America's Unwritten Constitution: The Precedents and Principles We Live By (46 page)

Lochner
. Although
Lochner v. New York
is less well known outside legal circles, the very word
“Lochner”
is for legal insiders synonymous with judicial overreach.
Lochner
is thus not just a case, but an era and an attitude. In legal discourse it has even become a verb. To “Lochner” or to “Lochnerize” is to commit the same kind of judicial sin that characterized many of the
Court’s rulings in what is now known as “the
Lochner
era”—roughly the mid-1880s through the mid-1930s—in which the Court, without clear textual warrant, struck down a multitude of reasonable reform statutes regulating free-market excesses.

The 1905
Lochner
case itself, in which the Court invalidated a state maximum-hour law, was but one particularly salient example of the Court’s overeagerness to invalidate progressive legislation. Nothing in the written Constitution expressly prohibited maximum-hour laws, and it is hard to make a winning argument that the Constitution implicitly did so. The Court’s root objection to such laws was that they were designed to redistribute wealth from employers to laborers. But then, so was the Thirteenth Amendment itself—which redistributed slave property from masters to slaves with no compensation. Nor can it be thought that worker-health and worker-rights laws violated a pattern of lived freedom, given that a great many states (and large ones at that) repeatedly tried to enact such laws in the Progressive era. Although
Lochner
could perhaps be defended as a plausible (albeit contestable) constitutional interpretation in 1905, the Court implausibly continued to follow a strongly antiredistributionist line even after the American people in 1913 openly embraced the propriety of redistributive policies via an Income Tax Amendment that envisioned a strongly progressive—that is, redistributive—tax structure.
²⁶

EACH OF OUR THREE NEGATIVE ICONS
not only stands as a despised symbol in its own right (perhaps “wrong” would be the better word here) but also visibly stands alongside the other two as part of a larger symbolic constitutional system. For example, all three logical pairings inherent in our trio of despised cases are visible in prominent modern opinions. Critics of the Court’s early record on race have repeatedly found it useful to mention
Dred Scott
and
Plessy
in the same breath (as did Harlan in
Plessy
itself); opponents of substantive due process have invoked
Dred Scott
and
Lochner
as paired Exhibits A and B; and
Plessy
and
Lochner
have operated in tandem in modern case law as the best illustrations of the need for the Court to overrule its erroneous precedents.
²⁷

In short, just as the deities in the constitutional Pantheon link arms with each other in manifest and manifold ways, so do the demons in constitutional Hell.

THIS CHAPTER HAS TRIED TO SHOW
that there is such a thing as America’s symbolic Constitution—a set of especially significant, and indeed constitutive, texts—and that its core components are easy to spot in both case law and culture. This symbolic Constitution exists as a system of meaning and guidance, both positive and negative.

In this domain, as elsewhere, we not only must probe individual parts of the system but must also see the constitutional project as a whole and ponder larger patterns of meaning. Here is one way to connect the dots: In sharp contrast to America’s most disgraced cases, which protected haves at the expense of have-nots, and insiders at the expense of outsiders, most of our icons of positive national identity have championed equality and reflected abiding concern for those at the bottom of the status hierarchy—tyrannized colonists, politically vulnerable territorial settlers, ordinary unnamed soldiers who died on a bloody battlefield, black children relegated to second-class status, the “Negro [who] is still not free.” In this pattern resides a powerful lesson for how America’s unwritten Constitution is best interpreted and enforced—namely, to reinforce rather than to undercut the great themes of equality and inclusion in America’s written Constitution.

_____________________

^*
Readers are welcome to test this existence claim against their own intuitions. The next five paragraphs will outline the general contours of America’s symbolic Constitution. At the end of this outline, you are invited to close this book and spend a few minutes composing a list of works that you believe best fit the stated criteria. When you have finished, reopen the book and compare your list to mine, which consists of six specific texts that I believe are easy cases for inclusion in our symbolic Constitution. At the end of this chapter, you are invited to reflect once again upon which other texts might be suitable candidates to join the representative texts that I showcase.

^*
Today, the kinship between the parchment Declaration and the parchment Constitution is dramatized by their proximity in the National Archives Rotunda. Recall that the parchment Constitution’s language gesturing toward the Declaration—“done in Convention… in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth”—was not part of the official printed Constitution as ratified. This particular linkage between the two parchments was thus symbolic, not legal.

^*
Western lands were also envisioned by the Ordinance as lands free from local malapportionment. Article 2 of the Ordinance promised that northwesterners “shall always be entitled to… a proportionate representation of the people in the legislature.” Article 5 went on to provide that any state constitution eventually adopted by a territory seeking statehood “shall be republican, and in conformity to the principles contained in these articles.” Here, then, is intriguing evidence from the Founding era linking “republican” government to a proto-one-person-one-vote idea—an idea that could work more easily in the Northwest precisely because this region would be free from complex questions about how to count slaves in a proper/proportionate apportionment system. In the 1964 case of
Reynolds v. Sims
, Chief Justice Warren explicitly invoked Article 2 of the Ordinance in support of the Court’s vision.

