Justice Rehnquist, the Supreme Court, and the Bill of Rights. Steven T. Seitz
of another state as legal in their own.[1]
Neither anti-Federalists nor many who controlled the state governments shared Madison’s faith in his political engineering. The anti-Federalists wanted a Bill of Rights, and state leaders often traded ratification of the Constitution for that promised Bill of Rights. Anti-Federalists remained unpersuaded by Madison’s enumeration argument. Many state leaders felt that the Constitution itself was not enough a check upon the central government and sought those checks in a Bill of Rights. After considerable debate, Congress sent twelve amendments to the states and they ratified ten, now known as the Bill of Rights. The hidden conflict between the Constitution and the Bill of Rights went much deeper than articles on a piece of paper, so deep that they had starkly opposed visions of the capacity of man and the public’s role in government.
Madison’s Constitution rested on a guarded view of humankind. The creature so capable of reason used it far less than desirable. Passion and self-interest motivated potential civic judgment. People of similar excitement used government, not for the public interest, but for the private interest. The civic person underlying the Bill of Rights was a reasonable decision-maker looking out for the best of human interests, knowing that securing the public interest was the best route to one’s own interests. The Constitutional view derived from long study of regime failures over the ages, while the Bill of Rights view derived from a simplistic vision of abstract freedom from government and the virtues of individual yeomen. The will or sense of the community stood for the Word of God. The community would be as one. Any minority had noise in their godly transmission line or else were in communication with a malevolent force.
The anti-Federalists, to unmask the obvious, were not all liberal freedom fighters but local elites who imposed conformity upon their minions while using the Bill of Rights to keep the federal government at a distance. They often represented the very passions and private interests that Madison sought to check and whom Hamilton called out in the first article in the Federalist Papers as big fish in little ponds who did not want to lose their power and status. These anti-Federalists typically viewed the Bill of Rights as not just another check on the powers of the central government, but a source of strict instruction from their states. These cross-purposes of Constitution and Bill of Rights would haunt judicial interpretation throughout the life of the court.
Individual Sovereignty
The following chapters explore whether and to what extent the Bill of Rights constrained the powers of the central government by empowering the individual. The book also examines the extent to which the Bill of Rights checks the state governments after addition of the Civil War Amendments. Excepting the 13th Amendment, the federal courts did not reach individual action except through the statutory and other actions of the federal or state governments. The Federalists and anti-Federalists held widely disparate views of what the Bill of Rights would accomplish. Yet another view of the Bill of Rights develops in the mid-twentieth century. This book traces interactions among the three points of sovereignty: the central government, the state governments, and the individual. The anti-Federalists thought their interests were the people’s interest. Madison took issue. The view of human beings under the Bill of Rights was different from the view underlying the Constitution. Treating individual rights and state rights as one, as the anti-Federalists were wont to do, muddled these sovereignties. Soon there would be three: the sovereign federal government, the semi-sovereign states, and semi-sovereign individuals. As the three sovereignties differentiated, the ordinary individual acquired a protected sphere into which the central government and later the state governments should not invade.
The protected sphere speaks to the inherent worth and dignity of each person. It also implies that individuals are capable of self-direction and self-development. The existence of individual protected spheres finally suggests that an individual has enough social capacity to tolerate the freedom of others. Madison recognized that the Bill of Rights spoke to the higher capacities of individuals while the Constitution spoke to the lower elements. These conflicting views of the human material inputs for self-governments and for whom the outputs crafted policies were not just conflicting philosophies but also conflicting modes of government. The peculiar circumstances of American institutions left heavy marks on the evolution of American Constitutional law. This is a subsidiary object of the present study.
Multiple Sovereignties
Consequent to the conflict between Federalists and anti-Federalists, the new Constitution and Bill of Rights created three competing sovereignties: the central government, the state governments, and protected spheres of activity qua individual people. Any combination of two of these would be a winning coalition. The coalitions were spheres of influence: the nation, the state, and the individual. It is the individual-rights sovereignty that typically shifted sides or shared fractured coalitions. This is what we see over the course of nearing three centuries.
Individual-rights sovereignty sided with state-sovereignty until the three decades leading to the Civil War. The Abolitionist Era was a bitter period of unrest; the shift of coalitions began with the state governments unwilling to champion individual rights in the South, leaving the Northern states to make coalition with individual-rights activists. Once the Abolitionists took charge of the central government during and after the Civil War, the central government became the champion of individual-rights sovereignty and made the 14th Amendment possible. By 1887 the coalition dissolved into a lengthy period of quasi laissez faire and social Darwinism; property became the most important national focus, driving individual-rights sovereignty to minimize the life and liberty portion of the American individualist creed.
The Great Depression ended the era of quasi laissez faire; soon, social Darwinism met its fate as well. Individual-rights sovereignty drifted back toward active coalition with the central government as the latter transformed into an administrative state. Southern and some non-South states, however, continued a stronghold for Jim Crow laws. The growing civil rights movement after World War II and the mood at the Nuremberg trials strengthened the governing coalition between individual-rights sovereignty and the central government against increasingly recalcitrant and hostile states. The liberal democratic order dominated the international scene for three-quarters of a century and would guide the relation between state and nation. The policy revolution of the late 1950s and 1960s added civil rights to the economic rights secured in the Great Depression Era. The backlash to increased civil rights brings renewed calls for states’ rights. An uneasy partnership between some state governments and the central government left the search for individual rights to furtive combination with individual states or separate administrations in the central government. The resulting pattern looks much like the fractured coalitions before and after the Civil War Era.
Judicial Politics
Electoral coalitions, party coalitions, or caucuses in the House or Senate have little direct impact on the court, save for the appointment of justices chosen because of ideological perspective. Such perspectives are not law, but they may color interpretations of the law. Some scholars, particularly some political scientists, take this to mean that we need study each justice to understand court decision-making. If the individual perspectives of judges aggregate to SCOTUS decisions, the lower courts would be in constant chaos, more so when a justice dies or resigns. The practice of stare decisis dampens this fluctuation, elevating case precedent over individual court decisions on most cases. Overturned precedents need close examination, but they are the exceptions to the rule of stare decisis. Trust in the justice system and its reservoir of good faith would diminish if the court abandoned its own continuity.
Slow Change
The court changes its personnel slower than the other branches of government. Besides personnel, another direct force for change is the societal environment itself, ranging from current economic conditions through changing technologies to change of personnel in other branches of government. The court, as intended, caves little to these direct effects. Several indirect ways may change judicial activity. Two of these are justiciability and the selection of cases the court puts on its docket each year. The Rehnquist era considered 20–25 percent more cases than the Roberts Court. The court’s composition