America's Unwritten Constitution: The Precedents and Principles We Live By (93 page)

12
  
JCC
, 32:334–343 (July 13, 1787); Act of Aug. 7, 1789, 1 Stat. 50.

13
  See Eric Biber, “The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union,”
American Journal of Legal History
42 (2004): 119.

14
  Note how this intriguing self-referential clause simultaneously distinguished “this Constitution” from and linked “this Constitution” to its predecessor regime of “the Confederation.” Note also that the main function of the congressional statute of August 7, 1789, reaffirming the Ordinance of 1787 was to integrate the Ordinance into the new Constitution’s system of separation of powers. Whereas the 1787 Ordinance had vested the Confederation Congress with power to appoint various territorial officials, the 1789 law made clear that, per Article II, these powers would henceforth be exercised by the president, subject to Senate advice and consent. The power to remove these officials, which had also been vested in the Confederation Congress, was “hereby declared” to be vested in the president alone, in keeping with the so-called “Decision of 1789”—a fact highlighted by the Court in its landmark removal-power ruling in
Myers v. United States
, 272 U.S. 52, 145 (1926) (citing 1 Stat. 50, 53).

15
  On the Washington administration’s interpretation of the Ordinance as not requiring the emancipation of preexisting slaves in the Northwest, see
Amar, ACAB, 356
.

16
  For details, see ibid., 594–595 n. 7, 396.

17
  Johnson’s celebrated “We Shall Overcome” speech—delivered to a joint session of Congress on March 15, 1965—is also worth quoting at length, both in its own right and for its powerful echoes of Jefferson, Lincoln, Kennedy, and King:

       
This was the first nation in the history of the world to be founded with a purpose. The great phrases of that purpose still sound in every American heart, North and South: “All men are created equal”—“government by consent of the governed”—“give me liberty or give me death.” Well, those are not just clever words[;] those are not just empty theories. In their name Americans have fought and died for two centuries, and tonight around the world they stand there as guardians of our liberty, risking their lives.

          
Those words are a promise to every citizen that he shall share in the dignity of man. This dignity…rests on his right to be treated as a man equal in opportunity to all others.…To apply any other test—to deny a man his hopes because of his color or race, his religion or the place of his birth—is not only to do injustice, it is to deny America and to dishonor the dead who gave their lives for American freedom.

          
...

          
[A] century has passed—more than a hundred years—since the Negro was freed. And he is not fully free tonight. It was more than a hundred years ago that Abraham Lincoln, a great president of another party, signed the Emancipation Proclamation, but emancipation is a proclamation and not a fact. A century has passed—more than a hundred years—since equality was promised. And yet the Negro is not equal. A century has passed since the day of promise. And the promise is unkept. The time of justice has now come.…It is right in the eyes of man and God that it should come.

18
  See James Gray Pope, “Republican Moments: The Role of Direct Popular Power in the American Constitutional Order,”
U. of Pennsylvania LR
139 (1990): 288; Bruce Ack-erman,
We the People: The Civil Rights Revolution
(forthcoming). In the recent case of
Northwest Austin Municipal Utility District No. 1 v. Holder
, 557 U.S. 193 (2009), several justices at oral argument seemed not to understand the iconic status of the Voting Rights Act. Happily, the Court came to its senses in its final written decision, declining to endorse the appellant’s frontal assault on this special statute.

19
  See
Regents of the University of California v. Bakke
, 438 U.S. 265, 269–24 (1978) (swing opinion of Powell, J., announcing the judgment of the Court);
Grutter v. Bollinger
, 539 U.S. 306, 311–344 (2003) (opinion of the Court, per O’Connor, J.);
Parents Involved in Community Schools v. Seattle School District No
. 1, 551 U.S. 701, 782–799 (2007) (opinion of Kennedy, J., concurring in part and concurring in the judgment).

