[This is Chapter Nine of Murphey's book Liberalism in Contemporary America. It also appeared as articles in Conservative Review, June 1992, and in The Intercollegiate Review, Fall 1978.]
The analysis that legal philosophers have made of the law over thousands of years has been formulated within a wide variety of cultural and ideological contexts. Jurisprudence accordingly includes a great deal that can be considered apart from any particular ideology. Most jurisprudence is discussed as though it stands on its own, separate from time or place.
For many of the more important issues, however, this separateness amounts to a sterilization that is, in effect, a serious intellectual mistake. This is so because much of what is most meaningful about legal philosophy does relate intimately to the "ideologies"; i.e., to the great systems of thought about politics and society. "Ideology," in a non-pejorative sense, plays a vitally important role. Each of the major worldviews necessarily has its own preferences about government and law. These preferences in part reflect the philosophy's vision of an ideal society and legal system. They incorporate the values, and the means to the attainment of those values, that the worldview considers desirable. In addition, they necessarily take tactical considerations into account, since each worldview exists within a certain time and place in competition with other forces and ideas.
The classical liberalism that formed the main American ethos during the nineteenth century had, as we will see, a distinct legal philosophy of its own. This was drawn from sources thousands of years old and was favored precisely because it would protect the system of limited government that classical liberalism favored. This legal philosophy was by no means a thing apart from classical liberalism's overall social philosophy. We will need in this chapter to gain an understanding of this "conservative" legal philosophy if we are fully to understand the attack that modern liberalism has made upon it.
The legal philosophy that modern liberalism has espoused has also been responsive to its larger philosophy's overall position and to certain tactical imperatives. This liberalism has needed an approach to law that would simultaneously (a) serve the active state that modern liberalism has favored, and (b) constitute an effective instrument for bringing about the substantial Constitutional and legal changes that were necessary if the United States were to make the transition from limited government to an active state.
Not surprisingly, it has been relativism, applied to legal philosophy, that has served both of these needs. Relativism has accordingly been the main thrust of modern liberal legal thinking (although mixed from time to time with the absolutes to which liberals are wont to hold). This is why I have put this chapter immediately after my discussion of liberalism's use of relativism as a method of social change.
The classical liberal Constitutional myth: a major barrier to modern liberalism
When I refer to the classical liberal Constitutional "myth," I am not using the word "myth" to undermine that position, but to point to the fact that classical liberalism invested the Constitution, and the American nation at large, with a system of values, meanings and ideals, all based upon classical liberalism's own worldview. Every philosophy seeks a similar investiture of meaning to events and institutions that, without such an imputation, would lack symbolic content. The struggle over legal philosophy between classical and modern liberalism has been a struggle between such systems. Modern liberalism has had its own myth to offer -- its own perception of history, of what law should try to accomplish, of where it wants America to go. An interesting thing about such a struggle is that neither side is prepared to see that that is what the struggle is all about; each claims to have unmediated Truth on its side attesting to the self-evident validity of what it is asserting, and sees only the other as a product of human will.
When I say that classical liberalism clothed the Constitution with a certain meaning, I am referring to an extremely broad phenomenon rather than to the thinking of any particular group of men. What I have in mind is the "spirit of the age" of the late eighteenth and early nineteenth centuries, a time when the ideals of the Enlightenment burned brightest (although by the early nineteenth century they were coming under attack by the Romantic reaction in Europe). It will be impossible for anyone in the future to understand American history without appreciating the extent to which this spirit became immanent within the American people. As I have indicated before, this outlook and value system has continued as a major "underlay" throughout the twentieth century.
By no means was its acceptance unmixed or uncontested. The Burkeans are no doubt right when they point to a number of traditionalist values that have inhered in American life; the intellectual culture has stood outside for a century and a half thoroughly detesting the potency of classical liberal values; many issues have been argued out, and have been the subject of violent political controversy, without reference to larger principles; and hundreds of millions of people have gone about practical life without deep reflection concerning the milieu in which they have lived. Nevertheless, the liberal impulse, in the classical sense, has been a major part of American life. Modern liberals sensed this a century ago when they launched their attack upon the many links in what Eric Goldman has called "conservatism's steel chain of ideas."
The link that related to legal philosophy was especially important. Classical liberalism embraced the concept of the "Rule of Law" that went back as far as Pericles' "Funeral Oration" in Athens and that had received a powerful reiteration in the philosophy of John Locke. This was the conception of "law" as ideally meeting certain criteria: it would be a dependable framework of known rules, impartially administered and applying equally and more-or-less permanently as guideposts to action. These guideposts would bind both private citizens and the government, all of whom must "act within the law." Thus, the law would serve its normal functions of adjudicating disputes, militating against crime, providing principles of conduct, recognizing property and carving out a protected sphere for the individual. It would at the same time provide a major check against arbitrary action by government. The state, according to this ideal, would itself be subject to the established rules. And if it wished to change the rules, it could do so only by enacting rules that were declared in advance and that possessed the other characteristics required by the "Rule of Law."
