I. Courts and Judicial Power↑

If we want to understand the distinctive features of courts as political institutions, then we must understand the differences between judicial power, legislative power, and executive power. If we want to understand American courts, then we must to also consider how the USA’s political institutions affect the character of judicial power. While the unique features of American courts are shaped by the institutional features of American national government, the role of courts in American politics has changed over time because of changes in ideology, particularly the rise of new forms of progressivism in the post-New Deal era. Institutions and ideas combine to make courts particularly powerful in the American political system. Whether courts are always effective at wielding this authority is far from clear. When judges address controversial questions of constitutional law, particularly questions related to civil rights and civil liberties, the resulting decisions are often political in character. This is probably unavoidable. As we will see, the key political problem with judicial power is that courts must go “beyond the law” to perform their role—they must rely on principles that are not simply part of statutory law or the constitutional text, principles that, according to many political scientists, are indistinguishable from “political preferences.” ¹ This is not to say that courts are always motivated by political considerations in every instance. It is to say that, while judicial power is distinct from legislative and executive power, it is still a political form of power, at least in some ways.

We begin with the most basic question: what is a court? The political scientist Martin Shapiro has argued that the basic structure of courts can be seen in almost every society.² Shapiro argues that in almost every society that has ever existed, there is usually some way to resolve disputes between two individuals through appeals to a third individual; he calls this “triadic dispute resolution,” and it is the origin of judicial forms of power. Of course, the invention “triadic dispute resolution” occurred in pre-history, whenever two individuals of more or less equal strength decided that it would make sense to resolve their dispute without clubs and spears: “Hey, instead of dueling over this dead mastodon, let’s ask the alpha male, or the shaman, or the wise woman, to resolve our dispute: is the mastodon yours if you are the first one to hit it, or if you are the one to strike the killing blow?” And thus the concept of dispute resolution, perhaps even the concept of the law and legal precedent, was born. Something like the case of the disputed mastodon must have happened, again and again, until primitive forms of law and legal custom emerged.

Thinking about courts as “triads”– that is, the appeal to a third party to resolve a dispute between two parties– is very helpful in thinking about some of the basic features of courts. Consider our cave man (or cave-person) example: under what conditions would you, as one of the relevant parties, accept the appeal to the third party? Under the best circumstances, you would only be willing to forego your ability to engage in trial by combat if it is reasonable to assume that the “third party” will not be biased. This is another way of saying that we expect courts to be impartial and independent, and this is obviously reflected in the structure of courts in the American political system. Judges are not expected to have a personal stake in the cases or disputes that they resolve. No judge would preside in a case in which their mother (or mother in law) was on trial for murder. This notion of judicial impartiality and independence leads to the question of how courts relate to the other branches of government. Many of the most prominent Supreme Court cases address conflicts between governments and individuals. In these cases, is it really possible for courts to be impartial and independent? If courts are part of the political system, how can they be independent in cases that involve disputes between individuals and government?

The general answer of many political scientists who study courts is “no,” the judicial branch of government is not separated from the political system, and courts are political institutions. Particularly at the highest level of the judiciary– at the level of the Supreme Court– judicial decisions are shaped by partisan preferences. According to this view, judicial decisions in controversial cases– that is, cases heard by courts of appeal, where the meaning of the law itself is in dispute– are not determined by law. According the “attitudinal model” of judicial behavior, Supreme Court justices simply decide cases based upon their public policy preferences; according to the rational choice model, Supreme Court justices use strategic behavior to achieve the best possible outcome. That is, rather than voting on the basis of what the genuinely believe to be the best policy outcome, Justices are willing to compromise with their colleagues in order to achieve the best possible outcome. Thus, according to this model, the process of decision making in the Supreme Court is not qualitatively different from the decision making processes of legislators (who also make decisions based upon a combination of policy preferences and strategic calculation.)³

Consider, for instance, the current Supreme Court case of Janus vs. AFSCME,which was argued before the Supreme Court in February 2018. In this case, a social worker in Illinois challenged laws which required him to pay union dues, even though he did not wish to be a member of the Union. According to conventional thinking, we might think that the courts would decide this question based upon a combination of historical and legal analysis, in order to answer the question of whether various constitutional provisions or legal principles actually prohibit this kind of regulation. According to the “attitudinal” and “rational choice” models of judicial decision making, the only thing that matters in this case is how judges assess about the role of unions: if they support union power as a matter of policy, then they will support the existing law; if they oppose the power of public sector unions, then they will vote to uphold the constitutional challenge. The only question is whether one side or the other will be able to craft a compromise to attract the support of justices who sit in the middle of the ideological spectrum.⁴

The most important reason for thinking of courts as political institutions is that appellate courts are not needed if the meaning of law is clear– if the law is clear, there is no need to appeal. But if the meaning of the law itself is unclear, then judges cannot resolve the case by appealing to the meaning of the written law. Judging in appellate courts requires judges to not simply discover the meaning of law, but to construct meaning out of various interpretive possibilities. That politics plays a role in this should not be surprising. Yet the fact that courts exercise a kind of political power does not mean that there are no qualitative differences between judicial power and legislative or executive power. In addition, while courts– particularly American courts– are heavily politicized today, it does not mean that this has always been a permanent feature of political life. The American political order creates the potential for judicial power, but the precise character of judicial power depends upon the actions of other branches of government, as well as the ideas and beliefs of judges themselves.⁵

Let us consider some of the most basic features of courts and judicial power in the American political order. Article III, Section One of the Constitution reads as follows: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time establish.” What is judicial power? How does it differ from legislative and executive power? The constitution does not explain what kind of power is being conferred in Article III, because the Framers assumed that there was a commonly shared understanding, rooted in the English common law, of what “judicial power” referred to.

