The Conservative Sensibility Read online

  The judges in Brown stated a conclusion not written in the Constitution. But that fact does not entail the conclusion that they must have, in Souter’s words, crossed “some limit of legitimacy” and entered into “law making.” They were only guilty of impermissible “activism” if it really is the case that “the facts just lie there waiting for an objective judge to view them.” But in constitutional adjudication, facts are not like that. “The Constitution,” Souter said, “is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.” Judges must choose “not on the basis of measurement, but of meaning.” The “tensions” that Souter said are “the stuff of judging in many hard constitutional cases” are “creatures of our aspirations,” our conflicting aspirations that require “tenacity” if we are to “keep the constitutional promises the nation has made.” The Constitution’s Framers left such tensions “to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.”66

  There is, Souter said, an unavoidable, irreducible complexity to the Constitution and constitutional law, which means that the natural human hunger for simplicity and clarity is bound to be unsatisfied. “And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.”

  THE SESQUICENTENNIAL REVOLUTION: 1937 AGAINST 1787

  Liberty is commonly understood as the ability to do what you want to do. Virtue means choosing well what you want to do. The challenge for a free society is to preserve liberty while nurturing virtue. A religion tells its adherents things that they ought to do and ought not do. The US Constitution, which is replete with proscriptions, tells Americans a number of things they cannot do even if a majority of them wants them done. There is a recurring impulse to argue that courts should have a somewhat majoritarian mentality or that they should be directly subjected to majoritarian supervision. In his 1912 presidential campaign, Theodore Roosevelt argued that “when a judge decides a constitutional question, when he decides what the people as a whole can and cannot do, the people should have the right to recall the decision if they think it wrong.”67 In Hillary Clinton’s 2016 presidential campaign she said, “The Supreme Court should represent all of us.”68 Actually, it should represent no one. Not if we understand representation to mean serving as a mirror to the public. “Reflecting” what, exactly? Or weighing “the people’s” or a faction’s “interests.” Interests in what, exactly?

  Abraham Lincoln spoke more judiciously about the sometimes ambiguous role of the Supreme Court in America’s democracy. In his first inaugural address, he asserted that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”69 This is true, but note the adverb “irrevocably.” Lincoln understood as well as any politician before or since that in a democracy everything depends, ultimately, on public opinion, and public opinion is shiftable sand. The nation’s preeminent tribunal can shift this sand; it did so in the twentieth century with its civil rights decisions, most notably with Brown v. Board of Education. This is judicial prudence as Alexander Bickel understood it. While Bickel believed the court should think of itself as a “pronouncer and guardian” of national principles, he thought judicial prudence required that such principles be clearly grounded in the nation’s experience. Yet he also said, somewhat more permissively, that the court should “declare as law only such principles as will—in time, but in a rather immediate foreseeable future—gain general assent.”70 So the Court can affirm principles that are not yet generally assented to, but that the court calculates might become so, partly as a result of its affirmation of those principles, for better or for worse.

  Worse arrived in 1937. In what has come to be known as “the constitutional revolution of 1937” the Supreme Court stepped out of the way of the New Deal’s drive to expand the reach of federal power. The court essentially stopped enforcing limits to the Constitution’s grant of power to Congress to “regulate commerce…among the several states.” Almost any activity could be said to have “substantial effects” on interstate commerce, and so Congress could regulate almost any activity. This was, however, an invitation to, even an incitement to, constitutional sophistry. It threatened to rationalize the annihilation of the distinction between national and local problems, and between federal responsibilities and state and local responsibilities. Thus it went far toward making a mockery of the idea that the United States has a limited government, as Roscoe Filburn was to find out.

  In 1941, Filburn was an Ohioan caught in the toils of federal agriculture policy. In 1933, Congress passed an anti-Depression measure called the Agricultural Adjustment Act, which sought to stabilize commodity prices by restricting production. In 1936—the last year of constitutional government, as some conservatives see it—the Supreme Court struck down that act on the ground that the federal government was prohibited from regulating production by the Tenth Amendment, which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And soon the court’s composition changed. So there came to be another Agricultural Adjustment Act, which authorized the setting of production quotas not only for wheat sold into interstate commerce but also for wheat that was consumed on the farm as food, or as seed or feed for poultry and livestock. Filburn thought that this provision, as a putative exercise by the federal government of its power to regulate interstate commerce, was a travesty. So he produced 239 bushels of wheat in excess of his quota for use as chicken feed on his farm, and he refused to pay the stipulated penalty. The case reached the Supreme Court, which used it to further dismantle the constitutional doctrine (aka the Framers’ intent) that the federal government is a government of limited and enumerated powers.71

  The court upheld the act’s provision, arguing that the cumulative effect of even minor and utterly local economic activities can have interstate consequences—rather like the butterfly in Brazil that by beating its wings has some indiscernible but supposedly real effect on Boston’s weather. The court said that even if wheat such as Filburn’s 239 bushels never goes to market, “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”72 And if wheat prices rise, many farmers like Filburn might send their wheat grown for home use to market after all, upsetting the government’s plans.