Friedrich Hayek's book The Constitution of Liberty is an excellent discussion of the history of the Rule of Law ideal. For our purposes, we should note that he considered the distinctive American contribution to be the introduction of a written Constitution. When augmented by the doctrine of judicial review as proclaimed by Chief Justice John Marshall in Marbury v. Madison, the Constitution became far more than a mere grant of power to government; its contours channelized government, separated its functions, divided its powers, and limited it.
To the Jeffersonians in particular, the government that was created under the Constitution was limited to the "enumerated powers" (the functions spelled out by a list of specific responsibilities in Article I). There was also explicit recognition that individuals were to enjoy a general "liberty" that government could not validly abrogate. When in the ratifying conventions the objection was made that there was no "bill of rights," James Madison, whose name comes down to us as the "father of the Constitution," was reluctant to add one. He is said to have feared that the listing of certain rights would give rise to an inference that there were no others. (His concern was no doubt based on his awareness of the usual legal rule for interpreting documents, the legal doctrine of ejusdem generis, which says that general concepts are to be understood in light of any specifics that are mentioned.)
Accordingly, when eventually he undertook to draft the Bill of Rights as we know it today, Madison was careful to include the Ninth Amendment. From a classical liberal point of view, the concept expressed in the Ninth Amendment is fundamental to the American Constitutional scheme: it provides that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
This expressly recognizes the existence of a reservoir of unspoken liberties. In turn, this raises the question of what the content that reservoir is.
The Supreme Court first began to address this question in the Dred Scott case in 1857. The specific facts of the case (relating to the return of a runaway slave) were such, of course, as to make it notorious as an affirmation of slavery and as a forerunner of the Civil War. But it had another side to it, one that is very important to a free society in the classical liberal sense. Chief Justice Roger Brooke Taney, a leading figure in the Jacksonian party who had been appointed Chief Justice by Andrew Jackson in 1836, based the Court's opinion on the principle that the right to property is a part of the reservoir of Constitutionally protected liberties.
The Constitutional provision upon which Taney based this holding was the "due process clause" of the Fifth Amendment. Thereafter, the reservoir has been thought of as finding expression in that clause and in a similar one, applicable to the states, that is part of the Fourteenth Amendment. Thousands of court decisions refer to the due process clauses and virtually none mention the Ninth Amendment. Although this seems odd, the reason for it is simple: that if a reservoir of liberties is taken to exist, as it must be in light of the Ninth Amendment, it is appropriate to consider it as within the purview of clauses that prohibit any deprivation of life, liberty or property without due process of law. The due process clauses are consistent with and presuppose the concept stated by the Ninth Amendment. After the Fourteenth Amendment was approved, there was an additional reason to use the due process clauses, since the two of them together apply to both the federal government and the states.
The articulation of classical liberal principles, at least by presidents, went into eclipse when the Civil War ended the ascendancy of the Jeffersonian-Jacksonian Democratic Party. Nevertheless, the legal profession and the Supreme Court continued to develop the Constitutional implications of classical liberalism. Christopher G. Tiedeman's book Constitutional Limitations (1886) is an excellent example. He saw law as, in effect, a science of liberty within a natural law context.
On the Supreme Court, there was, for a time, a struggle between Justice Samuel F. Miller, who wrote the decision in the Slaughter House cases and held to an expansive view of governmental power, and Justice Stephen J. Field, who wrote in dissent. Though Field was in the minority in those cases, his views soon became those of the majority, and the Supreme Court enunciated the principle of "freedom of contract" as a major economic liberty that was Constitutionally protected.
When the Court under Taney and Field gave Constitutional recognition to the rights of property and of freedom of contract, what it was doing was to include within the reservoir of unstated liberties the economic freedom that is so vital a part of classical liberalism. This could not have been surprising. Far from breathing "Herbert Spencer's Social Statics" into the Constitution in any narrow way, as Oliver Wendell Holmes, Jr., later charged, they informed it with the central core of liberalism in the classic sense. Freedom within a market has been as important to classical liberals as is freedom of speech or of religion. Indeed, the philosophy does not see freedom as a series of separate liberties, but rather as a unified system of personal freedom.
This libertarian construction of the Constitution similarly embraced the other concepts that have been central to the Rule of Law and to classical liberalism:
. "Due process" was held to invalidate statutes that are vague, thus giving voice to the Rule of Law principle that the law must be knowable.
. "Procedural due process" was held to require an impartial hearing of disputes in a way that would give each party an adequate opportunity to present argument and evidence.
. The doctrine of "the separation of powers" split governmental functions among the three branches, thereby minimizing the likelihood of unchecked abuse.
. The "division of powers" split the functions another way, decentralizing a substantial number of them in the states.
