America's Unwritten Constitution: The Precedents and Principles We Live By (91 page)

64
  Cf. John Hart Ely,
Democracy and Distrust
(1980), 6–7, 99, 123 (advocating a proper interpretive “line of growth” based on “the ways our constitutional document has developed in the two centuries since the Republican Form Clause was drafted”—a line of growth dramatized by a string of “right-to-vote” amendments); Laurence H. Tribe,
The Invisible Constitution
(2008), 69–70 (“[V]oting is itself constitutionally ‘core’ in what the Constitution had become by 1964 or at the very latest 1971, if not by 1920”).

65
  See Akhil Reed Amar, “The Central Meaning of Republican Government,”
U. Colorado LR
65 (1994): 749, 753–754, 776–777, 780.

66
  
Baker v. Carr
, 369 U.S. 186, 226 (1962). See also ibid., 244–245 (Douglas, J., concurring) (“Universal equality is not the test; there is room for [unequal] weighting [of votes]”); 258 (Clark, J., concurring) (“No one—except the dissenters…—contends that mathematical equality among voters is required by the Equal Protection Clause”).

67
  For additional reasons supporting
Reynolds’
s strict equalitarian approach—reasons centered more on implementation than pure interpretation—see Chapter 5, n. 13 and accompanying text.

68
  See Barry Friedman,
The Will of the People
(2009), 268 (quoting Senator Strom Thur-mond’s claim that the Warren Court rulings doomed the existing political structures of at least forty-four states).

69
  Compare the contrasting visions of
Brown
on pervasive display in
Parents Involved in Community Schools v. Seattle School District No. 1
, 551 U.S. 701 (2007), in which Chief Justice John Roberts and Justice Clarence Thomas offered politically conservative readings of
Brown
, Justices Stephen Breyer and John Paul Stevens offered politically liberal readings, and Justice Anthony Kennedy’s swing opinion split the difference. For more discussion of
Brown’s
special status, which made this fierce debate over its legacy both fraught and inevitable, see Chapter 6.

70
  While Justice Thomas has raised questions about the incorporation of the establishment clause, in particular—see, e.g.,
Newdow v. United States Congress, Elk Grove Unified School District, et al
., 542 U.S. 1, 49–54 (2004) (Thomas, J., concurring)—he has elsewhere vigorously applied and, in the context of the Second Amendment, extended the basic principles of incorporation.
McDonald v. Chicago
, 130 S. Ct. 3020, 3058–3088 (2010) (Thomas, J., concurring).

71
  Compare
Bush v. Gore
, 531 U.S. 98, 104–105 (2000) (per curiam) (citing
Harper
and
Reynolds
), with ibid., 124–125 (Stevens, J., dissenting, joined by Ginsburg and Breyer, JJ.) (citing
Reynolds
).

72
  See Chapter 3. Voting rights might also be understood as part of America’s actual institutional Constitution, à la Chapter 9, insofar as these rights are foundational elements of the institutionalized system of government as it in fact operates in America. But unlike most of the inside-the-Beltway governmental issues that will be canvassed in Chapter 9, the basic rights of adult American citizens to vote and to have their votes count equally form part of the actual lived experiences of ordinary persons, who go to the polls year after year expecting these basic principles to be respected by government officials.

         
Note also that although popular understandings do not generally suffice to subtract from expressly enumerated or structurally implicit constitutional rules and rights, the beliefs of the American people over time are especially relevant in glossing open-ended clauses, especially those that explicitly reference “the people,” as the Ninth does in so many words and as the republican-government clause does via the cognate word “republican,” which both etymologically and conceptually revolves around the principle of popular/populist//files/02/16/00/f021600/public/people-based government. (For more details on these etymological and conceptual connections, see
Amar, ACAB
, 276–281.)

73
  See supra n.51.

74
  Most commentators agree that the key constitutional contributions of the Warren Court occurred in the six fields covered in this chapter: race, incorporation, speech, religion, criminal procedure, and voting rights. Although two other fields in today’s constitutional discourse—privacy law and sex-equality law—have more obvious origins in the 1970s Burger Court, as reflected in cases such as
Roe v. Wade
and
Frontiero v. Richardson
(both decided in 1973), some see the 1965 Warren Court decision in
Griswold v. Connecticut
as the forerunner of these later cases. For discussion of
Griswold
as signaling an egalitarian
switch away from “property” in favor of “privacy” as the proper center of judicial solicitude, see Chapter 3, text accompanying nn. 40–41, 50. For a view of
Griswold
through the prism of post-
Griswold
feminism, see Chapter 7, text after n. 16. For
Griswold
as an incorporation-era case, recall the present chapter’s discussion at text following n. 18.

