Justice Rehnquist, the Supreme Court, and the Bill of Rights. Steven T. Seitz

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      British Library Cataloguing in Publication Information Available

       Library of Congress Control Number: 2020932606

      ISBN: 978-1-4985-6885-2 (cloth : alk. paper)

      ISBN: 978-1-4985-6886-9 (electronic)

      Preface

      I want to thank members of the Computational Modeling Laboratory, University of Illinois, especially Charles Hulin with whom I have collaborated on many projects over the years. Regardless of content, my CML colleagues have persevered through many long manuscripts and offered thoughtful and helpful comments. We continue to develop our model of the smart page, which includes a multidimensional lazy Susan floating column of every source of information a user might wish to access for any word or phrase while reading a text page. The floating design allows the user to look behind words and phrases in the reference panes presented on the lazy Susan. Modeling the chronological development of topics across court decisions is much more complicated than might appear, because justices sometimes shift the case precedents from one legal line of reasoning to another, even though the basic facts of the case bear striking resemblance to other cases buried under a different line of legal reasoning. These lateral shifts are more frequent than changing or overturning precedents. Accounting for these lateral shifts requires a complex rule base larger and more complicated than the rule base for vertical shifts overturning or marginalizing precedents. The research presented in this book has been instrumental in advancing the computational work.

      Charles Warren’s great book The Supreme Court in United States History developed an excellent historical picture by term and has been helpful in illuminating the nature of the times. The chronologies by topic developed in this and a previous book, The Supreme Court, the Constitution, and Justice Rehnquist, are essential for developing the genetic picture of a dynamic court. In his preface, Warren suggested he should have developed the book by themes, but development by terms was much more manageable when he started his book in the early 1920s. The new books help address this void and allow progress on the large rule bases for the computational model. The concurrences and dissents have been instrumental in elaborating the rule bases.

      I need to offer special thanks to my family. They have become accustomed to daddy working at the computer all hours of the night. Fortunately, this work did not count toward my monthly download quota. The bed near the computer is now well-worn but routinely full. I need to give special thanks to D.D., B.R.B, S.B., B.D., the rowdy boy, and Gretchen. Fortunately, their sleep schedule continued to correspond with my work schedule. I owe a special thanks to my editor, Becca Rohde Beurer, for her support and assistance in bringing this work to a close.

      Steven T. Seitz

      Department of Political Science

      Computational Modeling Laboratory, CLAS

      University of Illinois

      Urbana/Champaign

      Introduction

      Americans have two constitutions: The Constitution of 1789 and the Bill of Rights/Civil War Amendments. The first finds gloom in human nature. The second radiates sunshine and light. Madison is involved in both, but they are based on different assumptions. The Constitution followed shortly after Shays’s Rebellion. The Founding Fathers assumed that passion of the moment and narrow self-interest often motivated ordinary people. A Republic would put representatives between the seats of government and the people. Large constituencies provided a large pool of talent from which to draw a representative. A large constituency would also check the impact of factions and passions on the seats of government by letting the cacophony of small interests cancel one another out. This was the Federalist approach.

      The anti-Federalists lost on the Constitution but won on the Bill of Rights. Those recalcitrant to vote for the Constitution agreed if Madison would introduce a series of rights amendments in the first Congress. Madison obliged, and soon the Constitution had ten amendments, collectively known as the Bill of Rights. The anti-Federalists wanted a confederation rather than a federation. They supported states’ rights and begrudged most power given to the central government. In making their case, the anti-Federalists claimed that the states were the protectors of individual rights because they are closer to the people. The Bill of Rights limited the reach of the federal government but presumed the states would protect the rights and privileges of their citizens.

      The main Constitution compromised the sovereignty of the states. The central government gained certain powers, the exercise of which was supreme to any competing state actions. The central government and the states dueled over the distribution of final power: sovereignty. The anti-Federalists insisted on these amendments as a check on central government power. The means were not entirely suited to the anti-Federalist end. Although the amendments did check the central government, most were rights reserved to the people, not the states. Because the anti-Federalists considered the states closer to the people, they inadvertently introduced the logic of a third sovereignty: the individual. The triumvirate slowly becomes operative after the Civil War Amendments, particularly the 14th.

      The Book’s Focus

      This book focuses on the 2nd Constitution: The Bill of Rights and Civil War Amendments. It is the 2nd Constitution that implies the worth and dignity of every individual, the capacity of the individual for self-direction and self-development, and the social capacity to live among each other. Freedom of speech inheres in individuals but not states. Soon, the same rights applied against the states by incorporation through the 14th Amendment. Except for the 13th Amendment, these rights do not operate on the individual but central, state, and local governments. The 2nd Constitution is a negative or passive document rather than a positive or active one. Thus, I have freedom of speech, not because a government bestows it upon me, but because the document forbids governments taking it away from me (by and large). Now three centers of power claim some form of sovereignty: the central government, the state governments, and the individual.

      Early administrations, federal or anti-federal, championed central government sovereignty or state sovereignty, respectively. The Civil War should have ended the pull and tug between the two power poles. The 14th Amendment eventually incorporated checks and balances against state action as well as central government action. Limiting state action eventually enhanced the individual’s protected sphere into which the 2nd Constitution precluded governments from entering. SCOTUS would take decades routinely to enforce the protected sphere of individuals. The interests of the individual had separated from state interests. The three sovereignties