. The "interstate commerce clause" was interpreted to grant power to the national government only over goods during transit, commencing at the time they were put into their "original package" for shipment and ending when they were removed from that package. This meant that the great commercial and industrial processes preparatory to shipment -- such as manufacture, mining, agriculture, horticulture and fishing -- were outside the jurisdiction of the national government.
. Finally, decisions were handed down judging the "equality" of the rules of law by whether they made only "reasonable classifications." There have been thousands of court decisions on this issue, which relates directly to one of the Rule of Law criteria.
The presence of slavery and its aftermath in American history would seem to contradict the adherence to legal equality, but it is important to understand that these constituted an historically implanted exception that was in basic contradiction to the liberal principles that guided the society. Even though the United States had tremendous difficulty dealing with these problems, their presence does not render the liberal principles meaningless. Nor would it be correct to say that they were held to hypocritically. American law was quite consciously attached to the ideal of "equality under the law."
None of this is to say that American law in the nineteenth century formulated a perfect application of classical liberal principles. What I said earlier is pertinent here: that classical liberalism was itself insufficiently developed. It did not, and has not to this day, addressed all of the subtleties of social and economic questions. By the second half of the nineteenth century, classical liberalism had gone on the defensive and had lost its reformist edge. Its defensiveness caused it to give inadequate attention to the framework of law and institutions that is needed precisely as a part of a classically liberal society to facilitate the free interaction of individuals. A good deal of what free-market enthusiasts have considered "interventionism" has been at least in part a reaction to the absence of a thoroughly satisfactory framework. Certainly in the nineteenth century much work remained to be done.
In this section, I have described the nineteenth century classical liberal Constitutional position--one that I believe was very much in keeping with the principles of a free society. If, however, we wish not to lose sight of the mixed nature of the concrete realities of the late nineteenth century, we should notice that the classical liberal construction was not shared by all members of the Supreme Court. Looking back in 1940, Max Lerner considered Justice Miller very much a modern liberal hero for having opposed Justice Field's direction during the 1870s and 1880s. In 1915, The New Republic commented that the Court had been moving away from the classical liberal position, only to return to it with its decision in Coppage v. Kansas. Then in 1931, the editors commented again on how a "liberalization" had been underway but had stalled. John Marshall Harlan, who served from 1877 to 1911, and Oliver Wendell Holmes, Jr., on the Court from 1902 to 1932, were articulate opponents of the classical liberal interpretation. Because of this, it would not be correct to think that the entire Court moved from one ideology to another in 1937 when finally it began upholding the legislation of the New Deal. Modern liberalism had long been represented on the Court, and had had occasional majorities.1
The legal, Constitutional needs of modern liberalism
Since the rise of the Left in the early nineteenth century, there has always been significant support for a decentralized, non-statist socialism based upon cooperatives, communes, labor organizations, or the like. Modern liberalism showed an affinity for this type of socialism during its "industrial democracy" phase and during the years of the New Leftist counterculture in the late 1960s. For the most part, however, modern liberalism has pursued a program of state intervention. It has seen the federal government as the principal instrument for social and economic progress.
Virtually all programs of state intervention in Europe and America during the nineteenth and twentieth centuries have embraced a legal philosophy that attacks the Rule of Law and argues for administrative and judicial flexibility. The opposition to preestablished rules to which government must itself conform has been the central characteristic of legal positivism, legal historicism, the free law school, and legal realism.
The Rule of Law criteria are exceedingly functional if the purposes are the classical liberal ones of establishing guideposts for individual conduct and of delimiting government. They are usually thought to get in the way if the desire is to vest free-wheeling power in government to address a vast range of matters within a society. (There is accordingly some irony in the piety with which modern liberals have pursued a "full enforcement of the law" in the Watergate and Iran-Contra cases. Their legalistic posture there has been at odds with the main thrust of their legal philosophy.)
In 1915 an article in The New Republic exulted that "this is fast becoming a government not of laws, but of men, perhaps really a government, after all, no longer a pious treasury of past generalizations." Rexford Tugwell argued for "a rule of men, not laws, if the right men are called to govern." Such statements as these involve a striking reversal of the classical liberal preference for "a Rule of Law, not of men." The body of American law is perceived as obstructive, and it is precisely the "rule of men" that is welcomed.2
Probably even more important than the need to free the state for flexible administration was modern liberalism's tactical need for a legal philosophy that would allow the existing body of law, and most especially of Constitutional law, to be circumvented without the need for formal amendment.
Under the Constitution, the easiest way for an amendment to be adopted is for it to be proposed by a two-thirds vote of both houses of Congress and then approved by the legislatures of three-fourths of the states. Such a procedure is designed to require a substantial national consensus before an amendment can be enacted.