75
  See supra n. 66; supra n. 2 and accompanying text. See also Chapter 5, nn. 5–6 and accompanying text.

76
  From 1865 through 1888, the Court struck down acts of Congress in sixteen cases (one of which—one of the
Legal Tender Cases
—was later overruled within this window); from 1899 through 1912, the Court invalidated congressional action in fourteen cases; from 1920 through 1936, the Court tossed out Congress’s handiwork in over thirty cases. The data here derive from compilations in Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker,
The Supreme Court Compendium: Data, Decisions, and Development
, 4th ed. (2007), 176–180 (Table 2-15). There is some imprecision in these numbers. Nice classification questions arise when a very small part of a large statute is judicially disregarded, and also when a statute is not held to be “facially” unconstitutional in all applications but is rather found to be unconstitutional only as applied to certain facts. Moreover, judicial review resulting in the “invalidation” of a statute exists on a continuum with judicial techniques “avoiding” invalidation by construing a statute in an exceedingly narrow—and perhaps textually implausible—way.

77
  See Bruce Ackerman,
We the People: The Civil Rights Revolution
(forthcoming).

78
  Philip B. Kurland,
Politics, the Constitution, and the Warren Court
(1970), 90–91. Though Professor David Strauss is far more celebratory of the Warren Court than was Kurland, Strauss has not successfully explained how that Court’s reversal of precedents across the wide range of topics canvassed in this chapter squares with his own advocacy of “common law constitutionalism.” See David A. Strauss, “Common Law Constitutional Interpretation,”
U. of Chicago LR
63 (1996): 877. For a valiant effort to provide such an explanation—which, alas, fails to discuss huge portions of the Warren Court revolution and nowhere confronts the breathtaking sweep of the revolution as a whole—see David A. Strauss, “The Common Law Genius of the Warren Court,”
William and Mary LR
49 (2007): 845. Strauss claims that “the Warren Court’s most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings” and that, “[i]f you look only to those sources of law, you will not find justification for what the Warren Court did.” Ibid., 845, 850. The present chapter has defended the Warren Court against precisely these sorts of claims. The only Warren-era decisions that this chapter has declined to defend are exclusionary-rule rulings such as
Mapp
—a quadrant of case law unmentioned by Strauss.

79
  Johnny H. Killian and George A Costello, eds.,
The Constitution of the United States: Analysis and Interpretation
(1996), 2245–2255 (appendix prepared by Congressional Research Service compiling “Supreme Court Decisions Overruled by Subsequent Decisions”) (listing eighty-eight cases overruling precedents pre-Warren, forty-five cases from the Warren years, and sixty-one cases in the 1970s and 1980s). As with the data presented
in n. 76 and accompanying text, the figures here are the products of the compilers’ interpretive judgments. For example, at what point are we to say that a given disfavored case has been, in effect, overruled
sub silentio
—rejected by the Court even though not expressly overruled? When certain language in case 1 is cast aside in later case 2, does it matter whether that discarded language is the “holding” of the case or merely “dicta”? If so, how is the line to be drawn between “holding” and “dicta”?

80
  
Gideon v. Wainwright
, 372 U.S. 335 (1963), overruled
Betts v. Brady
, 316 U.S. 455 (1942). See Jerold H. Israel, “Gideon v. Wainwright: The ‘Art’ of Overruling,”
Supreme Court Review
1963: 211.

1
    
Farrand’s Records
, 2:389, 417, 430–431 (rewording the Judicial Article and the supremacy clause so as to “conform[]” and interlock); Amar,
ACAB
, 576–577 n. 47.

