America's Unwritten Constitution: The Precedents and Principles We Live By (33 page)

These last points can be recast in a more textual and less sociological way, as follows. Given the emphatic repetition of the phrase “right to vote” in landmark congressional legislation and in the text of the amended and re-amended Constitution, there arose a strong argument to treat each right-to-vote amendment not as an isolated island, but as part of an archipelago. At a certain point, it became textually, historically, and structurally apt to read each affirmation of a “right to vote” not by negative implication but by positive implication. On this view, certain textually specified bases for disfranchisement were
per se
unconstitutional—race, sex, age (above eighteen)—whereas all other disfranchisements were presumptively suspect as violating a more general right-to-vote principle.
⁶⁴

BUT WHY DIDN
’
T THE COURT
build more directly on the clauses that best supported its right-to-vote jurisprudence—namely, section 2 of the Fourteenth Amendment and the republican-government clause?

Part of the answer is precedent. Section 2 had generated no substantial case law that Warren and his brethren could profitably use, and neither had the republican-government clause. In the 1849 case of
Luther v.
Borden
, the Court had declined to decide a dispute between two political camps in Rhode Island, each claiming to be the state’s proper republican government. The Court declared that Congress should decide contests such as this by judging the validity of both camps’ electoral claims in the course of seating federal representatives and senators. When Congress did just that in Reconstruction, gleefully quoting
Luther
for the proposition that Congress enjoyed broad authority under the republican-government clause, Andrew Johnson forcefully objected—and managed to get himself impeached. Judicial onlookers in that era understood that they, too, should proceed with special care, lest they also provoke congressional retaliation, and the clause thus became an unwelcome guest in Court.
⁶⁵

By contrast, pre-Warren judges had used the equal-protection clause on countless occasions involving race questions and other claims of discrimination in the business world and beyond. The equal-protection clause was a familiar tool that felt comfortable in the judicial hand. So the Warren Court justices reached for it, even though it emphatically had not been designed for voting-rights issues.

ALONGSIDE RIGHT-TO-VOTE CASES SUCH AS
Harper
and
Kramer
, the Warren Court in
Baker v. Carr
and
Reynolds v. Sims
famously deployed the equal-protection clause to regulate how citizen votes should be weighted in apportioning legislative seats. In
Baker
, decided in 1962, plaintiffs challenged a Tennessee legislature that had not been reapportioned in over half a century. Vast population disparities existed in the state; some districts had ten times the population of other districts, yet each district had equal weight in the legislature. The apportionment skew generally favored rural districts that were largely white at the expense of urban districts with higher black populations. Plaintiffs asked the justices to strike down this gross malapportionment; defendants countered by claiming that earlier cases had treated apportionment issues as “political questions” beyond the ken of courts.

Writing for the Court, Justice Brennan finessed the precedent problem by noting that earlier cases had been brought under the republican-government clause, whereas the
Baker
plaintiffs were relying on an equal-protection theory that sidestepped all the earlier republican-government
precedents counseling judicial restraint. In response to the defendant’s arguments that no workable standards could guide judicial oversight of messy issues of apportionment, Brennan again deftly played the precedent game: “Judicial standards under the Equal Protection Clause are well developed and familiar.”

Never mind that those standards had been developed in cases having nothing whatsoever to do with voting rights! Thus we see how the particular path charted by the justices in
Baker
was shaped more by the peculiar contingencies of prior precedents than by the first principles of constitutional text and history—principles that argued for reviving the republican-government clause and recognizing that the equal-protection clause was categorically inapplicable to voting rights.

And yet, as with incorporation, the Court got the big picture right. The Constitution really can be read to repudiate gross malapportionments, especially ones that meant that black votes would generally count for far less than white ones. But just as with incorporation, the Court reached this correct result by pursuing the path of least precedential resistance, which meant using the wrong clause to do the work. In both areas, the pivotal opinions—championing selective incorporation under the due-process clause and an equal-protection framework for voting rights—were authored by William Brennan. And in both areas the price to be paid was that what the Court said seemed contemptuous of the written Constitution and its original public understandings, even though what the Court did vindicated the document’s deepest commitments.

Two years after
Baker
, the Court executed a midcourse correction in
Reynolds v. Sims. Baker
had signaled that the Court would use traditional equal-protection standards that had developed outside of voting-rights laws to judge apportionment maps. The Court had even pointed to the specific doctrinal standard it intended to use: Apportionment would be upheld so long as it was not “arbitrary and capricious.”
⁶⁶
But soon thereafter, the justices came to understand that a cleaner bright-line rule was needed. Arbitrariness seemed to lie in the eye of the beholder. A district map that one judge might think was pure hodgepodge might to another judge reflect a permissible balance of historical boundaries and multifactored modern realities. Thus,
Reynolds
minted a new rule that every district
had to be equally populous. Having chosen for utterly contingent reasons to press the equal-protection clause into service, the Court unsurprisingly ended up concluding that districts had to be…equal.
⁶⁷

When the Court dropped this bombshell, more than forty state legislatures rested upon apportionment maps that flunked this strict equality test. On a single day in 1964, the Court in effect declared that almost all state governments were constitutionally defective! Yet today, no one proposes reversing
Reynolds
, because the case required only a one-time adjustment to the system. After the 1970 census, states had relatively clear guidance, thanks to
Reynolds
itself, about how to draw acceptable district lines. And once those new lines were in place, they generated elections whose winners had no particular interest in challenging the basic ground rules that had gotten them elected in the first place. The old politicians whose power bases were destroyed by
Reynolds
might rage and gnash their teeth, but they had to either adapt to the new rules or sink into political oblivion. Thus, a bloodless revolution occurred without a shot fired, and with no realistic ability of the losers to restore the old order that was gone forever.
⁶⁸

AND GOOD RIDDANCE TO THAT OLD ORDER!
Such has been the general attitude of post-Warren America to the Warren Court revolution. Nearly half a century after Warren’s departure, the justices continue to operate on a field of constitutional argumentation mapped by the Warren Court. So do other branches of government, state and federal; so does the legal professoriate; and so does the public at large. Thus, lawyers, judges, politicians, and pundits of all stripes—liberals and conservatives, originalists and living constitutionalists—now take for granted the basic teachings of the Warren Court and argue within the Warren framework.