20
  See
Swann v. Charlotte-Mecklenburg Board of Education
, 402 U.S. 1 (1971), and cases cited therein.

21
  See Laurence H. Tribe,
The Invisible Constitution
(2008), 20.

22
  See, e.g.,
Boumediene v. Bush
, 553 U.S 723 (2008) (opinion of the Court per Kennedy, J., joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) (describing the
Dred Scott
case as “notorious”);
Planned Parenthood of Southeastern Pennsylvania v. Casey
, 505 U.S. 833, 998 (1992) (Scalia, J., dissenting, joined by Rehnquist, C.J., and White and Thomas, JJ.) (“[T]he Court was covered with dishonor and deprived of legitimacy by
Dred Scott v. Sanford
, an erroneous (and widely opposed) opinion that it did not abandon, rather than by
West Coast Hotel Co. v. Parrish
, which produced the famous ‘switch in time’ from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal”) (citations omitted);
Fullilove v. Klutznick
, 448 U.S. 448, 516 (1980) (Powell, J., concurring) (“[O]ur own decisions played no small part in the tragic legacy of government-sanctioned discrimination. See
Plessy v. Ferguson; Dred Scott v. Sanford”
) (citations omitted);
Bell v. Maryland
, 378 U.S. 226, 253 (1964) (separate opinion of Douglas, J., joined by Goldberg, J.) (describing
Dred Scott
as “ill-starred” and implying that the case “exalt[ed] property in suppression of individual rights”);
Cohen v. Hurley
, 366 U.S. 117, 142 n. 23 (1961) (Black, J., dissenting, joined by Warren, C.J., and Douglas, J.) (mocking
Dred Scott
and
Plessy
as “renowned” decisions that ignored “the words of the Constitution”).

23
  It might be thought that Justice Oliver Wendell Holmes Jr.’s dissent in
Lochner
could function as the paired symbolic “hero.” But the status of this dissent and of Holmes more generally in modern constitutional discourse is rather complicated. Holmes has his admirers, but also has eminent critics. See, e.g., Alexander Meiklejohn,
Free Speech and Its Relation to Self-Government
(1948). Holmes memorably told us in
Lochner
that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”
Lochner v. New York
, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). Fair enough—the Constitution indeed does not mandate laissez faire or condemn all redistribution. But Holmes was much less helpful in explaining exactly what the Fourteenth Amendment
does
do. Holmes’s obtuse arguments that state governments could brazenly defy the Fifteenth
Amendment with no judicial repercussions, could properly penalize core political expression, could lawfully enforce a system of peonage-labor, and could legitimately sterilize women as officials saw fit—see, e.g.,
Giles v. Harris
, 189 U.S. 475 (1903);
Patterson v. Colorado
, 205 U.S. 454 (1907);
Bailey v. Alabama
, 219 U.S. 219, 245–250 (1911) (Holmes, J., dissenting);
Buck v. Bell
, 274 U.S. 200 (1927)—have not aged well. These pronouncements from Holmes form no part of today’s symbolic Constitution. On the contrary, these and related Holmesian pronouncements are widely viewed today as deplorable. Yet their underlying vision of bland deference to majority will, even if tyrannical, cannot be cleanly separated from the vision on display in Holmes’s
Lochner
dissent.

24
  
Dred Scott v. Sanford
, 60 U.S. 393, 405 (1857).

25
  Though
Plessy
now stands as a disgraced opinion, the Court of late has unfortunately had rather kind things to say about an earlier landmark ruling in
The Civil Rights Cases
of 1883, a ruling whose logic and voting line-up foreshadowed
Plessy
’s logic and line-up. In
The Civil Rights Cases
, 109 U.S. 3 (1883), the Supreme Court—over the sharp solo dissent of Justice Harlan—invalidated major portions of Congress’s Civil Rights Act of 1875, which required racial equality in railroads, steamships, and various other facilities open to the public, such as inns, theaters, and other places of public amusement. Had the Court in 1883 simply upheld the 1875 Civil Rights Act, then the Louisiana Jim Crow law in
Plessy
could have been struck down on the easy ground of federal preemption. Thus, the negative symbol of
Plessy
also reinforces the wisdom of paying special deference to congressional civil rights laws, especially the civil rights laws enacted during the first and second Reconstructions. Much as the Philadelphia framers, led by presiding officer George Washington, drafted the language of Article II in a way that effectively delegated broad power to shape the presidency to the first president, who of course would be Washington himself (see Chapter 8 for more details), so the Reconstruction Congress drafted the Thirteenth, Fourteenth, and Fifteenth Amendments in a manner that gave Congress itself broad authority to shape the full meaning of these amendments.

