Madison's Music (27 page)

Justice Steven Breyer's spin on purposivism takes it to a higher level of generality. He argues that the dominant purpose of the entire Constitution is to enhance participation in democratic self-governance.
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Having identified such an overarching purpose, he professes to decide hard constitutional cases in ways that advance that laudable ideal. While it often leads to excellent outcomes, a general concern with advancing democracy that is not carefully rooted in the text hardly qualifies as a blueprint for a single right answer in a hard constitutional case. Why not, for example, treat protection of individual autonomy or economic efficiency as the overarching purpose of the Constitution? My effort to read all forty-five words of the First Amendment as a narrative of democracy is an effort to ground Justice Breyer's emerging intuition in the text itself.

A few intrepid souls acknowledge that the constitutional text is too ambiguous to generate single right answers in hard constitutional cases and that literalism, originalism, and purposivism all fail to deliver on their promise to produce a single objectively correct reading. They argue that the Founders' use of ambiguous phrases at a high level of generality acts as a delegation to future generations
of the power and responsibility to interpret the Constitution in accordance with the felt necessities of the times. It's the way Justice Brennan actually decided hard cases. It's what the unanimous Supreme Court did in
Brown
when it rejected ninety years of contrary precedent to invalidate racial segregation in public schools.
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But such a process, deeply dependent on a judge's value-laden personal assessment of what the times require, cannot possibly be thought of as generating a single objectively right answer. Ronald Dworkin tried to think himself out of that dilemma by analogizing constitutional interpretation to an extremely complex problem in mathematics for which all agree that a single solution exists but for which it is impossible under current conditions of knowledge to calculate the one right answer. All that mathematicians can do in such settings, Dworkin argued, is to work toward the solution using the best tools of the mathematical trade. Judges, Dworkin argued, also work toward a single but unknowable correct constitutional answer by consulting the best aspects of their culture to reach the fairest and most just results.

Whatever the attractions of Dworkin's approach to constitutional interpretation—and they are many—his approach also fails to deliver a single objectively right answer. Asserting that an unknowable constitutional meaning exists that judges can reason toward by using their understanding of the best elements of the culture simply asks judges to do what they think is best. Maybe that's the inevitable nature of constitutional judging, but it surely is not a formula for a single objectively correct reading of the constitutional text. Others, lacking Dworkin's intellectual firepower, just keep their heads down and say as little as possible about why aggressive judicial review is consistent with democratic theory. Much of the time, they camouflage their acts of creative interpretation in purposivist or originalist terms in order to shield their use of subjective values from the light of day.

So the second dirty little secret of judicial review is that, with the exception of literalism in a few trivial settings, none of the current approaches to reading the constitutional text delivers a single
value-neutral indisputably correct constitutional meaning. Literalism fails. Originalism fails. Purposivism fails. Like it or not, judges must make value choices in deciding a hard constitutional case. That's where recovering the ability to listen to Madison's music could be of real help to an intellectually honest judge. Once we realize that values inevitably play a role in constitutional interpretation, Madison's music can provide significant assistance to a judge seeking coherent meaning in the ambiguous text of the Bill of Rights. Whatever your theory of constitutional interpretation, intellectually honest judges will almost certainly find useful guidance if they are able to read the Bill of Rights as an ordered, coherent narrative of liberty and democracy in which each idea is linked to another and all are linked to the overarching principle of fostering the First Amendment's democratic city on the hill.

THE THIRD DIRTY LITTLE SECRET OF JUDICIAL REVIEW (THE BIG SCARY ONE)

Marbury
's apologia for judicial review is persuasive only in train-wreck cases where the collision between the constitution's clear text and a statute is unavoidable, and so far we haven't come up with a generally accepted way to read ambiguous provisions of the Constitution in non-train-wreck cases. That recognition leads us to the third secret of judicial review—the big scary one. The historical facts are indisputable: constitutional judging has too often reached appalling, politically driven results that have reinforced the strong at the expense of the weak. It turns out that vesting unelected judges with the enormous, essentially unconstrained power of judicial review is a huge gamble.

Gambling on Judges

During the nineteenth and most of the twentieth centuries, the United States was virtually the only democracy to place the power of judicial review in the hands of unelected judges. Sister democracies, such as Great Britain and France, were deeply suspicious of
giving so much power to unelected judges because, frankly, judges, drawn from an elite segment of the population, don't always function terribly well when asked to protect the weak against the strong. The Warren Court may well have been an aberrational blip on the judicial radar. We've already looked at the partisan political fiasco of
Marbury v. Madison
, the Court's first judicial review of an act of Congress. The second was infinitely worse.
Dred Scott v. Sandford
invalidated Congress's effort to ban slavery from the territories and ruled that free blacks could never be recognized as citizens of a state. It's hard to read
Dred Scott
and retain faith in judges. Sadly,
Dred Scott
isn't alone. The first Supreme Court case to strike down a state statute as unconstitutional,
Prigg v. Pennsylvania
, was no better. The
Prigg
Court invalidated an effort by the Pennsylvania legislature to protect free blacks from being kidnapped from the streets of Philadelphia by bounty hunters allegedly searching for escaped slaves.
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The Supreme Court struck down the Pennsylvania anti-kidnapping law, construing the Fugitive Slave Clause of the Constitution as guarantying slave owners the right to take the law into their own hands to recover their allegedly escaped property. Ugly as the Fugitive Slave Clause was, though, it says no such thing.
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The majority justices in
Prigg
just made it up.