  In 1995, however, there was a flicker of a pulse in the principle Filburn had tried to assert. The Supreme Court dusted off an idea that had not been in vogue since 1937, an idea that went out of fashion exactly 150 years after the Constitutional Convention of 1787 made it a bedrock principle of the Republic. The court reaffirmed the idea. “We start with first principles,” said Chief Justice William Rehnquist, who enjoyed doing just that. “The Constitution creates a federal government of enumerated powers.”73 The case that occasioned Rehnquist’s exercise in intellectual resurrection began in 1990 when Congress, seized by one of its frequent fits of grandstanding about crime, passed the Gun-Free School Zones Act, criminalizing possession of firearms in or near schools. Decreeing gun-free schools is a popular idea, which is why forty states already had such laws in 1995. Congress’ largely redundant law was remarkable neither as a further step
in its almost absentminded federalization of criminal law, nor as yet another careless assertion by Congress that there is no problem too local to be beyond its purview. Rather, Congress’ 1990 law was remarkable because it aroused the slumbering court, provoking it to give a jerk on the leash that Congress was astonished to learn that it still wears.

  In 1992 Alfonso Lopez, a San Antonio twelfth grader, was arrested under the Texas law banning guns in schools. Federal prosecutors elbowed aside Texas authorities, and Lopez responded with a question that seemed like a constitutional impertinence: Where does the federal government get the right to exercise what are essentially local police powers? The federal government gave the answer it had routinely, almost reflexively, given to many such questions since 1987: We get it from the commerce clause, so pipe down.

  Chief Justice William Rehnquist spoke up for Lopez. Writing for the majority of a court divided 5–4, Rehnquist argued that a public school is not engaged in commerce, and possessing a gun is not an act of commerce, hence it is not an act that can have a “substantial effect” on commerce. In a muscular concurrence with Rehnquist’s opinion, Justice Clarence Thomas minced no words: “Apart from its recent vintage and its corresponding lack of any grounding in the original understanding of the Constitution, the substantial effects test suffers from the further flaw that it appears to grant Congress a police power over the nation. When asked at oral argument if there were any limits to the Commerce Clause, the government was at a loss for words. Likewise, the principal dissent insists that there are limits, but it cannot muster even one example.”74

  The author of that dissent, Justice Stephen Breyer, essentially accepted the argument made by the government that schools can be considered to be engaged in commercial activities, and that therefore the possession of a gun by an individual near a school can be regulated by Congress because—take a deep breath—the gun might produce violence, which would affect the economy by spreading insurance costs throughout the population, and by reducing the willingness of individuals to travel, and by injuring the learning environment and thus resulting in a less productive citizenry. But as Rehnquist said, Breyer’s rationale could classify child rearing as a commercial activity that Congress can regulate. Given Breyer’s willingness to justify constitutional permissiveness because of the extended ripple effects that any activity can have on commerce, how could Breyer argue against a Commerce Clause rationalization for, say, a federal law requiring all students to eat their spinach and do their homework? Breyer said the court’s opinion “threatens legal uncertainty” about Congress’ reliance on the Commerce Clause as a justification for its activism.75 The alternative, however, would allow Congress to be the arbiter of its own limits. Given Congress’ promiscuous use of the Commerce Clause, there would then be no limits.

  In 1937, under the pressure of public opinion and FDR’s threat to “pack” the court by enlarging it, the court adjusted its jurisprudence to the dominant impulse of the 1930s here and abroad—the expansion of the state. “Beginning in 1937,” writes historian William E. Leuchtenburg, “the Supreme Court upheld every New Deal statute that came before it” and “legitimated the arrival of the Leviathan State.”76 But sixty-three years after Filburn’s defeat, and ten years after the San Antonio case, another case made it clear that the ruling regarding San Antonio was a false down, an evanescent moment of sound thinking.

  Justice Clarence Thomas unfurled farmer Filburn’s principles, again in a losing cause, again in a case involving a crop. It concerned two chronically ill Californians who grew their own marijuana to treat their pain. Medical marijuana was legal in California, but the federal government seized the two persons’ six marijuana plants and charged the two with violating the federal Controlled Substances Act. The US Supreme Court deferred to the federal government, detonating a memorable Thomas dissent against this excessive deference. He said the Californians “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.” He added: “If the [Court’s] majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states.”77 Indeed it can, and it was imprudent of Thomas to give the government these ideas. His fundamental point was, however, indisputable: Thanks to misguided judicial deference, for which conservatives bear considerable blame, and for as long as such deference persists, a limited federal government is a fiction.

