America's Unwritten Constitution: The Precedents and Principles We Live By (34 page)

The Court’s case law was also a moving target, making it difficult for contemporaries to understand the Court’s real principles. Thus,
Brown
said not that the pro-Jim-Crow precedent of
Plessy v. Ferguson
was overruled, but only that
Plessy
did not apply in the domain of education. But then the Court promptly issued a series of one-paragraph decisions with absolutely no explanation applying
Brown
beyond education to public beaches and to golf courses, and even to state-segregated buses—that is, to transportation, the very domain that had given rise to
Plessy
(a railroad-segregation case). Similarly, in
Baker
the Court floated one standard for voting, but then in
Reynolds
the Court followed a very different standard—one that had been expressly disavowed by a couple of the concurring opinions in
Baker
.
⁷⁵

Consider next another major charge against the Court—that it bristled with activists disrespectful of Congress. Here are the numbers: In Warren’s sixteen years as chief, the Court invalidated acts of Congress in twenty-three cases—about the same clip that had prevailed in several earlier periods and a somewhat lower rate than in the ensuing Burger-Rehnquist Court,
which slapped down Congress sixty-nine times in thirty-six years. Notably, the Warren Court never struck down a federal civil-rights or voting-rights act of Congress, as had early Courts and as would later Courts.
⁷⁶

In fact, the Warren Court generally partnered with Congress, especially in the area of civil rights and voting rights. True, the Court did strike down a federal policy of segregation in
Bolling
, but that policy was the ghost of Congress past. Most members of Congress in 1954 were probably opposed to federal segregation, but reformers could not overcome the intense opposition of a pro-segregation minority that enjoyed considerable congressional seniority and deployed the filibuster aggressively. Eventually, this congressional minority was overcome in the mid-1960s, and it was precisely Congress’s landmark legislation under President Lyndon Johnson’s leadership that burnished
Brown’s
reputation and increased compliance with
Brown’s
mandate.
⁷⁷

Critics have also erred in suggesting that the Warren Court generally defied public opinion. Had the Court done so consistently, its legacy would likely not have lasted. In the long run, old justices leave; new ones arrive; the new ones are picked by presidents (with senatorial oversight);
and the people pick presidents (and senators)
. In fact, many of the Warren cases and ideals are widely celebrated in today’s popular culture—
Brown
, of course; the free-speech principles of
New York Times v. Sullivan;
the innocence-protecting vision of
Gideon v. Wainwright;
and the basic
Harper-Reynolds
notion that everyone should vote and have his or her vote counted equally. Most citizens would recoil against any proposal that states should be free to violate the Bill of Rights.

The big exceptions to this general pattern are the exclusionary rule and closely related Warren Court doctrines that freed criminals on what critics called “legal technicalities”—that is, on grounds unrelated to actual innocence or innocence-protecting procedures such as
Gideon’s
right of counsel.

THE GENERAL FIDELITY OF THE WARREN COURT
to the deepest ideals of the written Constitution came at the expense of fidelity to precedent. As one tart critic put it, “the list of opinions destroyed by the Warren Court reads like a table of contents from an old constitutional law casebook.”
⁷⁸

Under Warren, the Court overruled itself in some forty-five cases—more
than half as many times as in the entire history of pre-Warren America. Since Warren, the Court has continued this brisk pace of overruling. For example, in the 1970s and 1980s the Court overturned its own precedents in over sixty cases. Here, too, the Warren Court established the basic judicial model that still applies.
⁷⁹

If the Warren Court was essentially right in its constitutional vision, and if earlier Courts that had rejected that vision were wrong—if, for example,
Plessy
stank and
Brown
soared; if incorporation was constitutionally correct, whereas earlier cases erred in refusing to protect Americans from state abuses; if Warren and company were right to embrace federal civil-rights and voting-rights laws that earlier justices had improperly condemned or ignored; if
Gideon
deserves to be glorified for overturning an earlier decision that was impoverished even at the moment it was handed down—then what does this say about the Court itself over time?
⁸⁰

Just this: For much of its history after John Marshall and before Earl Warren, the Court dishonored both the terse text and the American people, who enacted and who continued to embrace that text. The Warren Court’s friends who urged the justices to quit worrying about the written Constitution got it backward. Reflecting the deep wisdom of the American people in their most decisive moments, the written Constitution deserves judicial fidelity, both because it is the law and because, for all its flaws, it has usually been more just than the justices. In the century and a half since the Civil War, the Court whose grand themes most closely tracked the letter and spirit of that text—the Warren Court—is the Court that has quite rightly enjoyed the most enduring influence over both its judicial successors and American society more generally.

ALL OF THIS RAISES SEVERAL HARD QUESTIONS
about how precedent should generally operate in a system where ultimate authority resides in the Constitution and not the Court. The next chapter aims to sharpen and answer these questions.

_____________________

^*
Any reader who doubts Brennan and Griswold should play a simple parlor game: At the end of this paragraph, close your eyes and compose a mental list of what you consider to be the ten most important Bill of Rights cases in American history. Once you have your list in mind, open your eyes and continue reading this footnote.

