fact that the plaintiffs cannot marry has no bearing on their independently protected constitutional rights as parents which, as with opposite-sex parents, are limited only by their continued fitness and the best interests of their children... . This is not to say that a statute that has no rational basis must nevertheless be upheld as long as it is of ancient origin. However, “[t]he long history of a certain practice ... and its acceptance as an uncontroversial part of our national and State tradition do suggest that [the court] should reflect carefully before striking it down.” As this court has recognized, the “fact that a challenged practice is followed by a large number of states ... is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ”

11)

unded’

than

ge. Indeed, it is not readily apparent to what extent contemporary values have embraced the concept of same-sex marriage. Perhaps the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures,” Atkins v. Virginia (2002). No State Legislature has enacted laws permitting same-sex marriages; and a large majority of States, as well as the United States Congress, have affirmatively prohibited the recognition of such marriages for any purpose. ... je

[

*

E

~

4)

=

pene

eae

5

i.

0

B. The marriage statute, in limiting marriage to heterosexual couples, does not constitute discrimination on the basis of sex in violation of the Equal Rights Amendment to the Massachusetts Constitution. In his concurrence, Justice Greaney contends that the marriage statute constitutes discrimination on the basis of sex in violation of ... the Equal Rights Amendment (ERA). Such a conclusion is analytically unsound and inconsistent with the legislative history of the ERA.

1537 1537

1538

How TO INTERPRET THE CONSTITUTION

PART IV

The central purpose of the ERA was to eradicate discrimination against women and in favor of men or vice versa. Consistent with this purpose, we have construed the ERA to prohibit laws that advantage one sex at the expense of the other, but not laws that treat men and women equally. The Massachusetts marriage statute does not subject men to different treatment from women; each is equally prohibited from precisely the same conduct. ... [T]here is no evidence that limiting marriage to opposite-sex couples was motivated by sexism in general or a desire to disadvantage men or women in particular. Moreover, no one has identified any harm, burden, disadvantage, or advantage accruing to either gender as a consequence of the Massachusetts marriage statute. In the absence of such effect, the statute limiting marriage to couples of the opposite sex does not violate the ERA’s prohibition of sex discrimination. ... C. The marriage statute satisfies the rational basis standard. The burden of demonstrating that a statute does not satisfy the rational basis standard rests on the plaintiffs. It is a weighty one. “[A] reviewing court will presume a statute’s validity, and make all rational inferences in favor of it.... The Legislature is not required to justify its classifications, nor provide a record or finding in support of them.” .. . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.

The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.

The marital family is also and socialization of children. ... parents to remain committed to grow, thereby encouraging a socialization of children... .

the foremost setting for the education The institution of marriage encourages each other and to their children as they stable venue for the education and

CHAPTER

18

AUTONOMY AND PERSONHOOD

_ It is undeniably true that dramatic historical shifts in our cultural, political, and economic landscape have altered some of our traditional notions about marriage. ... Nevertheless, the institution of marriage remains the principal weave of our social fabric. A family defined by heterosexual marriage continues to be the most prevalent social structure into which the vast majority of children are born, nurtured, and prepared for productive participation in civil society. It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. At the very least, the marriage statute continues to serve this important State purpose. ... The question we must turn to next is whether the statute . remains a rational way to further that purpose. Stated differently, we ask whether a conceivable rational basis exists on which the Legislature could conclude that continuing to limit the institution of civil marriage to members of the opposite sex furthers the legitimate purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children. In considering whether such a rational basis exists, we defer to the decision-making process of the Legislature, and must make deferential assumptions about the information that it might consider and on which it may rely. We must assume that the Legislature (1) might conclude that the institution of civil marriage has successfully and continually provided this structure over several centuries; (2) might consider and credit studies that document negative consequences that too often follow children either born outside of marriage or raised in households lacking either a father or a mother figure, and scholarly commentary contending that children and families develop best when mothers and fathers are partners in their parenting; and (3) would be familiar with many recent studies that variously support the proposition that children raised in intact families headed by same-sex couples fare as well on many measures as children raised in similar families headed by opposite-sex couples; support the proposition that children of same-sex couples fare worse on some measures; or reveal notable differences between the two groups of children that warrant further study. Taking all of this available information into account, the Legislature could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples ... presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. Working from the assumption that a recognition of same-sex marriages will increase the number of children experiencing this alternative, the Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved. The fact that the Commonwealth currently allows same-sex couples to adopt does not affect the rationality of this conclusion. The eligibility of a child for adoption presupposes that at least one of the child’s

1539

1540

How TO INTERPRET THE CONSTITUTION

PART IV

biological parents is unable or unwilling, for some reason, to participate in raising the child. In that sense, society has “lost” the optimal setting in which to raise that child.... In these circumstances, the principal and overriding consideration is the “best interests of the child.” ... The objective is an individualized determination of the best environment for a particular child, where the normative social structure—a home with both the child’s biological father and mother—is not an option. That such a focused determination may lead to the approval of a same-sex couple’s adoption of a child does not mean that it would be irrational for a legislator, in fashioning statutory laws that cannot make such individualized determinations, to conclude generally that being raised by a same-sex couple has not yet been shown to be the absolute equivalent of being raised by one’s married biological parents.

That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support. For example, ... the fact that the Legislature permits single-parent adoption does not mean that it has endorsed single parenthood as an optimal setting in which to raise children or views it as the equivalent of being raised by both of one’s biological parents. The same holds true with respect to same-sex couples.... The Legislature may rationally permit adoption by same-sex couples yet harbor reservations as to whether parenthood by same-sex couples should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union produced the child. In addition, the Legislature could conclude that redefining the institution of marriage to permit same-sex couples to marry would impair the State’s interest in promoting and supporting heterosexual marriage as the social institution that it has determined best normalizes, stabilizes, and links the acts of procreation and child rearing. While the plaintiffs argue that they only want to take part in the same stabilizing institution, the Legislature conceivably could conclude that permitting their participation would have the unintended effect of undermining to some degree marriage’s ability to serve its social purpose. : As long as marriage is limited to opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur. In essence, the Legislature could conclude that the consequence of such a policy shift would be a diminution in society’s ability to steer the acts of procreation and child rearing into their most optimal setting.

