America's Unwritten Constitution: The Precedents and Principles We Live By (24 page)

The basic idea here is that there is no reason to think that citizens of small states are any wiser than citizens of larger states about the proper meaning and scope of fundamental rights. Unless there is particular reason to believe that distinct and vital interests of small states are at special risk, the views of each small-state voter should not count for more than the views of each large-state voter. Even if it makes sense in certain contexts—say, the constitutional amendment process—to overweight small states in order to help these states preserve their proper status and separate existence against potential large-state self-aggrandizement, the domain of fundamental rights does not place small states at any distinctive risk of subjugation. As any properly recognized right would bind large states in the same way that it would bind small ones, there is little risk of large-state oppression or self-dealing in this constitutional quadrant.

Treating Americans equally need not entail simple majority rule. All members of a given jury vote equally, but a criminal jury must often be
unanimous
to convict; some civil juries, by contrast, operate by
supermajority
rules; and grand juries typically use
simple majority
rule. Similarly, different counting thresholds may be appropriate for different sorts of rights cases. If the issue is whether a given punishment is genuinely
unusual
, presumably the punishment may sometimes be upheld even if it is a minority practice. If, say, states accounting for 45 percent of the nation’s population
routinely use punishment X, it would be hard to say that X is truly
unusual
even though it is a minority practice. In deciding other unenumerated-rights cases not involving the Eighth Amendment word
unusual
, however, judges might sensibly strike down a practice simply because 55 percent of ordinary Americans strongly believe that this practice violates their fundamental rights. A strongly held belief by 55 percent of Americans that they have a constitutional right against abusive practice Y may suffice as a textual matter to recognize this right as a truly unenumerated right of “the people,” a genuine privilege “of citizens” recognized as such by citizens.

Some scholars have suggested that a new unenumerated right should not be recognized unless it is endorsed by three-fourths of the states—the high bar set by Article V for constitutional amendments. But in recognizing new rights, judges are not
amending
the document. Rather, they are
applying
it, construing directives in the Ninth and Fourteenth Amendments that call for protection of fundamental but nonspecified rights—directives that
already
cleared Article V hurdles when these amendments were duly enacted. Part of the reason that Article V sets a high bar for ordinary constitutional amendments is that if the bar were set too low, then government-initiated amendments might end up weakening explicitly protected rights. But this concern about possible rights diminution is irrelevant when the issue is whether new rights rooted in evolving popular sentiments and practices should join the existing stock of enumerated and unenumerated entitlements.

Section 5 of the Fourteenth Amendment was clearly designed to empower Congress to enact legislation recognizing new rights, and this section envisioned only ordinary national majorities, not special Article V supermajorities. Since the Fourteenth Amendment also envisioned judicial recognition of new rights to supplement Congress whenever Congress was asleep at the switch, overwhelmed with other business, or controlled by critics of Reconstruction, section 5 provides a better benchmark for judicial rights-finding than does Article V. Thus, judges should look for the same broad national support for a new right that would warrant a properly functioning Congress to recognize the right under its own authority.
⁵⁹

IF JUDGES MAY PROPERLY
strike down highly unusual state (or even federal) laws that intrude on a lived experience of liberty, there is a risk that governmental innovation and experimentation might be unduly stifled. Trigger-happy judges might kill the first glimmerings of legal reform whenever new issues arise and new approaches begin to win popular support. But this risk can be minimized if the judges proceed with caution and humility, with close attention to the danger of what might be called “judicial lock-in.”

The danger is that once a particular government practice has been invalidated by judges, the practice will wither away and remain forever off-limits, even if a broad swath of Americans would like to see the practice revived at some later point. Such a judicially induced lock-in would turn proper unenumerated-rights jurisprudence on its head. Doubtful laws should be judicially invalidated because they are unusual, not unusual simply because they have been judicially invalidated.
⁶⁰

The most democratically sensitive and sophisticated version of lived constitutionalism would avoid judicial lock-in of unenumerated rights by inviting judges (or other constitutional decisionmakers) to reconsider their initial invalidations when presented with updated evidence of recent legislative patterns. For example, if many large states were to enact new laws similar to a law previously struck down—new laws with delayed start dates so as to allow for anticipatory judicial review—such enactments themselves would be new data to ponder.

The Court’s death-penalty jurisprudence offers a suggestive case study. In the late 1960s, actual executions dropped to zero in America. In response to this apparent national consensus, the Court in 1972 seemed to hold the death penalty categorically unconstitutional. Over the next four years, both Congress and some thirty-five states representing an overwhelming majority of the American population pushed back against this ruling with a new round of death-penalty statutes. In response, the Court reconsidered its position and gave its blessing to the penalty when the underlying crime was particularly heinous and strict procedural safeguards were in place. Since then, the Court has imposed additional substantive and procedural limits on capital punishment with a close eye on evolving American practice.
⁶¹

ALTHOUGH A WAVE OF NEW LEGISLATION
would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern dramatically changes. In this particular pocket of unwritten constitutionalism, what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.

