Great Cases in Constitutional Law 0691049513, 0691049521

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NEW FORUwl BOOK Robert P George, Series Editor

Ali t of title in the erie appear at the back of the book

Great Cases in Constitutional Law * EDITED BY ROBERT

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P.

GEORGE

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PRINC E TON UNI V E RSI TY

PRESS

PRINCE TON, NEW JER EY

Copyright© 2000 by Princeton University Press Published by Prine ton niversity P ress, 41 William Street, Princeton, t:'\\' Jersey 08540 In the nited Kingdom: Princeton niv r ity Pre , Chiche ter, West Su sex All Right Reser ved

Library of Congre Cataloging-in-Publication Data

George, Robert P. Great cases in constitutional law/ edited by Robert P. George. p. cm. - ( ew forum book ) Includes index. ISBN 0-691-04951-3 (cloth : alk. paper) ISB 0-691-04952-1 (pbk. : alk. paper) 1. Constitutional law-United States-Ca e . I. George, Robert P. II. Series. KF4549.G68 2000 342.73'02-dc21 99-045171 This book has been composed in Basker ville The paper u ed in this publication meets the minimum requirement of ANSI/ ISO Z39.48-1992 (Rl99 7) (Permanence of Paper) http://pup.princeton.edu P rinted in the United States of America 1

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* Contents

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Contributors

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Introduction Robert P. George

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CHAPTER ONE

Marbury v. Madison and the Theory of Judicial Supremacy Mark Tushnet

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CHAPTER Two

"Despotism in Some Form": Marbury v. Madison Jeremy Waldron

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CHAPTER THREE

Dred Scott v. Sandford and Its Legacy Cass R Sunstein

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CHAPTER FOUR

Politics and Judicial Responsibility: Dred Scott v. Sandford James M. McPherson

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CHAPTER FIVE

Lochner v. New York and the Cast of Our Laws Hadley Arkes

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CHAPTER Six

The Substance of Process: Lochner v. New York Donald Drakeman

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CHAPTER SEVEN

Brown v. Board of Education and "Originalism" Earl Maltz

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CHAPTER EIGHT

Originalism-The Deceptive Evil: Brown v. Board of Education Walter F. Murphy

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CH A p 1 1' R

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Roe v. \\1ulr1 : Speaking the Unspeakable

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Jean Betlzhe J,Jshtain CHAPTER TE

Judicial Power and Abortion Politics: Roe v. it�tdf

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GP01p;e H'i/1

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Indfx

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Contributors HADLEY ARKES is Edward Ney Professor of Jurisprudence and American Institu­ tions at An1herst College . DONALD DRAKEMAN is President and CEO of Medarex Corporation and Lec­ turer in Politics at Princeton University. JEAN BETHKE ELS HTAIN is Laura Spelman Rockefeller Professor of Social and Political Ethics at the University of Chicago . ROBERT P. GEORGE is McCormick Professor of Jurisprudence at Princeton University. JAMES M. McPHERSON is George Henry Davis '86 Professor of American His­ tory at Princeton University. EARL NlALTZ is Distinguished Professor of Law at Rutgers University. WALTER F. MURPHY is McCormick Professor of Jurisprudence Emeritus at Princeton University. CASS R. SuNSTEIN is Karl N. Llewellyn Distinguished Service Professor of Juris­ prudence at the University of Chicago. MARK TUSHNET is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. JEREMY WALDRON is Maurice and Hilda Friedman Professor of Law at Colum­ bia University. GEORGE WILL, a syndicated columnist and ABC News commentator, has been a Visiting Lecturer in the Department of Government at Harvard University.

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Great Cases in Constitutional Law

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·.,, J11,troductio11,

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r? The ans,ver to these questions 1s, "Of course not. Legislators took an oath to support the Constitution-the Con stitution, not the Supre111e Court. v\That the Constitution n1eans is not necessarily ,vhat the Supren1e Court says it n1eans. If legislators think the Court 1nisinterpreted the Constitution, their oath allo,vs the1n­ indeed, it n1ay requ ire then1-to disregard Plyler. " Si111ilar responses are available for the ad1ninistrator and the voter. 18

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Explaining t h at ans,vcr, however, is 111orc co111 pl icatcd t h an we n1ight thi nk. The fi rst d i ff i c u l t y is t h at i t seen1s to be i n son1c tension ,vi th this country's st rong t radi t ion of _jud i c i al rcvie,v. lo u nderstand this t radit ion ,ve n1ust look brief ly back at J\1arbu ry. The Const itution 's fra111ers did not ant icipate the 1n�jor pol i t i cal develop1nent of the l 790s-the en1ergence of a nat ional party syste111 . The Federalist party, ,vhich controlled the goven11nent through the 1 800 elect ions , \\ras particularly suspicious of its oppo­ nents led by Tho1nas Jefferson . Party 1ne1nbers believed that Jef­ ferson ' s policies were deeply ,vrong, and ,vhat they sa,v as h i s con1111it1nent to a party syste111 ,vas i nconsistent ,vith the n1ore basi c idea that the govern1nent should b e directed t o achieve a nonpar­ tisan public good. Having lost the president ial and congressional elections in 1 800, the Federal ists confronted ,vhat thev believed ,vas a consti tutional turning point. They took advantage of the long "lan1e duck" period bet\veen the elections and the installa­ tion of the ne,v ad1ninistration and Congress to preserve their hold on the third branch of govern1nent. The Judiciary Act of 1 80 1 responded to son1e real problen1s of j udicial adn1inistration by creating a nun1ber of ne,v j udicial offices and by other revisions in the adn1inistration of justice . Under the circun1stances, ho,v­ ever, the Act ,vas i nevitably seen by Jefferson and h is supporters as an atten1pt to thwart thei r accession to po,ver. There ,vas a real chance that the Jefferson ians ,votild figure out so1ne ,vay to ignore the ne,v statute . They ,vere given their chance by an appare n t n1isstep by John Marshall . Congress created ne,v judicial positions, and departing president John Adan1s n1oved to fill the posts. The appropriate docun1ents ,vere prepared and signed. Marshal l , as secretary of s tate, had the responsibility of delivering these con11nissions to the ne,v judges. But, apparently i n the press of business, he si1nply overlooked h is obligations to a fe,v of the ne,v judges . The ne,v adn1inistration took advantage of Marshall 's error to decline t o deliver the con1n1issions. Willian1 Marbury, ,vhon1 Ada1ns had nan1ed as a 1nagistrate for the D is trict of Colu1nbia, filed an action in the Supren1e Court seeking in order to direct Ja1nes lVladison , I

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the ne,v se cret ar y of state, t o deliver t he con1 1 ni ssi on. P ol i t i cal ob­ s er vers u n derstood t hi s l a,vsuit t o be a Federal i st chal l en ge t o t he J efferson i an s' posi ti on on controlling the ju di ci ar y. I n ,vhat hi st orian s have co1n e t o regard as a p oli t i cal masterstroke, J ohn Marshal l , in hi s capaci ty of chi ef ju sti ce, n1an aged t o cri t i cize t he J efferson i an program ,vit hout forci n g a direct con ­ frontat i on . H i s opi n i on for the C ourt spent a great deal of t i 1ne explainin g ,vhy M adi son ,vas i ndeed under a l egal duty t o deli ver Mar bu r y's con11ni ssi on , and w hy a court cou l d appropriatel y order eYen a hi gh pu bl i c offi ci al t o do ,vhat t he l a,v required. But, Marshall sai d, Marbu r y sou ght hi s rem edy fron1 t he ,vrong court. N ot t hat M ar bu r y had r ni sread t he statute book: accordin g t o t he C ourt, t he ori gi n al J u di ci ar y Act of 1 789 di d pur port t o give t he Supren1 e C ourt t he p ow er t o i ssu e t he r em edy i n ju st su ch cases. But, Marshall continu ed, t hat provi si on in t he 1 789 act was u ncon ­ sti tu t i on al , and t he courts t herefore coul d n ot do w hat i t di rect ed t he1n t o do. O bserver s bot h t hen and l ater found mu ch t o cri t i cize i n M arshall ' s opi n i on : hi s readin g of t he 1 789 J u di ci ar y Act, hi s anal­ ysi s of Marbu r y' s entitl em ent t o a remedy, t he con stitu t i on al inter­ pretati on t hat l ed him t o fi n d t he 1 789 act' s pr ovi si on uncon st i tu­ t i on al . But t he asserti on t hat t he court s h ad t he power of ju di cial revi e,v ,vas hardl y n ot ew ort hy. The C on st i tu ti on ' s fran1 ers as­ su 1ned t hat t he n ew n ati on al court s ,voul d have t he po,ver t o hol d st atutes un con stitu t i on al , becau se, as they saw it, such a po,ver ,vas i n herent i n t he ver y i dea t hat a written con stitu t i on adopted by t he peopl e ,vas su peri or t o an y statu tes adopted by t he peopl e' s representatives. O ver t he previ ou s decades, bot h state courts an d t he nat i on al court s had assu m ed t hat t hey di d have t he po,ver t o hol d statu es u n con st i tu t i on al , and a few st ate court s had actual l y done so. But, i f 1\1.arbury's asserti on of t he po,ver of ju di cial revi e,v ,vas n ot n ovel , son1e of M ar shal l ' s w or ds open ed t he way t o a br oader vi ew of t he courts' power. I n parti cu lar, i n defendi n g ju di cial re­ vi e,v, M ar shall ,vrote, "I t i s emphati call y t he provin ce and duty of t heju di cial depart1nent t o say ,vhat t he l aw i s. " T hi s can be read i n at l east t\vo ,vays. Marshall mi ght have been sayin g, "Look, i f you