Since the Civil War, the amendment process has been successful primarily for the "democratizing" amendments. These have possessed a moral appeal that has enjoyed wide public support. They are the post-Civil War amendments dealing with slavery, the direct election of senators, the right of women to vote, the limitation of a president to two terms. The income tax amendment was passed, but without the public having any idea at the time that the tax would before long be raised to confiscatory levels. The Prohibition movement against alcohol, which was part of the Progressive thrust, was able to secure passage of the nineteenth Amendment, but this was repealed within a few years.
For the most part, the revamping of American government from its classical liberal Constitutional base into a European-style social democratic state by Constitutional amendment has not been feasible for liberals, who have fully sensed the lack of a consensus sufficient to obtain passage of the necessary amendments.
Even during the Great Depression in the 1930s, only passing attention was given to the possibility of validating New Deal-type legislation by Constitutional amendment. In 1915, The New Republic had recognized the difficulty when it called for making the process of amendment easier. In 1918, Lewis Mayers wrote that "we encounter a constitutional obstacle, the extremely obstructive machinery of amendment." After World War II, TRB complained that "an honest rewriting of the Constitution is probably impossible."3
At the time he commented upon liberalism's inability to obtain amendments, TRB pointed openly to the implication for liberalism's tactical position. He said about the Constitution that "the sooner we circumvent it (i.e., 'stop standing on the letter') the better."
In so saying, TRB expressed the essence of modern liberal legal philosophy. The overriding tactical need has been to justify a loose construction. It has been to remove the Constitutional constraints upon governmental power without waiting for formal amendment.
The result has been a philosophy that has (a) raised flexibility and legal change to the highest value and has (b) simultaneously denied the validity of the classical liberal interpretation of the Constitution.
The content of liberal legal philosophy
As I discuss the specific points made by liberal legal philosophy, I will quote extensively from what liberals themselves have said so that the texture of their point of view can be felt.
1. Before 1937, liberal justices used the concept of "judicial restraint" to implore conservative justices not to invalidate social legislation. Such a liberal justice as Felix Frankfurter became so imbued with the liberal call for "judicial restraint" that he continued throughout his later years on the bench to believe that judicial restraint was the hallmark of liberal jurisprudence. It would seem, however, that Frankfurter's views reflected more an absorption of an erstwhile tactical position than an expression of the main liberal preference about the role of the Court. That preference has been for a political, activist Court. The "activist" majority on the Warren Court was more what we might expect.
Liberal writing had long favored a politicized Court. In 1921, The New Republic said that "the radical view is that the Supreme Court is and ought to be a political body." It went on to say that this should involve "interpreting the Constitution and the law according to the spirit of the age, subject, of course, to certain elastic limits of legal plausibility." The next year, the editors wrote that law should be considered "an instrument of progressive social engineering." In 1930, they argued that "the truth is that the Supreme Court is a supreme policy-making body."4
This was consistent with Jerome Frank's later praise of the thesis expressed by Charles Curtis in Lions Under the Throne. Here is what Frank had to say about Curtis' position: "With respect to constitutional questions, the Supreme Court, he says, is not a court. Its power to nullify legislation compels it, he asserts, to be primarily a peculiar kind of political agency, although legal tradition requires it to talk as if it were a judicial tribunal. Thanks to Mr. Justice Holmes, this approach to constitutional decisions is now openly accepted by the Supreme Court justices...."5
As with other aspects of liberalism, the open radicalism of the 1930s offers a window into the ultimate preference. A New Republic editorial in 1935 called for replacing the Supreme Court with a "Supreme Planning Council." "This policy-making body... must differ from the Supreme Court in essential respects. It should act before the event, not after... It should consist, not of precedent-minded logicians, but of experts in social and economic management... In other words, instead of a Supreme Court we ought to have a Supreme Planning Council." The reason, they said, is that "there is no hope of gradual evolution towards an effective socialism within the existing framework of the United States... To have a socialist society we must have a new Constitution."6
The preference expressed in 1935 is the same as the one voiced by William Beaney and Alpheus Mason, two writers prominent on behalf of liberal legal philosophy, in their 1968 book The Supreme Court in a Free Society. They said that by the early 1940s, under a liberal majority, "the Court had apparently accepted the collectivist theory of government. Social democracy could be achieved...."7