For example, no one today challenges the rightness of
Brown
. Rather, Americans now wrangle over
Brown’s
meaning, with both liberals and conservatives wrapping themselves in its mantle. Liberals invoke
Brown
for its affirmation of substantive equality, its vision of integration and inclusion, and its recognition of the supreme importance of public education as a gateway to equal citizenship. Conservatives deploy
Brown
and
its companion,
Bolling
, to underscore the general evil of racial classifications, even when such classifications are claimed to benefit blacks and/or promote integration, and even when Congress itself has endorsed these race-conscious regimes.
⁶⁹

Though some justices may (erroneously) harbor private doubts about the rightness of incorporation, no member of the Court in the past three decades has called this basic doctrine into question, even in passing. Every term, the Court’s docket teems with postincorporation cases, and the justices routinely use the Bill of Rights to keep states in line—sometimes to achieve liberal results (for example, by striking down unusually troubling death-penalty sentences and laws improperly favoring religion), other times for more conservative ends (for instance, by invalidating ultra-strict gun-control ordinances and confiscatory environmental regulations).
⁷⁰

Freedom of speech has never had so many friends on the Court as at present, but conservatives and liberals have different ideas about the deep meaning of Warren Court landmarks such as
New York Times v. Sullivan
. Liberals have deployed
Sullivan
to explain why Congress should not be able to insulate itself from criticism spearheaded by the Legal Service Corporation, whereas conservatives have invoked the case to explain why Congress should likewise be barred from regulating campaign finance in incumbent-protective and speech-limiting ways.
^*
So, too, current church-state law operates within the boundaries laid down by landmarks such as
Engel
and
Abington
. It is hard to imagine that the Court in the foreseeable future would countenance a return to state-sponsored recitational prayer in the classroom.

Voting-rights case law follows the same pattern. All justices accept the basic teachings of
Harper, Kramer, Baker
, and
Reynolds
, even as conservatives and liberals joust over the meaning and proper application of these Warren Court classics. Exhibit A is the Court’s 2000 decision in
Bush v. Gore
. In that case, a bare Court majority explicitly invoked
Harper
and
Reynolds
to end an uneven recount then underway. Dissenters claimed Warren’s legacy for themselves, arguing that the recount was actually working to mitigate Election Day inequalities that had disproportionately disfranchised poor and minority voters.
⁷¹

The justices are not the only ones who have enthusiastically embraced Warren-style voting rights. Every state legislature today abides by the one-person, one-vote principle. So does the House of Representatives. The franchise extends to nearly all adult citizens—and Congress’s Voting Rights Act of 1965, which closely harmonizes with the Warren Court’s voting-rights melody, enjoys iconic status. Virtually no one—no important government official, no major political party, no mass popular movement, no notable school of academic thought, no respected group of public intellectuals or opinion leaders, no venerable think tank—forthrightly proposes a return to the old days of disfranchisement and malapportionment. (Crafty politicos today do attempt to cheat, but they loudly deny that their true purpose is to disfranchise eligible voters and/or to count votes unequally.) Ordinary Americans today broadly claim the rights to vote and to vote equally, believe that these rights are theirs, and embody these beliefs in routine practices that are nearly universally celebrated. These rights have thus become Ninth Amendment rights retained by the people and elements of proper republican government—even if they were not so when the republican-government clause and the Ninth Amendment were written.
⁷²

The only major post-Warren retrenchment involves the exclusionary rule, which continues to limp along, but with substantial restrictions and amid considerable anti-exclusion rhetoric on the Court. The restrictions and the rhetoric parallel broader skepticism in the American populace about the rule’s basic premises.
⁷³

Today’s world of judicial doctrine and general constitutional discourse is thus the world of Earl Warren, Hugo Black, and William Brennan. Their legacy endures.
⁷⁴

WHAT LESSONS SHOULD WE DRAW
from the Warren Court cases, and from the post-Warren Court’s response to this body of case law, about the proper relationship between the document and the doctrine?

Recall the basic lines of critique aimed at Warren and his brethren. First, critics have claimed that Warren Court doctrine mangled the document. But, as we have seen, the landmark cases generally got it right.

Alas, the Warren Court often reached the right result while saying odd things that confounded serious textualists and honest historians. Did “process” really mean substance? Was the key clause of the Fourteenth Amendment’s opening section, affirming the privileges and immunities of citizens, irrelevant? What about the “sleeping giant” republican-government clause that had made Reconstruction possible? Did the rights of “persons,” as sharply distinguished from those of “citizens,” really encompass voting? (Was the Fifteenth Amendment thus unnecessary? The Nineteenth as well?) If equal-protection principles applied against the federal government (à la
Bolling)
, and if these principles required equally populous districts even for state senates (as required by
Reynolds)
, then why wasn’t the United States Senate itself unconstitutional? (If the Court could on one day say that most states had unconstitutional governments that required major restructuring after the next census, what was to stop the Court from saying the same thing the next day about the Senate?) In the face of these questions, the Warren Court failed to explain itself satisfactorily.