[This paper was delivered to the national meeting of the Philadelphia Society on
April 11, 1981. It reflects the exhilarated sense of “new beginning” that conservatives felt at the advent of the Reagan administration. The hoped-for intellectual renaissance didn’t occur, with the result that much of what is proposed here never took flight.]
THE CONSTITUTION AS A ‘LIVING DOCUMENT’”
Dwight D. Murphey
The current political climate in the
is constructive far beyond anything most conservatives during our lifetimes have dared hope for. This “Reagan Revolution” allows us to consider intellectual and practical questions that just a few short months ago seemed hopelessly remote from anything that was politically thinkable. United States
Most directly and obviously, this change has been the result of the election of Ronald Reagan and of the splendid leadership he is giving. Those who wish to understand social causation will want to remember that there was a time, however, when the American people seemed far indeed from ever electing anyone like him. There have been profound changes in our society and in our intellectual culture that have made his leadership possible.
Because of these changes, far-reaching political and philosophical options have opened for us to consider. No doubt Constitutional law is just one of several important dimensions of those issues. But it speaks well for the conservatives’ respect for law that at the first opportunity following President Reagan’s election those who arrange the programs for the Philadelphia Society have seen fit to make the Constitution a focus of the national meeting. Both the theorists of a free society and the more thoughtful jurists in the American legal system are now called upon to decide the difficult questions that are involved in determining just what the implications of
’s “New Beginning” may be for the Constitution. America
During the past half-century the Constitution has been carried far from its original moorings. Prior to that time, that great charter was seen not only as an instrument of grant bestowing powers upon the national government, but also as one of delimitation. The Constitution was interpreted with a conscious awareness that the genius of our system is decentralization, and that it is essential to such a political system to keep the states truly viable.
There was also a reverential awareness that the Constitution was a charter protecting individual liberty. It was a heresy to suggest that the Constitution was an empty vessel into which anything could be poured, including an all-embracing statism. There were the specific liberties listed in the first eight amendments, and there was the reservoir of unspoken liberty that James Madison so wisely made explicit in the Ninth. The Supreme Court construed this liberty in the context of the values of a liberal society in the classical sense of the word “liberal.” High among these liberties was the “freedom to contract.” Economic freedom was as important a Constitutional value as were the freedoms of speech, religion, press and assembly. The dismal dichotomy between “human rights and property rights” had not yet so fully won the day in the intellectual world.
Now that Americans have for so long been led away from these moorings but seem markedly to be returning to the values that underlay them, difficult and unique questions of legal philosophy arise. It is essential that conservative intellectuals begin to think through how best to approach the fundamental choices that the new situation places before us.
Are we to confirm the Constitution as its interpretation now stands? Or are we consciously to seek ways to steer the Constitution toward a renewed foundation on truly liberal values?
The first of these alternatives involves accepting the interpretive products of the Constitutional revolution that occurred during and after the New Deal. It would have us acknowledge as valid the vast increase that has occurred in the power of government in general and of the federal government in particular. Most conservatives will almost certainly view such a ratification of the recent Constitutional Zeitgeist with dismay.
Nevertheless, this course offers some enticing advantages. It allows those who follow it to adhere to some important values in traditional legal philosophy. We haven’t wanted the Constitution to be a floating document, taking the shape at any given time of “whatever the judges say it is.” If conservative legal philosophy were now to urge the Supreme Court to clear no major new pathways, it would become a relatively easy matter for the future Court again to elevate the principle of stare decisis to a place of honor. “Judicial restraint” would be the hallmark. After the adventurism of the courts during the
years this would be a welcome relief. It was precisely such relief that President Nixon sought when he appointed Justices Burger, Blackmun, Powell and Rehnquist to the Court. The country has gained immensely from the non-agitational jurisprudence brought about by these appointments; but conservatives should be aware that there has been no sense of mission among those more conservative justices about where, if anywhere, they should take the Constitution. Warren
The second of the alternatives is fundamentally a “radical” one, at least in the best sense of that word as suggesting a concern for principles. It involves a deliberate course of reconstituting the Constitution. To do this will require an enormous amount of wisdom and statecraft on the part of the justices who attempt it. Hopefully they won’t have to do it alone, but will act within a general resurgence of sound intellectual values that will give them inspiration and guidance. The point should also be made that it is neither possible nor desirable literally to “go back” to an earlier time in the history of the Constitution and try to pick up from there. It isn’t far off the mark to say that we will need to “go forward, not backward” into a creative regeneration of the Constitution as a delimiting document.