^*
In 1967, the political branches cast a further official, if indirect, vote of confidence for
Brown
when President Johnson nominated and the Senate confirmed Thurgood Marshall, the crusading lawyer who had won the
Brown
case, as America’s first black Supreme Court justice. In 2010, America’s first black president named a former Marshall law clerk, Elena Kagan, to the Court.

“
WOMEN ARE TOO SENTIMENTAL FOR JURY DUTY
” (1915).

In the heyday of American Progressivism, some reformers met the anti-suffrage argument that “women are too sentimental for jury duty” with a reminder that men, too, could act emotionally on juries. Note the premise underlying this prong of the suffrage debate: Woman suffrage would also entail woman jury service, even though neither the federal Woman Suffrage Amendment nor its typical state constitutional counterpart explicitly enumerated the jury-service right. At least some persons on both sides in the suffrage conversation thus understood the unenumerated links between voting and jury service. But did everyone in the 1910s understand these links? What other unenumerated entailments followed from the deep logic of woman suffrage?

A
MERICA’S WRITTEN CONSTITUTION DESCRIBES ITSELF
as ordained by “the People” and proclaims itself “the supreme Law,” superior to ordinary congressional statutes. At the Founding, these two patches of text were linked by an overarching theory of legitimacy based on popular sovereignty: The Constitution should trump an ordinary statute enacted later, because a mere statute passed by Congress is not democratically equivalent to a Constitution ratified more directly by the people themselves in a process that allowed an unusually wide slice of Americans to vote. Similarly, because a constitutional amendment needs to win the support of overwhelming supermajorities in Congress and in the states before becoming part of the Constitution, no mere congressional majority should be allowed to undo an amendment. Like the original Constitution, an amendment democratically outranks any statute, even a statute enacted more recently.
¹

But then something happened in America that the Founders did not anticipate—something with profound consequences that were neither comprehensively codified in the terse text nor immediately understood. Women got the vote via a series of reforms culminating in the Nineteenth Amendment. In 1908, almost no American woman could vote anywhere; by 1920, women voted everywhere. The Suffrage Revolution marked the largest numerical extension of the franchise in American history, complicating the standard democratic stories previously told about why the Constitution should trump a later statute.

To some extent, and perhaps unwittingly, the adoption of the Nineteenth Amendment logically undercut the democratic legitimacy of the constitutional regime that preceded the amendment. But to what extent, exactly? And what are the unwritten constitutional implications and entailments of this logical undercutting? In the aftermath of this unintentionally unsettling amendment, how should faithful constitutional interpreters make amends for the retrospectively problematic exclusions that defined the American constitutional order prior to 1920? In what other
respects did the Suffrage Revolution properly precipitate later unwritten constitutional changes not wholly foreseen or textualized in 1920?
^*

In this chapter we shall wrestle with these weighty questions and attempt to align contemporary constitutional gender law with the written Constitution.

SUPPOSE THAT CONGRESS TOMORROW
were to enact a sweeping new law designed to protect women’s rights. Our hypothetical civil-rights statute would protect women not only against discriminatory government action, state and federal, but also against various threats to women’s liberty and equality posed by private misconduct—for example, workplace harassment and violence directed against women on account of their sex. Suppose further that this new civil-rights law was thought by some to go beyond the powers given to Congress by the Founding text, and even to go beyond the powers given to Congress by the Reconstruction Amendments.

It might be thought that no one but a crank could question the constitutionality of our hypothetical law on enumerated-powers grounds. After all, there is strong reason to believe that the Reconstruction Amendments gave Congress virtually plenary authority to identify and safeguard citizens’ basic rights of liberty and equality. Recall that the Fourteenth Amendment’s first sentence proclaimed that all persons born in America would be equal citizens at birth, and that its last sentence empowered Congress to enforce the ideals of the amendment. The first sentence guaranteed equal citizenship not just against governments but more generally, and guaranteed this birth equality not just for blacks vis-à-vis whites, but more universally. Under a straightforward interpretation, Congress has broad power to affirm equal birthright citizenship by protecting any class of citizens at serious
risk of being systematically harmed or demeaned on the basis of their birth status—injured or excluded because, say, they happen to have been born black or female.
²

But let’s assume that some stingy interpreters of the written Constitution are not convinced by these textual and historical arguments. These interpreters admit that the Reconstruction text could plausibly be read to broadly empower Congress; however, they believe that the legislative history of the Fourteenth Amendment, with its central focus on the rights of blacks, in particular, and on the need to prevent state misconduct, limits the power of Congress to enact civil rights for nonracial groups, such as women, and to protect any group against nonstate actors, such as private employers or prejudiced thugs. In fact, after Congress passed a real-life law resembling our hypothetical statute—the Violence Against Women Act (VAWA) of 1994—the Supreme Court, in the 2000 case of
United States v. Morrison
, held that parts of the law exceeded Congress’s constitutionally enumerated power.

When these sorts of stingy interpretations prevail—when the old Constitution is read to trump a modern women’s-rights statute—it is hard to see how this trumping can be said to be democratically consistent with popular sovereignty. “We the People” who voted for the Founding text and who voted for the Reconstruction Amendments did not generally include women voters. The very legislative history of Reconstruction relied upon by stingy interpreters is a history dominated by male voters and male lawmakers.