CHAPTER 18

AUTONOMY AND PERSONHOOD

The court recognizes this concern, but brushes it aside with the assumption that permitting same-sex couples to marry “will not diminish the validity or dignity of opposite-sex marriage,” and that “we have no doubt that marriage will continue to be a vibrant and revered institution.” Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably

come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of

marriage. There is no question that many

same-sex couples are capable of being good parents, and should be (and are) permitted to be so. The policy question that a legislator must resolve is a different one, and turns on an assessment of whether the marriage structure proposed by the plaintiffs will, over time, if endorsed and supported by the State, prove to be as stable and successful a model as the one that has formed a cornerstone of our society since colonial times, or prove to be less than optimal, and result in consequences, perhaps now unforeseen, adverse to the State’s legitimate interest in promoting and supporting the best possible social structure in which children should be born and raised. Given the critical importance of civil marriage as an organizing and stabilizing institution of society, it is eminently rational for the Legislature to postpone making fundamental changes to it until such time as there is unanimous scientific evidence, or popular consensus, or both, that such changes can safely be made. There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness on the subject of same-sex relationships. Deliberate consideration of, and incremental responses to rapidly evolving scientific and social understanding is the norm of the political process—that it may seem painfully slow to those who are already persuaded by the arguments in favor of change is not a sufficient basis to conclude that the processes are constitutionally infirm. The advancement of the rights, privileges, and protections afforded to homosexual members of our community in the last three decades has been significant, and there is no reason to believe that that evolution will not continue. Changes of attitude in the civic, social, and professional communities have been even more profound. Thirty years ago, The Diagnostic and Statistical Manual, the seminal handbook of the American Psychiatric Association, still listed homosexuality as a mental disorder. Today, the Massachusetts Psychiatric Society, the American Psychoanalytic Association, and many other psychiatric, psychological, and social science organizations have joined in an amicus brief on behalf of the plaintiffs’ cause. A body of experience and evidence has provided the basis for change, and that body continues to mount. The Legislature is the appropriate branch, both constitutionally and practically, to consider and respond to it. It is not enough that we as Justices might be personally of the view that we have learned enough to decide what is best. So long as the question is at all debatable, it must be the Legislature that decides. The marriage statute thus meets the requirements of the rational basis test.

1541

1542

How TO INTERPRET THE CONSTITUTION

ParRTIV

EDITORS’ NOTES

(1) Query: What is the relationship between Lawrence (reprinted above, p. 1502) and Goodridge? In Lawrence, the United States Supreme Court avoids any implications for same-sex marriage. In Goodridge, though, the Massachusetts Supreme Judicial Court interprets Lawrence as affirming “the core concept of common human dignity” and “the central role that decisions whether to marry or have children bear in shaping one’s identity.” Thus, the Supreme Judicial Court interprets Lawrence as supporting, if not paving the way for, its holding. (2) The Massachusetts Supreme Judicial Court here, like the Vermont Supreme Court in Baker (reprinted above, p. 1103), illustrates an independent jurisprudence of state constitutional law. The Court here interprets the Massachusetts Constitution to give broader protection to both individual liberty and equality than the United States Constitution. But the Court here, unlike the Vermont Supreme Court, held that same-sex civil unions as distinguished from same-sex marriage would not be an adequate remedy, but instead would be a form of “second-class citizenship.” Query: Which court is more persuasive with respect to remedy? Beyond the remedy, what are the main differences between Baker and Goodridge as a matter of constitutional interpretation?

(3) Some have criticized the United States Supreme Court decisions protecting a right of privacy or autonomy for exalting “choice” over the good of what is chosen and for “bracketing” moral arguments about goods or virtues promoted by protecting freedoms. See, e.g., Michael J. Sandel, “Moral Argument and Liberal Toleration: Abortion and Homosexuality,” 77 Cal. L. Rev. 521 (1989). Query: Is Goodridge vulnerable to this criticism? The Massachusetts Supreme Judicial Court waxes eloquent about such goods or virtues: commitment to another human being, along with “the ideals of mutuality, companionship, intimacy, fidelity, and family” and “yearnings for security, safe haven, and connection that express our common humanity.” See James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Cambridge: Harvard University Press, 2013), chapter 7.

(4) Query: What standard of review does the Supreme Judicial Court apply to both the due process and equal protection challenges? Deferential scrutiny with “bite” both as to ends and as to fit between means and ends? Compare Cleburne v. Cleburne Living Center (1985; reprinted above, p. 1175) and Romer v. Evans (1996; reprinted above, p. 1090). (5) The Supreme Judicial Court states: “The individual liberty and equality safeguards of the Massachusetts Constitution protect both ‘freedom from’ unwarranted government intrusion into protected spheres of life and ‘freedom to’ partake in benefits created by the State for the common good.” It thus sets its face against the United States Supreme Court’s conception of the United States Constitution as a charter of “negative liberties” or “freedom from” instead of as a charter of positive benefits or “freedom to.” Contrast DeShaney v. Winnebago County (1989; reprinted below, p. 1572).

CHAPTER

18

AUTONOMY AND PERSONHOOD

(6) In United

States v. Windsor

(2013: reprinted above, p. 1117), the

United States Supreme Court held that the federal “Defense of Marriage Act” (DOMA)—defining marriage for purposes of federal law as the legal union of one man and one woman—violated the Due Process Clause of the Fifth Amendment. See Editors’ Note (2) to Windsor concerning the intertwining of concerns for equal protection and for liberty in Justice Kennedy’s opinion of the Court, along with Justices Scalia’s and Alito’s criticisms of his opinion for this very intertwining. (7) The same day that the United States Supreme Court decided Windsor, the DOMA case, it also decided Hollingsworth v. Perry (2013), the Proposition 8 case. For discussion, see Editors’ Note (5) following Windsor.

X.