The disadvantage of this second alternative will of course be that the period of transition will quite visibly entail a pronounced “judicial activism” in a conservative direction. The Court would leave the precedents alone where they would reflect a mature appreciation of modern conditions; but it would consciously disregard stare decisis where it would think that the precedents have been informed by the warpings of the modern liberal worldview. We can well suppose that the Alpheus Masons and Arthur Schlesingers of the world will point out with much delight the irony of our having embraced an activism of our own. But let them do so; conservative activism to restore the Constitution will be vastly more justifiable than the activism they have supported.
Clearing Away Some Slogans
I will discuss these alternatives later and tell why I prefer the latter of them; but it is going to be awfully hard to do that unless we first clear away some of the slogans and superficialities that in the modern discussion of Constitutional law obscure an appropriate understanding of the Supreme Court and its role. Any student of the subject hears a lot about such things as “strict versus broad construction,” the “flexibility of a living Constitution versus the dead hand of mechanistic jurisprudence,” “majority rule versus dull-headed reaction,” “social engineering versus a purely reflexive stare decisis,” and “judicial restraint versus judicial activism.”
In point of fact, much of this is nonsense; or at least we can say that it is all exceedingly unhelpful. These concepts suffer from two main flaws: First, they are ad hoc concepts that are not intended to fit coherently into any larger conceptual scheme about politics and society, and this severely restricts their intellectual usefulness. Second, those who repeat them fail to see that most of them have come into being as labels and slogans that have served as specific tactical ploys at different junctures in the past during the development of modern liberal political ideology. Most of them state dichotomies that have been serviceable to modern liberalism at one time or another during its struggle for intellectual ascendancy. There is no reason for conservatism to make them a part of its own analysis, once their origins are clearly understood.
The distinction between broad construction and strict construction is the oldest of the dichotomies. For that reason, it escapes some of the taint deserved by the others, since it was not itself a part of the semantic of modern liberalism. Just the same, however, it is widely misunderstood. The thing to notice is that neither broad nor strict construction, when applied to a legal instrument like a will, a lease, a deed, a contract or a power of attorney, is always and exclusively the best method for construing the document. Sometimes the court will see that the draftsman wrote in fine detail, making hairline distinctions and exploring all possibilities with great care. A judge construing such an instrument will need to give the words a narrow construction, since each was used with a carefully drawn denotation. There are other documents, however, in which the draftsman has painted with a broad brush, speaking in generalities. Here, a broad construction will best determine the intention. In neither case does the judge, acting properly, seek to substitute his own preference for the intention of the draftsman. The type of construction is adopted precisely to determine what that intention was in light of the nature of the document itself.
There are times in the law when public policy dictates the method of interpretation. Criminal statutes are typically to be given a narrow construction, protective statutes a broad one. There is an important rule that where there is leeway, language is to be construed most favorably to the party who did not draft it or provide the form.