The meaning of judicial power is closely connected to the meaning of law, or rather, to the meaning of a legal case. Judges do not exercise unstructured power, they exercise power in accordance with certain forms; to be more specific, judicial power is exercised by resolving “cases and controversies” in law. What does it mean for something to be a legal case? Without giving an exhaustive definition, we can address certain basic aspects of any given issue that make it “case or controversy” in law, and thus subject to judicial power.

Justiciability refers to the question of whether an issue is subject to judicial power. An issue is “justiciable” if it has the characteristics of a case in law. Some kinds of conflicts have characteristics that are justiciable; other kinds of conflicts do not. Thus, the scope of judicial power is constrained by the following concepts, which taken together form the rules of justiciability.

1. The concept of standing: You can only appeal to a court to resolve your dispute if you have standing in law, which usually means that you must be directly affected by the application of (or failure to apply) the relevant legal standards. A case in law involves a real as opposed to hypothetical situation; you might oppose a blasphemy law, in the abstract, but you cannot challenge the constitutionality of the law unless you are charged with blasphemy. Courts are not constitutional law seminars; you are not supposed to raise hypothetical cases.

2. The concept of jurisdiction: This concept is relatively easy; courts can only exercise power to resolve certain kinds of dispute. In the case of American federal courts, the court cannot accept a case unless it raises questions of federal law, which means controversies that involve federal statutes or regulations, the Constitution, and federal treaties. There are other areas of jurisdiction for federal courts, the most important of which involve disputes between states, or disputes between citizens of different states, and so on.

3. The concept of political questions: “Political questions” are controversies that cannot be resolved by courts, because there are no relevant legal standards that can be applied. There are certain “rights” that are established by the Constitution that cannot be enforced by Courts, because it is impossible to even pretend that there are any relevant legal standards that judges could use to guide their decisions. For example, Article IV, Section 4 of the Constitution states that the United States shall guarantee to every state in the Union a republican form of government. A republican form of government is simply a representative government. Obviously, there can be different degrees of representativeness; we might even say that a government could be republican in form, yet oligarchical in fact. Does this mean that you can challenge the legitimacy of state government in federal court, if you think that lax campaign finance regulation is creating oligarchy in Utah, or Wyoming, or wherever? At one time, the court would have said no.

4. Ripeness and Mootness: “Ripeness” is the idea that certain kinds of issues are not ready to be subjected to judicial power; this is closely connected to the doctrine of standing, in the sense that an individual lacks standing if the issue that they are complaining about has yet to occur, and thus may not occur. “Mootness” refers to an issue that cannot be affected by a judicial decision one way or another. Consider this classic example: imagine that you object to the admissions procedures of a university, but the university decides to let you in anyway. In this situation, you do not get to take your case to the Supreme Court; you already have the relief that you want, and the court is not meant to be a forum for legal and constitutional theory. As the Constitution states, judicial power extends to “cases and controversies,” not to abstract speculations.

Judicial power is power exercised in accordance with formal standards such as standing, jurisdiction, and political questions (though we should note that there are other issues related to justiciability that we can’t discuss here.) One reason that courts have become more politically significant in the 20th century is that the formal structures which once restrained the scope of judicial power have tumbled to the ground. But first, let me draw your attention to some other general features of the American judicial system.

American courts, like courts everywhere, are “passive,” in the sense that they do not exercise power under their own initiative; they must await cases to emerge, as opposed to searching them out. Courts resolves cases through appeals to rules, for the reasons that we have discussed: the whole notion of judicial power rests on the idea that courts are not simply creating their decisions in an arbitrary manner. This is particularly relevant in democratic societies– if government officials are making decisions that are arbitrary, perhaps unavoidable arbitrary, then we tend to think it wise to allow the people to evaluate those officials and those decisions. Courts follow rules in part because they are organized in a hierarchical system; lower courts are aware that their own decisions can be reversed by courts further up the hierarchical chain, and they wish to avoid being reversed. When a lower court is reversed, it signals that the judge fails to understand the law. The potential for innovation in law will be greatest at the top of the hierarchy– there, the justices are restrained only by their sense of attachment to the legal order itself, though they might also be constrained by the threat of impeachment, or their desire for prestige.

