The Conservative Sensibility Read online

  Progressives celebrated Holmes’ assertion that government should be able to exercise almost untrammeled police powers as long as government asserts what would come to be called a “rational basis” for exercises of this power. And a mere assertion should suffice. Courts, Holmes said, should defer to economic regulations because the Constitution does not “embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”38 This was the beginning of progressives’ distortion of the Lochner decision as expressing nothing more dignified than the court’s commitment to an economic doctrine that then was supposedly enjoying untrammeled sway over political practices. Because Holmes held the preposterous view that the Constitution was written to govern persons of “fundamentally” different views, he rejected the idea that the Lochner case turned not on an economic theory but on the political philosophy that is fundamental American doctrine. It holds that among the unalienable rights every individual possesses is a right to liberty of contract, which includes the right to freely contract to sell one’s labor or to purchase the labor of others. And this right cannot be legislated out of existence for casual or, as in the Lochner episode, disreputable reasons, even when legislatures cloak their reasons in the language of social betterment. Hence progressivism’s disapproval of “individualism” that allows individual rights, particularly those of property and contract, to impede the administrative state’s regulation of society for collectivist ends, unimpeded by judicial review.

  Often before and after Lochner, liberty of contract was invoked—sometimes successfully but usually not—against progressives’ legislation that falsely purported to be disinterested instruments for purely humane and altruistic purposes. For example, many maximum-hours and minimum-wage laws were written to apply only to women. To be sure, these were often written to give effect to the era’s conventional wisdom that “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life” and “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” So wrote three of the dissenting justices in the Slaughter-House Cases of 1873. In 1895, the Illinois state supreme court, reasoning as the US Supreme Court would in Lochner ten years later, admirably struck down a state law imposing maximum-hour limits on women’s work weeks, a law that had been advocated by many groups that would come to be called progressive. The Illinois court, like the Supreme Court in Lochner, cited liberty of contract, saying women “are entitled to the same rights under the Constitution to make contracts with reference to their labor as are secured thereby to men.”39

  Bernstein notes that supposedly protective legislation for women was supported by progressives of different stripes. There were paternalists who worried about women’s health. There were maternalists who thought that women working outside the home, regardless of hours and wages, subverted women’s natural role as homemakers. There were moralists who thought long hours or low wages would tempt women into prostitution. And there were eugenicists who thought that women who worked outside the home weakened the race. Eugenics attracted progressives because, Bernstein notes, it was congenial to persons committed to “anti-individualism, efficiency, scientific expertise, and technocracy.”40

  The various reasons then given for using the states’ police powers to protect women now seem anachronistic and offensive, but they were not always cynical reasons for limiting liberty of contract. However, guess what entrenched economic faction worked successfully, in the name of motherhood and other non-economic values, for state laws prohibiting women from being lawyers: Male lawyers favored such laws in order to limit competition for legal services. And as late as 1948 the US Supreme Court, fully committed to anti-Lochner jurisprudence, upheld a Michigan law forbidding, ostensibly for moral reasons, women to work as bartenders. The court chose to treat as irrelevant the fact that the most forceful advocates of the law were labor unions representing mostly male bartenders in Michigan, where women were allowed to work as cocktail waitresses.

  Progressives’ hostility to inhibiting government’s police power also made progressives hostile to early attempts to wield the liberty of contract against racial segregation. Advocates of integration argued that the right of property and liberty of contract guaranteed by the Fourteenth Amendment should trump laws enforcing residential segregation. Progressives, however, were eager to vindicate the power of government to regulate for the collective good unimpeded by assertions of individual rights. And progressives were committed to the principle of broad deference to a government’s definition of the collective good. Enforcement of restrictive real estate covenants written to maintain segregated neighborhoods was justified as necessary for reducing racial friction, reducing the spread of communicable diseases, and protecting property values. Even progressives who found this practice repugnant were deferential to government enforcement in order to serve the higher good of enlarging government’s scope. In Kentucky, a Louisville ordinance forbade “any colored person to move into and occupy as a residence…any house upon any block upon which a greater number of houses are occupied…by white people than are occupied…by colored people.” Progressives inclined to resist this found themselves disarmed when Kentucky’s Court of Appeals adopted their vocabulary in affirming the ordinance. It said “the advance of civilization…has resulted in a gradual lessening of the dominions of the individual over private property and a corresponding strengthening of the relative power of the state in respect thereof.”41

  Progressives occasionally were stymied when courts recognized, in the name of individual rights, limits on states’ police powers. After World War I, some progressives, remembering Randolph Bourne’s axiom that “war is the health of the State,” were delighted by the war’s centralizing and homogenizing effects on government and culture. So they advocated banning private schools, or at least making them subordinate to the regulatory state, in order to fuse a nationalized citizenry into greater acceptance of government power. In 1925, however, the US Supreme Court overturned an Oregon law, enacted by referendum, that required all children between ages eight and sixteen to attend public schools. In affirming the right of parents to control their children’s education, the court disregarded Oregon’s claimed police power to mandate public schools. The state’s purpose was to keep America’s melting pot hot by eliminating parochial schools.

