Making Our Democracy Work (26 page)

Virtually every Court case that involves the protection of individual liberty also involves the Court’s relation with some other government institution. For this reason, individual liberty cases may call for the application of the approaches already described. When the Court considers a constitutional “free speech” challenge to a statute regulating campaign finance, for example, the Court may have to look to the statutory approaches discussed earlier, such as purpose-based interpretation or constitutional avoidance, before it decides a free speech issue.

Individual rights warrant special attention when we consider how to make the Constitution work in practice. This is partly because of the importance of individual rights. Whether the Court can protect them adequately tests Hamilton’s thesis that the Court is the best repository of the power to interpret the Constitution. In addition, we should address individual rights separately because their enforcement can demand special interpretive tools, among them the use of
values
and of
proportionality
in determining where and how a rights-safeguarding provision applies.

These two approaches might not be necessary if the constitutional provisions setting forth individual rights were absolute. Justice Black believed that the First Amendment’s protection of free speech was absolute. If asked about the First Amendment, he would pull out his pocket Constitution, point to the words “no law,” and say “no law” means
no law
. Yet even Justice Black had a difficult time deciding how the amendment applied to speech-related activity, such as union picketing. This is because the First Amendment’s next few words, “abridging the freedom of speech,” are less definite. What precisely constitutes “freedom of speech”? And just when does a law abridge that freedom?
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Moreover, a rigid, absolutist approach would deprive others of equally important rights. As Justice Holmes pointed out long ago, the Court would not permit a prankster to shout “fire” in a crowded theater, risking the lives of others in the audience. Nor can individuals incite riots where the direct, known, and intended consequences include the deaths of innocents. A totally rigid approach is not always workable, and in the many instances where it is not, proportionality helps reconcile competing rights and interests in a workable way.
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Indeed, an absolute test only occasionally resolves a case that comes before the Court. As I said, the Constitution’s language—“freedom of speech” in the First Amendment, “unreasonable searches” in the Fourth, “liberty” in the Fourteenth—does not itself describe its scope. And the Court has often had to struggle with difficult questions as to the language’s application. How does the First Amendment apply to the Internet? How does the Fourth Amendment apply to the police department’s use of barriers created to stop all cars and search for drugs? What are the bounds of the protection that the Constitution’s
word “liberty” gives to those who wish to school their children at home?

Furthermore, important rights and interests can conflict. How should we reconcile the press’s interest in uncovering secret jury deliberations with the defendant’s interest in a fair trial? How should we reconcile “freedom of speech” with the “fair election” interest furthered by imposing limits on the amounts that individuals can contribute to a political campaign? To what extent can the government prevent a newspaper from publishing a story in order to protect national security, sometimes a matter of life and death?

Finally, a host of practical problems can arise, which stand in the way of any single simple solution to a difficult constitutional problem. Consider electoral gerrymandering. The Fourteenth Amendment guarantees equal treatment of each person’s vote. But gerrymandering sometimes makes it futile for some voters to exercise their rights, say certain Republicans in a state that heavily gerrymanders districts to favor Democrats or vice versa. The Court has recognized the problem, but it has thought it so difficult to create a remedy that it has abandoned its efforts to help.

In a 2004 case,
Veith v. Jubelirer,
³
for example, the Court (overturning an earlier case)
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held by a vote of 5 to 4 that courts should not hear a gerrymandering claim. That claim accused the Pennsylvania legislature of creating new congressional districts with “meandering and irregular” boundaries, and, in doing so, ignoring “all traditional redistricting criteria … solely for the sake of partisan advantage.” In dissent I argued that sometimes gerrymandering, without advancing any plausible democratic goal, can threaten serious democratic harm. It will sometimes stop voters from “throw[ing] the rascals out.” It will sometimes entrench a minority party in power. I also argued that courts can identify at least extreme instances; and they can create workable remedies in those instances. States wishing to avoid court involvement could create fair redistricting commissions—a procedural remedy sufficient to the problem.

Today, were I to have three wishes to turn dissents into majority opinions, I would place this case on the list. My reason is that the practice of gerrymandering has not abated; and gerrymandering, by isolating
legislators from credible electoral challenge by the opposition, has often forced legislators to take more extreme views, thereby making it more difficult to govern the nation as a whole. For present purposes the case illustrates some of the complexities and difficulties that defy easy answers. It also helps show why simple reference to language or history or tradition or precedent, or a simple absolute test, is often insufficient.

The upshot is that a Constitution that protects individual rights in practice needs tools that translate its written provisions into workable reality. Those tools must help the Court provide adequate protection for individual rights. And they should also help the public accept as legitimate the Court’s unpopular decisions. Two basic tools are values and proportionality.

V
ALUES
ARE THE
constitutional analogue of statutory purposes. When faced with a difficult question of constitutional law, judges initially examine the constitutional provision as they would other texts using the tools of language, history, tradition, precedent, purposes, and consequences. The last two tools, purposes and consequences, may be particularly important when the Constitution is at issue. But when referring to the Constitution’s protection of individual rights, I would substitute the term “values,” for it better describes the deep, enduring, and value-laden nature of the Constitution’s protections. Courts must consider how these values, which themselves change little over time, apply to circumstances that today may differ dramatically from those of two hundred years ago.

Consider examples of constitutional questions that arise today. Does the Fourth Amendment protect the homeowner from the government’s use
outside
the home of a device that registers invisible heat emissions and thereby detects growing marijuana
inside
the home? We know that protection of privacy—particularly that of the homeowner—is a basic value underlying the Fourth Amendment. Hence we have confidence that the Fourth Amendment will protect the homeowner against use of this machine insofar as it invades the homeowner’s
privacy. That is so even if no one in the eighteenth century dreamed of this kind of invasion.
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Similarly, the expressive values underlying the First Amendment’s speech protection tell us that the amendment strongly protects political speech over the Internet while offering little if any protection to Internet fraud schemes. Similarly, the values underlying the Eighth Amendment’s prohibition of “cruel and unusual punishments” suggest that today the amendment would prohibit flogging even if many eighteenth-century Americans thought flogging was neither cruel nor unusual.

Judges, of course, can disagree about just which values underlie a particular constitutional provision or how they apply. The Fourteenth Amendment’s equal protection clause forbids any state to “deny to any person … the equal protection of the laws.” Most judges believe that the clause insists that the government treat all persons with equal respect. But some believe that the clause thereby denies the government the power to take account of race, even for the purpose of increasing racial diversity, say in a law school class. Others deny that the clause requires that admissions be color-blind. Rather, it gives the government a degree of leeway when it adopts race-conscious policies that seek to include within mainstream American society members of “groups long denied full citizenship stature.”
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The disagreement is not easy to resolve. The Court took the latter view in a case involving law school admissions. It held that in light of the purpose of the clause, the Court should treat differently (1) race-conscious rules that include and (2) those that exclude. But the point here is that the debate was only partly about the values that underlie the clause; it was also about how those values should apply in our modern society.

T
HE SECOND TOOL
or approach,
proportionality
, is useful when a statute restricts one constitutionally protected interest in order to further some other comparably important interest. It is specially designed
for a context where important constitutional rights and interests conflict. Suppose, for example, the state forbids electioneering within a hundred feet of a polling place on Election Day. The prohibition restricts speech, and it also delineates an area where the election’s mechanics, and the voting itself, can proceed calmly without campaigning. Judges who use proportionality ask whether the restriction on speech is proportionate to, or properly balances, the need. They pose a similar question when considering whether campaign finance laws violate the First Amendment, whether a workplace-related speech restriction that the government imposes on its own employees is constitutional, and whether and how the Constitution permits the government to regulate commercial speech such as advertising.

Proportionality involves balancing, which the Court has sometimes tried to minimize. For example, the Court has said it will apply tests that are highly protective of political speech and try to avoid balancing in that area. But in other areas, the Court more directly weighs harms, justifications, and potentially less restrictive alternatives. How serious is the harm to free speech that a certain statute may cause? How important are the statute’s countervailing objectives? To what extent will the statute achieve those objectives? Are there other, less restrictive ways of accomplishing as much? The Court sometimes uses different words to describe what it is doing when it asks these or similar questions. But ultimately the Court must determine whether the statute threatens a constitutionally protected interest with harm that is disproportionately severe when considered in light of the statute’s justification.
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A
RECENT DECISION
illustrates how the two tools—values and proportionality—work in practice. The Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Meanwhile, the District of Columbia forbids possession of handguns, loaded rifles, and loaded shotguns within the District. In 2008 the
Court had to decide whether the District’s law violated the Second Amendment and held 5 to 4 that it did. The Court majority and the dissent disagreed both about the values that underlie the Second Amendment and about how they apply in today’s world.
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What values underlie the Second Amendment? What is the amendment’s basic purpose? The majority found those values and purposes in the words “right … to keep and bear Arms.” To determine what our eighteenth-century founders might have thought about the nature of the right and its specific content, the majority examined early legal sources, including writings of the eighteenth-century legal scholar William Blackstone and books and pamphlets reporting fear among seventeenth-century English Protestants that an English Catholic king would disarm them. This historical examination led the majority to conclude that in the eighteenth century an individual’s right to possess guns was important both for purposes of defending that individual and for purposes of a community’s collective self-defense. It then determined that the framers intended the Second Amendment to protect an individual’s right to keep and bear arms not only to effectuate the more general right to maintain a “well regulated Militia” but also independently as an end. For the majority, history, not militia-related purposes, would define the right’s scope.
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The dissenters (of which I was one) focused on the words a “well regulated Militia, being necessary to the security of a free State.” In their view, that language identifies the amendment’s major underlying value. Its purpose is to ensure the maintenance of the “well regulated Militia” that it mentions. The dissenters’ own examination of eighteenth-century American history convinced them that the framers wrote the amendment because Article I of the Constitution granted Congress extensive power to regulate state militias and to “employ[]” militia members in federal service. Some people feared at the time that Congress would use these regulatory powers to weaken or destroy state militias. The Second Amendment sought to assure the public that Congress would not be able to do so. That is to say, the amendment’s language
granting a “right … to keep and bear Arms” sought simply to assure the people that Congress could not use its Article I authority to do away with “well regulated” state military entities.
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