2
    Important scholarly analyses of the need for and significance of doctrine of this sort include Keith E. Whittington,
Constitutional Construction: Divided Powers and Constitutional Meaning
(1999); Richard H. Fallon Jr.,
Implementing the Constitution
(2001); Richard H. Fallon Jr.,
The Dynamic Constitution: An Introduction to American Constitutional Law
(2004); Jed Rubenfeld,
Revolution by Judiciary: The Structure of American Constitutional Law
(2005); Kermit Roosevelt,
The Myth of Judicial Activism: Making Sense of Supreme Court Decisions
(2006); Jack M. Balkin,
Living Originalism
(2011); David A. Strauss, “The Ubiquity of Prophylactic Rules,”
U. of Chicago LR
55 (1988): 190; Mitchell N. Berman, “Constitutional Decision Rules,”
Virginia LR
90 (2004): 1. Special mention must also be made of the extraordinary contributions of Professors Tribe, Bobbitt, and Currie. See Laurence H. Tribe,
American Constitutional Law
(1978); ibid., 2d ed. (1988); ibid., 3d ed. (2000); Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982); Philip Bobbitt,
Constitutional Interpretation
(1991); David P. Currie,
The Constitution in the Supreme Court: The First Hundred Years, 1789–1888
(1992); David P. Currie,
The Constitution in the Supreme Court: The Second Century, 1888–1986
(1994).

3
    See William Baude, “The Judgment Power,”
Georgetown LJ
96 (2008): 1807.

4
    
Blackstone’s Comm
. 3:23; Del. Const. (1776), Declaration of Rights, sec. 12; Md. Const. (1776), Declaration of Rights, art. XVII; Mass. Const. (1780), pt. I, art. XI;
Federalist
No. 43. See also
Elliot’s Debates
, 3:658 (twelfth item of proposed bill of rights of the Virginia ratifying convention).

5
    
Brown v. Board of Education of Topeka
, 347 U.S. 483, 491–495 (1954) (citations omitted; emphasis altered).

6
    See also
Mayor of Baltimore v. Dawson
, 350 U.S. 877 (1955) (beaches);
Holmes v. City of Atlanta
, 350 U.S. 879 (1955) (golf courses).

7
    See, e.g.,
Gertz v. Robert Welch, Inc
., 418 U.S. 323, 336 n. 7 (1974) (“Chief Justice Warren stated the principle for which [post-
Sullivan]
cases stand—that
The New York Times
test reaches both public figures and public officials”).

8
    See, e.g.,
Meek v. Pittenger
, 421 U.S. 349 (1975), overruled by
Mitchell v. Helms
, 530 U.S. 793 (2000);
Wolman v. Walter
, 433 U.S. 229 (1977), overruled by
Mitchell; Aguilar v. Felton
, 473 U.S. 402 (1985), overruled by
Agostini v. Felton
, 521 U.S. 203 (1997);
Agostini; Mitchell; Zelman v. Simmons-Harris
, 536 U.S. 639 (2002).

9
    The last time a Court majority invoked the metaphor of a “wall of separation” was over a quarter-century ago—and this final invocation was far more equivocal than previous enthusiastic invocations by Court majorities in
Everson
and many other pre-1980 cases. See
Lynch v. Donnelly
, 465 U.S. 668, 673 (1984). For more on the rise and fall of Jefferson’s metaphor in
U.S. Reports
, see Ian Bartrum, “The Constitutional Canon as Argumentative Metonymy,”
William & Mary Bill of Rights J
18 (2009): 327, 331–346.

10
  See supra n. 8.

11
  If the Fourteenth Amendment’s words simply incorporated by reference the rights of the Bill, via Pathway One mapped out in Chapter 4, then Warren Court doctrine did not overprotect the amendment’s core textual meaning. But if the amendment’s words had a logically and semantically looser link to the Bill of Rights—such as Pathway Five—then the Warren Court doctrine could indeed be seen as slightly overprotective.

12
  For most of the twentieth century prior to
Mapp
, the Court neutered a key Reconstruction-era federal statute—42 U.S.C. section 1983—aimed at remedying state constitutional wrongs via civil damages and equitable injunctions. State law had failed to fill the breach, creating a remedial gap that obviously concerned the
Mapp
Court. But only months before
Mapp
was (incorrectly) decided, the Court (correctly) revived section 1983 in
Monroe v. Pape
, 365 U.S. 167 (1961). The
Mapp
Court did not wait to see how this superior remedial structure might be made to work. To the extent that the section-1983 structure has fallen short of its promise, several of its limitations are due to niggardly Court interpretation of section 1983’s provisions—provisions that establish a structurally sound (and congressionally authorized) foundation for a civil-remedy system in the tradition of the Wilkes-Camden cases that inspired the Fourth Amendment.