In the years following the Civil War, we turned to the federal courts and judicial review in an effort to protect the rights of newly freed slaves. Congress vested lower federal courts with broad federal-question power to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments, hoping that judges actually would protect blacks. Instead, the Supreme Court upheld legally enforced racial segregation,
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turned away desperate pleas to protect minority voting rights,
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and allowed lynch law to flourish by striking down every nineteenth-century effort to enact federal legislation banning it.
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Instead of protecting the weak, the Supreme Court invoked the federal judiciary's newly granted enforcement power to protect corporations
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by severely restricting railroad rate regulation,
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blocking unions,
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and invalidating minimum-wage, maximum-hour, and child-labor laws.
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Over the objections of Justice Oliver
Wendell Holmes Jr., who accused his Supreme Court colleagues of imposing economic Darwinism in the guise of constitutional interpretation, during the first third of the twentieth century a phalanx of deeply conservative federal judges invoked the Constitution to invalidate virtually every significant effort at regulating the economic and labor markets.

FDR's Wager

During the Great Depression of the 1930s, the Supreme Court's invalidation of critical aspects of the first New Deal
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led to an effort by President Roosevelt in 1937 to pack the Supreme Court with justices more amenable to his views by appointing six new justices, one for every sitting justice over seventy, bringing the Court to fifteen members. Roosevelt's efforts at court packing had a surface constitutional plausibility. After all, in 1801, Adams had “unpacked” the Court by lowering its membership from six to five justices. In 1802, Jefferson had prevented the Court from sitting at all. In fact, the Constitution says nothing about the size of the Supreme Court. It began life in 1789 with six justices. In 1801, John Adams briefly shrank it to five to prevent president-elect Jefferson from having a vacancy to fill. The 1802 Congress restored the number to six. As the country grew, Supreme Court membership was increased to seven in 1807, nine in 1837, and ten in 1863. It shrank to nine in 1866 and eight in 1867. In 1869, membership was returned to nine, where it has remained ever since.

FDR was rebuffed by Congress, but at least one sitting justice—Owen Roberts—got the message and switched his position on several important constitutional issues, voting to uphold crucial aspects of Roosevelt's program, especially the National Labor Relations Act.
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Roberts's conversion has been known ever since as “the switch in time that saved nine.” The crisis passed with the death or retirement of four justices, giving FDR the ability to build a comfortable Democratic majority on the Court, but the message that judicial review is a subjective and intensely political process was reinforced again.

Post–New Deal exercises of judicial review by the Supreme Court continued to generate fierce political controversy, this time about social rather than economic issues. During World War II, the historic flag salute decision in
West Virginia v. Barnette
reversed a 1940 decision and ruled that schoolchildren could not be forced to salute the flag. A year later, though, the Court sustained the constitutionality of the Japanese internment camps in the infamous
Korematsu
decision.
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The postwar Court's attention then shifted to the linked problems of racial discrimination and the regional failure of Southern political and judicial institutions to confront Jim Crow.
Brown v. Board of Education
invalidated racial segregation in public schools and ushered in the era of the Warren Court, named for Chief Justice Earl Warren, a Republican governor of California who had been elected three times with broad bipartisan support but had supported the Japanese internment camps. Warren was appointed chief justice in 1953 by President Eisenhower and presided over a controversial egalitarian surge that reinterpreted much of the Constitution and laid bare the politics of judicial review.

The Warren years ended in 1969, when President Lyndon B. Johnson and Justice Abe Fortas botched the process of appointing Warren's successor. Fortas, tapped by his crony LBJ as the new chief justice, was eventually forced to resign from the Court over financial conflicts of interest, leaving the power to fill that vacancy and the power to appoint Warren's successor to Richard Nixon. Like Roosevelt (and Harding) before him, Nixon parlayed four Supreme Court appointments into operational control of the Court, although Nixon's justices, confronted with a bewildering array of social issues, turned out to be more unpredictable than Roosevelt's economic phalanx.

In the ensuing years, a closely divided Supreme Court careened unpredictably from one social issue to the next, often by 5–4 votes:

       
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protecting a woman's right to choose whether to bear a child
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and then taking back much of the right,
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approving affirmative action
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and then turning on it,
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expanding freedom of religion
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and then contracting it,
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enforcing freedom from religion
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and then not so much,
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powerfully reinforcing free speech
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but not at the bottom of a hierarchy,
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•
  
revolutionizing criminal procedure
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and then undoing much of the revolution,
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•
  
building a dysfunctional law of democracy
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and then refusing to budge from it,
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•
  
gutting efforts at gun control while
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decrying violent crime,

       
•
  
recognizing broad national power to regulate the economy
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and then chipping away at it.
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The only constant over time has been the Court's fierce determination to preserve its own power, rooted solely in
Marbury v. Madison
, to impose the definitive reading of the Constitution's ambiguous text.
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