Our Divided Political Heart (21 page)

A year later,
Charles Beard published
An Economic Interpretation
of the Constitution
. It was one of the great acts of debunking in American historical writing. Far from being saints, the Founders, in Beard’s telling, were not much different from the plutocrats against whom Populists and Progressives raged in their time. Long before Marxism began exerting an important influence on historical writing, Beard was a hard economic determinist. He offered this relentless chain of logic:

Different degrees and kinds of property
inevitably exist in modern society; party doctrines and “principles” originate in the sentiments and views which the possession of various kinds of property creates in the minds of the possessors; class and group divisions based on property lie at the basis of modern government; and politics and constitutional law are inevitably a reflex of these contending interests.

Beard might simply have said,
Follow the money.

In Beard’s hands, the Constitution was not holy writ but, as he put it, “
essentially an economic document based upon the concept that the fundamental rights of property
are anterior to government and morally beyond the reach of popular majorities.” The Constitutional Convention was not the product of a popular vote or a popular mass movement. Indeed, the “large propertyless mass” was largely excluded from the Convention. And in the voting to ratify the document, only a quarter of adult males actually cast ballots. The rest were either indifferent or excluded from the electoral rolls by property requirements. The Constitution was thus the work neither of the “
whole people
” nor of the states but “of a consolidated group whose interests knew no state boundaries and were truly national in their scope.”

It is bracing to think about Beard again, even if his narrow economic view of the Constitution’s origins left out large parts of the story. As Wood notes, Beard’s theory “
has been torn to shreds and no one pays attention to it anymore
.” Beard himself backed away from his own conclusions later in life. “An economic interpretation,” he wrote in 1935, “is merely what it professes to be—a version, not the absolute truth, of history.” This was a long way from the sweeping accusatory vigor of his original thesis. The Beard of 1914 fell victim to a tendency that afflicts all who tie history too closely to the present. He was overly eager to turn the Founders into the robber barons so familiar in his time. And he was so insistent on debunking the false sanctification of the Founding by the conservatives of his day who were intent on foiling reform that he oversimplified the tale he had to tell. Wood proposes a more nuanced understanding of the Founders. They did indeed accept “
the reality of interests and commerce
”—and they were no doubt attuned to their own interests. But they “were not modern men” and therefore had not abandoned the classical traditions of “civic humanism” and “republicanism.”

Yet as Wood points out, Beard’s larger aim, “
that the Constitution ought to be seen as the consequence of historical circumstances
and contending interests,” has not “had the attraction for historians that it should have had.” Seeing the Founding in its historical context and paying close attention to the divergences as well as the points of agreement within the
Revolutionary and immediate post-Revolutionary generations can enlighten us about tensions in our political life that we still confront.

And at the very moment Beard was softening his position, the constitutional skepticism he had promoted was rejuvenated by another round of Supreme Court decisions in the early 1930s voiding large parts of the New Deal. Small-
d
democrats and progressives believed that the Constitution was being used to frustrate the popular will and to block measures necessary to the country’s recovery from economic calamity. It was foolish, the New Dealers argued, to imagine that the Founders had anticipated the social and economic changes that would alter the nation’s needs 150 years later.

The Constitution, Franklin Roosevelt insisted, was “
a layman’s document, not a lawyer’s contract
.” Its ambiguities had created “an unending struggle between those who would preserve this original broad concept of the Constitution” and those who “cry ‘unconstitutional’ at every effort to better the condition of our people.” The United States, FDR insisted, could not afford “to sacrifice each generation in turn while the law catches up with life.” Underlying his view was a sense of urgency: “
The millions who are in want will not stand by silently forever
while the things to satisfy their needs are within easy reach.”

In his day, Theodore Roosevelt had suggested that voters be given the right to petition to force referenda on “
whether or not judges’ interpretation of the Constitution is to be sustained
.” In the 1930s, TR’s cousin pursued what he thought was a less radical proposal: rather than overturn the idea of judicial review, FDR simply asked Congress to expand the size of the Supreme Court so he could appoint liberal judges who would interpret the Constitution with, as his attorney general put it, “
a lively sense of the importance of the social problems
which have now spilled over state lines
.” This, of course, led to one of the most controversial episodes of the New Deal era, FDR’s “court packing” plan, which set off the most important legislative fight that Roosevelt lost. Jeff Shesol, the author of the definitive account of the court battle, concluded that it was “
the catalyst that helped fracture the New Deal coalition
.” It also served to “reawaken the GOP; unite conservatives across party lines; and shatter the myth of Roosevelt’s omnipotence.”

But something else happened as well. Over time, the Court adopted a more liberal view and became far more hospitable to the New Deal’s way of thinking. Some conservatives on the Court backed off their hard line, though there is much debate among historians over whether Roosevelt’s initiative played a role in this or not. Roosevelt eventually had the opportunity to appoint justices of his own who altered the Court’s political balance.

This shift, later labeled the “Revolution of 1937,” inaugurated a long period in which Court decisions reflected what came to be known as the “New Deal Settlement.” From 1937 through the years of Earl Warren’s leadership as chief justice, the Supreme Court gave Congress broad latitude to legislate on economic and social matters and intervened primarily on behalf of individual rights, particularly—the
Brown v. Board of Education
decision is emblematic—the rights of minority groups. This led the Court away from the emphasis on states’ rights so central to earlier conservative decisions. In its series of rulings incorporating the Bill of Rights into state constitutions, the Court placed individual rights above the claims of state governments. This had the effect of broadening the federal government’s power to enforce individual claims against the states. These decisions unleashed ferocious opposition in a segregated South that had relied on states’ rights theories from the beginning of the republic to enforce white supremacy. Richard Nixon’s replacement of Earl Warren as chief justice by Warren Burger slowed the liberal judicial revolution but didn’t stop it entirely.