THE RIGHT TO DIE “[W]le assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.”—Chief Justice

REHNQUIST “(T]he point at which life becomes ‘worthless,’ and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate, are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.”— Justice SCALIA “[F]Jreedom from unwanted medical attention is unquestionably among those principles ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ”—Justice BRENNAN

“Choices

about

death touch

the core

of liberty. Our duty,

and the concomitant freedom, to come to terms with... our

own mortality are undoubtedly ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ and indeed are essential incidents of the unalienable rights to life and liberty endowed us by our

Creator.”—Justice STEVENS

Cruzan v. Director, Missouri Dept. of Health 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) In 1983, Nancy Beth Cruzan, then 25 years old, suffered severe injuries in an automobile accident. After she went into a persistent “vegetative state” and it became apparent that she had virtually no chance of recovering her cognitive faculties, her parents asked the hospital to terminate the artificial nutrition and hydration procedures that were keeping her alive. The hospital refused to honor the request without authorization by a court. The parents then sought and received authorization from a state judge. He found that a person in Cruzan’s condition had a fundamental right under the state and federal

1543

1544

Snr Y

due wrt §

PART IV

How TO INTERPRET THE CONSTITUTION

Constitutions to refuse or direct the withdrawal of “death prolonging procedures.” The judge also found that her “expressed thoughts at age twenty-five in somewhat serious conversations with a friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally suggests that given her present condition she would not wish to continue on with her nutrition and hydration.” Cruzan had not, however, executed a living will nor had she designated anyone to make health-care decisions for her in the event that she became incompetent. The Missouri Supreme Court reversed, finding no clear and convincing evidence—as required under state law—of her desire to have life-sustaining treatment withdrawn under such circumstances, and therefore concluding that her parents lacked authority to effectuate such a request. = CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. _.. This is the first case in which we have been squarely presented with the issue of whether the United States Constitution grants what is in common parlance referred to as a “right to die.” ... The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” The principle that. a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our pri

decisions. [E.g.,] Jacobson v. Massachusetts (1905)... . Just this Term ... we recognized that prisoners possess “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper ( Sut C mining that a on has a “liberty interest” under est” under | ne imnquiry Sp en the g py:) “w

the relevant state inte

.” Youngberg

v. Romeo

(1982).

Petitioners insist that under the general holdings of our cases, the forced administration of life-sustaining medical treatment, and even of artificially-delivered food and water essential to life, would implicate a competent person’s liberty interest. Although we think the logic of the cases ... would embrace such a liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for f this case, we assume that the United States Constitution would grant acompetent person a constitutionall VUOLIS ULL She reds protected right

to refuse lifesaving hydration and

nutritio

Petitioners go on to assert that an incompetent person should possess the same right in this respect as is possessed by a competent

person. ... oluntary

The -) difficulty [ag e cnol

ara ee x » TC

any other right. Such

with [that]

claimis that in a I

tO Mé

Cl e 2 nypothe sical right

a

“right” must

to 1

5

sense it be IS wah ao ee

hig

formed use treatr

ee

TNe

and it O r

be exercised for her, if at all, by

some sort ofsurrogate. Here, Missouri has in effect recognized that

NOT mdey V\ aint of PMwav

| Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest. See Bowers v. Hardwick (1986). [Footnote by the Court.]

CHAPTER 18

AUTONOMY AND PERSONHOOD

1545

under certain circumstances a surrogate may act for the patient ... but

ee

it has established a procedural safeguard to assure that the action of the Surrogate conforms as besti may a

Whether

or

not

Missouri’s

ta

clear

t ne \

:

and

convincing

evidence

_ Missouri relies on its interest in the ‘protection and reservation of yuman life, and there can be no gainsaying this interest. As a general matter, the States—indeed, all civilized nations— demonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws criminal

penalties

on

one

who

assists

another

to commit

suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically-able adult to

x

K

x7 eal oo s +

SNe

er

+:

Ala Not all incompetent. patients will have co ones available to serve as surrogate decisionmakers. And even where family members are present, “[t]here will, of course, be some unfortunate situations in which EAS members willwes act to apie a patient.”‘: In reAles gia ens A State | ‘itl uarc

an incompetent’s wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with cs See ee v. Akron oot r for Hesishaee ctive Health

In our view, Missouri has permissibly sought to advance these interests through the adoption of a “clear and convincing” standard of proof to govern such proceedings. We think it self-evident that the interests at stake in the instant

proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute.... The more stringent the burden of proof a lpn must bear, the more that

1546

PARTIV

How TO INTERPRET THE CONSTITUTION

erroneous decision notto terminate results in a

treatment. An

maintenance at ‘the status qu ossethert recital) of subsequent — developme its such as a vancements in medical science, the discovery of © cha mEps in neelaw, or t, new evidence regarding the patient’s

th ee simply the of life-sustainingt

decision STR

i

th of the p

nt

err vbexc

erroneous decision to withdraw lifenot susceptible of correction. . . In sum, we conclude that a | Site may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue of a person diagnosed to be in a persistent nutrition and as vegetative state..

The dnptenis Court of Missouri held that ... the testimony adduced at trial did not amount to clear and convincing proof of the The patient’s desire to have hydration and nutrition withdrawn.... Cruzan’s primarily of Nancy ... consisted adduced testimony statements made to a housemate about a year before her accident that she would not want to live should she face life as a “vegetable,” and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. Petitioners alternatively contend that Missouri must accept the “substituted judgment” of close family members even in the absence of substantial proof that their views reflect the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D. (1989), and Parham v. J. R. (1979). But we do not think these cases support their claims... No doubt is engendered by anything in this record but that Nancy Cruzan’s mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of “substituted judgment” pate anyone, one pes would surely quality. But we | ( ag State to repose jud 3 t herself. | Close family eters may re a _ strong eee Cae not at all ignoble or unworthy, but not entirely disinterested, either—that they do not wish to witness the continuation of the life of a loved one which they uoeare. as popeless. eg en aee and even degtomne, But there is |

atic

cessarily

assurance that S the view

of close family members wi uld

have beeeuhed sheep

Rss competent. All of the reasons previously discussed for allowinge Missouri to require clear and convincing evidence of the patient’s wishes lead us to conclude that the State may choose to defer only to those wishes, rather than confide the decision to close family members.2 Affirmed. 2 We are not faced in this case with the question of whether a State might be required to defer to the decision of a surrogate if competent and probative evidence established that the patient herself had expressed a desire that the decision to terminate life-sustaining treatment be made for her by that individual. [Footnote by the Court.]

