Lincoln, in 1863: A restatement of American purpose:
"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."
That purpose was codified in the Constitution in the 14th Amendment, 1868:
". . .nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The purpose of the original Constitution was to construct a workable republic. The Bill of Rights amendments added a second purpose, the protection of liberties. After the Civil War the country added a third purpose: Guaranteeing equality.
Equality has been a troubling goal of national purpose. It is easier to recite as a catechism of belief than it is to express in daily life. Humans don't have equal feelings about one another and people aren't equal in biology, social standing, or abilities. Americans typically love themselves and their families more than others, i.e. unequally. Americans seek opportunity. We help our kids "get ahead." Our whole capitalist economic system is built around striving and self-interest. Humans tend to view differences in a hierarchical manner. Some things are better than others, some things are good and bad, some clean and unclean, some are customary and some are not. And yet, notwithstanding all that, we are equal, supposedly.
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| Nashville Tennessean |
The Supreme Court in 1965 and 1967 decided two more cases, Loving v. Virginia and Griswold v. Connecticut. Both found constitutional rights that put issues beyond the power of legislatures to decide. Loving said the 14th Amendment guaranteed the right of people of different races to marry each other. Virginia and several other states prohibited it. The prohibition probably reflected the values of a majority of citizens at the time. The Court said that didn't matter.
These Court decisions were back in the news, challenged this week by senators questioning the addition of Judge Jackson to the Supreme Court. They cited as wrongly decided by an activist court their finding a constitutional right to use contraception, to marry outside one's race, to consensual homosexual acts, to same-sex marriage. Those are not the real target of the criticism. The real target is a constitutional right to abortion and the body of precedent before and after Roe v. Wade that guarantees the right to an abortion and later for homosexual rights.
People who think "the Court went too far," are in political ascendance. They argue those "rights" should be subject to popular majorities to regulate or prohibit. Abortion and voting rights are already on the way out in some states. Gender transition and the equality of homosexuals likely are next, in some states. Attitudes have moved at different paces. I suspect no state will try to outlaw interracial marriage, although some people and institutions find it distasteful. People will move to compatible states. National businesses will make business decisions on what state laws are intolerable to customers and employees. We will see boycotts and claims that national companies are acting like bullies.
Whatever happens with the Griswold decision, no state will try to outlaw contraception. That ship sailed.
10 comments:
Great piece, Peter. I look forward to the discussions sure to follow.
I would submit that those whining and mewling about an "Activist" Court are mostly, if not all, people who are in disagreement with those decisions, especially when it comes to "Griswold", and possibly "Loving"
I'd find it quite interesting to see how Clarence Thomas would react to a move to reverse Loving.
"The Supreme Court for the last 65 years has been described as activist", especially by people who have disagreed with the outcome".
Translation from the projecting. ahistorical partisan-speak:
"The Supreme Court for the last 65 years has been described as working well by people who have agreed with certain outcomes".
Not just for those 65 years, either. That range came from my reference to the standout legislative successes of the Warren Court. The generation or two before THAT saw tremendous activist energy too, which was barely repelled, as it turned out only temporarily.
"Equality" is a very useful concept here, because it immediately must address the old equal-treatnment/special-treatment conundrum. To achieve "equality", special provision for some must arguably be made. Mere procedural due process arguably often proves inadequate. It's not enough to treat working men and women equally vis a vis childbirth, nor to bind rich and poor alike under panhandling bans.
The 1920s and 1930s saw unprecedented exploration of judicial activism in the direction of equal (fair) outcomes, from the short-lived substantive due process of the Lochner doctrine (please look it up) to other only partially-avoided, outcome-based equity and fairness jurisprudence, from FDR's attempted court-packing and the massive growth of a national administrative welfare state. Socially-engineered fairness of outcome, as opposed to equality in process before the law, is the original progressive vision. Substantive due process is back in a big way, and it means the death of the Constitution and common law as we know it. It means Napoleonic-style code law instead.