“
To recall the great cases of the Warren and Burger Courts today
is like reading off the heroic battles of a war still fresh in living memory,” the legal scholar Cass Sunstein wrote in 1990. The catalogue of liberal triumphs Sunstein then reeled off is impressive:

Beginning with
Brown v. Board of Education
, the Court invalidated racial segregation in schools, public transportation, even golf courses. In
Baker v. Carr
and
Reynolds v. Simms
, it called for reapportionment of state legislatures in line with the principle of one person, one vote. In
Harper v. Board of Elections
, it struck down the poll tax. In
Mapp v. Ohio
and
Miranda v. Arizona
, among many cases, it granted a multitude of new rights to criminal defendants.
In
Griswold v. Connecticut
and
Roe v. Wade
, it recognized rights of sexual and reproductive privacy, including the right to obtain an abortion. In other cases, only slightly less well known, it banished prayer from the public schools, struck down many laws as impermissible sex discrimination, gave nonmarital children and aliens the right to be free from official discrimination, and offered extraordinarily broad protection to speech, including advocacy of crime, false statements about public officials, commercial advertising, and pornography.

Sunstein added: “
Many of the rights affirmed by the Court
, though actually quite new, are now taken for granted, as if they had always been part of our constitutional heritage.”

But this was not the only part of history that liberals forgot as the Court advanced individual rights across a broad front. Liberals also came to see the Supreme Court as the driving agent of change and progress, overlooking the horror their philosophical and political forebears experienced when the right invoked constitutionalism to block reform. Cries of “judicial activism” that became, in the Warren years and after, a staple of conservative sloganeering had, as Sunstein noted, “
played a major role during the New Deal
” when
liberals
were enraged at the Court’s eagerness to strike down Roosevelt’s reforms. For New Dealers, Sunstein noted, it “
would have seemed peculiar
. . . to suggest that
social reform on behalf of the disadvantaged should come from the courts
.”

And so for years, our nation’s debate over what the Supreme Court should do has been distorted by a kind of willful blindness to history on both sides. Conservatives who criticized judicial activism were, in fact, simply seeking a different kind of judicial activism. They disliked the political direction of the Warren Court’s decisions but were not at all opposed to an activism aimed at restricting Congress’s ability to pass regulatory legislation, the executive’s capacity to enforce those regulations, the power of government at various levels to place some constraints on private property rights, and the federal government’s purview to take actions that conservatives insisted should be the prerogative of the states.

Yet as increasingly conservative Supreme Courts exercised broad
power to strip away the ability of progressives to legislate on matters ranging from the environment to disability rights, liberals were slow to shift their rhetoric and their public arguments to make clear that judicial activism was now, as it had been so often in the past, a practice of the legal right. Sunstein was one of the first judicial scholars to understand that history was repeating itself in ways liberals needed to acknowledge. “In many respects,” he wrote in 1990, “
the current position of the Supreme Court
is akin to that of its predecessor in the New Deal. As then, constitutional politics through the judiciary is unlikely to advance liberal causes.” It was a powerful and wholly accurate bit of understatement.

But facts, as Ronald Reagan said, are stubborn things, and reality is finally catching up with the public argument. The columnist George Will was one of the few popular commentators on the right to admit with admirable candor that conservatives needed to abandon their critique of judicial activism. He didn’t have to add that the old argument was inconvenient now that conservatives controlled the Court. “
Conservatives spoiling for a fight should watch their language
,” he wrote in 2010, and “rethink their rhetoric about ‘judicial activism.’” Will argued that the “proper question” for conservatives in assessing Supreme Court nominees was: “Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?” This, of course, is exactly the sort of question that the conservative Court asked in the days before the New Deal settlement, to the great consternation of progressives.

Note Will’s skepticism of “popular sovereignty”—a mistrust of democracy itself. As the new millennium began, a conservative Supreme Court would make clear that it indeed viewed democracy as far less important than other ideas and commitments in the American intellectual pantheon. It was ready to use whatever notions of constitutionalism were convenient to bolster the power of conservatives to protect property and an individualistic view of public life.

It is risky to speculate about what future historians will say, but two Supreme Court decisions, one at the beginning and one at the end of the first
decade of the twenty-first century, are almost certainly destined to define a tipping point in our constitutional debate. Both reminded liberals there were limits to the idea that, in Sunstein’s phrase, “social reform on behalf of the disadvantaged should come from the courts.” In fact, the decisions in
Bush v. Gore
in 2000 and
Citizens United v. Federal Election Commission
in 2010 definitively put an end to the era of liberal confidence in the high court as a fair arbiter of justice. Both decisions challenged the Court’s legitimacy. For conservatives who had battled liberal “judicial activism” for a half century, both decisions were gratifying. They signaled the right’s victory in the judicial wars and pointed to the new era that George Will had described. The Court would be as activist as it had ever been in the Warren era, perhaps more so, but on the conservative side. The Court’s definition of constitutionalism would lead it with great consistency to decisions congenial to the ideological right.

The
Bush v. Gore
decision on December 12, 2000, came after a long argument over how and whether to recount popular votes in Florida, the outcome of which would determine the winner of that year’s presidential election. That Democrat Al Gore had received 500,000 more popular votes nationwide than George W. Bush never entered the calculations. The fact that faulty ballot design in several Florida counties robbed Gore of thousands of votes that would have given him the state and the presidency was not part of the case, either.