  The explicit reasoning of the Lochner case was put to some honorable uses, as when, in 1926, Georgia’s Supreme Court held that liberty of contract justified striking down a law that forbade black barbers to cut the hair of white children. The Georgia court did not defer to Woodrow Wilson’s principle that the purpose of government is “to bring the active, planning will of each part of the government into accord with the prevailing popular thought and need.” And the court did not defer to the “dominant opinion” to which Oliver Wendell Holmes deferred and which in Georgia in 1926 did not favor the right of black barbers to cut white children’s hair.42

  Ninety-eight years after Lochner was decided, the recoil against it made a cameo appearance in a Supreme Court dissent. In 2005, in Lawrence v. Texas, the court invalidated, as a violation of the Fourteenth Amendment’s guarantee of equal protection of the law, a Texas statute criminalizing sexual intimacy by same-sex couples. Dissenting, Justice Antonin Scalia demonstrated a deep division in American conservatism when he said the Constitution no more protects the right to engage in such intimacy than it protects the right to work “more than 60 hours per week in a bakery.” Scalia, consistent in his majoritarianism, was as wrong about Lawrence as he was about Lochner.43

  In his Lochner dissent, Holmes said, the “Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Here the epigrammatic Holmes was, characteristically, memorable and mistaken. He was referring to the British philosopher and sociologist of the Victorian era who defended libertarian economic policies—government large
ly confining itself to creating and refereeing free markets, and defending property rights. Granted, the Constitution does not “enact” this or that fiscal or monetary policy. It does, however, erect a structure designed to protect a large sphere of individual liberty. And it provides no textual or other justification for treating economic liberty as a somehow inferior form of liberty, entitled only to lackadaisical protection. The Constitution is John Locke’s political philosophy translated into institutional architecture. It is from Locke that Jefferson and other Founders derived their understandings of the natural rights to life, liberty, and property. They understood that the right to property could not be severed from an implied corollary right: the liberty to contract to create arrangements important to the acquisition and disposition of property. Therefore, because liberty is the crux of the Constitution’s purpose, the document does, in a sense, “enact” powerful protections for a libertarian society not unlike that praised in Spencer’s Social Statics.44

  Among judges and the law professoriate, Robert Bork was perhaps the most forthright and rigorous majoritarian since Holmes. “In his 1905 Lochner opinion,” Bork wrote, “Justice Peckham, defending liberty from what he conceived to be ‘a mere meddlesome interference,’ asked rhetorically, ‘[A]re we all…at the mercy of legislative majorities?’ The correct answer, where the Constitution is silent, must be ‘yes.’”45 But how does the Constitution “speak”? Does it speak in only one manner about the legislative powers? Does it say that legislative majorities may do what they want to unless and until they bump up against a right that the Constitution explicitly singles out for immunity from regulation or other abridgement by a majority? Or does the Constitution mean what it says in taking cognizance of unenumerated rights?

  For several generations, progressivism was complacently committed to majoritarian politics. This commitment of convenience justified—actually, it mandated—judicial restraint, and thereby emancipated legislatures, and especially Congress, to exercise virtually unlimited police powers in regulating the economy. The predicate for progressives’ partial retreat from judicial restraint was placed in 1938, in the most famous footnote in Supreme Court history, footnote 4 in United States v. Carolene Products. Written by Justice Harlan Fiske Stone, it said that special judicial scrutiny and energy should be devoted to the defense of “discrete and insular” minorities that are denied effective access to the political process. Where political change is blocked, the court can legitimately be an active agent of change.

  The thrust of footnote 4, however, was to create a bifurcated regime of constitutional protections. Government acts that are injurious to “discrete and insular” minorities, such as blacks in the South, would receive heightened judicial scrutiny and diminished judicial deference. But government measures that are injurious to minorities are acceptable if those who are injured by outcomes of the political process have access to that process, and if the measures pass the extremely permissive “rational basis” test. If, that is, the legislature could be said to have had any non-capricious, non-arbitrary reason for enacting the measures. Henceforth, if a “discrete and insular” minority were injured by being excluded from the majoritarian political process, the court would ride to the rescue. If, however, the interests of a minority with formal access to the political process were trampled by the majority, then judicial deference would remain appropriate.