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pass a statute asking us to do son1et hing-i n J\1a rbzny, hear a par­ t icular class of cases-you can ' t keep us f ro111 sayi ng ,vh at the la,v is. And the Const i tu tion i tself says that i t is tnv-indced, su prcn1e la,v. " On this reading, l\1arshall ' s st ate1nent si1nply refers to ,vhat cou rts do. I t has nothing to say about the constitutional dut ies and po,vers of other depart1nents, state officials, and ordinary citizens. The second reading, ho,vever, does treat the courts and not jus t the Consti tu t ion a s supre1ne : " I t i s e 1nphatically the province and duty of the judicial depa rt ment-and no one else-to say ,vhat the la,v is. Once ,ve say ,vhat the la,v is, that's the end of i t . After that, no one obliged to support the Consti tution can fairly assert that the Cons t i tution 1neans so1nething different fron1 ,vhat ,ve said it n1eant. " Recently the Supre1ne Court, ,vithout dissent on this point, seen1s to have adopted this broader readi ng. In 1 990 the Supren1e Court held that the First Ai11endn1ent's Free Exercise Clause i n­ validated only statutes that ,vere intentionally designed to burden religious practices, and did not n1ake "neutral la,vs of general ap­ plicability" unconstitutional :1 This decision ,vas in1n1ediately con­ troversial , and an unprecedentedly broad coalition of interest groups-encon1passing the An1erican Civil Liberties Union and the Christian Coal i tion-n1obilized to get around i t. Congress re­ sponded by enacting the Religious Freedon1 Restoration Act. Pur­ porting to exercise i ts po,ver under Section 5 of the Fourteenth Ai11endn1ent, ,vhich gives Congress the po,ver "to enforce, by ap­ propriate legislation, " the Ai11endn1ent's provisions, Congress prohibited any govern1nent fro1n substantially burdening the free exercise of religion even by a neutral la,v of general applicability unless the burden promoted a con1pelling governn1ental i nterest and ,vas the least restrictive 1neans of doing so. The city of Boerne, Texas, a suburb of San Antonio, believed that it could revitalize the to,vn by creating a historic preservation district to attract tourists. St. Peter Catholic Ch urch ,vas in the district. The number of parishioners at St. Peter's had gro,vn to the point ,vhere the old building could not accon1 111odate the ne,v population . St. Peter therefore sought pern1 ission to enlarge i ts building. The city refused the pern1it, and St. Peter sued, asserting

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tha t the ci ty' s a cti ons vi ola ted i ts ri ghts u nder the Reli gi ou s Free­ do1n Restorat i on Act. The Supre111e C ourt eventu al ly held the a ct u nconsti tuti onal. Secti on 5 , J u sti ce Anthony Kennedy argu ed for the Cou rt, gave Congress only q1e p ower to rnnPrly vi ola ti ons of other provi si ons i n the Four teenth A1n end1nent. B u t C ongress ca nnot re111edy thi ngs that are not u nconsti tu ti onal. Becau se the Court had declared that neu tra l la,vs of general appli ca bi li ty were not u nc onsti tu ti onal, there ,va s nothi ng for C ongr ess to ren 1ecl y: 'vVhen the Cou r t ha s i nterpreted the Consti tu ti on, i t ha s a cted ,vi thi n the pr ovi nce of the J u di cial Branch, ,vhi ch e1n bra ces the du ty to say ,vha t the la,v i s. v\Then the p oli ti cal branches of the Gover n1n ent a ct a gai nst the background of a ju di ci a l i nterpreta­ ti on of the Consti tu ti on a lrea dy i ssu ed, i t n 1u st be u nderstood that i n later cases a nd controversi es the Court will treat i ts precedents ,vi th the resp ect du e the1n u nder settled pri nci ples, i nclu di ng sta re decisis, a nd contrar y exp ecta ti ons n1u st be di sapp oi nted. ":> Mu ch i n Ju sti ce Kennedy' s staten1ent here tur ns ou t to be clearly correct, par ti cu larly, as ,ve ,vi ll see, hi s p oi nt that p eop le shou ld exp ect the cou r ts to a dhere to settled precedents i n la ter ca ses. Bu t the rhetori c of ju di cial supre1n a cy suggests a broader a nd n1ore problen 1ati c u nderstanding of the prop er relati ons an1ong the Consti tu ti on, the cour ts, a nd ever yone else.

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E P I S O DES O F J U D I C I A L S U PREMA C Y

vVh y ,vou ld a nyone thi nk tha tju di cia l supre1nacy ,va s the ri ght ,vay to u ndersta nd our Consti tu ti on? I t ,vou ld not be surpri si ng to fi nd judges supp or ti ng ju di cial su pre1n a cy; i t 1nakes their job n 1ore i 1 n­ p or ta nt a nd i nteresti ng. Bu t ther e i s n1ore to the p osi ti on than self-i nterest. I n 1958 the Supre1n e Cou r t fa ced a challenge to i ts au thori ty i n the Li ttle Rock, Arka nsa s, school desegregati on ca se of CoojJer v. A aron. 6 F our years ear li er, Brown v. Board of Education had held school segrega ti on to be u nconsti tu ti onal. T he Court then held that states ha d to desegrega te their schools '\vi th a ll deli bera te sp eed. " Resp ondi ng to a la,vsu i t a nd orders fron 1 lo,ver federal

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courts, the school board in Li ttle Rock developed a plan to deseg­ regate the city's schools g radually. The s t ate 's governor, Orval Faubus, opposed desegregat ion and generated a large public con­ troversy over Little Rock's plan . As the school board p u t i t i n i ts brief to the Supren1e Court, the "legislat ive , executive, and judi­ cial depart1nents of the state govern1nent opposed . . . desegrega­ t ion . . . by enacting la,vs, calling out troops, 1naking state1nents vilifying federal la,v and federal courts, and failing to u tilize state la,v enforcen1ent agencies and j udicial processes to 1naintain pub­ lic peace. '' The lo,ver federal courts found that the public disorder ,vas a reason to delay desegregation . The Supre111e Court disagreed. More i1nportant here, i t rejected Governor Faubus's clain1 that he ,vas not required to follo,v Brown's directives . Relying on Mar­ shal l ' s state1nent, the Court asserted that J\1arbury "declared the basic principle th at the federal j udiciary is supren1e in the exposi­ tion of the la,v of the Constitution . " Calling that principle "a per1nanent and indispensable feature of our constitutional systen1 , '' the Court said that "it follo,vs that the interpre tation of [ the Con­ stitution ] enunciated by this Court in the Brown case is the su­ pre 1ne la,v of the land . " The oath to support the Constitu t ion that Governor Faubus and state legislators took gave that interpre ta­ tion "binding effect. " The Little Rock case presen ted a particularly appealing setting for asserting j udicial supremacy. Brown ,vas unquestionably right, or so the j ustices and a l arge part of the country thought. Gov­ ernor Faubus's resistance had provoked a real crisis of la,v and order, ,vith ,vhi te opponents of desegregation credibly threaten­ i ng to inflict violence on anyone-including African Ainerican children-,vho tried to desegregate the schools. And the Court correctly asserted that a century and a half of judicial revie,v had led 1nany An1ericans to believe that the Court's constitu tional in­ terpretations ,vere indeed supren1e . But there are other cases ,vhe re strong assertions of j udicial su­ premacy are less appealing. The notorious Dred Scott case 1nakes the point. 7 The case arose ,vhen D red Scott, held as a slave i n 1 836, ,vas taken by his o,vner to the free territory of Minnesota for 23

