Coercing Virtue (4 page)

This recital of multiple misbehaviors does not prove judicial review illegitimate, but the manner in which the Supreme Court established its authority was hardly propitious. Even so, the Marshall Court of 1803 could not have foreseen the uses to which the Court’s authority was put in the twentieth century and, barring a miracle, will continue to be put in the twenty-first. Marshall justified judicial supremacy in the interpretation of the Constitution on the ground that the legislature must not be permitted to do what the Constitution forbids. The subsequent career of judicial review, however, demonstrates that courts, being uncheckable, freely do what the Constitution forbids while ordering others not to do what the Constitution allows.

The power of judicial review lay unexercised for fifty-four years until
Dred Scott
v.
Sandford
(1857), which was the worst constitutional decision of the nineteenth century – not merely in the immorality of its result and the speciousness of its reasoning, but because it is the true
doctrinal ancestor of many modern constitutional follies. In this case the Court decided that the slave Dred Scott could not be declared free on the basis that he had been taken to Illinois, where slavery was forbidden by federal law. Chief Justice Roger Taney, writing for a majority of the Justices, could simply have dealt with the facts of the case and decided that Scott, as a slave, was not a citizen with standing to bring a lawsuit, but he went further and declared that the United States lacked the power to prohibit slavery in any state or territory or to permit a state to bar slavery in its own territory. That, he said, would deprive slave owners of their property without “due process of law.” With this single sentence Taney converted a clause of the Fifth Amendment from a guarantee of a proper process in the application of law to a guarantee of a proper substance, or meaning (in the view of the Justices), of the law itself.

The Court would now be able to judge the constitutionality of law by deciding, without any criteria to structure the judgment, that the substance of what the law commanded was not “due.” There could be no intellectual structure to substantive due process because its existence was unjustified, indeed contradicted, by the text, and the framers and ratifiers, of course, provided no legislative history for a concept they never intended. One might have expected this transparent sleight of hand from a Court trying to justify the unjustifiable. What could not have been foreseen was the scores of times the Court would use due process to substitute its law-making for that of the elected legislature.

If
Marbury
was motivated by Federalist politics and
Dred Scott
by sympathy with the slave states, the Court after the Civil War began to express the ideology of the rising business class. The most notorious example is
Lockner v. New York
(1905), which struck down a decision setting maximum work hours for bakers. Justice Peckham, writing for the majority, used the Due Process Clause of the Fourteenth Amendment to create a “liberty of contract,” a concept found nowhere in the Constitution, to hold that any limitation on hours of work was unreasonable. Statutes of this type, he wrote, were “mere meddlesome interferences with the rights of the individual.” Three of the Court dissenters even agreed that there was a liberty of contract. This freehand approach to constitutional argument was to have results that Peckham, let alone Marshall and Taney, would have abhorred. In the wake of the Great Depression, the next stage in the Court’s ideological journey was the enforcement of New Class values, rather than those of the business class.

The one thing that stood in the way of a full-blown activism was the Court’s fear of overreaching and a consequent political backlash. That fear must have seemed well founded after President Franklin Roosevelt, frustrated by the invalidation of much of the economic regulation of his New Deal, attempted to “pack” the Court by seeking legislation enabling him to appoint an additional Justice for every Justice who reached the age of seventy and did not retire. Six Justices were then over seventy. It soon became apparent, however, that a conservative activist Court was vulnerable in ways that a liberal activist
Court was not. The Court regained its confidence and the activist enterprise went into high gear after the decision in
Brown
v.
Board of Education
(1954). I have argued elsewhere that
Brown’s
desegregation of public schools can find support in the Constitution, but, as demonstrated by the woefully inadequate opinion it issued, the Court did not think so. Yet, despite its belief that the decision had no real grounding in the Constitution, the Court saw that it could make a highly controversial decision stick, even over powerful opposition. Activism was safe, it believed, and the wraps were off.

What is this New Class agenda advanced by the Court?

Perhaps no provisions of the Constitution are more central to American democracy and culture than those of the First Amendment’s guarantee of speech and religious freedom:

The First Amendment is pivotal. Nothing reveals more clearly the contest of views concerning the proper relationship between the individual and society. Equally clear, in the Court’s recent deformation and reversal of the meaning of that amendment, is the rise to dominance of the New Class. Harry Kalven was correct in saying that freedom of speech is so close to the heart of democracy that, if we lack an appropriate theory of the First Amendment, we really do not understand the society in which we live. I would add that if we lack an appropriate theory of the Religion Clauses of the First Amendment, we do not understand the culture that religion in large measure formed nor the erosion of cultural virtues that the Court’s new-found hostility to religion has abetted.