  In 1944, with the nation more at war abroad than ever before, and with the federal government permeating the nation’s life more than ever before, Justice Felix Frankfurter, writing for the Court, recurred to Woodrow Wilson’s theme of the effect of modern technology on federalism. Frankfurter insisted, “The interpenetrations of modern society have not wiped out state lines. It is not for us to make inroads upon our federal system, either by indifference to its maintenance or excessive regard for the unifying forces of modern technology. Scholastic reasoning may prove that no activity is isolated within the boundaries of a single State, but that cannot justify absorption of legislative power by the United States over every activity.” Such reasoning might be, in Frankfurter’s pejorative term, scholastic, and such “absorption” might be, as Frankfurter insisted, unjustified, but Frankfurter went immediately on to say that the court should do next to nothing about it. He said: “When the conduct of an enterprise affects commerce among the States is a matter of practical judgment.…The exercise of this practical judgment the Constitution entrusts primarily and very largely to the Congress, subject to the latter’s control by the electorate.”78

  However, the lesson of 206 years of constitutional history is, alas, clear: If the federal government is to be limited, it will be limited not by congressional or presidential devotions to constitutional niceties, but only by properly engaged courts diligently construing the Constitution. Absent such judicial engagement, the Constitution will be merely a parchment barrier to enlargements of the federal government’s sphere. Of course, limits on government must ultimately be grounded in the character of the people. But there can be this auxiliary precaution: a federal judiciary stocked with men and women committed to enforcing constitutional limits consonant with the Framers’ intentions.

  ABOUT MAJORITIES

  Democracy and distrust usually are, and always should be, entwined. American constitutionalism, with its necessary component known as judicial review, amounts to institutionalized distrust. It is not true that, as Dr. Stockmann declares in Henrik Ibsen’s An Enemy of the People, “the majority is always wrong.” It is true, however, that the majority often is wrong and that the majority often has a right to work its mistaken will anyway. The challenge is to determine the borders of that right, and to have those borders policed by a non-majoritarian institution—the judiciary.

  Alexander Hamilton said that because the judiciary “may truly be said to have neither force nor will, but merely judgment,” it will always be the branch “least dangerous to the political rights of the Constitution.”79 But Alexander Bickel considered judicial review philosophically and morally problematic because it makes the Supreme Court a “deviant institution” in American democracy. The power to declare null and void laws enacted by elected representatives of the people poses what Bickel called the “counter-majoritarian difficulty.”80 This is, however, a grave difficulty only if the sole, or overriding, goal of the Constitution is simply to establish democracy, and if the distilled essence of democracy is that majorities shall rule in whatever sphere of life where majorities wish to rule. In which case the court is, indeed, a “deviant institution.” But such a reductionist understanding of American constitutionalism is peculiar.

  It is excessive to say, as often has been and still is said, that the Constitution is “undemocratic” or “anti-
democratic” or “anti-majoritarian.” It is, however, accurate to say that the Constitution regards majority rule as but one component of a system of liberty. The most important political office is filled not by simple majority rule expressed directly but by the Electoral College. Supreme Court justices and all other members of the federal judiciary are nominated by presidents but must be confirmed by the Senate, whose members were, under the unamended Constitution, elected indirectly, by state legislatures. Of the major institutions created by the Constitution—Congress, the presidency, the Supreme Court—only one half of one of them, the House of Representatives, was, in the Framers’ original design, directly elected by the people. Furthermore, the Constitution has eleven supermajority provisions pertaining to amendments, ratification of treaties, impeachments, and other matters. All such supermajority requirements empower minorities.

  One reason to empower minorities is that majority opinion often is not in any meaningful sense a judgment, meaning a conclusion arrived on the basis of information and reflection. The processes of democracy are supposed to refine and elevate public opinion, not merely reflect it. But woe betide the political candidate who suggests that the public’s opinion needs to be refined and elevated, or even informed. When Supreme Court Justice Antonin Scalia died in February 2016, Senate Republicans argued that his successor should not be confirmed until “the people” had spoken in that year’s presidential elections. It was, however, risible to assert that more than a negligible portion of the electorate had opinions about, say, constitutional originalism, or fidelity to stare decisis, or the proper scope of Congress’ power to regulate interstate commerce. The problem is not that translating public opinion directly into public policy might be imprudent, although it certainly would be. Rather, the problem is that public opinion, in any meaningful sense, hardly exists about many, probably even most, public policies. Those whom Edmund Burke delicately called “the less inquiring” might be as large a portion of the population today as they were when Burke wrote in the late eighteenth century.81 Then, very few could vote, so the many had small incentive to be inquiring about politics and government. Today, everyone can vote but no one can believe that his or her vote is apt to matter, and few have the time or incentive to become conversant with the complexities of the policies administered by the gargantuan and opaque administrative state. As Madison said in his analysis of ancient democracies, the larger the group engaged in determining the government’s composition and behavior, the larger will be the portion who are “of limited information and of weak capacities.”82