When in the early years of American history there was the debate over the strict versus the broad construction of the Constitution, this distinction between methods of interpretation served as a legal façade for what was actually an argument between the Hamiltonian and Jeffersonian political philosophies. It wasn’t primarily an argument about legal method; it was a debate over the size and influence of the national government. To some degree there was a sincere difference over what the Philadelphia Convention had intended, but it is not surprising that each side understood that intention to have been in line with what it already thought was best about the role of the government in
For the purposes of our analysis today, however, this debate is hardly important in itself. What is important is that we notice that the later modern liberal advocacy of “flexibility” and a “living document” bears no true resemblance to either of those older schools, including even the Hamiltonian school that favored broad construction. It was, after all, the Constitution that even the broad constructionists were interpreting; they never came up with a doctrine to justify simply free-floating the content of the Constitution. When Chief Justice John Marshall handed down the “original package doctrine” as an interpretation of the Interstate Commerce Clause, he included in commerce the entire process of shipment from packaging to unpacking. This holding was certainly a “broad construction” compared to the position of those who argued that interstate commerce occurs only at the instant that goods are actually passing over a state line. We should notice, though, that Marshall’s doctrine was quite delimiting compared to the doctrine that was eventually promulgated by the New Deal Court in the late 1930s and early ’forties. The New Deal Court’s holding in effect transferred all productive processes, even though preliminary to packaging for shipment, to the federal government’s jurisdiction. This was a shift of virtually the entire economic system. Those who justified this on the basis that the Constitution is a “living document” could not relate the holding to the precedents of the preceding century and a half or to the intention of the framers acting in the Philadelphia Convention. But they had ceased to care about doing that.
In fact, the modern liberal legal philosophers have argued during the twentieth century that the Constitution is not to be considered fundamentally a classical liberal document. They have charged, in the words of their patron saint Oliver Wendell Holmes, Jr., that any attempt to consider it such is an attempt to enshrine Herbert Spencer’s Social Statics. These writers go so far as to charge the earlier justices with having been “judicial activists” in their own right when they struck down social democratic legislation in the name of a classically liberal Constitution.
Functionally the Constitution stood as a major obstacle to the policies favored by modern liberalism. There were two ways this obstacle could be overcome: one was by amendment, and this actually was accomplished in those few democratizing instances where a national consensus could be formed for an amendment, such as for the direct election of senators or the right of women to vote; the other way, which was necessary for the many changes that could not generate enough support for a formal amendment, was by securing the intellectual ascendancy of a relativistic view of law and of the Constitution. Mr. Justice Holmes argued that law should not be defined as the body of rules coming down from the volumes in a law library; law, he said, is “nothing more or less than a prediction of what a judge will do in fact.” This change in focus from established norms to immediate action reflected the classic confrontation between a system of law and a system of men. If by this change to a system of men the Constitution could become “whatever the judges say it is,” modern liberalism, once it attained a majority on the Court, would be free of the delimitations of a classical liberal Constitution.
There is no use gnashing our teeth over the Constitution’s seeming weakness in having been unable by its own intrinsic nature to have avoided being carried away in this manner. A constitution is a blueprint for institutions and is a legal, social, political and moral document. If the predominant intellectual culture of an age has long-since changed, there is no way that a constitution can permanently override the sophistries and rationalizations by which that new intellectual culture will remold it. It wasn’t really the New Deal that washed away the classical liberal Constitution; it was our loss in the intellectual battles of the Western world. What happened to the Constitution was simply the culmination of the changes that had been going on for a century.
That is why this is something of a brave speech today. I am talking about what we can do with the Constitution before I am fully convinced that the intellectual direction of our society has permanently changed. Only the unfolding of history can assure us of that. If we wind up losing the struggle for the minds of the predominant intellectual culture and of the public at large, we are not going to accomplish any major Constitutional objectives in the long run. Even President Reagan’s administration will only be a rest-stop on our society’s long march to the beat of a different drummer.