s everal ye ars. After Scott and hi s o,vner retu r ned to M i ssou ri , a slave stat e, Scott su ed for hi s freedo1n, clai1n i ng that h e had be­ co1ne free becau se of hi s resi dence i n M i nnesota. H opi ng to take contenti on over sl aver y off the nati onal poli ti cal agenda i n the 1850s, the Supre1n e Cou r t held' congressi onal effor ts to restri ct the expansi on of slaver y i nto the nati on's ter ri tori es u nconsti tu ­ ti onal . Accordi ng to the Cour t, Congress l acked affi r n1 ative po,ver to do so, and denyi ng slave o,vners the ri ght to take their slaves i nto th e terri tori es deprived the slave o,vners of their property ,vi thou t du e process of l aw. After the Cou r t' s deci si on, Abrah an1 Li ncol n offered an al ter­ native to ju di ci al su prem acy. D ebati ng D emocrat Stephen D ou g­ l as during their 1858 cam pai gn for the Senate, Li ncol n repl i ed to D ou gl as's effort to defu se the sl aver y contr oversy by rel yi ng on the Cou r t's deci si on. D ou gl as sai d that the cou r ts ,vere created "so that ,vhen you cannot agree an1 ong you rselves on a di spu ted poi nt you appeal to the ju di cial tri bu nal ,vhi ch steps i n and deci des for you , and that deci si on i s bi ndi ng on ever y good ci tiz en. " U si ng l angu age not that n1u ch di ffe rent from the Cour t's i n Cooper v. Aaron, D ou gl as sai d that ,vhen the cou r ts resolved the qu esti ons, that ,vas the end of i t: "v\Th en such deci si ons have been n1ade, they becon1 e th e l a,v of the land. "8 Li ncol n ,voul d have none of i t. He agreed that the Cou r t' s deci ­ si on resolved the preci se controversy before i t ; Dred Scott wou l d ren1ai n a slave. Bu t he rejected the deci si on "as a poli ti cal rul e ,vhi ch shall be bi ndi ng on the voter . . . [ or] bi ndi ng on the n1en1ber s of Congress or the President to fav or no n1 easure that does , not actual l y concur ,vi th the pri nci pl es of that deci si on. �) I n hi s Fi rst Inau gural Address, delivered even as the Sou th pre­ pared for ,var over slaver y, Li ncol n agai n n1 ade hi s posi ti on cl ear. Dred Scott ,vas "bi ndi ng . . . u pon the parti es. " In addi ti on, the Cour t's deci si ons ,vere "enti tl ed to a ver y hi gh respect and consi d­ erati on i n all parall el cases by all other departn1ents. " Even an "erroneou s" deci si on coul d be foll o,ved ,vhen ''th e evi l effect of foll o,vi ng i t, bei ng l i n1i ted to that parti cular case, ,vi th the chance that i t n1ay be overruled and never becon1e a precedent for other 24

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cases, can better be borne t han cou l d t he evils of a d i fferent prac­ tice. " But, Li ncoln continued, " t he people will have ceased to be their own rulers" if ''t he pol icy of the govcrn111ent , upon vital ci ues­ tions affecting the whole people , is to be irrevocably fixed by deci­ sions of the Supre1ne Court , t he instant they are n1ade, in ord inary litigation bet,veen parties in personal actions. " 1 0 Lincoln ,vas a subtle const itutionalist, and his state1nents con­ tain nearly everyt hing ,ve need to ,vork out a theory that would explain the resul t in Cooper v. Aaron ,vithout co1nn1itting us to a strong theory of judicial supreinacy. 1 1

Col\I P L EX I T I ES I N S o M E SEEM I N G LY EASY CAs Es : PARD O N S A N D VETO ES

vVe can begin by noting a peculiar feature of Cooper v. Aaron. There ,vas no judicial order directing Governor Faubus hi1nself to desegregate the Little Rock schools. So, in the narro,vest sense, Faubus's position ,vas entirely consistent with Lincoln's: at least in a purely legal sense, Governor Faubus ,vas not refusing to co1nply ,vi th a judicial order in a case already resolved against hin1. Of course everyone knew that Governor Faubus cou ld be brought into a la,vsuit. If he continued his resistance after that, he ,vould directly present the question of judicial supren1acy. In Jus­ tice Anthony I{ennedy 's ter1ns, he could expect the Court to ad­ here to Brown "in later cases and controversies" arising directly out of the Little Rock school crisis. But it is ,vorth pausing to think about situations in ,vhich it n1ight see1n that an official could reject the Supren1e Court's constitutional interpretations ,vith­ out running the risk of becon1ing the defendant in a la,vsuit­ situations in which no later case or controversy is l ikely to arise. The classic exa1nples involve Presidents Tho1nas Jefferson and Andre,v Jackson. 1 2 As pol itical controversy intensified in the 1 790s, Jefferson's opponents controlled Congress and the presi­ dency. They enacted a la,v n1aking it a crin1e to criticize the presi­ dent (but not the vice president, ,vho happened to be Jefferson) .

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Several o f Jefferson's pol i ti cal alli es ,vere convi cted u nder thi s an­ t i secli ti on s tatu te. J efferson pardoned the1n after he took offi ce i n 1 80 1 , asserting th at the statu te vi olated the First Atnendn1ent's protection of free speech . A few years later J effer son· e xpl ai ned hi s posi ti on to Abi gail Ada1 ns, the ,vife of hi s Federali st adversar y J ohn Adan1s. 1 :� "You thi nk i t devol ved on the ju dges to deci de on the validi ty of the sedi ti on la,v. But nothin g i n the Consti tuti on has given the1n a ri ght to deci de for th e E xecu tive, any n1 ore than to the E xecu tive to deci de for then1 . . . . Th e ju dges, bel ieving the l a,v constitu­ ti on al , had a ri gh t to pass a sentence . . . becau se that power was pl aced i n their hands by the Consti tu ti on. Bu t the E xecuti ve, be­ l i evi ng the l a,v to be u nconsti tu ti onal , was bou nd to remi t the exe­ cu ti on of i t; becau se that power has been confi ded to hi n1 by the Consti tu ti on . " I f the ju dges coul d "deci de ,vhat l aws are consti tu­ ti onal . . . for the Legi sl ature and E xecu tive al so, [ thi s] w ould n1ake theju diciar y a despoti c bran ch. " As J efferson sa,v i t, h i s con­ stitu ti onal power to pardon au thoriz ed hi1n-i ndeed, he said , re­ quired hin 1-to act on hi s ju dg1n ent that the anti sedi ti on la,v was u nconstitu ti onal even thou gh the courts had u phel d i t. 1 -1 Andre,v J ackson had a si 1nil ar v i e,v. I n 18 19 the Supre1n e Court hel d that the Consti tuti on gave Congress the po,ver to create a national bank. J ackson disagreed with that deci si on. vVhen h is po­ l i ti cal opponents tri ed to m ake ren ewi ng the bank ' s char ter a politi cal i ssu e, Jack son happily vetoed the proposal . H e told Con­ gress that the "opini on of the ju dges has no n 1ore auth ori ty over Congress th an the opi ni on of Congress has over the ju dges, and on th at poi nt the Presi dent i s i ndependen t of both . " l :l These cases differ fron1 our Plyler probl e1n i n several ,vays. There is no obvi ou s way to getjudi cial revi e,v of a veto or a pardon even i f th e president's decisi on i s n1ade entirel y on consti tu ti onal grounds. I n addi ti on, ,ve n1i gh t think that presi dents can veto l a,vs and pard on peopl e for poli cy as ,vell as consti tuti on al reasons. E ven i f ,ve so1neho,v devi sed ways of revi ewi ng vetoes and pardons, ,ve ,vou l d not be abl e to di sti ngui sh bet,veen deci si ons based on the presi dent's con sti tuti onal i nter pretati ons and those based 26