CHAPTER

18

AUTONOMY AND PERSONHOOD

1547

a JUSTICE O’CONNOR, concurring. I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, and that the refusal of artificially delivered food and water is encompassed within that liberty interest. I write separately to clarify why I believe this to be so. As the Court notes, the liberty interest in refusing medical treatment flows from decisions involving the State’s invasions into the body. Because our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination, the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause. See, e.g., Rochin v. California (1952). ... The State’s imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. ... Artificial feeding cannot readily be distinguished from other forms of medical treatment.... Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

... Today’s decision ... does not preclude a future determination that the Constitution requires the States to implement the decisions of a patient’s duly appointed surrogate. Nor does it prevent States from developing other approaches for protecting an incompetent individual’s liberty interest in refusing medical treatment.... [N]Jo national consensus has yet emerged on the best solution for this difficult and sensitive problem. Today we decide only that one State’s practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safeguarding incompetents’ liberty interests is entrusted to the “laboratory” of the States, New State Ice Co. v. Liebmann (1932) (Brandeis, J., dissenting), in the first instance.

a JUSTICE SCALIA, concurring... . OV Qi alism /ActevevWnal thw While I agree with the Court’s analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts- have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide—including suicide by refusing to take appropriate measures necessary to preserve one’s life; that the point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and\|hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored.} . . The text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter. It protects them against

Vv SW

AWW

Shagnt tow ‘vdly

Awerty,

lens ac

Qh 0 So

ca ow

Nv

Ww

eX

5

ParRtT IV

How TO INTERPRET THE CONSTITUTION

1548

deprivations of liberty “without due process of law.” To determine that such a deprivation would not occur if Nancy Cruzan were forced to take nourishment against her will, it is unnecessary to reopen the include ocess” historically recurrent debate over whether “due substantive eterestrictions. i

as

cS >

—
, ~~

1550

Part IV

How TO INTERPRET THE CONSTITUTION

to eine atte aeete n of Nanc: are at least consistent with an Sour Uren sere The Mics “safeguard” that the Court upholds today does not meet that standard.... Missouri’s rule of decision imposes a markedly asymmetrical evidentiary burden. Only evidence of specific statements of treatment choice made by the patient when competent is admissible to support a finding that the patient, now in a persistent vegetative state, would wish to avoid further medical treatment. Moreover, this evidence must be clear and convincing. No proof is required to support a finding that the incompetent person would wish to continue treatment. ...

... The new medical technology can reclaim those who would have been irretrievably lost a few decades ago and restore them to active lives. For Nancy Cruzan, it failed, and for others with wasting incurable

disease it may be doomed to failure. In these unfortunate situations, the bodies and preferences and memories of the victims do not escheat to the State; nor does our Constitution permit the State or any other government to commandeer them. No singularity of feeling exists upon which such a Saas might coe ree as eR patriae. .

im

2. They

have done so disingenuously iin ae name, and openly i in Missouri’ Ss own. That Missouri and this Court may truly be motivated only by concern for incompetent patients makes no matter. As one of our most prominent jurists warned us decades ago: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.... The greatest dangers to liberty lurk in insidious encroachment by. men of zeal, well meaning but without understanding.” Olmstead v. United States (1928) (Brandeis, J., dissenting).

= JUSTICE STEVENS, dissenting. Our Constitution is born of the proposition that all legitimate governments must secure the equal right of every person to “Life, Liberty, and the pursuit of Happiness.” In the ordinary case we quite naturally assume that these three ends are compatible, mutually enhancing, and perhaps even emneler esas The Court would ss: an ap es ots

1

al

atment

[T]he

onstitution

requires the

State to care ¢ for Nancy Cruzan’s life In j a way that gives appropriate

respect to her own best interests.

sino es about death touch ve core of anery: ( ya

)

1

the

And

conscience

ot

our people 0 be» as e creme Vv. Manencnhncetis (1934), and sibel are eckential incidents of the unalienable rights to

CHAPTER 18

AUTONOMY AND PERSONHOOD

life and liberty endowed us by our Creator. See Meachum v. F ano (1976) (Stevens, J., dissenting). The more precise constitutional significance of death is difficult to describe; not much may be said with confidence about death unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience. . . . These considerations cast into stark relief the injustice, and unconstitutionality, of Missouri’s treatment of Nancy Beth Cruzan.

Nancy Cruzan’s death, when it comes, cannot be an historic act of heroism; it will inevitably be the consequence of her tragic accident. But Nancy Cruzan’s interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. There can be no doubt that her life made her dear to her family, and to others. How she dies will affect how that life is remembered.

ents

The trial court’s order

aut horizing Nancy’s

to cease their daughter’s treatment would have permitted the

family that cares for Nancy to bring to a close her tragedy and her death. Missouri’s objection to that order subordinates Nancy’s bod her

family,

and the lasting significance of her

life to the State’s own

interests . The decision we review thereby interferes with constitutional interests of the highest order. . . .

It seems to me that the Court errs insofar as it characterizes this case as involving “judgments about the ‘quality’ of life that a particular individual may enjoy.” Nancy Cruzan is obviously “alive” in a physiological sense. But for patients like Nancy Cruzan, who have no

consciousness and no chance of recovery, there is a serious question as to whether the mere persistence of their bodies is “life” as that word is: commonly understood, or as it is used in both the Constitution and the . Declaration of Independence. The State’s unflagging determination to perpetuate Nancy Cruzan’s physical existence is comprehensible only as an effort to define life’s meaning, not as an attempt to preserve its sanctity.... In short, there isreasonable no ground for believing that Nancy © Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life... . It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for the purpose of establishing a sectarian definition of life. See Webster dissenting).

v.

Reproductive

Services

(1989)

(Stevens,

J.,

My disagreement with the Court is thus unrelated to its endorsement of the clear and convincing standard of proof for cases of this kind. Indeed, I agree that the controlling facts must be established with unmistakable clarity. The critical question, however, is not how to prove the controlling facts but rather what proven facts should be

controlling. In my view, the constitutional answer is clear: the best interests of the individual, especially when buttressed by the interests of all related third parties, must prevail over any general state policy that simply ignores those interests. Indeed, the only apparent secular basis for the State’s interest in life is the policy’s persuasive impact upon people other than Nancy and her family.... The failure of

Missouri's policy to heed the interests of a dying individual with respect to matters so private is ample evidence

of the policy’s illegitimacy..