There have been some intricacies involved in the modern liberals’ positions about the Constitution in the twentieth century. There has been more to it than their having simply affirmed Constitutional relativism. Modern liberalism is a social democratic ideology that brings together the intellectuals with all disaffected and unassimilated elements in a society. As such, it has been ambivalent toward majority rule. So long as the presidency was occupied by a conservative and American courts held out for a delimiting Constitution, the hue and cry among modern liberals called for “letting the local majorities experiment.” But later a more successful modern liberalism showed its underlying elitism. The
Warren Courtbecame an elitist avant garde for democracy, articulating the intellectuals’ conceptions about what form democracy should take and often riding roughshod over some very substantial actual majorities to do it. I am thinking particularly of the ruling a few years ago against Proposition 14 in California, which had been passed by a 2-to-1 majority, and of the cases that struck down statewide referenda that sought to avoid implementing a pure “one-man-one-vote” dogma in state senates.
All during the years that modern liberalism was on the outside looking in, gaining an electoral victory here and there, yet another part of the modern liberal hue and cry was that any court that would strike down social democratic legislation was “activist.” This was the fervent complaint against the Supreme Court, too, during the early years of the New Deal, when even after Franklin Roosevelt’s election a majority of the justices remained true to a delimiting view of the Constitution. When these justices struck down the N.I.R.A. and some other New Deal legislation, they were denounced as “activists” and “usurpers.”
This is the key to understanding the later division within modern liberalism itself between the proponents of “judicial activism” and those of “judicial restraint.” An entire generation of modern liberal jurists such as Felix Frankfurter had devoted their careers to denouncing what they thought was the activism of a classical liberal judiciary. They urged the Court to cease and desist from all such intervention into the affairs of the executive and legislative branches and of the states. During the years that they so vehemently supported this view, their position was in line with the tactical needs of modern liberal social policy, since it argued for taking the leash off of social legislation.
The situation changed when at last modern liberalism held the White House and had filled the Supreme Court entirely with its own kind. Now it was the Congress and the states that were recalcitrant, not the Supreme Court. It speaks well for the ultimate integrity of such a justice as Felix Frankfurter that he never understood that his lifetime’s position had just been a stage in a tactical situation. He kept on fighting for “judicial restraint” during the closing years of his career. But the newer justices of the modern liberal faith had not become so imbued with the arguments born out of that earlier necessity. These newer justices saw no reason to hold the Supreme Court in check now that it was on the side of the forces for good. The
Warren Courtwas the result.
This, it seems to me, is a helpful and accurate analysis of what occurred; but I don’t want to overstate it. The
Warren Courtwas certainly radical in its judicial method; and it made some surprising changes, such as when it held that the principle that underlay the Connecticut Compromise could not be applied to state senates. But if the Left were to charge it with having in general shown the timidity that has been typical of modern liberalism as the American version of social democratic ideology, there would be ample justification for the charge. The Warren Courtby no means did all that an activist modern liberal Court could have done, despite its reputation among conservatives to the contrary. Take just one important example: under the concurrent powers doctrine the states are totally excluded from any area of interstate commerce as to which the Supreme Court believes there should be a uniform national rule. A series of Warren Courtdecisions declaring the need for uniformity in major areas could have destroyed the states totally; but the Warren Courtdidn’t do it, and so far as I know modern liberal legal activists didn’t even ask that it be done.
When Richard Nixon sought to turn the tide of judicial activism as manifested in its own peculiar way by the
Warren Court, he appointed four justices who embraced a philosophy of judicial restraint. These four have been separate individuals, of course, with varying degrees of conservatism and differing senses of their historic mission. Until the change in national mood that was expressed in the election of Ronald Reagan, however, these justices, still in a fringe situation so far as dominance on the Court is concerned, have been in no position even to consider a more activist effort to exercise the statecraft that would be needed to breathe a renewed classical liberal spirit into the Constitution. Warren Burger, in fact, has made so mundane a subject as judicial administration the focus of his tenure as Chief Justice. This is a worthy objective, but it is a side issue so far as a philosophy of government and of society is concerned. I would hope that as new Reagan appointees take their place on the Court they will be able to meld well with those who are already there, and that together they will be able to see that today is significantly different than yesterday, with new opportunities and visions.