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on 111erely policy grounds. Jackson 's veto of the bank rech art er, for exa111ple, prefaced its const i tutional argu111ent ,vi th several ar­ gu111ents that the bank ,vas a bad idea because, a1nong other things, it gave too 1nuch po,ver to its private cnvners. And fi n ally, Jefferson and Jackson acted on their vie,vs that certain la,vs ,vere unconstitutional in the face of judicial detenninations that the la,vs ,vere constitut ionally per111issible . In contrast, the P/y/er prob­ le1n involves an official ,vho believes that a statute is cons ti tu tion al in the face of a decision th at i t is not. These differences, ,vh ile real, n1ay not be i1nportant in develop­ ing an argu111ent against j udicial supre1nacy. Students of the U .S. Constitu tion are co111fortable ,vith the idea that some decisions, even constitutional decisions, 111ay not be subject to judicial re­ vie,v. The Supre1ne Court itself has devised an i111portant rule, the political question doctrine, that leaves son1e constitutional deci­ sions to Congress and the president ,vith no possibility of judicial rev1e,v. Such a rule, ho,vever, is not an inherent part of a constitu tional systein . 1 6 v\Te could design ,vays of ensuring that presidential de­ cisions to pardon or veto on cons ti tu tional grounds could be revie,ved by the courts. For exan1ple, ,ve could interpre t the Con­ stitu tion to require the president to veto bills only on constitu­ tional grounds, or only on policy grounds. I n the first situation , if the president's veto n1essage asserted either a policy ground or a consti tu tional interpretation that the Court rej ected, the courts could invalidate the veto and the bill ,vould becon1e la,v. I n the second, a veto message asserting a constitu tional ground, as Jack­ son 's did, ,vould be ineffective even if i t contained policy argu1nents against the bill as ,vell. 1 i Odd as this system sounds to conten1porary U .S. ears, the prop­ osition that the president's veto power ,vas lin1ited had son1e support in the n ation 's early years. According to one study, fron1 1 789 to 1 840 presidents vetoed twenty-one bills, "and only five or six ,vere based upon other than constitution al grounds. " r n v\Te might take this practice to indicate an u nderstanding that bills ought to be vetoed only on constitution al grounds as a general 27

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rule, albeit ,vi t h son1e except ions. But, whet her or not there ,vas such an u nderstand ing, i t surely is possible to design a syste1n in "r h ich the pres iden t's ve to powe r is l i 1n i ted. And in such a systen1 , j udicial re,·iew ,votdd always be J)ossibl e . 1 � 1 Son1e decisions are not open to j udicial review u nder t he pres­ ent U . S . const i tu t ional syste1n . B u t t h at does not i n i tself fatally undenn ine the theory of j udic ial supren1acy. The lin1 i ts on j udi­ cial revi e,v show at n1ost that, as ,ve u nderstand our syste1n today, the do1nain of j udicial supre1nacy 1night not be as exte nsive as we can i1n agine it to be . As law professor �1l ich ael Sto kes Paulsen p u ts i t , "If i t is illegi t i 1nate for the President to defy ' t he law' ( as de­ c lared by t he courts) where h is ac t ions ca n be revie,ved , i t is no less illegi tin1 ate for the President to defy the la,v ,vhere his actions ca n not be re\'i e,ved . ''� 0 And con\'ersely, if it is legi tin1ate to defy the courts when an offi cial ' s actions ca n not be reviewe d , it is legitin1ate to do so ,vhen thev ra n. Vi th th is i n the bac kground, the difference between offi cials l i ke Presidents Jefferson and Jackson , who reject a prior j udicial detenn i n ation that a statu te is consti t utional, and those l i ke Gov­ ernor Fau bus, ,vho reject a detern1 i n at ion that a statu te is u n­ const itu t ional , dissolves. The courts said to the presidents , "You can do this if you t h i n k i t appropri ate on pol icy grou nds, but you don ' t have to . " No,v supplen1ent thei r staten1ent: "You can do t his if you thi n k it appropriate on policy grounds, and you must do i t i f you r only obj ec tions are const i tu t ional , because WP th i n k it is consti tu tional . " An official who refuses t o ac t on const itution al grou nds-who vetoes a bill rather than sign s it, ,vho refuses to prosecute for violating the antiseclit ion act-is defying the courts just as 1nuch as a person ,vho acts pursuant to a statute the cour ts h ave held unconsti tutional .� 1 I n short , the fac t that our cons t i tu tional svsten1 does not have a way to get the courts to review son1e offic ial decisions that con fl i c t ,vi t h t he courts' constitut ional interpre tations does n o t really coun ter the t heory ofj udicial supren1acy. I t iden t i fies an awkward procedural "defect" i n our constitution al syste1n ,vi thout rejecting the theory d i rectly. 1 ,

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'"'hen 111ay a legislator disregard the court�, ' ronsti tut ional inter­ pret ations? As Lincoln 's an alysis indicates, �01neti111es l egislat ive action that is apparently inconsistent ,vith a prior judicial const i t u­ tional interpretation is not inconsistent ,vith a general theory of judicial supre1nacy. As his analysis also indicates, so1netin1es it is. But in those situations the case for judicial supren1acy is ,veak and the case for a certain kind of populist constitu tional la,v is strong. Start ,vith the first set of situations, ,vhere a legislator's apparent rejection of a court 's const itutional interpretat ion actually is not inconsistent ,vith j udicial supre1nacy. • A legislator could certainly support proposals that ''actually concur [ red] ,vith the principles" the courts laid do,vn . Support­ ing a proposal does not challenge j udicial supre1nacy if the pro­ posal is different fro1n the one the courts held unconstitu tional . Of course the legislator cannot kno,v ,vhe ther the courts ,vill actu­ ally distinguish the proposal. For exa1nple, after Dred Scott, an abo­ lition ist senator n1ight have ,vanted to exercise Congress 's po,ver to "exercise exclusive Legislation " over the seat of govern1nent by abolishing slavery i n the D istrict of Colu1nbia. That po,ver is differ­ ent fron1 the po,ver to " 1nake all needful Rules and Regulations respecting" the territories, at issue in Dred Scott. A la,vyer could credibly argue that an ''exclusive " po,ver is broader than a po,ver to n1ake "needful " rules, and therefore that t he D istrict of Colu1n­ bia proposal did not con flict ,vith Dred Scott. ,vhat about Dred Scott' s due process holding? Perhaps a la\V)'er could treat that as a legal analysis unnecessary to dispose of Dred Scott and the refore not controlling i n later cases. The Supre1ne Court 1night not agree with either of these efforts to distinguish Dred Scott. Enacting the D istrict of Colun1bia statu te does not reject the Court's consti­ tutional interpretation even so, if the legislator can 1nake a legally credible argun1ent that the cases are different. Governor Faubus, how·ever, could not n1ake a legally credible argu1nent that the situation in Little Rock was distinguishable 29

