Orginally published as "Essays in Public Policy No. 13", by the Hoover Institute.
Copyright 1989 by the Board of the Trustees of the Leland Stanford Junior University. Reprinted with permission |
I think the proper course is to recognize that a State legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.[20]In short, judges were not to expand their interstices. Nor was this merely a pious generality. In practice, Holmes repeatedly dissented from expansive readings of the Fourteenth Amendment,[21] deprecating "the use of the Fourteenth Amendment beyond the absolute compulsion of its words."[22] In statutory construction, Holmes likewise declared that he saw .no reason for reading into the Sherman Act more than we find there."[23] In his first dissent on the U.S. Supreme Court, Holmes read the Sherman Act so narrowly as to deny that it protected competition in the marketplace.[24] Holmes' most famous rejection of extrinsic sources of law was of course his declaration: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"[25] This was not a rejection of Spencer's economic or social philosophy, to which Holmes' own views bore considerable resemblance.[26] The point was simply that Holmes practiced what he so often preached, that his own personal opinions and philosophy were irrelevant to the legal issues at hand.[27] He sometimes made devastating dismissals of the views of people whose cases he supported with his vote.[28]
That would be decisive if the framers of the clause had meant to lay down a particular conception of cruelty, because it would show that the conception did not extend so far. But it is not decisive of the different question the Court now faces, which is this: Can the Court, responding to the framers' appeal to the concept of cruelty, now defend a conception that does not make death cruel?[34]In this view, "the Court can enforce what the Constitution says only by making up its own mind about what is cruel."[35] More generally, "rights may vary in strength and character from case to case, and from point to point in history."[36] Dworkin called for "a fusion of constitutional law and moral theory."[37]
One justification for a statute is better than another, and provides the direction for coherent development of the statute, if it provides a more accurate or more sensitive or sounder analysis of the underlying moral principles. So judges must decide which of the two competing justifications is superior as a matter of political morality, and apply the statute so as to further that justification.[57]All this was said in exploring a hypothetical case, but the results of the reasoning were then referred back to the Weber case, whose decision Dworkin then approved as "another step in the Court's efforts to develop a new conception of what equality requires in the search for racial justice."[58]
Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstances.[67]According to Justice Brennan, "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."[68] Similar views can be found throughout a vast literature, inside and outside the legal profession, at both scholarly and popular levels.
We must make choices but must renounce the equally illusory freedom to choose however we might wish to choose. For it is a Constitution—a specific, necessarily imperfect Constitution—in whose terms we are, after all, choosing.[95]The Constitution, according to Tribe, "is not simply a mirror, nor is it an empty vessel whose users may pour into it whatever they will."[96] But, however Professor Tribe may differ in degree from some other advocates of judicial activism, he shares a common feature with most—a quest for the substantive moral values behind the cognitive meaning of constitutional provisions. It is in terms of these underlying values that the individual appellate judge must make choices when deciding cases—"constitutional choices," as Professor Tribe calls them. To Tribe, "the Constitution is inevitably substantive." "A substantive concern for individual privacy necessarily underpins the Fourth Amendment," he says.[97] After examining a number of constitutional provisions, Tribe concludes:
What is puzzling is that anyone can say, in the face of this reality, that the Constitution is or should be predominantly concerned with process and not substance.[98]What is at least equally puzzling is why there should be such insistently reiterated emphasis on the existence of moral substance underlying constitutional provisions, in the absence of any contrary claim that it is an amoral document with no social purpose. The mere existence of The Federalist Papers would surely be sufficient refutation, if any such hypothetical doctrine should arise. Once again, the issue that is not joined is the issue actually raised by their opponents: Why are judges authorized to revise moral decisions already made and ratified, and presented as instructions rather than suggestions or exhortations—presented as "Congress shall make no law . . . " rather than "Congress should weigh the following," much less "Judges should weigh the following. . . "?