2. Modern liberals have constantly stressed the changeability of law and the power of judges to disregard precedents.
In The New Republic in 1918, Lewis Mayers spoke of "the time-honored method of gradually wearing down constitutional restrictions -- the President and Congress taking the initiative with unconstitutional legislation and the Supreme Court reluctantly 'distinguishing' out of existence the constitutional obstacle." This is the spirit in which liberal writing has so often quoted Chief Justice Charles Evans Hughes' dictum that "the Constitution is what the judges say it is." In Equal Justice Under Law, published under the auspices of the Foundation of the Federal Bar Association, the authors quoted Holmes to the effect that the "Constitution is an experiment" and praised him as having "inspired generations of lawyers to shun classic attitudes of jurisprudence and recognize that law changes with society's needs."8
The stress on change and arbitrary judicial power is what makes Oliver Wendell Holmes, Jr.'s, definition of law so popular in liberal legal writing. He said that "the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law." We can imagine that future legal thinkers will find this definition deliberately reductionist. It is utterly banal in its over-simplification of the legal process. But its serviceability to liberal ideology is that by centering upon the empirical question of "what judges do in fact," it treats as irrelevant the Rule of Law definition of law. This is that law is the body of statute and precedent -- i.e., the rules that have been set down in advance -- to which lawyers and judges recur when they ask each other "what does the law say?" with regard to a point at issue.9
3. I mentioned earlier that an important element of liberal thinking has been the denial of the validity of the classical liberal construction of the Constitution.
As with so many of these points, Justice Holmes made the leading statement. Holmes denied the core of classical liberal doctrine -- that economic freedom is an essential part of Madison's reservoir of liberties -- when he wrote that "a constitution is not intended to embody a particular economic theory" and that the Constitution "is made for people of fundamentally differing views." He said essentially the same thing, although more cleverly and with greater sophistry, in his famous statement that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Chief Justice Harlan Fiske Stone made a similar argument when he wrote that "the Fourteenth Amendment has no more embodied in the Constitution our preference for some particular set of economic beliefs than it has adopted, in the name of liberty, the system of theology which we may happen to approve." (The analogy to religion is plausible only superficially. A classical liberal would agree that the Constitution does not dictate a specific economy; but he would say that it dictates a system of economic freedom, just as it commands a system of religious freedom.)10
4. A corollary to this denial has been the charge that classical liberal jurists were "activists" when they construed the Constitution as they did.
Thus, Mason and Beaney charge that these judges made themselves "virtually a superlegislature." Justice Holmes wrote that "the dogma, Liberty of Contract,... is merely an example of doing what you want to do, embodied in the word liberty." Justice Frankfurter said that "between the presidencies of Grant and the first Roosevelt, laissez faire... was imported into the Constitution." And, speaking of the judges who in the 1930's considered much of the New Deal's legislation unconstitutional, Arthur Schlesinger, Jr., commented that "far from being engaged, as they supposed, in a process of immaculate interpretation, the conservative four, like the liberal three, were reading their own notions of social wisdom into a designedly ambiguous charter of government."11
5. In the passage I have just quoted from Schlesinger, he acknowledges that the liberal judges were "activists." It is curious that generally the literature damns conservatives for what it considers their activism, while praising modern liberal judges for theirs. A double standard is obviously applied about the validity of activism, even assuming the correctness of the liberal charge that a classical liberal construction of the Constitution amounts to judicial activism.
The double standard is accounted for, of course, by the fact that modern liberals like the purposes for which the liberal justices have been activists, while they dislike those of the conservatives.
For the most part, such a double standard merely reflects the common human tendency to employ whatever arguments are handy, regardless of consistency. Mason and Beaney have offered the only attempt I have seen to rationalize it: "The thought of the so-called [liberal] activists... seems to be that though the Constitution does not embody, as Holmes said, any particular economic philosophy, it does incorporate a particular political theory... Judicial self-restraint does not mean that the Court is paralyzed. 'It simply conserves its strength,' as Attorney-General Jackson put it, 'to strike more telling blows in the cause of a working democracy.'... The 'self-restraint' banner raised in 1937 has not blinded Chief Justice Warren's Court to certain positive responsibilities." The upshot is that these justices think the Constitution does embody some theory -- but just not the central principles of classical liberalism.12
6. An important part of the attack upon the classical liberal interpretation of the Constitution was the economic determinist argument that the Founding Fathers, in writing the Constitution, were motivated not by a sincere idealism, but by their own economic self-interest.
J. Allen Smith launched the attack in 1907 with his book The Spirit of American Government. Eric Goldman writes that Smith "brought down upon the Framers... the onus of greed." Smith's thesis, he says, was that "the Framers were profit-minded and little else." Arthur A. Ekirch, Jr., says that Smith's book "influenced among other progressives both Theodore Roosevelt and Robert M. LaFollette." He observes that "the book... weakened the case for conservatives' devotion to the sanctity of the Constitution."13
The person most famous in connection with this debunking is Charles Beard, whose An Economic Interpretation of the Constitution was published in 1913. Beard argued that "the members of the Philadelphia Convention... were, with a few exceptions, immediately, directly, and personally interested in, and desired economic advantages from, the establishment of the new system. The Constitution was essentially an economic document... A large propertyless mass was, under the prevailing suffrage qualifications, excluded at the outset from participation...." Writing in The New Republic in 1944, Goldman said that "it reduced the abstractions of conservatism to the special pleading of a special economic group. Little wonder that the Beardian economic interpretation became the bulldozer of liberalism...."14
It is no accident that the books by Smith and Beard appeared around the time of the Muckraker era. After World War I, liberal thought began to reflect some awareness of the over-simplification inherent in such debunking. In 1922, Zechariah Chafee penned an intelligent piece for The New Republic critical of the reductionism inherent in applying a purely economic determinism to judges' decisions (which was the specific issue his article addressed).13
7. Unfortunately, it is rare for the advocates of any one philosophy really to understand another philosophy's point of view. In general, modern liberal thinkers have had no empathetic understanding of why American conservatives have held the beliefs and values they have, any more than conservatives have put themselves into liberals' thinking.