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froi n the si tuation an)!\Vhere el se affected by th e Cou r t' s desegre­ gati on deci sions. There ,vas publ i c tension i n n 1any places, for e xa1npl e, an d ,vhi te oppos iti on to desegregation was no n1 ore i n­ tense i n Lit tl e Ro ck th an i t ,vas i n sou ther n Virgi ni a or Sou th Car­ oli n a, ,vhere nvo o f the Court's'desegregation cases aro se. Final l y, ,vh at o f P ro posi tion 1 87? I t co ntai ns a pro vi si on barri ng al i ens not l a,vfully present i n the cou ntry fron1 receivi ng pu bli cly fu nded no ne1nergency n1edi cal servi ces. Th at provi sio n i s cl early di sti ngui sh abl e-i n the appropriate sense-fron 1 the on e hel d u nconsti tu tional i n Plyler. There the Cou r t thou ght i t i m portan t to i ts consti tu tional analysi s that the ch i l dren deni ed a free pu bl i c education were l i k ely to ren1ai n i n the cou ntry for n1any years, and ,voul d be n 1ore pro du ctive contri bu tors to the natio n i f they had an educati o n. Nonen 1ergency n1edi cal ser vi ces n1i ght be different, becau se they n1i gh t be n1ore easily availabl e fron1 private ch ari ta­ bl e sources, and becau se the so ci al consequ ences of denyi ng them 1n i ght be l ess su bstanti al . O f cou rse, a cour t 1ni gh t di sagree and fi nd no nem ergency n1edi cal servi ces i ndi sti ngu i shabl e fro n1 edu­ cati o n. 22 Bu t the l egal argu n1 ent that the cases are di fferent has enou gh credi bili ty to 1nake l egi slati ve su pport o f this provi si on of Pro po si ti o n 1 87 consi stent ,vi th ju di ci al su pren1acy. Wh at abou t the denial o f a free pu bl i c educatio n? I n Ply/,er the Cou r t fou nd no i ndi cati o n i n the record that th e burdens th e chil­ dren placed on the Texas econon1y were sign i fi cant, and su g­ gested th at the ou tco1n e n1i ght di ffer i f there had been such evi­ dence. Pro po nents o f Pro po si tion 1 87 n1ay reasonably ho pe to place appro priate evi dence o f su ch burdens i n the record. Th e Ply/,er o pinion i tself i ndi cates th at thi s 1ni ght be enou gh to di stin­ gui sh the cases. • A l egi slator need no t tak e the co ntrolli ng precedent as a "po­ li ti cal rul e, " accordi ng to Li nco l n. Li n col n 1neant that l egi slators coul d su pport l a,vs that ,vere di sti ngui shabl e fro 1n the one the Court hel d u nco nsti tu tio nal , bu t ,ve can give th e ter1n a so1n ew hat broader n1eani ng. S0 1n etin1 es th e Court's do ctrine n1akes w hat l egi slatu res have actu ally done rel evant to i ts co nsti tu tional i n terpretation s. T he Cour t' s death penal ty cases, for exa1n pl e, n1 ake "evolvi ng stan30

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into accou nt risked liabi l i ty for pun i tive darnages. Where there is a rea­ son able bas is for bel ievi ng t hat a test case would succeed, a nd when race is t aken i nto account to p n n·idc t he basis for such a case , I doubt that p u n i tive da1nages would actually be available. 28. M i nersville School Dist. \'. Oobi tis, 3 1 0 U .S. 586 ( 1 940 ) . 29 . \,\'est Virgin ia Board of Education v. Barnette, 3 1 9 U .S. 624 ( l 943) . The head cou nting is done in the lower court opinio n , 4 7 F. Supp. 25 1 ( S . D . \V.Va. 1 942 ) . 30. Sn', e.g. , Evan H . Can1 i n ker, Precedent and Prediction: ThP Forwa rd­ Loohing AsjJPcts of In ferior Cou rt Derision making, 73 TEX . L . REV. 1 , 22-23 ( 1 994) ( describing but not endors i ng these concerns) . 3 1 . Plan ned Parenthood of Southeast Pen nsylvan ia \'. Casey, 505 U.S. 833 ( l 992 ) . 32. Texas v. Johnson , 49 1 U . S. 397 ( 1 989) ; U n i ted States v. Eich n1 a n , 4 9 6 U.S. 3 1 0 ( 1 990) . l\llore precisely, the Court held such statutes u ncon­ sti tutional when they outlawed flag burning as an expression of opposi­ t ion to publ i c pol i cy. 33. That n1aj ority has been u n able to effectuate its prefere nces be­ cause doi ng so would requi re an1ending the Consti tu tion , and the n1a­ j ori ty n1ay not be the supern1ajori ty-re presented by two-th irds in both houses of Congress and by n1ajori ties in legislatu res of th ree-fourths of the states-that the Const i tu tion requires for a consti tu ti onal a1ne nd1nent. Alternatively, the 1naj ority 1nay be the requisite su pern1ajori ty an1ong the people, but fi nds i ts desi res obstructed by opposi t ion f r on1 with i n the poli t i cal elites who are n1en1bers of Congress. 34. Of course, precisely because d isrnissal is certain , the costs to the defendant wi ll not be that great . 35. Daniel Patrick l\ll oyn i h a n , ""\,Vhat do you do when the Su pre1nc Court is wrong? " The Public In terPst, 1 979 , no. 2, 3. 36. I draw 1ny accou nt of 1\lnry ma n fro1n Paulse n , su/Jra note 20, 8991. 37. Edwin M eese I I I , 171P Law of the Constitution, 6 1 TULA N E L . R E \ ' . 9 79 ( l 987) . 38. Second Inaugural Address, M arch 4, 1 865, 6 MESSAG ES AN D PA­ PERS O F THE PRESI DENTS ( j. Richardson ed . 1 89 7 ) , 277. 39. Larry Alexander and Frederick Schauer, On Extrajudicia/ Constit u­ tional Intnjnetation, 1 1 0 H AR\' . L. RE\'. 1 359 ( l 997) . 40. One 1night th i n k that questions abou t i nsti tu t ional design are fun­ dan1e ntally e111pirical. Oddly, Alexander and Schauer say that their anal­ ysis "is neither en1piri cal nor histori cal . " Id. at 1 369. 52

4 1 . One si 111 ply res t a t es t he issue : " I T ] hcrc i s l i t t l e reason to bel i eve t h a t a legislat u re or an execu t ive is best sit uated t o dct e nn i ne t he con­ tou rs of t he con stra i n t s on i t s own power. " True e noug h , but eq ually t rue as to t he Su pren1c Cou rt . 42. Payne ,,. Ten nessee , 50 1 U .S. 808 ( 1 99 1 ) ; Agost i n i v. Fel t on , 1 1 7 S.Ct. 1 997 ( 1 997) . 43. Alexande r and Sch auer's fi n al reason for p referring t he Supre 1 1 1e Court t o Congress as the single aut horitat ivc i nterpreter is t h at "const i­ tut ions are designed to guard agai nst t he excesses of 111,�jorit arian forces that i n f l ue nce legislatures and execut ives 1nore t han they i n fl uence cou rt s . " Th is is an i n1 port ant assert ion , which I quest ion in det ail else­ where , where I argue that "n1,tjorit a rian forces" i n fl uence court s no less than t hey i n f l u ence lcgislat u res a nd execu tives, t hough they in fl uence the111 in a different way a nd on a son1ewhat different t i 1netable. For a short version of the argu 1ne n t , see Mark Tush net , "Is Judicial Review Good for t he Left? " D I S S ENT, Dece1nber 1 997. 44. So111e of Alexander and Schauer's discussion gets off on t he wrong foot by fai l i ng to a tt e nd to t he difference between t he behavior of leg-al institut ions, wh ich is what t heir anah'sis is reallvI about, and the E S PO T I S � I I � SO � I E FO R l\l "

ordinary politics? "-because I sense that Tushnet is reluc tant to h ave the doctrine of judicial supre1nacy challenged apart fron1 except ional cases or in cases of const itutional crisis. l\lluch of his analysis is devoted to the question, "Ho,v do you ' kno,v ,vhen you ' re in a constitutional crisis? When is an interest 'vital ' e nough , or ,vh at is it for a situation to be extraordinary enough for a president, a governor, or a legislature to be entitled to ignore so1ne judicial pronouncement as to ,vhat the Consti tu­ tion must ( no,v) be taken to 1nean ? " Why "crisis "? vVhy "vital "? vVhy "extraordinary"? Why should it not be part of the ordi­ n ary separation and interaction of the po,vers of our govern­ n1ent, th at, apart from the particular outcome of the particular case on ,vh ich the Court has ruled, legislatures and governors should sho,v the same healthy disrespect for the Supreme Court's general vie,v of the Constitution as the Supreme Court j ustices ch aracteristically sho,v for what they take to be the general vie,vs of the legislatures? In ans,vering th is question , Tush net takes h is cue from Lin­ col n 's First Inaugural Address. Here the great man objected to the idea that "the policy of the government, upon vital questions, is to be irrevocably fixed by decisions of the Supreme Court, the i n­ stant they are made in ordinary litigation bet,veen parties, in per­ sonal actions. " 3 He ,vould say Lincoln emphasizes th at he is op­ posed to th is happening "upon vital questions. " Bu t ,ve must be careful not to read th is too legalistically. He may not be saying "if and only if a vital interest is involved"; he n1ay not be laying do,vn a condition ; he may be saying instead th at the idea of judicial supremacy is obj ectionable generally, objectionable ,vhenever it is asserted, but particularly objectionable ,vhen it is foisted on the people in a case ,vhere some vital interest is involved. If that's the ,vay we read ,vhat Lincoln ,vas saying, then we don ' t have to interpret "vital question " as a necessary condition . We also don ' t h ave to embark on a quest for some definition of which issues are vital and ,vhich ones are not, appealing to the Preamble and the Declaration of Independence and so on . All that search for criteria of "vitalness" ,vould be unnecessary. Instead, ,ve ,vould 58