...for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space. One phrase adds no more than the other to what we know without it. No doubt behind these legal rights is the fighting will of the subject to maintain them, and the spread of his emotions to the general rules by which they are maintained, but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a pre-existing right. A dog will fight for his bone.[109]In short, to Holmes rights are the creation of governments, and the emotional attachment felt toward these rights indicate nothing to the contrary, nor even anything specifically human. The opposite view of Professor Dworkin is that "citizens have moral rights against their governments."[110] These moral rights are "made into legal rights by the Constitution."[111] Thus "we must treat the First Amendment as an attempt to protect a moral right."[112] Behind all these rights is "the vague but powerful idea of human dignity," that "there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community," which "holds that such treatment is profoundly unjust."[113]
1. | See Sowell, Knowledge and Decisions, 298-99. |
2. | Blackstone, Commentaries on the Laws of England, vol. 1, 59. |
3. | id., at 60. |
4. | id., at 61. |
5. | Holmes, Collected Legal Papers, 177. |
6. | id., at 204. |
7. | id. |
8. | id., at 207. |
9. | id., at 239. |
10. | id., at 205-6. |
11. | Northern Securities Co. v. United States, 193 US. 197, at 401. |
12. | Eisner v. Macomber, 252 US. 189, at 219-20. |
13. | Louisville and Nashville Railroad Co. v. Barber Asphalt Paving Co., 197 US. 430, at 434. |
14. | Gompers v. United States, 233 US. 604, at 610. |
15. | Holmes, The Common Law, 36. |
16. | Holmes, supra, note 5, at 239. |
17. | id., at 269. |
18. | id., at 32. |
19. | Holmes repeatedly noted in his decisions that the common law was superseded even by state statutes. Southern Pacific Co. v. Jensen, 244 U.S. 205, at 222; Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 US. 518; Panama Railroad Co. v. Rock, 266 U.S. 209, at 216; Noble State Bank v. Haskell, 219 U.S. 104, at 113. A fortiori, it was superseded by the federal Constitution. |
20. | Tryson & Brother v. Blanton, 273 U.S. 418, at 445-46. |
21. | Lochner v. New York, 198 U.S. 45, at 74-76; Truax v. Corrigan, 257 U.S. 312, at 342-44; Muhlker v. Harlem Railroad Co.., 197 US. 544, at 576; Weaver v. Palmer Bros. Co., 270 U.S. 402, at 415-16; Schlesinger v. Wisconsin, 270 US. 230, at 241-42; Baldwin, et al. v. Missouri, 281 U.S. 586, at 595. |
22. | Truax v. Corrigan, 257 U.S. 312, at 344. |
23. | Nash v. United States, 229, U.S. 373, at 378. |
24. | Northern Securities Co. v. U.S., 193 US. 197, at 405-6. |
25. | Lochner v. New York, 198 US. 45, at 75 |
26. | Holmes, supra, note 5, at 279-82, 292-94. The agreement was not perfect, however. Holmes, The Mind and Faith of Justice Holmes, ed., Max Ierner, at 50. |
27. | Holmes supra, note 5, at 239, 295, 307. Lochner v. New York, 198 US. 45, at 75; Adair v. United States, 208 U.S. 161, at 191-92; Adkins v. Children's Hospital, 261 US. 525, at 570-71; Abrams et al v. United States, 250 U.S. 616, at 630; Tryson & Brother v. Banton, 273 U.S. 418, at 446-47; Kuhn v. Fairmont Coal Co., 215 U.S., 349, at 372; Schlesinger v. Wisconsin, 270 U.S. 230, at 241; Untermeyer v. Anderson, 276 U.S. 440; Quong Wing v. Kirkendall, 223 U.S. 59, at 62; William W. Bierce, Ltd., v. Hutchins, 205 U.S. 340, at 347-48. |
28. | In Abrams v. United States, for example, Holmes dissented in favor of appellants whose views he characterized as "a creed which I believe to be the creed of ignorance and immaturity." 250 US. 616, at 629. |
29. | Posner, The Federal Courts: Crisis and Reform, at 221. |
30. | Berger, Government by Judiciary, at 363. |
31. | Bork, Tradition and Morality in Constitutional Law, 7. |
32. | Dworkin, Taking Rights Seriously, 134. |
33. | id., at 135. |