1551

1552

Part IV

How TO INTERPRET THE CONSTITUTION

Only because Missouri has arrogated to itself the power to define life, and only because the Court permits this usurpation, are Nancy Cruzan’s life and liberty put into disquieting conflict. amen gesisti life were defined by reference to her own intere ba constitutionally

protected interest 1

eedom

from unwa

2

would not come into conflict with her meen raGe ats V eoleetod capes inlife. Conversely, if there were any evidence that Nancy Cruzan herself defined life to encompass every form of biological persistence by a human being ... then once again there would be no conflict between life and liberty. The opposition of life and liberty in this case are t not the result of Nancy Cruzan’s tragic accident, but are instead the artificial consequence of Missouri’s effort, and this Court’s willingness, to abstract Nancy Cruzan’s life from Nancy Cruzan’s person. [T]his Court cannot defer to any State policy that drives a theoretical wedge between a person’s life, on the one hand, anc ‘that person’s liberty or happiness, on the other. The consequence of such a theory is to deny the personhood of those whose lives are defined by the State’s interests rather than their own. This consequence may be acceptable in theology or in speculative philosophy, see Meyer [v. Nebraska (1928)], but it is radically inconsistent with the foundation of all legitimate government. Our Constitution presupposes a respect for the personhood of every individual, and nowhere is strict adherence to that principle more essential than in the Judicial Branch. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists (1986) (Stevens, J., concurring)... . EDITORS’ NOTES (1) Query: Did the Court recognize a constitutional right to die? What is the meaning and significance of the distinction, in footnote 1, between a “generalized constitutional right of privacy” and a “liberty interest”? Did the Court hold or imply that states are constitutionally obligated to honor competent persons’ advance directives regarding extraordinary medical procedures?

(2) Query: How consistent with the interpretive method that Scalia outlined in footnote 6 of Michael H. v. Gerald D. (1989; reprinted above, p. 148) was his concurrence in Cruzan? Did he imply in Cruzan that states are not constitutionally obligated to honor advance directives? Which tradition is more relevant, that concerning suicide (as Scalia argued) or that involving refusing unwanted medical treatment (as Rehnquist argued)? Would it matter for purposes of constitutional interpretation that suicide and attempted suicide are no longer crimes in any state? See Note, “Developments in the Law: Medical Technology and the Law,” 103 Harv.L.Rev. 1519, 1664 n.153 (1990). Did Scalia’s method provide a useful criterion to determine the traditions from which this country “broke,” to use Harlan’s term in his dissent in Poe v. Ullman (1961; reprinted above, p. 129) or which are no longer “extant,” to use Scalia’s term in footnote 6 of Michael H.?

(3) Query: Rehnquist and Scalia assumed that the states have an interest in preserving human life for its own sake, even when doing so runs against what some citizens, including judges, see as the best interests of

CHAPTER 18

AUTONOMY AND PERSONHOOD

the persons whose lives are preserved. What is the basis for this assumption? Does the constitutional text offer any guidance? Tradition? The political theories that underlie the Constitution? For criticisms, see not only Stevens’s dissent but also Ronald Dworkin, Life’s Dominion (New York: Knopf, 1993), ch. 7. (4) Query: What was Scalia’s conception of the relationship between the Due Process Clause and the Equal Protection Clause? In what senses did he believe that use of the Due Process Clause will lead to destruction of the Court, and that recourse to the Equal Protection Clause will lead to “[o]ur salvation”? How persuasive is this claim? (5) Before Cruzan, the critical case was In re Karen Quinlan, decided by the Supreme Court of New Jersey in 1976. The facts in the two cases were quite similar. New Jersey’s justices appointed the young woman’s father as guardian with authority to terminate the life-support system if physicians determined there was no reasonable chance of her emerging from the coma. The court excused the hospital from all civil lability. Quinlan is especially interesting in light of the comments by several justices in Cruzan hinting at a link between opposition to abortion and a requirement that doctors keep human beings alive regardless of the prospects of recovery. The Catholic bishops of New Jersey had filed an amicus curiae brief endorsing Mr. Quinlan’s suit to discontinue life-support for his daughter. Furthermore, in 1957, speaking before a group of physicians, Pope Pius XII had carefully distinguished between taking human life and keeping a person alive by extraordinary means when recovery was not a reasonable prospect. The first, he said, was morally impermissible, the second was not morally required. (“The Prolongation of Life,” 4 The Pope Speaks 393 [1958].) On the other hand, shortly after Quinlan, two Catholic theologians debated each other in L’Osservatore Romano, the Vatican’s unofficial official newspaper, about the decision’s moral correctness. For a brief bibliography on the intertwined moral and constitutional issues, as well as citations to some earlier cases, see Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law (New York: St. Martin’s, 1977), pp. 448-50. (6) As it turned out, Nancy Cruzan was allowed to die. After the Supreme Court’s decision, her parents petitioned the lower court, offering new evidence of her intent: three more friends had come forward and stated that she had told them that she would not want to live as a “vegetable.” Missouri Attorney General then decided not to oppose the parents’ petition, and the lower court granted it. Soon after the hospital withdrew feeding and hydration, she died.

(7) At present, all states recognize advance directives such as living wills, health-care proxies, or both. See Alan Meisel and Kathy L. Cerminara, The Right to Die: The Law of End-of-Life Decisionmaking (3d ed. New York: Aspen, 2004) (2013 supplement, § 7.13). (8) In 1994, voters in Oregon adopted a measure—the Death with Dignity Act—legalizing physician-assisted suicide in certain circumstances. In 1997, Oregon voters rejected an attempt to repeal the Act. In November 2001, U.S. Attorney General John D. Ashcroft attempted to block Oregon’s assisted suicide law by issuing a directive that “assisting suicide is not a

1553

1554

How TO INTERPRET THE CONSTITUTION

Part IV

‘legitimate medical purpose’” within the meaning of the federal Controlled Substances Act and that physicians participating in assisted suicide could be punished by suspension or revocation of their licenses. A federal district court in Oregon prohibited enforcement of Ashcroft’s directive, holding that the Attorney General lacked the authority to decide “what constitutes the legitimate practice of medicine.” The court also stated that the directive was the result of an effort by Congressional leaders “to get through the administrative door what they could not get through the Congressional door, seeking refuge with the newly appointed attorney general whose ideology matched their views.” (Ashcroft, while a Senator from Missouri, had twice unsuccessfully sought to get Congress to pass a federal law to similar effect.) The United States Supreme Court affirmed, 6—8, stating that the Attorney General did not have authority to determine the appropriate use of otherwise legal medications and had acted contrary to “the background principles of our federal system.” Gonzales v. Oregon (2006). Justice Scalia, joined by Chief Justice Roberts, dissented, as did Justice Thomas.