_____________________

^*
In Chapter 7, we shall ponder one possible failure of the political process associated with the Connecticut contraception law—a process failure arising from the fact that no woman ever voted for this law, even though the law imposed special and potentially self-entrenching burdens of unwanted pregnancy upon women. No member of the
Griswold
Court, however, highlighted the gender issue.

^*
In addition to “persons” and “houses,” the Fourth Amendment singled out “papers” for special protections above and beyond all other stuff—“effects.” The word “papers” also implicated a proto-privacy principle, as England’s Lord Camden had made clear in a famous colonial-era search and seizure case,
Entick v. Carrington
. Camden notably declared that the “papers are the owner’s… dearest property [and] will hardly bear an inspection;… where
private
papers are removed and carried away, the
secret
nature of those goods will be an aggravation of the trespass” (emphasis added). The special concern for
“private
papers” (emphasis added) recurred in a companion case,
Wilkes v. Halifax
; and in yet another related case,
Beardmore v. Carrington
, Camden upheld a hefty punitive-damage award against an official “who has granted an illegal warrant to a messenger who enters into a man’s house, and pries into all his secret and
private
affairs” (emphasis added). For more on this famous set of cases and their obvious prefiguration of the Fourth Amendment, see Chapter 4.

EARL WARREN

By acclamation, Earl Warren ranks as one of America’s two greatest chief justices, standing alongside John Marshall in the American Pantheon.

I
N THE COURSE OF READING
between the lines of the written Constitution, probing the enacting procedures that produced the document, and taking account of the lived experiences of ordinary Americans, we have only sporadically considered modern Supreme Court case law. It is now time to directly engage the Court—for surely its rulings loom large in America’s unwritten Constitution.

Although it might seem odd to speak of written judicial opinions as part of an “unwritten” Constitution, we must recall that these opinions lie outside the boundaries of the terse text itself. Case law forms no part of the written Constitution as such.

But case law does provide a powerful lens through which judges, lawyers, lawmakers, pundits, and ordinary citizens have come to read the written Constitution. The $64,000 question is, does this lens generally clarify, or does it grossly distort?

For much of the late nineteenth and early twentieth centuries, Supreme Court case law routinely misrepresented the Constitution’s true contours. Today, the picture is quite different. In most (but not all) areas of constitutional law, the “unwritten” cases cohere with the written Constitution. The story of how this general coherence came about is the tale told in this chapter—the saga of the Warren Court.

WHEN EARL WARREN
joined the Court as its fourteenth chief justice in 1953, Jim Crow ruled the South. Many states disfranchised blacks with impunity. The Bill of Rights did not generally apply against the states. The Court had never used the First Amendment to invalidate congres sional action. Some states had succeeded in chilling core political expression. State-organized prayers were commonplace in public-school classrooms. State criminal defendants had precious few federal constitutional rights. No general right to vote existed. Almost all state legislatures were malapportioned, some grossly so.

Over the next sixteen years, Warren helped change all that, dismantling the old judicial order and laying the foundations of the basic doctrinal
regime that has remained in place ever since. Warren did not act alone, of course. But it is conventional to periodize the Supreme Court by reference to its chief justices, and “the Warren Court” is an especially handy label. The term denotes a remarkable period of judicial history, beginning with the Court’s deliberations and decision in
Brown v. Board of Education
and culminating in a series of landmark rulings in the 1960s that dramatically extended the reach of the Bill of Rights and revolutionized the right to vote.

A powerful triumvirate led the Court in this pivotal era: Earl Warren, a former Republican governor and vice-presidential candidate from the West; Hugo Black, a former Democratic senator from the South who had been on the Court since the late 1930s; and William Brennan, a former Democratic state court judge from the Northeast who joined the Court in 1956. In addition to their striking geographic, professional, and political complementarities, Warren, Black, and Brennan brought impressive methodological diversity to the bench. Warren inclined toward arguments from constitutional ethos and American ideals of fair play; Black liked to highlight the literal words of the Constitution and their original intent; and Brennan generally saw things through the lenses of case law and practicality.
¹

Decades after Warren’s departure, his Court continues to inspire spirited debate, but most commentators have missed the real virtues, vices, and implications of the Warren Court revolution. Many conservative critics have accused Warren and his brethren of turning the Constitution upside down—dishonoring the document’s text and original intent, disrespecting the considered views of coordinate branches of government, and disregarding American public opinion. In response, many of the Court’s liberal admirers have glibly conceded the truth of these objections but countered that constitutional text, original understandings, congressional legislation, and popular sentiments are vastly overrated as decisional guideposts. According to these friends of the Court, the Warren-era justices were wiser and more evenhanded than the outdated constitutional text, the self-serving politicos in Congress, and the unwashed majority of ordinary Americans. Thus, the high court brethren were right to follow their own lights.