Modern liberal legal commentators have shown almost no awareness of the idealism that supports the Rule of Law and its embodiment in the written Constitution. Certainly such an awareness has not been evident in any of the passages I have quoted in this chapter so far.
Probably the most egregious example of imputing every motive to an opposing philosophy except a sincere adherence to a set of perceptions and values is Jerome Frank's book Law and the Modern Mind. Frank excoriated the Rule of Law criteria as "mechanical jurisprudence." Although not a psychiatrist, he reflected upon every conceivable psychoanalytical explanation for why lawyers, judges and the public value certainty in the law. People, he said among other things, apparently want the law to serve as a "father figure." Through it all, Frank showed a resplendent shallowness -- a partisanship unleavened by any apparent awareness of the history of the Rule of Law going back to the Greeks or of the reasons that those who wish to limit the state through law have given for their views.
Of course, this is what Smith and Beard were doing, too, with their economic determinism, albeit without the elaborate trappings of pseudo-psychoanalysis. None of them ever considered classical liberal legal philosophy on its merits. They contented themselves with considering only straw men or reductionistically understood motives.
This is revealed in the caricatures that liberal writing has painted of conservative views and personalities. Arthur Schlesinger, Jr., wrote, for example, that conservatives saw judges as "the infallible expositors of an unchanging document." This transforms the classical liberal preference for adherence to a body of precedent in Constitutional law into a parody of the Catholic doctrine of papal infallibility. It is hard to imagine that any serious conservative thinker has ever claimed infallibility for judges.
The combination of partisanship and limited understanding has resulted in virtually all conservative judges being belittled in liberal literature as dull and intransigent, while the liberal judges have been praised as brilliant and courageous. For example, Oliver Wendell Holmes, Jr., has come down to us as "the Great Dissenter." The description given of him in the Foundation of the Federal Bar Association's book is "philosophic dissenter." Notice, however, how that same book characterizes the four conservative justices' dissent from the rulings that began to uphold New Deal legislation in 1937: "Stubbornly the 'four horsemen' dissented."16
The same book speaks of Justice John Marshall Harlan's writing "a fighting dissent." He "won fame as a defender of democracy" and fought "an ardent battle for civil rights." Along with Holmes, he is said to have been "one of the great dissenters." Other liberal justices are praised along the same lines: Chief Justice Warren was a "champion of civil liberties" and Justice Abe Fortas a "champion of individual liberties." Schlesinger describes Justice Harlan Fiske Stone as "tough, articulate [and] passionate."17
Here, in contrast, is Schlesinger's description of the four conservative justices in the 1930s: Justice Willis Van Devanter was lucid and knowledgeable in person-to-person dealings, but was struck by "an awful paralysis" so far as writing opinions was concerned. Justice James C. McReynolds was a surly anti-Semite who used an undistinguished "scissors and paste" technique in writing opinions. Justice George Sutherland was the most able, but "evidently nothing happened after the eighteen eighties to cause him to doubt" the writings of Thomas Cooley and Herbert Spencer. Justice Pierce Butler was bellicose, "a bruiser, burly and contentious, untiring at his desk, bullying in conference, vigorous and dogmatic in his opinions." In all, compared to a sparkling set of liberal justices, they were either intellectually mediocre or personally undesirable, or both.18
There would be little reason to note this partisanship if it did not have a broader significance. It is important for anyone reading liberal legal philosophy to realize that the authors are creating their own myth, which is populated by its own heroes and villains. An objective scholar will need to understand that the liberal analysis is far from dispassionate. And someone wanting to decide which of the competing legal philosophies deserves support will essentially have to decide which overall philosophy he favors, since the legal philosophies are merely applications of the larger philosophies. Having made this decision, he will see that the myth that has been formulated by that philosophy is serviceable to the perceptions and values it supports, and will probably find reason enough to favor that myth.
From judicial restraint to judicial activism
Until the New Deal, most liberal social legislation could be expected to come from the states rather than from the federal government. Accordingly, the tactical need for liberals was for the Supreme Court to take a "hands off" attitude toward state legislation.