34. | id., at 134-35. |
35. | id., at 136. |
36. | id., at 139. |
37. | id., at 149. |
38. | Holmes, supra, note 5, at 170. |
39. | id., at 167. |
40. | id., at 170. |
41. | id., at 170. |
42. | Rakove, "Mr. Meese, Meet Mr. Madison," The Atlantic Monthly, December 1986, 81. |
43. | id., at 82. |
44. | id., at 84. |
45. | Dworkin, A Matter of Principle, 40, 43, 44. |
46. | id., at 42. |
47. | Macedo, The New Right v. the Constitution, 10. |
48. | Brennan, "The Constitution of the United States: Contemporary Ratification," speech at Georgetown University, October 12, 1985, 4. |
49. | United Steelworkers of America v. Brian F. Weber, 443 U.S. 193 (1979). |
50. | id., at 207, note 7. |
51. | id., at 222. |
52. | Dworkin, supra, note 45, at 318. |
53. | id., at 319. |
54. | id., at 318. |
55. | id., at 320ff. |
56. | This claim was advanced in the preceding year's Bakke case, but was then devastated in the Weber case by one of those who initially made that claim—Justice William H. Rehnquist. |
57. | Dworkin, supra, note 32, at 328-29. |
58. | id., at 331. |
59. | See, for example, U.S. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964, at 3005, 3006, 3013, 3015, 3134, 3160, 3187-90. |
60. | Roe v. Wade, 410 U.S. 113 (1973). |
61. | Engel v. Vitale, 370 US. 421 (1962). |
62. | Miranda v. Arizona, 384 US. 436 (1966). |
63. | Brown v. Board of Education of Topeka, Kansas, 347 US. 483 (1954). |
64. | Baker v. Carr, 369 US. 186 (1962). |
65. | Furman v. Georgia, 408 US. 238 (1972). |
66. | Brennan, supra, note 48, at 1. |
67. | id., at 5. |
68. | id., at 8. |
69. | id., at 2. |
70. | Tribe, Constitutional Choices, 22. |
71. | Furman v. Georgia, 408 US. 238, at 361-62. |
72. | Dworkin, supra, note 32, at 239. |
73. | Sowell, Knowledge and Decisions, 21-44. |
74. | Macedo, supra, note 47, at 35. |
75. | Dworkin, supra, note 32, at 184-205. |
76. | Sowell, A Conflict of Visions, 185-90. |
77. | Holmes, supra, note 5, at 170. |
78. | Holmes, supra, note 26, at 441. |
79. | id., at 435. |
80. | Untermeyer v. Anderson, 276 U.S. 440. |
81. | Holmes, supra, note 26, at 432. |
82. | Kuhn v. Fairmont Coal Co., 215 U.S. 349, at 372. |
83. | Holmes, supra, note 26, at 449. Nor was this a new conception for him; he considered it to be among "some of my old chestnuts" (id.)—this conception of the law having appeared in his public writings decades earlier. In a speech in 1897, Holmes said, "a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suger in this way or that by the judgment of the court; and so of a legal right." Holmes, supra, note 5, at 169. See also id., at 175; Holmes, supra, note 15, at 79. |
84. | Holmes, supra, note 5, at 307. |
85. | Lochner v. New York, 198 U.S. 45, at 76. |
86. | Bork, supra, note 31, at 11. |
87. | Dworkin, supra, note 21, passim. |
88. | id., at 11. |
89. | Dworkin, supra, note 45, at 12. |
90. | Sowell, supra, note 76, at 56-57. |
91. | Holmes, supra, note 5, at 279-82, 291-97; Holmes supra, note 26, at 399-401. |
92. | For example, supra, note 28. |
93. | Tribe, supra, note 70, at 3-4, 268; Dworkin, supra, at 140. |
94. | Tribe, supra, note 70, at 3-4. |
95. | id., at 268. |
96. | id., at 26. |
97. | id., at 13. |
98. | id., at 11. |
99. | Bickel, The Least Dangerous Branch, 103-4. |
100. | Tribe, supra, note 70. |
101. | A suitable fable from Aesop might serve the same purpose. In reality, the view that World War II was unnecessary was held by, among others, Winston Churchill. "There was never a war in history easier to prevent by timely action than the one which has just desolated such great areas of the globe." Speech by Winston Churchill, March 5, 1946. Churchill, Churchill Speaks, ed., R.R. James, 884. |
102. | Sowell, supra, note 76, at 23, 27-28, 36, 57-59, 68-75, 85, 86-87, 106, 156, 201. |
103. | Tribe, supra, note 70, passim. |
104. | Sowell, Civil Rights: Rhetoric or Reality, 48-52. |