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have t he 111 uch si 111pl er d oct ri ne-111 uch 1n ore c onson ant , I t hi nk, ,vi t h t he overall argu1n ent t hat Li ncol n ,vas n1 aki ng-t hat t he court' s di ct at i ng pol i cy and pri nci pl e to th e govern 1n ent i n gen­ eral ter111s is ahvays object io nabl e, and t he n1ore v i t al t he questions i nvolved , t he 1nore o�jecti onabl e i t is. O ne ,vo ul d be hard put to say t hat a pi ece of l egi slation regard­ i ng "rorki ng hours i n Col orado i n 1 890 engages a vital i nterest of t he nat i on; it is p ol i t i cs as u sual . Bu t t here still see111 s t o 111 e s on1 e effrontery ( of t he sort Li ncol n ,vas co1n pl ai ni n g about) i n a court i 111p osi n g up on t he state t he judges' concepti on-or ,vorse still , t he concept i on of a bare 111ajori t y of t heju dges-of "'hen a l egi slatu re n1ay and 1n ay not l egi slate on econon1i c n1 atters, rejecti ng out of hand t he vi e,v on t he consti tu t i onal qu est i on t hat t he represent a­ tives of t he peopl e have co1n e u p ,vi th. I su spect t hat Tushn et ' s cauti on i n t hi s 1natter has t o do ,vi t h hi s sense t hat a governn1 ent agen cy taki ng a stan d again st a cou rt's vi e,v of t he C on st i tu t i on con1es dangerou sl y cl ose to di rect di s­ obedi ence t o a ju di cial order, an d t herefore i t's a po,ver ,v hi ch, even i f l egi ti1n ate, ou ght t o be u sed onl y i n ext ren1 i s, l est i t encour­ age a general cul tu re of defyi ng t he l a,v. There' s son1et hi n g to t hat. Even i f ,ve observe t he di sti n ct i on bet,veen accepti n g t he cou rt' s detern1i nati on of t he case bet,veen t he parti cu l ar liti gant s ,vho have con1e before i t and i t s 1n ore general pronou nce1nen ts on t he C on st i tu t i on , t here sti l l ,voul d be dan gerou s arrogance i n t he govern1n ent, say, en di ng ,vhat t he court has descri bed as t he u ncon st i tuti on al treaunent of X but sti cking ,vit h si1ni l ar treat1n ent of Y an d Z even t hou gh t hei r cases are evi dentl y i ndi st i n­ gui shabl e. T here ,voul d be so1n et hi n g dangerou s an d u n pri nci­ pl ed about t hat, an d opposi t i on al on g t hose l i n es t o t he cou rt' s gen eral i nterpretati on of t he con sti tuti on ,voul d n ot be so1n e­ t hi n g an age n cy shoul d e1nbark on l i ghtl y. Tu shnet has given us a su btl e and intri gu i n g account of ·w hat "takin g care" i n t hese cir­ cumstan ces s hou l d a1n ount t o. But t hat still l eaves t he broader point of ,vhet her ,ve s houl d concede t o t he court t he po,ver to m ake ,vhat are real l y gen eral pron oun cen1 ents on t he Co nst i t u­ ti on an d ,v hat i t m eans, an d have t hose pronoun cement s accepted 59

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and deferred to, as a 111att er of course, in ordinary, noncrisis areas of pol itics. That's ,vhat I a1n not convinced of. I 'n1 not sure that Tushne t is trying to convince us of it ; but at any rate I 'd li ke to hear 1nore. Talk of disobediencP raises a slightly di ffere nt issue . To,vard the end of his argu1n ent, Tushnet said: "So far we have considered the li1nits, if any, on a public official's disregard of controlling Su­ pre1ne Court opinions. v\That, " he asks, "of ordinary citizens?" May an ordinary citizen disregard a Supren1e Court decision , disobey­ ing a piece of legislation , for example, that the citizen judges un­ constitutional even though the Cou rt has detern1ined that it should not be struck do,vn? Can ,ve n1ove from intragovernmental defiance to a n1ore general theory of civil disobedience? The case for an affirn1ative ans-wer ,vas made in an early essay by Ronald D,vorkin entitled "Civil Disobedience," originally published (like ahnost everything else D,vorkin has ,vritten ) in the 1Vew Yod� Review of Booh in 1 976 and collected in Tahi ng Rights Seriously: A cit izen 's allegiance is to the law, not to any part icul ar person 's view of what the l aw is, and he does not behave u n fairly so long as he p roceeds on h is own considered and reason able \'iew of what the l aw requ i res. . . . [T] h is is not the san1e as saying that a n individual n1ay dis­ regard what the courts ha\'e said . . . . B u t if the issue is one touc h i ng fu ncla1n e n tal personal or political rights and i t is arguable that the Supre1ne Court has 111ade a 1n istake , a 1nan is with in h is social rights in refusing to accept that decision as concl usi\'e. 1

Why the reference in D,vorkin 's position to issues "touching fun­ dan1ental personal or political rights"? I sn't this ''vital questions" all over again? Actually, his reference to rights at this point does do son1e ,vork. I f son1eone ,vere to object that ,vhen citizens follo,v their o,vn vie,vs about ,vhat the Constitution requires, this ,vould lead to disorder or at least to a less orderly situation in ,vhich everyone ta1nely subn1 itted to the Court' s vie,,r, then D,vorkin n1 ight respond that this is a 1nere gain in ordinary utility, ,vhich is, 60

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presu1nably, tru111ped by t he individual const i t utional righ t s t h at the protest or beli eves are involved. Tushnet's o,vn answer to t he quest ion "lVI ay t he individual ci t i­ zen disregard a Supre111e Court decision ? " is-as far as I can tel l­ negative. "A populist constitut ional lcnv, " he said, "rests on a con11nit1nent to de1nocracy. " I take this to 1nean that the populist approach assigns o,vnership of the Constitution not to individual persons but to the people, in their collective capacity. Defi ance of the Court, then, is n1ost convincingly legiti1nate ,vhen it is done by the people together, through one of the agencies, or asse1nblies, or ins titutions of leadership that represent the1n in their nn1lti­ plicity and collectivity.:1 The reason has to do ,vith the prospect of disagree1nent. Tushnet says this (it's in the context of his use of the Declaration of I ndependence as a criterion of ''vital ques­ tions "-,vhich I have already criticized; but for "Declaration " you can read "Constitution '') : "No one can guarantee that de1nocratic processes ,vill ahvays yield results that I agree ,vith. I kno,v that reasonable people can disagree ,vith the judg1nents I 1nake about ,vhat the Declaration's principles require. De1nocracy is a ,vay of resolving such disagree1nents ,vithout routinely risking severe so­ cial disorder." The in1plication is that individual citizens ,vho act idiosyncratically, each on his o,vn particular interpretation, n1ight introduce disorder into our social and political life. No,v, I happen to agree ,vith this, and I don 't think it's ans,vered by D"'orkin's point that disorder is so1nething ,ve just have to ac­ cept if it is arguable that fundan1ental rights are at stake. In ex­ tremis, that's true. But Tushnet is talking about nonnal consti­ tutional practice-at least this is ,vhat I a1n trying to push hin1 to,vard-not about the extren1ities of rights violations. The point is, ,ve set up a constitution, ,vith its n1yriad structures, institutions, and decision procedures, because ,ve ,vant the capacity to act to­ gether as a people on various issues in spite of our disagreen1ents. The ,vhole point of a constitution-the ,vhole point of political procedures-is to enable us to do that. No,v, an understanding of the Constitution is one of the 1nany things ,ve disagree about, and ,ve need the capacity to act on one coherent understanding even though ,ve n1ay disagree about ,vhat it should be. So ho,v are ,ve to 61