26
  The
Lochner
Court sharply distinguished between what it saw as legitimate and illegitimate government purposes. Protecting workers’ health and safety was a legitimate purpose; but it was illegitimate for government to enhance workers’ bargaining power for its own sake or to intentionally shift economic surplus from employers to employees. Thus the Court condemned any law that was a “labor law, pure and simple,” in which government openly favored Labor at the expense of Capital.
Lochner v. New York
, 198 U.S. 45, 57 (1905). See also
Coppage v. Kansas
, 236 U.S. 1, 17–18 (1915), in which the
Lochner
-era Court condemned legislative efforts to level “inequalities of fortune.” For similar readings of the antiredistributive essence of the
Lochner
case and the
Lochner
era, see, e.g., Laurence H. Tribe, “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,”
Harvard LR
87 (1973): 1, 6–7, 12–13 & n. 69; Jed Rubenfeld, “The Anti-Antidiscrimination Agenda,”
Yale LJ
III (2002): 1141, 1146–1147. For a recent effort to end the demonization
of Lochner
, see David E. Bernstein,
Rehabilitating
Lochner:
Defending Individual Rights Against Progressive
Reform
(2010). Bernstein succeeds in establishing that Justice Holmes and several other extreme contemporary Progressive critics of
Lochner
should not be viewed as heroic figures; their unduly dismissive vision of individual constitutional rights should not have prevailed in the
Lochner
era and should not prevail today. Alas, much of the rest of Bernstein’s book fails to engage the best criticisms
of Lochner
, preferring instead to knock down an army of straw men. Bernstein fails to highlight the fact that the most admirable cases of the
Lochner
era, on which modern case law continues to build, were all joined in relevant part by Justice Louis Brandeis. Bernstein also oddly tries to claim Justice Harlan for his own team, even though Harlan famously dissented in
Lochner
. Ibid., 123–127. Despite the title of his book, Bernstein fails to rehabilitate
Lochner even
though he does defrock Holmes. Bernstein would have done better to write a book lauding
Lochner’s
most admirable and trenchant critics, including the first Justice Harlan, Justice Brandeis, and Justice Black. Although these three men disagreed about many things, each of these judicial icons contributed a great deal to what is best about modern constitutional law.

27
  For the pairing of
Dred Scott
and
Plessy
, see, e.g.,
Parents Involved in Community Schools v. Seattle School District No. 1
, 551 U.S. 701, 781 (2006) (Thomas, J., concurring). Earlier opinions authored or joined by Justices Powell, Black, and Douglas and Chief Justice Warren also paired
Dred
and
Plessy
. See supra n. 22. For the pairing
of Dred Scott
and
Lochner
, see, e.g.,
Planned Parenthood of Southeastern Pennsylvania v. Casey
, 505 U.S. 833, 998 (1992) (Scalia, J., dissenting, joined by Rehnquist, C.J., and White and Thomas, JJ.). For the pairing of
Plessy
and
Lochner
, see, e.g., ibid., 957. For a thoughtful discussion of related issues, see Richard Primus, “Canon, Anti-Canon, and Judicial Dissent,”
Duke LJ
48 (1998): 243.

1
    On the especially inclusive voting rules that governed the Constitution’s ratification in the late 1780s, see
Amar, ACAB
, 5–7 and accompanying notes.

2
    For more discussion and documentation, see ibid., 381–383.

3
    See Akhil Reed Amar, “The Supreme Court, 1999 Term—Foreword: The Document and the Doctrine,”
Harvard LR
114 (2000): 26, 96–102.

4
    Joint Resolution of June 5, 1919, 41 Stat. 362.

5
    The attentive reader will by now have noticed that several of the most interesting areas of interplay between America’s written and unwritten Constitution involve questions of remedy and related issues of severability. In a nutshell, what should happen when the Constitution’s rules are not properly followed? For example, when states unlawfully try to exit the Union? (See Chapter 2, text accompanying nn. 41–50.) What about when improper searches and seizures in fact occur? (See Chapter 3, text accompanying nn. 23–26; Chapter 4, text accompanying nn. 38–52; and Chapter 5, text accompanying n. 12.) Or when the rights of blacks to enjoy equal citizenship and voting rights are massively violated by a pervasive regime of segregation, disfranchisement, and oppression? (See
Chapter 5, text accompanying nn. 5–6.) Or when the Court itself garbles the Constitution? (See Chapter 5, text accompanying nn. 19–25.) Or when certain sentences of the Constitution would violate later amendments unless some old words are in effect excised or some new words in effect interpolated? (See Chapter 10, text accompanying n. 14.)