Daniel J.H. Greenwood

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Notes on the History of Constitutional Law in the US Supreme Court

Guest Lecture, West High School, April 27, 2005
We are here to discuss Constitutional Law in the Supreme Court in 1 hour. So I’ll use broad strokes and a few cases.

In particular, I’m not going to give the usual story of the Supreme Court as hero—defending the rights of minorities and the oppressed, running from Abrams and the First Amendment, through the McCarthy Era, Brown, the Right to Counsel and the voting cases, and on to Roe and its backlash. Instead, I’ve chosen cases that I think better reflect the actual, and quite mixed, history of our peculiar system of sending our most important issues to the judiciary.

First, the biggest picture:

We live in a Federal System with 3 major types of law, and many lawmakers:

Second, the role of the Supreme Court:

A. Ante-Bellum

Until after the Civil War, the Supreme Court was the final say on Common Law and on conflicts between State law and US law, but it rarely spoke on conflicts between the US Constitution and US law. In fact only two significant opinions like this:

B. After the Civil War

After the Civil War, the Constitution changed dramatically–the Thirteenth Amendment reversed Dred Scott and went further, fully outlawing slavery; the Fourteenth Amendment overturned Dred Scott’s citizen ruling in its first sentence and then says:

“ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

This is the source of most modern Constitutional law. The court quickly decided that citizens have virtually no privileges or immunities, and that was accepted, so the key debates have been over due process and equal protection. These phrases, for example, have been used to extend almost the entire Bill of Rights, which originally applied only against the Federal government, to the states, and therefore are the reason why the First Amendment protects your speech against states and not just the Federal government.

Surprisingly, though, the Fourteenth Amendment turned out mainly to protect corporations and not African Americans or even people generally.

I want to focus here on two cases that are absolutely central but not as well known as Plessy v. Ferguson (1896), which upheld Jim Crow on the bizarre ground that there is nothing unequal or discriminatory about segregation, Brown v. Board of Ed., which finally, in 1957 began to dismantle the American apartheid system (we called it Jim Crow), and Loving v. Virginia in 1967 (!) which knocked down laws barring so-called mixed marriages (upheld in Pace v Alabama 1883), that had been defended on the ground that they hurt whites and blacks (defined as anyone with an African, Asian or Indian ancestor unless the Indian was Pocahontas) equally.

But the consequences are more important.

The combination of these two cases means that you have no constitutional rights against corporations. As far as the Constitution goes, they may

and so on. Some of these have been barred by statute, but notice that an employer

In contrast, corporations have Constitutional rights against you. So,

It is not that it would necessarily be a good idea to start closing corporations down or searching them without warning—it is, instead, that we decide whether we can do those by constitutional interpretation, by reading a text that was written before modern corporations were even invented, rather than by debating about corporations, having elections and so on. The Supreme Court has fossilized these highly controversial political issues, insulating them from a debate about what the right way to regulate corporations might be and transforming the issue into a debate about what the words of the Constitution mean.

C. The Rise and Fall (and Rise?) of Lochner

These contract and corporate rights reached their peak in a famous case called Lochner v. New York, one of a long series of cases in which the Court held that various economic regulations were unconstitutional violations of the Contracts Clause. In Lochner, the court held that bakers had a constitutional right to work 14 hours a day even if the flour in their lungs was likely to kill them, and the state could not impose maximum working hours. This case came to symbolize hundreds of others in which the court held that the Constitution prevented states and the federal government from protecting workers and consumers, including the cases that held the first New Deal acts unconstitutional.

In 1938, the Court changed its mind, and added the Contracts clause and Economic Due Process to the list of topics (along with foreign policy, immigration and the military) where it generally was going to “presume” that whatever the Congress and Executive do, is constitutional. There isn’t a single case, but rather a series – Nebbia, Carolene Products and Williamson Optical are the most commonly cited – that stand for the “switch in time that saved nine” – the Supreme Court’s capitulation and reversal, allowing the second New Deal to stand.

The last case I want to mention, then, is US v. Carolene Products (1938), an utterly unmemorable case except for its Footnote Four, which set the course for what the court would do after its New Deal retreat:

First, the court basically decided that it would defer to Congress on issues of commerce and economic regulation. In other cases, it has also added military, foreign policy, the army and immigration. In all these areas, from 1938 until very recently, the Court now takes the position that Constitutional arguments must be made to the Congress and the President, not to it. So the court won’t intervene. For example,

The Court, instead, said that it would restrict itself to procedural matters—especially the right to vote and to speak that are the foundation of a political democracy—and the Bill of Rights:

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. …

“It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697, 713--714, 718--720, 722, 51 S.Ct. 625, 630, 632, 633, 75 L.Ed. 1357; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484; Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; Whitney v. California, 274 U.S. 357, 373--378, 47 S.Ct. 641, 647, 649, 71 L.Ed. 1095; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.

“Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047; Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646, or racial minorities….; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. [Cases omitted]”

In my judgment, we are today in a state of transition, with a newly active court, willing to limit Congressional and State authority to regulate the economy and to fight discrimination, using both Constitutional and statutory interpretation to limit regulations intended to empower market losers, and to expand the rights of corporations. Footnote 4 is being eroded, and Lochner is returning, although more often today in the guise of commercial speech (almost any economic regulation can be re-described as regulation of a corporation’s speech, so Santa Clara is terribly important today).

It continues, with some retreat, the post-War pattern of upholding certain basic individual freedoms, such as speech, private sexual relations, and so on, but not so-called positive rights such as education, housing, jobs and so on.

It has utterly abandoned any pretense of enforcing fundamentally fair political procedures, partly because it had trouble outlining what fundamental fairness requires, but even in circumstances where it really isn’t very hard to see something is wrong. Thus, while the one person one vote cases stand, the court has more recently concluded that jerrymandering is non-justiciable except when it helps African Americans; has declined to see anything wrong in newer versions of the poll tax that exclude large numbers of people from voting on functionally (but not formally) race and partisan grounds, and then intervening itself to decide the last Presidential election in an entirely unprecedented manner.

And of course, I haven’t discussed the vicissitudes of the right to speech (which protects your right not to have the state slogan on your license plate, your right to wear armbands and vulgar t-shirts (but not in school), corporate rights to advertise and break guild or professional restrictions, but does not protect the right to bring in a distinguished foreign speaker who belongs to a western Communist party), the right to privacy in the bedroom that gave us contraceptive and abortion rights and now limited rights to unusual sex, the rights of high school students, the right to die or not, the right not to say the pledge of allegiance, the status of the Bible in the schools and so on…

Your turn.