" D E S I' 0 T I S �I I N S O i\1 1-: F O R i\l "

arnve at that one understanding? One ans,ver is the traditional court-centered ans,ver: the one understanding ,ve are to ,vork ,vi th toge ther, in spite of our disagreements, is the one imposed by the Supre111e Court through the vetoes of i ts n ine quarrelsome and opinionated 1nen1bers. A better ans,ver is the one put for,vard by Tushnet: v\Thy confine ourselves to the courts? vVhy not make use of the ful l range of our dec ision procedures, particularly those th at explicitly purport to represent us as a people? v\Thy not, as Lincoln suggested, use the 1nethod of majority decision , among the people or their representatives, on constitutional issues as on others? I kno,v Lincoln is not our prophet, though I have prof­ ited fro1n Tushnet's 1nost useful reminder of Lincoln 's position on these 1natters. So let n1e close ,vith ,vhat ,vas said in Lincoln's First Inaugural Address about the detennination of constitution al controversies: No foresight can antlopate, nor any docun1ent of reason able length contain , express provisions for all possible questions. Shall fugitives fron1 labor be surrendered by national or by State author­ i ty? The Consti tu t ion does not expressly say. 1\1ay Congress proh ibi t slavery in the terri tories? The Consti tu tion does not expressly say. Fron1 q uestions of this class [ Li ncoln went on] spring all our con­ stitutional controversi es, and we divide u pon the1n into n1ajori ties and n1inori ties. If the n1inori ty will not acqu iesce, the 1najori ty 1nust, or the govern1nent n1ust cease. There is no other alternative ; for continuing the govern n1ent, is acquiescence on one side or the other. . . . U nanirn i ty is i mpossible; the rule of a 111inori ty, as a per­ manent arrangen1ent, is wholly in achnissible; so that, rejecting the n1ajority principle, anarchy, or despotis1n in so1ne fonn , is all that is left. 6

And it was under this heading-"despotis1n in so1ne fonn "-that Lincoln ,vent on to discuss the idea of the Supre1ne Court's having the final say, indicating his belief that if that ,vere to happen , "the people ,vill have ceased , to be their o,vn rulers, having, to that extent, practically resigned their govern111ent, into the hands of that e1ninent tribunal . " i 62

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1 . Ju t ic Louis Brandei , quoted in Willian1 Brennan , ''Why H av a Bill of Rights?" Oxford Jou rn al of Legal Stu dies 9 ( 1 989 ) , 426. 2 . Br nnan , 'Why H ave a Bill of Right ?" 426. (These are Br nnan 's own word now, not tho e of Brandeis. ) 3 . Abraham Lincoln , "First Inaugural Addr ss," in h is Speeche a n d Writing 1 85 9-1 965 ( N ew York: Library o f America, n.d. ) , 2 1 5, at 22 1 . 4. Ronald Dworkin, Taking Rights Seriously, rev. ed. ( London: Duc k­ worth , 1 977) , 2 1 4- 1 5 . 5 . Th is, by the way, is also John Locke's view, in the final chapter of the Second Treatise-. 'The People shall be Judge," not individual persons. 6 . Lincoln, "First Inaugural Address," 220. 7. Ibid . , 22 1 .

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,vas the case styled Dt-Pd Scott v. Sandford ? It could as easily have been called Harriet Scott v. Emerson. But as a ,vo1nan, Harriet Scott could not be the lead plaintiff in a lawsuit, and neither could Irene E1nerson be the defendant, so the estate executor replaced her. But the legal interests of both won1en were emphatically at stake.

DRED SCO TT: T H E LA w

No,v let us turn to the legal issues in the case. Scott noted that the state constitution of Illinois abolished slavery and that the Mis­ souri Compromise banned it in the Louisiana territory. Hence Scott clai1ned that he was 1nade a free man by virtue of his sus­ tained stays in those places. Sandford responded that Scott ,vas not free, because his former o"rner had a continuing property interest in him-that is ,vhat slavery 1neant-and because the fed­ eral govern1nent could not deprive an owner of property ,vithout due process of la"'· Sandford claimed that Scott could not sue in federal court in any case, since Scott ,vas not a citizen of Missouri, or indeed of any state. The largest question in the case ,vas ,vhether Dred Scott ,vas still a slave, ,vhich in turn raised three principal issues. 1 . Could Scott sue in federal court? If he ,vere a citizen of Missouri, suing a citizen of Ne,v York, he could indeed sue under the diversity of citizenship provision of the federal Constitution, ,vhich gives federal courts jurisdiction over dis­ putes bet,veen people domiciled in different states. But non­ citizens cannot. 2. Was the Missouri Compromise constitutional? 3. What was the effect of the transportation of Scott into nonslave states on his original status in Missouri? The Supreme Court decided the case in 1 85 7, a year in ,vhich the United States ,vas profoundly split due to the issue of slavery. There can be no doubt that the Court attempted to take that issue "out of politics"-a point to ,vhich I ,vill return.

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\t\1as Dred Scott a Citiztn ? Justice Taney's opinion held fi1-st t h a t Scott ,vas not a c1 t1zen of Missouri. Therefore the federal courts h ad no j urisdiction over the case. This ,vas a co111plex issue. There is no definition of the tenn "citizen" for purposes of diversity jurisdiction. Perhaps ,ve should say that Scott's status as a citizen of Missouri depends on Missouri la"', and perhaps the question \Vhether Scott is a citizen of Mis­ souri depends on ,vhether Scott ,vas still a slave. No one disputed that slaves do not qualify as citizens. But Justice Taney ,vent very n1uch further than this. He did not rely on Missouri la,v, but argued very broadly that no jJerson de­ scended from an A merican slave could ever be a citizen for constitutional pu 1poses. Under the Constitution, "they are not included . . . under the ,vord citizen and can therefore clain1 none of the rights and privileges of citizens." It is here that Taney could not rely on con­ stitutional text, ,vhich ,vas ambiguous, but resorted explicitly and self-consciously to an understanding of original intentions. Thus he ,vrote: "On the contrary, [descendants of Africans] ,vere at that tin1e considered as a subordinate and inferior class of beings, ,vho had been subjugated by the do1ninant race, and ,vhether e1nanci­ pated or not, yet re1nained subject to their authority, and had no rights or privileges but such as those ,vho held the po,ver and the Governn1ent 1night choose to grant then1." As already noted, this ,vas one of the first self-consciously "orig­ inalist" opinions of the Supren1e Court. On this issue, the Court spoke for its understanding of ,vhat the fra1ners believed. (v\Te cannot indict a 1nethod on the ground that it has been n1is­ applied; but it is ,vorth noting that the Court was atten1pting to speak for history and couched its decision explicitly in historical terms. )

Was the Missouri Cornpro1nise Constitutional ? At first glance, the Court's jurisdictional conclusion should have been the end of the matter. If Scott ,vas not a citizen of lVIissouri, 71