Hence judicial activism is not opposed by those who disfavor certain cherry-picked outcomes. I shouldn't have to repeat myself on the wrongness of anti-miscegenation laws, for example. It IS opposed by those who see the implications of a Court reduced to a political entity, the point here to begin with. When the Court locates fundamental Constitutional rights in e.g., invented "penumbras" of privacy, the Court becomes a superlegislature run by lifetime political appointees, including when--especially when--the outcomes are harmful. The perils of the small "d" democratic mob are precisely what the Founders feared, as they watched the People's bloodbath in France. Conservative procedural linchpins are often unfair but save far more lives overall, as the 20th century demonstrated.
For those suddenly searching for the intellectual or ethical bandwidth to locate recent "activist" or "political" Court decisions outside the scope of your partisan hand mirrors, please recall, as did the Editor, e.g., Bush V. Gore, which upheld Florida state election certification; the Heller case reading individual gun carry rights in the 2nd Amendment; the Citizens United and Hobby Lobby cases on freedom of political money as "speech" and freedom of corporate religious expression, respectively. Think about upcoming affirmative action cases, let alone potentially revisiting Roe...like Brown revisited Plessy? No whining or mewling, please. Concerning your principled, cross-partisan objections, please show your work.
For those unfamiliar with it, the Warren court upheld civil rights. White supremacists have never gotten over it. They still revile it, particularly over Brown vs, Board of Education.
FYI: The ninth amendment specifies that we have rights not enumerated in the constitution.
If a Right becomes conditional - it's NOT A RIGHT! The entire Bill of Rights then rest on quicksand and means nothing for all the People of the United States of America. The current political ascendancy would have you believe that the Bill of Rights applies only to white, christen, English-speaking, straight, native born American citizens from Britain and Europe. NO one else is so entitled.
If the Courts follow through and uphold the current far-right political ideology we instantly loss our constitutional republic and allow rule by edict. I'm thinking the result would be the the worlds autocrats and dictators favorite death for America. The first shots at our liberty have already gone unchallenged by the Supreme Court with their decisions on Red State rollback of voting right and abortion to name just two.
Literature has explored the possible outcomes in The Handmaids Tales, Fahrenheit 451, Brave New Worlds and Animal Farm. At this point the future is dark indeed as actual military forces by dictators and autocrats are on the move in the world. We appear to be more frightened of CRT and Trans athletes and masks and Covid vaccines then we are about the very real threat of thermonuclear war and directly confronting seditionists.
LD,
I take it that by "substantive due process," you mean something like blind application of the rules, which you equate to "Napoleonic-style code law." Do I have that right?
I don't get how that means "the death of the Constitution and common law as we know it." Can you explain the connection?
I agree with you that reduction of the court to a political entity is a disaster. But wouldn't the prevention of that require a return to "substantive due process?"
TWIMC –
Helpful hints: Quantity is no substitute for quality, and turgid prose is a lot like turbid water – neither clear nor palatable.
To Michael T.’s enquiry specifically, “substantive due process” is not something I’ve coined. It stands in long-standing contrast in legal theory to procedural due process in pretty much the way I’ve outlined, even if others obviously can and have explicated it better than I can. Start with the Wikipedia entry on the subject, then go to the meatier citations as desired.
The distinction between common law and code law is similar and likewise crucial in the broad strokes. The former sustains on a few bedrock analytical principles, such as comparison/contrast. The latter creates customized law and ad hoc applications as new perceived necessity dictates, which is why the European codebooks are like Encyclopedia Brittanica.
LD,
Thanks for the pointers. I read the Wikipedia page for substantive due process, as you suggested. The logic underlying the law is deeper and subtler than I had been aware of.
Would it be correct to say that originalists/textualists are opposed to the doctrine of substantive due process? If so, where would they find the bedrock principles underlying common law that would allow them to avoid the proliferation of code law that you referred to?
I believe the Founders and other originalists would be opposed to substantive due process as such, yes. Equity courts when and where authorized provide yet another wrinkle!
Take contracts, for instance. A bedrock common law principle (from Blackstone, e.g.) is that for a contract to be valid and enforceable, there must have been a meeting of the minds.
Common law would take a fresh fact scenario (controversy) and assess whether it was more like prior case findings in which there was meeting of the minds, or more unlike.
The Code approach would either find an existing law or, if not found, create a new one to cover occasions in which a purported agreement to deliver bananas omitted ripeness.
Fairness in outcome (equity) often relieved litigants of the strict limits of a contract, say when the bananas were not produced as promised but because of an act of God.
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