The Reasons for an Active Policy
I have yet to explain why I favor the more “activist” of the alternatives we face. We should in the near future discuss these choices vigorously, and neither should be taken for granted. Here are some of my reasons for a reconstructive activism:
. First. If a conservative majority on the Court impresses the validating stamp of stare decisis onto everything the modern liberal Court did during the past half-century, it will thereby consolidate with one stroke the products of a legal philosophy that has rationalized without the slightest shame a course of judicial usurpation. This will mean that conservatism will be engaging in the traditionalist’s worst vice. We will have let others lead in pursuit of their own ideology, secure in the anticipation that we would serve only as an inconvenient drag and that we would eventually legitimize everything they had done because of our own unwillingness to unsettle anything.
. Second. There are a number of things that are plainly wrong about the Constitution as now interpreted, at least if we view the Constitution, as we should, as a classical liberal document of both grant and delimitation. In countless ways, the unbalanced half-perceptions that make up the modern liberal view of the world have become the informing principles of our national charter. I see no moral or legal justification for feeling guilty about setting those things right.
. Third. A so-called activist course need not be a reckless one. In fact, we might very much hope that it would not be. It need not go at break-neck speed, but can be articulated by degrees as the necessary cases arise.
. Fourth. President Reagan has already appointed a commission to study the appropriate line of demarcation between the federal government and the states. The findings of that commission can either help guide a conservative majority on the Court or serve as the basis for a Constitutional amendment that will relieve the Court of the job of redefining the line. It would be a shame to clutter the Constitution with extensive amendments to put things right, but in pivotal areas that may be the best course. I would like to see it unequivocally stated that the states, not the national government, are to have primary jurisdiction over education and police work, while the fact that we have an enormous “common market” in the United States suggests that there are areas relating to commerce in which the national government is a better source of law than fifty states would be.
. Fifth. It would be well to start by anticipating that the day would come when the Court could declare the transition finished, so that thereafter stare decisis could fully apply. This eventual restoration of normalcy would certainly be welcome for those of us who don’t like the idea of judges making law. Article V of the Constitution sets out the procedure for amending the Constitution, and it would be well to see the day come when that is acknowledged as the exclusive method for changing the Constitution.
. Sixth. The constraints that a classical liberal rebirth ought to place on government should not, in my opinion, be those that would be envisioned by the “nightwatchman” school of classical liberal thought. The government of a free society has much more to do than just to be a nightwatchman acting against force and fraud. The statecraft that is needed in reviving Constitutionalism should be cognizant of the fact that the opponents of social democracy have been fighting a holding action for so long that many of their concepts are handicapped by the doctrinaire narrowness that comes from being too long on the defensive. Those of us who hold to a classical liberal view of society must expand our awareness that there are many things that government does that are “in service to the market,” establishing the preconditions legally and institutionally for a satisfactory market system. There are other things that government does, such as the space program, that require more organization and funding than private enterprise can provide. Every conservative will want the market economy to be the cornerstone of freedom in our society, and I would have the Supreme Court serve as a far more jealous guardian of that primacy; but this doesn’t mean nearly so radical a reduction of the powers of government as the nightwatchman school calls for or as the opponents of an intelligent conservatism might fear.
Looking further, there is hardly an aspect of our society that cannot be improved if the reforming spirit of original liberalism is reawakened. There is no reason for a conservative Court to stand in the way of the legislation that such reform would entail. We are at a juncture in history that calls for much fresh thinking. We need a theory of a truly rounded and adequate free society. I would hope that we can work together intellectually with the neo-conservatives who have been coming in our direction from the left and who have now gained an appreciation for the value of the market and for the delimitation of governmental power. They can perhaps have much to tell us about how we might, consistently with our own values, address the many human problems that in our defensiveness we have found it necessary to exclude from classical liberal theory.