The Court had little occasion to consider First Amendment speech claims until the early years of the twentieth century; it did so particularly in prosecutions arising out of the First World War and what has become known as the Red Scare. Today, those cases are remembered less for the majority opinions than for the dissents by Justices Holmes and Brandeis that contained the seeds of doctrine that came to fruition in later years and are with us yet. I have expressed my doubts about those dissents elsewhere, but here I want to note that the assumption of complete human rationality made its debut in Holmes’s dissent in
Abrams
v.
United States
(1919). The defendants were convicted for circulating pamphlets construed as harmful to the war effort. Holmes would have set aside the convictions on statutory grounds, which would have been entirely proper, but then proceeded in
his glittering prose to introduce into the First Amendment an unfortunate assumption of rationalism:

This is a distinctly odd passage since Holmes, again in dissent, said elsewhere that the only meaning of the First Amendment was that the dominant force in the society must have its way, even though that might prove to be the dictatorship of the proletariat – hence the only meaning of the First Amendment is to permit the victory of a fighting faith over the free trade in ideas. That anomaly aside, underlying his argument that the test of truth is acceptance of an idea in the competitive market is the assumption that, in a future short enough to be worth waiting for, men will be rational actors. Since that is obviously not true, the metaphor can be fatally misleading. An economic market imposes a discipline that the marketplace of ideas does not. A producer of shoddy goods will soon find that consumers will turn elsewhere. A producer of shoddy ideas may be able to sell them indefinitely, as Nazism and communism demonstrate. Holmes certainly knew from history that horrible ideas were often accepted in the market. His own experience as a soldier
demonstrated that, when ideas differ sharply enough, the “truth” of one or the other is not settled in the market but in the slaughter of the battlefield. Nevertheless, the compelling quality of his prose and the attractiveness to intellectuals of the notion of the ultimate supremacy of good ideas served, down to our own day, to make his extremely dubious version of appropriate constitutional policy the dominant one. A counterfactual rationalism has become a central tenet of the law of freedom of speech.

The core value of the First Amendment’s Speech Clause is the protection of political speech, speech that informs and guides the political process essential to a republican form of government. Until recent years, the amendment was not understood to have anything to do with topics such as pornography and very little to do with subversive advocacy of revolutionary violence and law breaking. But now the First Amendment, as interpreted by Court majorities, has gone soft at its center while it becomes increasingly severe at its fringes.

The Speech Clause began to go soft with the 1976 decision in
Buckley
v.
Valeo
(1976). The Supreme Court upheld portions of the
Federal Election Campaign Act
limiting individual contributions to political candidates to quite small amounts, but held invalid restrictions on political expenditures. Though the statute was presented as an anti-corruption measure, its real effect was to limit and distort political speech. Had the Court-approved limits been in place in 1968, for instance, Eugene McCarthy’s challenge to President Lyndon Johnson in the New Hampshire primary, a contest that persuaded
the president not to seek re-election, could not have been mounted. McCarthy’s campaign depended on very large individual contributions; he could not, in the time available, have raised the necessary funds from tens of thousands of small contributors.

Limiting contributions inhibits political speech in two ways. First, candidates are forced to spend large amounts of time raising money in small amounts – time they would otherwise devote to campaigning. Second, contributors make it possible for candidates to advance the contributors’ views. The Court held that restrictions on contributions were valid because of the fear of corruption, or even the appearance of corruption. These concerns, however, could have been dealt with by public disclosure requirements.

The Federal Election Campaign Act and the decision in
Buckley
v.
Valeo
, moreover, have shifted political power in America toward those with the leisure to engage in political activity – toward students, toward labor unions with members willing to engage in door-to-door campaigning and to run telephone banks, toward journalists and those with free access to the media, toward candidates with great personal wealth they are free to spend, and toward incumbents who have provided themselves with a variety of political resources at public expense. Many of these shifts in power were planned intentionally by the groups favored, and most of them favor the New Class’s liberal agenda.

Matters have not improved since 1976. In
Nixon
v.
Shrink Missouri Government PAC
(2000), the Court upheld
a state law imposing even more drastic limitations on political contributions, in part to “democratize” political power and in part because, as Justice Stevens’s concurrence put it, “Money is property; it is not speech.” The first rationale is a perversion of the First Amendment. If democratization or equalization of speech were a valid reason, the Court should uphold a requirement that networks and newspapers employ equal numbers of liberal and conservative commentators. As to the second rationale, it would justify a ban on an owner’s donation of his auditorium for a campaign rally or a homeowner’s use of his living room for a political meeting. It might equally be said that telecasting equipment is property and not speech, but it is property without which political speech in a mass democracy would be utterly ineffective. It is difficult to see in
Shrink
anything other than what the dissenters said it was – a substantial suppression of political speech. The Court’s disrespect for the central concern of the First Amendment bodes ill for freedom of political speech as new restrictions on campaign financing are proposed.

Any version of the First Amendment not built on the political speech core and confined by it, if not to it, will prove intellectually incoherent and will leave judges free to legislate as they will. Both of these unfortunate results stem from the weakening of the amendment’s political core. They may also be seen in what the Supreme Court has made of the law relating to subversive speech and to pornography and obscenity.

The Court displays an extraordinary concern, indeed solicitude, for the well-being and vigor of subversive
advocacy, whether it be American Nazis marching through a neighborhood having a substantial number of Holocaust survivors or speech urging the violation of law in the service of one or another cause. The willingness to protect such speech, though it is of no social or political value in a nation where elections are free, follows from Holmes’s metaphor of open competition in the marketplace. This line of cases culminated in
Brandenburg
v.
Ohio
(1969), which laid down the rule that the Speech Clause does “not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That extraordinary ruling replaced older law that saw little, if any, social value in the advocacy of forcible overthrow or law violation but did give weight to its dangers, even if the violence or law violation was not “imminent.”
Brandenburg
would allow demagoguery to bring its audience to a boiling point and permit intervention by the state only when the last in a series of incitements was likely to produce action. That prescription will often be unworkable and, in any event, the conclusion makes little sense in a democracy where speech is directed to governing, not to the self-fulfillment of the demagogue or to minority violence.