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t he federal courts had no authority to hear his con1plaint, and the case should have ended, at least for Chief Justice Taney. But the Court went on to consider t he huge question of ,,,het her Scott ren1ained a slave after living in Illinois and the Louisiana Territory. The Court said that he did. But why? This quest ion is nn1ch harder to ans,ver. Perhaps it ,vas Missouri law that governed the issue of whether Scott, a resident there, was still a slave in another state. Four jus­ tices so concluded. This idea is not in1plausible, and for those justices there ,vas no reason to speak to the constitutional validity of the l\tlissouri Co1npro1nise. But three of then1 did so anyho,v. Thus a total of six justices concluded that Scott ,vas still a slave because the Missouri Con1pro1nise was unconstitutional. v\Thy ,vas this so? Chief Justice Taney offered several argun1ents. First, he said that Congress's authority to "111ake all needful Rules and Regula­ tions respecting the Territory or other Property belonging to the United States" did not extend to territories not o,vned in 1 789. By itself this should have been sufficient, but perhaps it did not see1n plausible even to Chief Justice Taney, so he offered a second Point: he said that slaverv was constitutionallv sacrosanct, so that even if Congress had authority over ne,v territories, it could not ban slavery there. " [T] he right of property in a slave is distinctly and expressly affirn1ed in the Constitution. " But this too ,vas an adventurous conclusion. Th us Justice Taney added a third point, to the effect that Congress's power over the territories could not collide ,vith other constitutional lin1itations. Congress could not, for exa1nple, eli1ninate freedon1 of speech in the territories. And this point ,vas decisive for the question at hand. A la,v that deprives so1neone of property because he has brought it into a particular place "could hardly be dignified ,vith the na1ne of clue process of la,v." This was an exceptionally i1nportant 111on1ent in An1erican Ia,v. It ,vas the birth place of the idea of "substantive due process," the idea used in the Lochner-era cases, in Roe v. vVade, and in n1any of the n1ost controversial decisions in the Court's history. v\Thy was this a new idea? On its face, the due process clause appears to give people a right to a hearing to contest factual findI

I

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ings, and Sandford sought nn1ch 1nore than t hat. Docs the due process clause give courts authori ty to st rikc do,vn lcgislat ion as unreasonable or as subst antively unj u s t ? Bcfore l)r('(/ Sroll, the Su­ pren1e Court had not suggest ed tha t i t did. The suggest ion was textually awk,vard, to say t he least . The due process clause see1ns to speak of procedure, not of substance. Even if the due process clause is understood to have a substan­ tive din1ension, t here is a big problen1 ,vith the Court's argu111ent. International la\\1 had long held that a n1aster ,vho voluntarily takes a slave into free territory thereby relinquishes his property interest in the slave. So long as the terri tory is known to be a free one, this is not a "taking'' of property. If California says that people n1ay not o,vn lions, and if a citizen fro1n Arizona takes a lion into Cal ifornia, there is no constitut ional proble1n i f the lion is taken fron1 the o,vner and even freed in California. Even ,vith Justice Taney's assun1ptions, his argun1ent ,vas ren1arkably brisk and un­ convincing. I return to this point below.

The Effect of In terstate TransjJort It 111ight appear at this point that the Court had a narrow route to resolution of the case. Perh aps a free slave could be deen1ed a citizen for purposes of jurisdiction. Perhaps the Court need not have assessed the constitutionality of the Missouri Co1npro1nise. And perhaps t he crucial issue in the case ,vas ,vhether Missouri had to recognize any change in Scott's status as a result of his visit into free areas. If M issouri did not have to recognize that change, the case ,vas over. And if Scott's stay in Illinois produced a change in status that Missouri had to respect, the case ,vas over as ,vell. In fact, the justices initially concluded that they ,vould not de­ cide the largest issues in the case and that they ,vould conclude very si1nply that, under Missouri law, Scott ,vas still a slave. If th at ,vas so, the case could be resolved si1nply and ,vithout broad pronounce1nents. But shortly after his election, President Ja111es Buchanan wrote to one of the justices suggesting tha t it ,vas in1portant ''to destroy the dangerous slavery agitat ion and thus restore peace to our distracted country." A variety of factors thus 73

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l . 347 U .S . 483 ( 1954 ) . 2 . 60 U . S. ( 1 9 H ow. ) 393 ( 1 857) . ' 3 . The Fourteenth A1nenchnen t j u risprude nce of the \,\'ai te Cou rt is described i n Earl M . i\1altz , "The \\'a i te Court and Federal Power to En­ force the Reconstru c t ion A1nencln1 e n ts, " Jen n ifer NL Lowe ( eel. ) , ThP SuprrmP Cou rt a nd thP Civil H'tu (\\'ashington , D . C . : Su prerne Court H is­ torical Society, 1 996) , 75-88. 4. 1 96 U . S . 537 ( 1 896) a t 55 1 , 554 ( Harlan , ]. , dissent i ng) . Exa1n ples of cases in which H arlan \'Oted to coun tenance race-based classifications i nclude Pace , .. Alaba1n a , 1 03 U . S . 583 ( 1 883) and Cu1n 1n i ng v. Cou nty B el . of Election , 1 75 U . S . 5 28 ( 1 899) . J . 275 U .S. 78 ( 1 92 7 ) . 6. 305 U . S . 580 ( 1 938) . 7. 339 U .S . 637 ( 1 950) . 8 . The accou n t wh ich fol lows is taken fro111 Rich ard Kluger, Si m/1/P JustiCP ( New \ork, 1 976) . 9 . Brown , 347 U . S. at 489 , 495 . 1 0 . Brown ,·. Board of Education , 349 U . S . 294, 30 1 , 298 n . 2 ( 1 95 5 ) ; Green , .. Coun ty School Board , 39 1 U .S . 430 ( 1 968) ; Swa n n v. Charlotte­ Mechlenburg Board of Ed ucat ion , 402 U . S . 1 ( 1 9 72 ) ; Keyes ,·. School Dist. No. 1 , 4 1 3 U . S . 1 89 ( 1 973) . 1 1 . Jen n ifer S. Hochsc h i l d , ThP 1Vnu A mPrica n Dilnu ma: LibPra l Dnnor­ racy a n d Srh ool DPsPgrega tion ( New H ave n , 1 984) , provides a detailed as­ sessn1ent of t he benefi ts of in tegrat ion for 1n i nority stude n ts. 1 2 . Gerald Rosen berg, ThP 1-Iollow l-loj1P: Ca n Cou rts Bri ng A bo u t Soria! Ch a nge? ( C h icago , 1 99 1 ) , at 1 1 4. 1 3 . The legislative h istory of a key provision of the Ci\'i l Rights Act is descri bed in detail in Frances J. Vaas, "Title VI I : Legislati\'e H istory, " Bosto n Col!PgP Industrial a n d Connuerrial Law RPview 7 ( 1 966) : 43 1 -458 . 1 4. H arper v. Vi rgin ia State Bel. of Elections, 383 U .S . 663 , 669 ( 1 966) . 1 5 . Robert Bork, "Neu tral Principles and So1ne First Arnenchnent Problen1s, " India n a Law Jou rn al 4 7 ( 1 971 ) : 1 -35 , at 1 1 - 1 5 ; wlichael vV. M cCon nel l , "Origin alis111 and the Desegregat ion Decision s , " \ 'i,gi n ia Law Rruifw 8 1 ( 1 995) : 947- 1 1 40 . 1 6. The discussion wh ich follows is taken fro111 Earl ivl . lvlaltz , "A D is­ se n t i ng O p i n ion i n Brown, " Sou tlwrn Illi n ois U11 iversity Law Review 20 ( 1 995) : 93-98, and Earl lvl . M a l tz , "Origin alis111 and the Desegregation 1 52

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Dec isions-A Response t o Profi ssor M c-Con n - l l , " Conslitutio11al Com mr>n­ tary 1 3 ( 1 996) : 223-32 . 1 7 . Cong res ion al Globe, 39t h Cong. , 1 st e . . 1 089 ( ] 866) . 1 8 . Eric Foner, Free Soil, l1 ree Labor, Fref Mn1 ( New York , 1 970 ) , at 28890. 1 9 . Congressional Globe, 39t h Cong. , 1 st Se . ( 1 866) at 1 836, app. 293. 20. 60 U .S. ( 1 9 H ow. ) 393 ( 1 85 7 ) . 2 1 . Th st andard account of Dred Scott i Don E . Feh ren bacher, The Dred cott Ca e: It Sign ifica n ce in A merican Law and Politics ( New York, 1 978 ) . 2 2 . Ibid . , 234. 23. David A. St rauss, " 'Tragedies' u nder t he Com mon Law Const i t u­ t ion , " i n William N . E kridge, J r. , and San ford Levinson , eds., Constitu­ tional Stupidities, Constitu tional Tragedies ( forthcomi ng, New York U n iver­ i t Press) . 24. My views on t he debate over origi n a l i 111 are described i n detail i n Earl M . Maltz , Rethinking Constitu tional Law: Originalism, In tervention ism, a nd the Politics ofJudicial Review ( Lawrence , Kan . , 1 994) .

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