Some of these observations are bound to be provocative even to members of the Philadelphia Society. Others will no doubt be provocative to people who are not conservatives. But it is not properly an objection that what I am saying is provocative. What we need now is a vibrant intellectual movement involving much discussion, since there is a great deal that is unsettled about the content of modern conservatism. Now that the country has begun to look to us for leadership, we must respond with a conception of government and of society that is fully adequate to all the needs of modern civilization. If we are successful, the Supreme Court of the
will inevitably play a role both in helping to formulate the necessary theory and in giving voice to that which a new conservative intellectual culture can provide. We have just begun, really, on an intellectual quest of great fascination and importance. United States
[The following paper was written in the late 1980s and is published for the first time to this site]
Toward a Theory of Constitutional Reconstruction
Dwight D. Murphey
Not long ago, I started reading all of the opinions written by William Rehnquist during his years as an Associate Justice on the United States Supreme Court. My interest was spurred by the fact that Rehnquist has been commonly thought of during most of that time as the most philosophically conservative justice.
I was surprised to discover that from the very beginning of his tenure on the Court, starting with his dissenting opinion in Weber v. Aetna Casualty & Surety Co. in 1972 (92 SCt 1400), Rehnquist has consistently repudiated the "freedom of contract" doctrine. This is a doctrine that was one of the twin pillars of the "conservative" or "classical liberal" Constitutional thinking that preceded the late-1930s shift to an all-"modern liberal" Court. Rehnquist has shared the belief, so long proclaimed by liberal commentators, that the classical liberal application of the concept of "substantive due process" was a usurpation by "activist" conservative justices.
Rehnquist has also repudiated the other pillar of pre-1937 conservative Constitutional doctrine. In the 1975 decision in Fry v. United States (95 SCt 1792), Rehnquist joined with liberals in characterizing as "anachronistic" and "doctrinally unsound" the earlier limitation on federal power under the Commerce Clause. Before 1937, the Court's conservative majority held that the great productive operations of manufacturing, agriculture, fishing, horticulture and the like were not themselves within federal jurisdiction under the Commerce Clause because they preceded the packaging of goods for shipment.
When "freedom of contract" and the limitation upon federal power under the Commerce Clause were brushed aside in the late 1930s, the way became clear for the vast expansion of federal jurisdiction that we take for granted today. For classical liberals, it is enormously significant when the Court's "most conservative justice" ratifies that shift, especially when he does so without pointing to new formulations by which economic freedom and the limitation of centralized power can be reinstated as Constitutional values.
Nor among "conservative justices" has it simply been Rehnquist who has done this. In May 1987, the Court held in Bd. of Dirs. of Rotary Int'l v. Rotary Club (107 SCt 1940) that "freedom of association" is Constitutionally protected by what has come to be known as "a high level of scrutiny" only in the case of small, intimate, select groups that stay out of community service. It was Constitutionally permissible, the Court said, for California's Unruh Act to prohibit men from having all-male clubs like Rotary. What is most noteworthy for our present purpose is that the decision was written by Justice Powell and joined in by Justice Rehnquist. Justice Scalia simply "concurred in the judgment" without writing a separate opinion, while Justice O'Connor did not take part.
In February 1988, the Court ruled unanimously, in an opinion written by Rehnquist, that freedom of speech under the First Amendment bars Jerry Falwell from any relief against Larry Flynt for Flynt's having depicted Falwell as having had sexual intercourse with his own mother. (Hustler Magazine v. Falwell, 108 SCt 876). The decision was widely hailed by the liberal media as a "victory for free speech."
When the "conservative" justices joined with the liberals on the Court in making a virtual absolute out of the First Amendment, in very much the absolutist spirit that Justices Black and Douglas long advocated, they refused to embrace a readily-available line of thinking that could easily have given balance to the decision of such cases. They could have pointed to the modern tort of "outrage" that has developed in recent years. Under it, emotional distress is compensable where it has been inflicted by "conduct that exceeds the bounds of what a civilized person should have to accept." If this would have created "a difficult line to delineate" between acceptable satire and outrageous muck, the line would certainly not have been more difficult to draw than that which must necessarily be recognized between obscenity and acceptable speech.