Odds are that most of the cases on your mental list are, strictly speaking, not Bill of Rights cases at all. Rather, most are probably Fourteenth Amendment cases, where the alleged threats to liberty or equality came not from the federal government (to which the original Bill of Rights was solely directed) but rather from state or local governments. Even if your list contains a few true Bill of Rights cases involving the federal government, these cases were probably powerfully influenced by earlier incorporation cases involving state and local governments. In other words, almost all the cases on your list are probably either proto-incorporation cases, incorporation cases proper, or postincorporation cases shaped by the incorporation revolution.

^*
At this point, any reader who played the parlor game set out at p. 152
n
is invited to recall the ten cases that came to mind then and determine how many of them were the seeds or the fruits of incorporation.

^*
The Republican Party platform of 1856 evidently read the Second Amendment to go beyond purely states’ rights; the platform openly criticized federal violations of “the right to keep and bear arms” in the Kansas Territory.

^*
Unlike virtually all other clauses in the Bill of Rights, the Fifth Amendment rule that no felony case may generally proceed absent a grand-jury indictment has not been mirrored by most state constitutions. Currently, only eighteen states, making up less than 45 percent of the national population, require grand-jury indictments for all felonies. (For details, see p. 547, n. 32.) If Pathway Five is the best way to think about incorporation, the right to grand-jury indictment would seem the least attractive candidate for incorporation, precisely because it has the weakest foundations in actual modern practice at the state level, where the overwhelming majority of criminal filings occur. As for the Seventh Amendment right to civil juries in common-law cases, this right is arguably a pure states’-rights provision merely requiring a federal court to give litigants juries whenever a state court across the street would do so. On this reading, incorporation against states would merely require each state to follow its own rules about jury trials—something it would do anyway.

^*
The leading opinion on each topic—
Legal Services Corp. v. Velazquez
in 2001 and
Citizens United v. Federal Election Commission
in 2010—was authored by the Court’s current swing justice, Anthony Kennedy. When Kennedy was a youth in Sacramento, California, Earl Warren, who was then the governor of California, was a frequent guest at the Kennedy home.

HARRY BLACKMUN
(left)
AND WILLIAM REHNQUIST
(right) (1976)
.

In 1973, Justice Blackmun authored the majority opinion in
Roe v. Wade
and Justice Rehnquist dissented. In 1992, the two again squared off, as the Court in
Planned Parenthood v. Casey
pondered not merely the specific scope of abortion rights but also the proper weight to be given to precedent. Although Rehnquist by this time had become chief justice, he once again found himself in dissent.

W
HEN NOT SPINNING INTO PARADOX,
^*
self-referential statements often bring matters into sharp focus. So it is with the Constitution, whose various references to itself reveal its essence and situate us to see how and by whom it should be interpreted and executed.

The Preamble proudly proclaims that “this Constitution” was ordained and established in the late 1780s via uniquely democratic popular action. This opening proclamation signals the fundamentality of popular sovereignty and the aptness of interpreting “this Constitution” not merely as a formal written text but also as an embodied popular deed. (Hence
Chapter 2
’s interpretive approach.) Article I explicitly reminds us of Congress’s special role in effectuating powers “vested by this Constitution” in other branches. (We shall return to this reminder in
Chapter 9
.) Article II obliges the president to take a uniquely personal oath to “preserve, protect, and defend the Constitution” to “the best of my Ability”—a poignant reminder that our system depends upon the willingness of specific individuals to pledge fidelity to the grand constitutional project. (We shall study the uniquely personal role of America’s first president in
Chapter 8
and shall ponder constitutional oaths more generally in
Chapter 11
.) Article V tells us that each amendment forms “Part of this Constitution.” Precisely because each clause, section, article, or amendment is merely a “Part,” we must often step back and consider the document as a whole. (This was the animating idea of
Chapter 1
.) Article V’s textually interrelated language that each amendment is “valid to all Intents and Purposes” bids us to heed the intergenerational nature of “this Constitution” and to ponder how later amendments harmonize with the original text and with earlier amendments. (These themes surfaced briefly in
Chapter 4
and will resurface in
Chapters 6
,
7
,
10
, and
12
.) The Ninth Amendment’s reference to “the Constitution” confirms yet another critical fact about the document: By its own admission, the text contains a possibly incomplete enumeration of rights. (This fact lay at the heart of
Chapter 3
.)

As indicated by the parentheticals in the previous paragraph, every
chapter of this book on America’s “unwritten Constitution” can be seen as a response to one or more key clauses in which the written Constitution revealingly refers to itself.

This chapter is no exception. As we shall see, the Constitution features no less than three major references to itself in specific connection with the judiciary. This triad of self-referential clauses will help us answer some basic questions about the proper general relationship between the written document and the judicially crafted—unwritten—doctrine. In particular: Should doctrine ever go beyond the document? Should doctrine ever go against the document? How can we tell the difference between these two situations? When it becomes clear to a court that previous judicial doctrine has mangled the true meaning of the terse text, what should the court do?

Although the three clauses in which the text speaks of itself—of “this Constitution”—in specific relation to judges furnish broad guidance concerning these big questions, the clauses leave various smaller issues underspecified. (For example, what should a lower court judge do if Supreme Court cases from different eras point in different directions? Should a lower court judge pay more heed to what the Supreme Court has said in the past, or to what it would likely say in the case at hand?) In addition to examining what the text has to say about itself in regard to judicial case law, we shall thus once again venture beyond the written Constitution to consider how something outside it—here, judicial precedent—intertwines with the document in a way that draws strength from it and in turn strengthens it.