“[T]he question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.”—Chief Justice REHNQUIST “I do not agree ... with the Court’s formulation of [the] claimed ‘liberty’ interest. The Court describes it as a ‘right to commit suicide with another’s assistance.’ But I would not reject the respondents’ claim without considering a different formulation, for which our legal tradition may provide greater support. That formulation would use words

roughly like a ‘right to die with dignity.’

»— Justice BREYER

Washington v. Glucksberg 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)

= CHIEF

JUSTICE REHNQUIST delivered the opinion of the Court. question presented in this case is whether Washington’s

The prohibition against “caus[ing]” or “aid[ing]” a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington’s first Territorial Legislature outlawed “assisting another in the commission of self-murder.” Today, Washington law provides: “A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.” “Promoting a suicide attempt” is a felony, punishable by up to five years’ imprisonment and up to a $10,000 fine. At the same time,

Washington’s

Natural

Death

Act,

enacted

in 1979,

states

that

the

“withholding or withdrawal of life-sustaining treatment” at a patient’s direction “shall not, for any purpose, constitute a suicide.” .. .

CHAPTER 18

AUTONOMY AND PERSONHOOD

1555

Petitioners in this case are the State of Washington and its Attorney General. Respondents ... are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington’s assisted-suicide ban. In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide, sued in the United States District Court, seeking a declaration that [the ban] is, on its face, unconstitutional. The plaintiffs asserted “the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.” Relying primarily on Planned Parenthood v. Casey (1992), and Cruzan v. Director, Missouri Dept. of Health (1990), the District Court agreed. ... The District Court also decided that the Washington statute violated the Equal Protection Clause’s requirement that “ ‘all persons similarly situated ... be treated alike””... A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that “[iJn the two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction.” The Ninth Circuit reheard the case en banc, reversed the panel’s decision, and affirmed the District Court. Like the District Court, the en banc Court of Appeals emphasized our Casey and Cruzan decisions .. . and concluded that “the Constitution encompasses a due process liberty interest in controlling

the

time

and

manner

of one’s

death—that

there

is, in

short,

a

constitutionally-recognized ‘right to die.’” After “[w]eighing and then balancing” this interest against Washington’s various interests, the court held that the State’s assisted-suicide ban was unconstitutional “as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians.”!

I We begin, as we do in all due-proc ases, by examining our Nation’s history, legal traditions, and sawaaaat See, e.g., Casey, Cruzan, Moore y. East Cleveland (1977) (plurality opinion) (noting importance of “careful ‘respect for the teachings of history’ ”). In almost every State—indeed, in almost every western democracy—it 1s a crime to assist a suicide. The States’ assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life. Cruzan. Indeed, opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages. . . . More specifically, for over 700 years, the Anglo-American commonlaw tradition has punished or otherwise disapproved of both suicide and assisting suicide. Cruzan (Scalia, J., concurring). In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that 1... It is the court’s holding that Washington’s physician-assisted suicide statute is unconstitutional as applied to the “class of terminally ill, mentally competent patients (Stevens, J., concurring in judgment), that is before us today. . . . [Footnote by the Court.]

©

1556

PARTIV

How TO INTERPRET THE CONSTITUTION

“(jJust as a man may commit felony by slaying another so may he do so by slaying himself.” The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to whose Blackstone, Sir William later, Centuries the king.... definitive a provided only not England of Laws the on Commentaries summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers, referred to suicide as “selfmurder” and ... emphasized that “the law has ... ranked [suicide] among the highest crimes.” .. . For the most part, the early American colonies adopted the

common-law approach.... Over time, however, the American colonies abolished . . . the criminal-forfeiture sanction. . . . [T]he movement away from the common law’s harsh sanctions did not represent an acceptance of suicide; rather, this change reflected the growing consensus that it was unfair to punish the suicide’s family for his wrongdoing. Cruzan (Scalia, J., concurring). ... That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide.... And the prohibitions against assisting suicide never contained exceptions for those who were near death... . The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, and many of the new States and Territories followed New York’s example.... By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. See Cruzan (Scalia, J., concurring). ... In this century, the Model Penal Code also prohibited “aiding” suicide, prompting many States to enact or revise their assisted-suicide bans... .

Though deeply rooted, the States’ assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly

likely to die in institutions, from chronic illnesses. ... Public concern O and democratic action are therefore sharply focused on how prote

gnity and

there

have been

e

igni

at the

ant cl

attitudes these laws reflect. Many

“living

wills,”

end

otf

lite, v

th the resu It tl

ges in sta e laws and in States, for example, now

the

permit

ealth-care decisionmaking, and the ining medical treatment. At the san e, however, 5 islators rs c continue for the most part tO rf rm th on assisting suicide. ffirm their States’ prohibbitions

The Washington statute at issue in this case was enacted in 1975 as part of a revision of that State’s criminal code. Four years later, Washington passed its Natural Death Act, which specifically stated that the “withholding or withdrawal of life-sustaining treatment ... shall not, for any purpose, constitute a suicide” and that “[nJothing in this chapter shall be construed to condone, ‘authorize, or approve mercy killing....” In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physician-assisted

CHAPTER 18

AUTONOMY AND PERSONHOOD

1557

suicide. Washington then added a provision to the Natural Death Act expressly excluding physician-assisted suicide. California voters rejected an assisted-suicide initiative similar to Washington’s in 1993. On the other hand, in 1994, voters in Oregon enacted, also through ballot initiative, that State’s “Death With Dignity Act,” which legalized physician-assisted suicide for competent, terminally ill adults. Since the Oregon vote, many proposals to legalize

assisted-suicide have been and continue to be introduced in the States’ legislatures, but none has been enacted. And just last year, lowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide.’ ...

Thus, the States |

!

examinations of physician-assisted

gaged in serious, thoughtful suicide and other similar issues. .. .

i : Attitudes toward suicide itself have changed since Bracton, but our

laws have consistently condemned, andcontinue to prohibit, assisti

suicide. Despite changes in medical technology and notwithstanding an

increased emphasis on the importance of end-of-life decisionmaking, we’ have not retreated from this prohibition. Against this backdrop of history,

tradition,

and

practice,

we

now

turn

to

respondents’

constitutional claim.