105. | Dworkin, supra, note 32, at 225, 228, 237; Tribe, supra, note 70, at 232, 233. |
106. | Socrates refused a pre-arranged escape and deliberately stayed in prison to drink the prescribed poison, on grounds that to do otherwise would be to undermine the law. Plato, "Crito," The Works of Plato, ed., Irving Edman, 91-106. |
107. | If there were democratic world government, its constitution would supersede that of the United States for the same reason—not because morality in the rest of the world is presumptively higher than in the United States. |
108. | Dworkin, supra, note 45, at 60. |
109. | Holmes, supra, note 5, at 313. |
110. | Dworkin, supra, note 32, at 184. |
111. | id., at 190. |
112. | id., at 197. |
113. | id., at 198. |
114. | Shelley v. Kramer, 334 U.S. 1. |
115. | Sowell, Markets and Minorities, 69-73. |
116. | Sowell, supra, note 104, at 49-50. |
117. | See, for example, Sowell, supra, note 115, at 34-82, 103-24; Williams, The State Against Blacks, passim; Tipton, Capitalism and Apartheid, passim; Roback, "The Political Economy of Segregation. The Case of Segregated Streetcars" Journal of Economic History, December 1986, 893-917. |
118. | Dred Scott v. Sanford, 60 US. 393 (1857), at 407. Taney attempted at length to show that this view represented the "original intent" of those who wrote the Constitution, id., at 407-18. However, Taney also argued on substantive due process grounds against deprivation of property, id., at 450. |
119. | Blackstone, supra, note 2, at 41. |
120. | Burke, Reflections on the Revolution in France, 42. |
121. | Sowell, supra, note 76, at 21, 42. |
122. | id., at 175-77. |
123. | Holmes, supra, note 5, at 47. |
124. | id., at 47. |
125. | Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 3-21. |
126. | Sowell, supra, note 76, at 19-21, 32, 85. |
127. | id., at 57, 102. |
128. | id., at 185-87. Holmes said: "It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of a real doubt a law must be sustained." Interstate Railway Co. v. Massachusetts. 207 U.S. 79, at 88. |
129. | Dworkin, supra, note 32, at 144. |
130. | Veblen, Essays in Our Changing Order, 7-8. |
131. | Shaw, Fabian Essays in Socialism, 223; Veblen, The Engineers and the Price System, 70-71, 159; Bellamy, Looking Backward: 2000-1887, 58, 104, 141. |
132. | Holmes, supra, note 5, at 187, 301. |
133. | Sowell, supra, note 76, at 40-66. |
134. | id., at 190-198. |
135. | Epstein, Takings: Private Property and the Power of Eminent Domain, 57-62. |
136. | Sowell, supra, note 73, at 193-194. |
137. | Holmes' opinions favoring particular "takings" include Tryson & Brother v. Banton, 273 US. 418, at 445-47; Muhlker v. New York & Harlem Railroad Co., 197 US. 544, at 571-77; Denver v. Denver Water Co., 246 US. 178, at 195-98; Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, at 600-602; Interstate Railway Co. v. Massachusetts, 207 U.S. 79 (1907), at 83-88; Noble State Bank v. Haskell, 219 U.S. 104 (1911), at 109-13; Block v. Hirsh, 256 U.S. 135 (1921), at 153-58; Cedar Rapids Gas Light Co. v. City of Cedar Rapids, 223 US. 655, at 666-70. His opinions opposing "takings" include Chanler v. Kelsey, 205 US. 466, at 479-82; Pennsylvania Coal Co. v. Mahon, 260 US. 393 (1922), at 412-16. |
138. | Interstate Railway Co. v. Massachusetts, 207 US. 79, at 86-87; Noble State Bank v. Haskell, 219 US. 104 (1911), at 110; Block v. Hirsh, 256 U.S. 135, at 155-56. |
139. | Tryson & Brother v. Banton, 273 U.S. 418, at 446. |
140. | Holmes supra, note 5, at 204; Missouri, Kansas & Texas Railway Co. v. May, 194 U.S. 267, at 270; Bain Peanut Co. v. Pinson, 282 US. 499. The same idea, without this specific terminology, appears in Interstate Railway Co. v. Massachusetts, 207 U.S. 79, at 87. |
141. | Tryson & Brother v. Banton, 273 U.S. 418, at 446. |
142. | Holmes, supra, note 26, at 188. |
143. | Dworkin, supra, note 45, at 319-24. |