From these and other cases we see that the "conservative justices" appointed by Presidents Nixon and Reagan are hardly championing either "conservative" or "classical liberal" values as generally understood. Fundamentally, they are accepting the premises of contemporary liberalism, even though in a good many cases they hold back from joining in many of the more fanciful innovations, such as in the area of search-and-seizure, favored by the Brennan-Marshall liberal wing of the Court.
This puts the "conservatives" far more in line with the liberal tradition of Justice Frankfurter than with the pre-New Deal classical liberals. Prior to 1937, liberals fought the classical liberal constraints upon government by arguing for "judicial restraint" and by saying "let the local majorities experiment." Frankfurter and those who followed his lead continued to hold to this orientation even after liberals came to occupy all the chairs on the Court.
There were others, however, who, once liberals were solidly ensconced on the Court, saw no need for "judicial restraint." To them, it was time for a liberal activism. The blueprint for this activism, which in the public mind is commonly associated with the Warren Court and with the Brennan-Marshall faction since Warren, was spelled out in what has become the most famous footnote in the Court's history: the Footnote 4 by Justice Stone in the Caroline Products case in 1938. (United States v. Caroline Products Company, 58 SCt 778.) In that footnote, Stone argued that, while most acts of government are to be upheld if they merely meet a test of "bearing a rational relationship to some public purpose" (and are therefore upheld in almost all instances), there are three major exceptions:
1. The Court would give special protection through "strict scrutiny" to rights that are specifically referred to in the Constitution.
This would itself have tended to limit the Court's power of innovation, except perhaps with regard to the more broadly stated rights, such as freedom of speech. Later activist justices, however, beginning as soon as 1942, began to formulate a body of "fundamental rights," whether specifically referred to in the Constitution or not, that they said deserve special protection. (See Skinner v. Oklahoma, 62 SCt 1110.) During the ensuing years, the rights that have been chosen for such protection have been those that appeal to contemporary liberals, especially as influenced by the New Left's anarchical "do your own thing" perversion of individualism and later by feminist ideology. An example is the "right of privacy," which became the basis for the protection of abortion.
2. The second point was that the Court was to serve as the counterweight against any unrepresentative political processes. This became the basis for the Court's later reapportionment decisions. "Democracy" was upheld from on high even in the face, ironically, of 2-to-1 majorities, as when the Court struck down the decision of the voters in Colorado in favor of a referendum that would have allowed geographical factors, not just population, to be taken into account in apportioning the state senate.
3. Finally, the Court was to assume the mantle of special protector for "discrete and insular minorities." The result has been a two-track system of rights, with minorities receiving special protection and majorities hardly any at all, rather than a unitary system that formulates the same rights for everyone. Although a special protection for minorities is consistent with a desire to "protect the underdog," it should be considered objectionable to anyone concerned about the long-term soundness of Constitutional theory.
When we observe the acquiescence of "conservative" justices in so much of this liberal reformulation, it becomes evident that there has been only a fragmentary reassertion of conservative or classical liberal values in our Constitutional law. For this, I am not so much prepared to blame the "conservative" justices themselves, who are essentially capable lawyers who have been put on the firing line with little visible means of intellectual support, as I am to point to a void in contemporary conservative intellectual culture.
If we are to have conservative justices who are to lead the way toward a reassertion of the principles of limited government and of a system of protected rights for everyone, including the mainstream, in American society, we will need an underpinning of substantial intellectual work. The law reviews and other published literature will have to become full of it. Certainly such a task is one of the many worthwhile intellectual projects that conservative and classical liberal academicians can feel themselves called upon to undertake.