II The Due Process Clause guarantees more than fair process, and the. “liberty” it protects includes more than the absence of physical — restraint. Collins v. Harker Heights (1992) (Due Process Clause “protects individual liberty against ‘certain government actions iN Of regardless of the fairness of the procedures used to implement them’ ”). Sostmnnve The Clause also provides heightened protection against government VXeSS :

interference

with certain fundamental

due

rights and liberty interests. P .

Casey fna long line of cases, we have held that, in addition to the -wa\yi te ma specific freedoms protected by the Bill of Rights, the “liberty” specially - Ngnt to Wave protected by the Due Process Clause includes the rights to marry, Un Loving v. Virginia (1967); to have children, Skinner v. Oklahoma ex rel. _ >" When Williamson (1942); to direct the education and upbringing of one’s AWLA 2 ducatrones children, Meyer v. Nebraska (1923); Pierce v. Society of Sisters (1925); Yorum aywe Ont id to marital privacy, Griswold v. Connecticut (1965); to use contraception, _ anal pyar ibid; Eisenstadt v. Baird (1972); to bodily integrity, Rochin v. California W\ “ 3) (1952), and to abortion, Casey. We have also assumed, and strongly” UW (ntepnun suggested, that the Due Process Clause protects the traditional right to - \,5\\\ 4 \aregnty refuse unwanted lifesaving medical treatment. Cruzan. aes But we “ha[ve] always been reluctant to expand the concept of _ |

substantive

due

process

because

guideposts

for

responsible

2 Jnitiative 119 would have amended Washington’s Natural Death Act to permit “aid-indying”, defined as “aid in the form of a medical service provided in person by a physician that will end the life of a conscious and mentally competent qualified patient in a dignified, painless and humane manner, when requested voluntarily by the patient through a written directive in-accordance with this chapter at the time the medical service is to be provided.” [Footnote by the Court.] 3 Other countries are embroiled in similar debates: . . . [Footnote by the Court.]

VON \WEesavin Wediial Werth:

PART IV

How TO INTERPRET THE CONSTITUTION

1558

decisionmaking in this unchartered area are scarce and open-ended.” Collins. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore

“exercise the utmost care whenever we are asked to break new ground

in this field,” lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court. Moore (plurality opinion). C

WR

EWAN Our established method of ubistominiese eee analysis _ two primary features: First, we have regularly o S erved that the Due | Process Clause specially protects those fundamental rights and ee

INS |\\ heres ep lyvapted W\ ANTON cAwid es

ALepr

W

oF ovceved

Teva

PL VeQrvts IV CRA ALSOW ER rr avievred

wd awentea\ hey

\WATesy

which are, objectively, “deeply rooted

tradition,” Moore

in this Nation’s history an

(plurality opinion); Snyder v. Massachusetts

(1934)

(“so rooted in thetraditions and conscience of our people as to be,rankead liberty,”

as fundamental”), and “implicit in the concept of ordered

s ch

that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut (1937). Second, we have required in substantivedue-process cases a “careful description” of the asserted fundamental ins; Cruzan. Our Nation’s history, legal traditions, liberty interest

and practices thus provide the crucial “guideposts for responsible decisionmaking,”

that direct and restrain

our exposition

of the

Process Clause. ... Justice Souter, relying on Justice Harlan’s dissenting opinion in Poe v. Ullman [1961], would largely abandon this restrained methodology, and instead ask “whether [Washington’s] statute sets up one of those ‘arbitrary impositions’ or ‘purposeless restraints’ at odds with the Due Process Clause of the Fourteenth Amendment,” (quoting Poe (Harlan, J., dissenting)).4 In our view, however, the development of this..Courtis.aubsiantiveduesprog ss jurisprudence, ... has beena

process whereby the outlines of the “iberty” specially protected by Fourteenth Amendment—never

the

fully clarified, to be sure, and perhaps

not capable of being fully clarified—have by concret es involvi

at least been carefully refined rights found to be deeply

rooted in our legal traditioh, This approach tends to rein in the subjective elements that are necessarily present in due-process judicial

review. In addition,by establishing a threshold requirement—thata

challenged state action implicate a fundam ental right—before requiring more than a reasonable relation to a legitimate state inter est to justi

the action, it avoids the need for complex

balancing

of competing

interestsin every case.

... As noted above, we have a tradition of carefully formulating the

interest at stake in substantive-due-process cases. ...

TheWashington

statute at issue in this case prohibits “aid[ing] another person to attempt suicide,” ¢ thus, the question before us is whether the “liberty” specially protected bythe Due Process Clause includes a rig

4 In Justice Souter’s opinion, Justice Harlan’s Poe dissent supplies the “modern justification” for substantive-due-process review. But although Justice Harlan’s opinion has often been cited in due-process cases, we have never abandoned our fundamental-rights-based analytical method. ... True, the Court relied on Justice Harlan’s dissent in Casey, but ... we

did not in so doing jettison our established approach. Indeed, to read such a radical move into the Court’s opinion in Casey would seem to fly in the face of that opinion’s emphasis on stare decisis. [Footnote by the Court.]

CHAPTER

18

AUTONOMY AND PERSONHOOD

1559

to commit suicide which itself includes a right to assistance in doing SOn) .': We now inquire whether this asserted right has any place in our Nation’s traditions. Here, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.... Flores (“The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it”). Respondents contend, however, that the liberty interest they assert is consistent with this Court’s substantive-due-process line of cases, if not with this Nation’s history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of “self-sovereignty,” and as teaching that the “liberty” protected by the Due Process Clause includes “basic and intimate

exercises of personal autonomy.” ... According to respondents, our liberty jurisprudence, and the broad, individualistic principles it’ reflects, protects the “liberty of competent, terminally ill adults to make

end-of-life

decisions

free

of undue

government

interference.”

question presented in this case, however, is whether the

The NQnt

DS Qnmit

protections of SAW de writ

the Due Process Clause include a right to commit suicide with another’s PROT RE \S assistance.| With this “careful description” of respondents’ claim in RSS \STANCE mind, we

turn to Casey and Cruzan....