  This is pernicious. Instead, the court should forthrightly enunciate this principle: The Due Process Clause, properly construed, prohibits arbitrary government actions, particularly actions that unjustifiably restrict individuals’ liberties. That is, the Due Process Clause is not purely about process. As Timothy Sandefur writes, what distinguishes due process is an outcome that is not arbitrary. Granted, the Constitution’s text does not explicitly infuse the concept of due process with substance. There are, however, implicit limits on government power, limits inherent in the idea of law. As Sandefur says, a legislative act that fails the tests of generality, regularity, fairness, and rationality (being a cost-efficient means to a legitimate end) is not a law, so enforcing it cannot be due process of law.46

  When the Constitution is read as what it actually is—as the implementation of the principles of the Declaration of Independence—the Constitution guarantees government that secures individual rights by establishing lawful, meaning non-arbitrary, rule. So, in determining whether there has been due process, a court must examine not just the form of a statute or the procedural formalities that produced it, but also its substance. This is because, as Sandefur writes, the Constitution gives priority to liberty, not just to the democratic processes that produce government acts. Again, the Constitution does not require just any process but due process. Were “due” simply a synonym for “democratic,” the due process guarantee would guarantee nothing.

  THE ACTIVITY OF JUDGING

  If a Constitution is to truly constitute a polity, its language must be construed by enunciated principles that serve continuity by providing applicable standards that do not change as circumstances change. Ongoing attempts to distill such standards from constitutional practices, especially from the corpus of Supreme Court decisions construing the document’s text, have produced a literature rich in insights—and intelligent disagreements. There is, however, agreement about this: We must begin with the language chosen by the Constitution’s Framers. This agreement, however, leaves abundant scope for disagreement about the activity of construing the language. Some say that sound constitutional reasoning begins, and very nearly ends, with intellectual archeology—by excavating the original normal public meaning of the constitutional language at the time the Framers used it. But the Eighth Amendment, which forbids “cruel and unusual” punishments, provides a lesson in the limits of this kind of originalism and points toward a more supple and balanced approach to construing the Constitution’s text.

  Regarding punishment of criminals, America’s standards of decency began to change significantly at the time of the Revolution, and because of ideas integral to the revolutionary ferment, particularly the idea that all men are created equal. Historian Gordon Wood argues that the colonial authorities, steeped in British class prejudices, believed that crime was generally caused by unchecked passions and that the lower orders were characterized by what today is called weak impulse control. Hence the lower orders should be regarded warily as prone to criminality, a tendency that could be checked only by “fear or force.” Therefore “pillorying, whipping, and mutilating of the criminals’ bodies had been standard punishments in the colonies,” and these lurid displays of community disapproval were performed in public for the purpose of “overawing and deterring the spectators.” Many spectators regarded such public punishments as neither cruel nor unusual but rather as entertainments: “Men and women in eighteenth-century Boston were taken from the huge cage that had brought them from the prison, tied bareback to a post on State Street, and lashed thirty or forty times” while the screams of the punished mingled with the roar of the mobs. The stocks were moved about within the community as a moveable feast of scorn for the miscreants and for the education of the public. Permanent shaming was achieved by mutilations, such as branded foreheads and cropped ears, that left criminals forever exposed to the contempt of their communities. In the colonial era, the idea of rehabilitation of lawbreakers was rarely advocated, and when it was it was dismissed as fanciful and sentimental. Hence Pennsylvania had twenty capital crimes, and Virginia had twenty-seven. In the colonial era, “capital punishment had been common not only for murder but for robbery, forgery, housebreaking, and counterfeiting as well.”47

  Then came the Revolution, and halting, tentative attempts to follow the logic of equality wherever it might lead. Americans should remember, said the Philadelphia physician Benjamin Rush, that criminals, too, “possess souls and bodies composed of the same materials as those of our friends and relatives.” What revolutionary doctrine encouraged, empirical evidence reinforced: An upsurge in crime in the 1780s sug
gested that savage punishments were ineffective deterrents. “Sheriffs began refusing to cut off the limbs of criminals and to draw and quarter the bodies of those hanged.” The American intelligentsia, influenced by Lockean epistemology, began to wonder: If the mind takes its impressions from data supplied by the senses, might it also be the case that the sources of criminal behavior are also located, at least in part, in the promptings from the social environment? If so, society must entertain the thought that criminals might be only partially responsible for their behavior. So a New Hampshire minister could say in 1796: “We all must plead guilty before the bar of conscience as having had some share in corrupting the morals of the community, and leveling the highway to the gallows.”48

  When in a 1958 case Chief Justice Earl Warren said that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” he referred to a fact: Standards of decency do evolve. Which is not to say that they invariably become better; “evolving” is not a synonym for “improving.”49 Still, it would be peculiar to insist that a conscientious originalist in the twenty-first century must construe the Eighth Amendment’s proscription of “cruel” punishments with reference to the eighteenth century’s public understanding of cruelty. Surely an originalist analysis should say: The Eighth Amendment’s meaning is that the Framers intended a society in which government would not practice cruelty, and it falls to every generation to guarantee that its practices conform to this original intent.