This gave rise to what J. Joseph Huthmacher has called "the Brandeisian idea that the states should be afforded the utmost freedom to 'experiment.'" The theme of "let the local majorities experiment" was then picked up by Franklin Delano Roosevelt. Eleanor Roosevelt wrote that "it is quite probable that Franklin derived his concept of the forty-eight states as experimental laboratories from his study of Justice Brandeis' writings and opinions."19
During the 1930s, once Roosevelt was in the presidency, the focal point for activity became the federal government. Until 1937, modern liberals remained basically in the minority on the Supreme Court. In that context, liberalism's most pressing tactical need was to call for "judicial restraint." This position was calculated to take the Court, dominated by conservatives, out of the equation.
The situation changed radically after 1937. The conservative justices left the Court. It wasn't long before all of the justices were liberals in the pre-1937 sense.
What tactical need was there then for "judicial restraint"? None at all. Liberals had the power to be activists if they wanted to be. What occurred is an oddity that speaks well for the integrity of such a justice as Frankfurter, who continued to preach the doctrine of judicial restraint even after the tactical need for it had vanished. A split developed among the liberal justices. They slowly formed into blocs based, respectively, upon judicial activism and judicial restraint.
The years of the Warren Court, starting in 1953, represented the predominance of the activist bloc. The majority's judicial philosophy during those years was radical: precedent and 160 years of history were not to stand in the way of what was, strangely enough, an elitist imposition of the dogmas of a "popular democracy."
The decision in Reynolds v. Sims about the reapportionment of state senates illustrates this radicalism. Throughout American history, the states (except Nebraska with its one-house legislature) had patterned their senates after the United States Senate in the sense that geographical units, not simply population, were given representation. The United States Senate, we recall, was the product of the "Connecticut Compromise" between the large and the small states in the Philadelphia convention. When in the 1960s the Warren Court held that state senates had to be based upon a "one man, one vote" system of equal representation, there could be no pretense of basing the decision upon anything in American history. In addition, the Court had to overrule a century-and-a-quarter old doctrine called the "political question doctrine," which held that any issue about whether a state government was meeting the requirement of having a "republican form of government" was up to Congress, not the Court. Since there was neither history nor precedent to support the Court's decision in Reynolds v. Sims, it is clear that the Court had come quite openly to the philosophy that "the Constitution is what the judges say it is."20
And yet, the Warren Court, radical in method, did not go to the outer limits of Constitutional change. Its innovations largely had to do with a number of issues that were essentially peripheral.
It would have been easy, for example, to move major functions that had traditionally been governed by the states to the federal government simply by handing down a series of decisions saying that each area needed a "uniform national rule." (The "concurrent powers doctrine," enunciated by Chief Justice Taney before the Civil War, says that the states can continue to act in an area that is within the purview of the federal government if Congress has not preempted the field and if the Court has not held that a uniform national rule is needed. Since virtually all state jurisdiction exists only by virtue of the concurrent powers doctrine now that the post-1937 Court has held that the federal government has ubiquitous jurisdiction, the survival of the traditional functions of the states depends upon the mutual willingness of Congress and the Court to allow them to continue.)
I do not mean to say that the Warren Court was all sound and no fury, but only to indicate that in content its record was not as radical as its reputation. As the cutting edge of liberal activism during that period, however, the Warren Court must nevertheless be considered, for good or for bad, to have been a major agent in causing the social turmoil that rocked the country during that period. In turn, the Burger Court, which followed the Warren years, was a factor in settling the country down.
When Richard Nixon became president, he announced that he would appoint justices who were committed to "judicial restraint." This was not in itself necessarily an effort to reinstate the pre-1937 classical liberal construction of the Constitution. Rather, it could very well mean no more than a reversion to the philosophy that the liberals themselves had espoused prior to 1937, which was the philosophy of judicial restraint that Justice Frankfurter had continued to support. Some of President Nixon's appointments were of that nature; some, especially of Justice Rehnquist, were more ideologically conservative (although his conservatism, and nominee Robert Bork's later, was hardly what we might expect: both have adamantly opposed embracing the pre-1937 classical liberal construction). Because of the appointments made recently by conservative presidents, it will take several years for a majority of liberal activists to dominate the Court again.
One would expect liberal thinking to be cast in a defensive posture during the years of a conservative majority on the Court. This will suggest a renewed lipservice to judicial restraint, especially if the conservatives see their way clear at some time to assume a more activist posture on behalf of their own preferences. The more serious intellectual questions now remaining to be answered are within conservatism, as it asks itself what conservative justices should do with the now free-floating Constitution they have inherited.
America’s Third Constitution: “Footnote Four” in the Carolene Products Case
As the years have gone by and the original Constitutional scheme has become more and more distorted as a result of the Court’s special solicitude toward “minorities,” it has become apparent that the rationale laid down by Justice Stone in his famous “Footnote Four” in United States v. Carolene Products Co., 304 U.S. 144 (1938) has, in effect, constituted a “third Constitution” for the United States.