Respondents contend that in Cruzan we “acknowledged that competent, dying persons have the right to direct the removal of lifesustaining medical treatment and thus hasten death,” and that “the constitutional principle behind recognizing the patient’s liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication.” VOUS LOMWAVISiW J ho Lavin & YWWton | The right assumed in Cruzan, however, was not simply deduced NiV€ WV U2 from abstract concepts of personal autonomy. Given the common-law Ast yal rule that forced medication was a battery, and the long legal tradition \ Veh medal constitutional traditions. The decision to commit suicide with the verrwnment my assistance of another may be just as personal and profound as the leuya\ as

decision

to refuse

unwanted medical

treatment,

but it has never ~

enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Vacco v. Quill [1997]. ... Respondents also rely on Casey. ... The Court of Appeals, like the District Court, found Casey “‘highly instructive” and “‘almost prescriptive’” for determining “ ‘what liberty interest may inhere in a terminally ill person’s choice to commit suicide’”: “Like the decision of whether or not to have an abortion, the decision how and when to die is one of ‘the most intimate and personal choices a person may make in a lifetime,’ a choice ‘central to personal dignity and autonomy.’ ” (quoting Casey). ... That many of the rights and liberties protected by the Due

Process

Clause sound in personal autonomy

does not warrant

the

‘sweeping conclusion that any and all important, intimate, and personal

|

Prreans

1560

How TO INTERPRET THE CONSTITUTION

PART IV

are so protected, San Antonio Independent School Dist. v. decisions Rodriguez (1973), and Casey did not suggest otherwise. The history of the law’s treatment of assisted suicide in this

country has been and continues to be one ofthe rejection of nearly

Ae even o”\\ Ana ns. SSO

Aes ave , ny LI CAN Cf Kz a

all

efforts to permit it. That being the case, our decisions lead us 0 conclude that the asserted “right” to assistance in committing suicide is the Due Process Clause. cted not a fundamental liberty interest proteby tas aes te BEE ee es bpaeeca \The Sorshiieicd also Saale ee interests. t governmen legitimate to related rationally be suicide ban This requirement is unquestionably met here. Washington’s assistedSuicide ban implicates a number of state interests. ... First, Washington has an “unqualified interest in the preservation of human life.” Cruzan. The State’s prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest.... This interest is symbolic and aspirational as well as oF WUnan lite practical.... \whovast Jenn Respondents admit that “[t]he State has a real interest in preserving the lives of those who can still contribute to society and

enjoy life.” The Court of Appeals held that the “weight” of this interes and the wishes of the person whose depends on the “medical condition is at stake.” Washington, however, has rejected this sliding scat life its assisted-suicide ban, insists that all persons’ approach and, through lives, from beginning to end,regardless of physical or mental condition, are under the full protection of the law... . [T]he States “may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy,” Cruzan, even for those who are near death. Relatedly, all admit that suicide is a serious public-health problem, especially among persons in otherwise vulnerable groups. ... The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. Those who attempt suicide—terminally ill or not—often suffer from depression or other mental disorders. ... Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated.... Thus, legal

physician-assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses. WMevet DSM Wall, The State also has an interest in protecting the integrity and ethics of the medical profession. ... [T]he American Medical Association, like many other medical and physicians’ groups, has concluded that “[p]hysician-assisted suicide is fundamentally incompatible with the physician’s role as healer.” ... And physician-assisted suicide could,it is argued, undermine the trust that is essenti il to the doctor-patie t relationship by blurring the time-honored line between healing and harming. .. .WWWeSt 3 dotov'S dury to Neor\ Next, the State has an interest in protecting vulnerable groups— including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes.... We have recognized the real risk of subtle coercion and undue influence in end-of-life situations. Cruzan. Similarly, the New York Task Force warned that “[lJegalizing physician-assisted suicide would pose profound risks to many

CHAPTER

18

AUTONOMY AND PERSONHOOD

1561

individuals who are ill and vulnerable. ... The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social sroup.” 3. lf physician-assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end-of-life health-care costs. ares > precy WIintwwlic JV The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal

indifference.” The State’s assisted-suicide ban reflects and reinforces its

policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young andhealthy, and that a_

seriously disabled person’s suicidal impulses should be interpreted and — treated the same way as anyone else’s. .. .

Finally, the State may fear that permitting assisted suicide will slip

start it down

the path to voluntary

and perhaps

even

involuntary

e

:

r feat ’

at

Ty

4}

Ce

ag h ia,

ae

iin

7

taal

yi

:

:

’

/

Sur

cs

est © debe

cok é

bert

Fak Coy

x ae

ite. *

’

ite iva tierra an ie aia Gea

he

a

¥

ps

ogra

oy

|

¥

{

vq

a

‘i reurat

ifsye + i

’

i) ag

ed

Ons

;

| :

i

up ¢

:

quet:

‘13am

Penn

ja the pin

ne

1 rer

etre

m (1193 (Nantes manky

Ak

ap.

ae

tie dig

nbeot WHA

Theo

Vina! lez

ht alto purge “pen

Gale

tos ‘comets hs, ue th

ew oils Gai ugue isteuy ae

it ow——-

cua. FAP nlcy

fe

rou

a2) ASTOR

tues the

7

oe

Porrtitan(eso! ®

reer"

r

‘

i

by

at

ieee: 1 oth Sd

ili

Ba

A ' tease 1G REtatdy BepkapaytacrE> we jsite

iis

7

4ké

2plae, FA,

ay :

3

PART V

CONSTITUTIONAL DEMOCRACY IN THE CRUCIBLE OF CRISIS Chapter 19:

_ Constitutional Interpretation and Emergency Powers

The introductory essays, cases, speeches, debates, notes, and queries in this book have stressed the necessity, importance, and complexity of constitutional interpretation. As practiced in the United States over the past two centuries, this enterprise, despite recurrent failures, has enjoyed a great measure of success. The country prospers despite persistent pockets of poverty and a growing income gap, and its people enjoy more political rights and personal freedoms than they did in 1787. Not since the Civil War has there been a widespread and armed disagreement about the very nature of the political system. Still, no one who experienced the domestic crises of the New Deal in the 1930s, of the Red Scare during the Cold War, or of the Civil Rights Movement during the 1950s and ’60s can claim to have lived in times of constitutional calm. And in view of deepening ideological divisions today, exacerbated by vulnerability to terrorist threats, there can be no assurance that the nation will continue to be successful in preserving constitutional democracy.

1581

IAVOIT UTITeU

WHT Ul YOAROON TO ~~ arera. AQ2 mv

.

iH wit

Son

£%

TOM: . Piedeb worsens ship { Vitszecen ade

hevitn tt mm 34Mi beatortd hirer timed) otidguad

: