Grasping Reality on TypePad, by Brad DeLong

1. Jimmy Madison was an idiot for including individual rights in the Constitution: "The Constitution, of course, deals with individual rights, particularly in the first Ten and the fourteenth Amendments. But as I read the history of this Court, it has seldom been out of hot water when attempting to interpret these individual rights."

2. No matter what the Constitution says, the Supreme Court cannot protect minority rights of any kind, and it should not try, for "in the long run it is the majority who will determine what the constitutional rights of the minority are."

3. The Warren Court's attempt to use the law to help change the hearts and minds of Americans toward racial equality is doomed to failure: "One hundred and fifty years of attempts on the part of this Court to protect minority rights... have been sloughed off, and crept silently to rest.... [T]he present Court... must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men."

4. The FDR-era "Switch in Time That Saved Nine," in which the Supreme Court decided to cease blocking New Deal measures rather than continue to do so and trigger the passage of constitutional amendments explicitly increasing the government's power to regulate the economy, was a principled recognition by the Court of the general principle that "...where a legislature was dealing with its own citizens, it was not part of the judicial function to thwart public opinion."

5. In an extraodinary misconstrual of U.S. history in the 1850s, Chief Justice Roger Taney's holding in Dred Scott v. Sanford that Congress could not prohibit slavery in any U.S. Territory was not an attempt to give slavery a chance to expand in U.S. Territories beyond its Missouri Compromise and Kansas-Nebraska Act boundaries, but was instead a defensive move: an "effort to protect the slaveholders from legislative interference." (Never mind that the legislative "interference" was at the time of Taney's decision more than seventy years old, dating back to Thomas Jefferson's Northwest Ordinance prohibiting slavery from the Northwest Territories between the Ohio, the Mississippi, and the Great Lakes.)

Now the fifth of these--Roger Taney as a principled defender of minority rights against legislative encroachment--is a very strange belief for a modern American to have.

The fourth would be a strange belief for a non-lawyer to have, but lawyers spend a lot of their time asserting that a court in the past did X for reason Y even when it is plain that Y did not feature in the court's thinking at all.

And the third was clearly wrong.

But the first and second are by far the strangest and most bizarre.

It is indeed the case that a sufficiently large, determined, and durable majority could repeal the Thirteenth Amendment and reduce African-Americans to slavery, and repeal the First Amendment and establish a press completely controlled by the Ministry of Truth. But until those amendments are repealed, the prohibition against slavery and the freedom of the press are part of the supreme laws of the land that it is the business of the Supreme Court to enforce.

And Rhenquist's first? That the Court should not attempt to "interpret" any of the Constitution's provisions protecting individual rights? It seems to fundamentally miss the point of what the American Constitution is, nay, more, to miss the entire point of Anglo-Saxon jurisprudence since Magna Carta itself. Rehnquist seems to have simply never gotten the point that, as Jefferson put it, here in America we believe that people have rights and that governments are established to secure those rights--that the government is our servant, not our master.

It is a very, very odd thing indeed for William Rehnquist to be Chief Justice of the United States of America.

A Random Thought on the Segregation Cases:

One-hundred fifty years ago this Court held that it was the ultimate judge of the restrictions which the Constitution imposed on the various branches of the national state government. Marbury v. Madison. This was presumably on the basis that there are standards to be applied other than the personal predilections of the Justices.

As applied to questions of inter-state or state-federal relations, as well as to inter-departmental disputes within the federal government, this doctrine has worked well. Where theoretically co-ordinate bodies of government are disputing, the Court is well suited to its role as arbiter. This is because these problems involve much less emotionally charged subject matter than do those discussed below. In effect, they determine the skeletal relations of the governments to each other without influencing the substantive business of those governments.

As applied to relations between the individual and the state, the system has worked much less well. The Constitution, of course, deals with individual rights, particularly in the first Ten and the fourteenth Amendments. But as I read the history of this Court, it has seldom been out of hot water when attempting to interpret these individual rights. Fletcher v. Peck, in 1810, represented an attempt by Chief Justice Marshall to extend the protection of the contract clause to infant business. Scott v. Sanford was the result of Taney's effort to protect the slaveholders from legislative interference.

After the Civil War, business interest came to dominate the court, and they in turn ventured into the deep water of protecting certain types of individuals against legislative interference. Championed first by Field, then by Peckham and Brewer, the high water mark of the trend in protecting the majority opinion in that case, Holmes replied that the fourteenth Amendment did not enact Herbert [S]pence[r]'s Social Statios [sic]. Other cases coming later in a similar vein were Advins v. Children's Hospital, Hammer v. Dagenhart, Tyson v. Banton, Ribnik v. McBride. But eventually the Court called a halt to this reading of its own economic views into the Constitution. Apparently it recognized that where a legislature was dealing with its own citizens, it was not part of the judicial function to thwart public opinion except in extreme cases.

In these cases now before the Court, the Court is, as Davis suggested, being asked to read its own sociological views into the Constitution. urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice's individual views on the merits of segregation, it quite clearly is not one of those extreme cases which command intervention from one of any conviction. If this Court, because its members individually are "liberal" and dislike segregation, now choose to strike it down, it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects.

To those who argue that "personal" rights are more sacrosanct than "property" rights, the short answer is that the Constitution makes no such distinction. To the argument made by Thurgood Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.

One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind--whether those of business, slaveholders, or Jehovah's Witnesses--have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleag[u]es, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer's Social Statios [sic], it just as surely did not enact Myrddahl's [sic] American Dilemma.

WHR

[1] William H. Rehnquist (1952), "A Random Thought on the Segregation Cases," Hearings Before the Committee on the Judiciary, United States Senate, Ninety-Ninth Congress, Second Session, on the Nomination of Justice WIlliam Hubbs Rehnquist to be Chief Justice of the United States. July 29, 30, 31, and August 1, 1986. Serial No. J-99-118. S. Hrg. 99-1067. J 60 J9 99th no. 130 DOCS, pp. 324-5.

[2] From pp. 328-332 of Richard Kluger (1977), Simple Justice (New York: Random House: 0394722558):

The memo, Rehnquist advised the Senate... had been written at Justice Jackson's request and represented Jackson's views on the segregation cases. The Justice wanted the memo, Rehnquist said, to arm himself when speaking at the conference of the Justices.... If Rehnquist was telling the truth to the Senate in 1971[3]... the Justice must have undergone a considerable change of heart... little in Burton's notes on Jackson's remarks [during the Court conference on December 13, 1952] resembles any of the thoughts attributed to him in the Rehnquist memo. And nothing in the memo that Jackson himself prepared on the subject in February 1954 remotely suggests that he ever thought that Plessy had been rightly decided...

[3] There is much evidence... that casts doubt on Rehnquist's account.... Of the two living people who might have corroborated Rehnquist's explanation to the Senate, one.. seemed to conflict with the Rehnquist account, and the other sharply denied it. Rehnquist's fellow clerk, Donald Cronson... cabled a message.... Cronson's explanation raises at least three questions.... If Jackson had requested two memos reaching opposite conclusions on the rightness of Plessy, why did Rehnquist claim that the second memo--the one bearing Rehnquist's initials--represented Jackson's view of the case?...

The other person... Elsie Douglas, Jackson's secretary... told the Washington Post that... Rehnquist had "smeared the reputation of a great Justice." She challenged Rehnquist's assertion that Jackson would have asked a law clerk to help prepare the remarks he would deliver at a conference of the Justices.... She told Newsweek that Rehnquist's account was "incredible on its face."

Without resort to the statements by Cronson or Mrs. Douglas, Rehnquist's attribution to Jackson of the views in the... memo bearing Rehnquist's initials is challenged by internal evidence.... The titles of both memos are strikingly inappropriate to the use Rehnquist claims.... Is it possible that Jackson would have disparaged... "attempts... to protect minority rights"... when Jackson himself wrote many a decision protecting minority rights?...

Is it possible... Robert Jackson would have told his brother Justices... "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal colleagues, but I think Plessy... should be affirmed"? The "I" in that passage, according to Rehnquist, was supposed to be Jackon... but where and when might Jackson have been excoriated by his "liberal" colleagues? And what colleagues might those have been?...

A far more plausible explanation might be that the "I" of the memo is Rehnquist... referring to the obloquy... by his fellow clerks, who discussed the segregation question over lunch quite regularly, who were... "liberal." Support for this surmise is lent by an article that Rehnquist wrote in... U.S. News and World Report.... "Some of the tenets of the 'liberal' point of view which commanded the sympathy of a majority of the clerks..." The telltale use of quotation marks around the word "liberal" adds to the suspicion that the "I" of the Rehnquist memo was never meant to be Robert Jackson speaking to his brethren...

While Rehnquist claimed his memo was intended to convey Jackson's words and thoughts... the companion Cronson memo... is plainly a memo from a clerk to his Justice...