The original Constitution, of course, was the one that emerged from the Constitutional Convention in 1787, as amended by the Bill of Rights. It is plausible to argue that a “second Constitution” came into being as a result of the Thirteenth, Fourteenth and Fifteenth Amendments following the Civil War, since they were so far-reaching. And in 1938 the Court, in the opinion written by Justice Stone, laid down a revolutionary paradigm that has now governed the United States for more than half a century.
What Footnote Four said, in so many words, was that governments could do virtually anything they wanted with regard to economic relationships (the vast area encompassing private property and contractual freedom), because legislation in that area would henceforth be subject only to a “rational basis” test. Since a “rational basis” can be discovered for almost any measure, a court thereafter would almost never overturn such legislation. This gave governments – state and federal – a free hand, contrary to the earlier classical liberal limitation upon them. Three other areas of governmental activity, however, would be subject to meaningful court scrutiny, with the effect that the Court would serve as a substantial protector against majorities as to them: where a specifically enumerated right is involved, where something relates to democratic process, and where the rights of “discrete and insular minorities” are concerned.
This has given rise to our “double track” system of Constitutional rights, as distinct from a unified system. The mainstream society has virtually no judicial protection from governmental power; at the same time, certain specific liberties are given exaggerated emphasis (as where the First Amendment is said to bar a libel suit against a cartoon depicting Rev. Jerry Falwell having intercourse with his mother), and minorities have stringent protection that others don’t receive. In keeping with the spirit of Justice Stone’s rationale, legislation has followed (such as that in most states that is held to prohibit men’s service clubs) that has amplified the dual system.
This, in large measure, is what the conservative majority will have to grapple with in the 1990s and the years beyond.
1. New Republic, October 14, 1940, p. 531; New Republic, January 30, 1915, p. 4; New Republic, June 3, 1931, p. 56.
2. New Republic, January 9, 1915, p. 8; Rexford G. Tugwell, The Battle for Democracy (New York: Columbia University Press, 1935), p. 94.
3. In 1936, Lloyd Garrison proposed a Constitutional amendment to give the federal government general power to promote the economic welfare; New Republic, January 29, 1936, p. 329. New Republic, January 23, 1915, p. 3; New Republic, August 17, 1918, p. 74; New Republic, February 28, 1949, p. 3.
4. New Republic, July 13, 1921, p. 177; New Republic, February 22, 1922, p. 353; New Republic, February 26, 1930, p. 30.
5. Jerome Frank, Courts on Trial (New York: Atheneum, 1967), p. 311.
6. New Republic, June 12, 1935, p. 117.
7. William M. Beaney and Alpheus Thomas Mason, The Supreme Court in a Free Society (New York: W. W. Norton & Company, Inc., 1968), pp. 232, 310.
8. New Republic, August 17, 1918, p. 73; The Foundation of the Federal Bar Association, Equal Justice Under Law (Washington: National Geographic Society, 1965), pp. 67, 72.
9. Quoted in Jerome Frank, Law and the Modern Mind (Garden City: Anchor Books, 1963), p. 134.
10. Quoted in Foundation of the Federal Bar Association, Equal Justice Under Law, p. 72.
11. Beaney, Mason, The Supreme Court, p. 231; Felix Frankfurter, Mr. Justice Holmes and the Supreme Court (Cambridge: Harvard University Press, 1961), pp. 63, 62; Arthur M. Schlesinger, Jr., The Politics of Upheaval (Boston: Houghton Mifflin Company, 1960), p. 459.
12. Beaney, Mason, The Supreme Court, p. 312.
13. Eric F. Goldman, Rendezvous With Destiny (New York: Vintage Books, 1977), p. 113; Arthur A. Ekirch, Jr., The Decline of American Liberalism (New York: Longmans, Green and Company, 1955), p. 184.
14. Charles Beard's conclusions are quoted in Goldman, Rendezvous With Destiny, p. 117; New Republic, November 27, 1944, p. 696.
15. New Republic, June 7, 1922, p. 36.
16. Foundation of the Federal Bar Association, Equal Justice Under Law, pp. 68, 83.
17. Foundation of the Federal Bar Association, Equal Justice Under Law, pp. 59, 68, 126, 129; Schlesinger, Politics of Upheaval, p. 464.
18. Schlesinger, Politics of Upheaval, pp. 455-457.
19. J. Joseph Huthmacher, Senator Robert F. Wagner and the Rise of Urban Liberalism (New York: Atheneum, 1968), p. 185; Foundation of the Federal Bar Association, Equal Justice Under Law, p. 53.
20. Reynolds v. Sims, 377 U.S. 533.
21. My discussion in this chapter is similar to that contained in my article "Myths and American Constitutional History: Some Liberal Truisms Revisited" in the Fall 1978 issue of The Intercollegiate Review, pp. 13-23. My views about what would be best for the future conservative direction of the Court were stated in broad outline in the paper I delivered to the annual meeting of the Philadelphia Society in April 1981. That paper is among my unpublished items and is intended eventually to go onto this Web site.