Let us now consider the rules that guide judicial power– the sources of law, in other words.

a) the common law

The common law is the body of judicial decisions that have been used by courts in the absence of relevant statutory guidance. In theory, courts are bound by common law precedent, though the principles of the common law are often adjusted as they are applied in new circumstances. Precedent is an important norm in legal decision making, though not the only norm; the rule of law should help maintain settled expectations, but a “settled rule” can still be wrong

b) statutory law

The least controversial element of judicial power is the power to interpret statutory law. Laws create obligations (things that you must do) and rights (things that you can demand), and in the American system of government, federal law is supreme over state law (assuming, of course, that the federal government has policy authority in the relevant area, and that the federal law is not prohibited by some other aspect of the Constitution.) So, in those instances where state laws (or the actions of the state governments) are incompatible with federal law, courts will uphold the requirements of federal law. Of course, federal law can also create rights that must be respected by other individuals as well (e.g. laws against discrimination in employment.)

c) Treaties and International Law

Treaties and international law raise all kinds of complicated questions, so I will only mention them to note that these are also the law of the land, and thus can serve as the basis for judicial decisions. Complicated problems arise when treaties and international law conflict with the Constitution or with statutory law, but we need not get into that now.

e) The Constitution and Enumerated Rights

Courts have the power to invalidate laws and to censure other government actions if they are incompatible with the text and structure of the Constitution. The power of courts to strike down statutory law is known as “judicial review.” It isn’t an enumerated power of the Court, but it is plausible to infer that courts have a power to evaluate ordinary law in light of higher law.⁶ Of course, even if judicial review is uncontroversial in general, the application of judicial review is particular cases is almost always going to be a source of contention. There are two main reasons for this. First, the meaning of the enumerated rights and provisions of the Constitution are often ambiguous. Secondly, “rights” that were initially understood as limits on the national government have been interpreted as limits on state governments as well, thereby increasing the number of issues/laws that are potentially subject to judicial review. This occurred because, over the course of the 20th, federal judges ruled that the 14th amendment meant that the Bill of Rights applied to state governments. This is known as the “incorporation” of the Bill of Rights.

Applying a bill of rights that was only intended to limit the national government to all governments creates some interesting problems. Consider the text of the Second Amendment:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

What are some of the different ways to interpret this provision? We might interpret this right as an absolute right that cannot be limited in any way; we might interpret it as a right that includes some scope for regulation; or we might interpret is as a right that only applies to the federal government. It seems impossible to have an absolute right to own whatever arms one pleases, but surely it is possible for the federal government to be excluded from the arms regulation business.

d) Natural Rights or Unenumerated Rights

The controversies over judicial power are also exacerbated by the widespread doctrine– a doctrine actually endorsed by the Constitution– that there are “unenumerated rights.” At one time we might have referred to unenumerated rights as “natural rights,” a phrase that might seem unusual or anachronistic– like the divine right of kings. What can it mean for rights to exist by nature? Rights could exist by nature if there are standards of “right” and “wrong” that exist independently of the laws and institutions created by human beings. Many people find this idea difficult to accept in the abstract, but almost everyone accepts the doctrine in at least some form. For instance, we would find it peculiar for a judge to make the following ruling: “I find you innocent of the crime of driving while intoxicated, and sentence you to two years in prison.” This ruling is unusual, because it violates the logic of justice and moral responsibility– you should not be punished for a crime which you did not commit. We might even call this a self-evident truth, a truth that is a “first principle” of justice and moral thinking. Now, it is indeed possible to reject that principle, or to reject moral thinking entirely– a revolutionary Marxist thinks that any action which advances the revolutionary goals of History is “justified,” even if it means punishing someone for an act they did not commit. But even the Marxist appeals to standards that exist independently of the law, standards that have not been created by human will, and standards that are in some sense “natural.”

The notion of natural rights is based upon the idea that there are standards of justice that are “external” and superior to human-made law. The relationship between “constitutional rights” and “natural rights” is complex, for at least two reasons: first, because it is unclear whether courts can uphold rights that are not enumerated in the Constitution; secondly, it is unclear whether it is possible to apply the enumerated rights found in the Constitution without appealing to principles that exist beyond the Constitution. The relationship between natural rights and the constitutional text is controversial for additional reasons as well. Many political scientists argue that many aspects of the constitutional text have no determinate meaning; in addition, such scholars usually reject the notion that rights and liberties can be determined through logic and philosophical reflection alone. Thus, appeals to constitutional rights– and, a fortiori, appeals to rights that exist beyond the constitution– are in fact smokescreens for the political preferences of judges. According to this view point, often referred to as legal positivism, all rights that exist are those that have been created or “posited” by human beings. Insofar as courts go beyond the positive law, they are simply engaging in flights of imaginative fancy or seat of the pants policy analysis.

Between natural rights and legal positivism, there is the dominant progressive position, sometimes referred to as “living constitutionalism.” This is the notion that the rights enshrined in the Constitution must be adapted, changed, and perhaps amended by courts as part of the general process of historical evolution. There are numerous variations on this argument, and while it has a certain common sense appeal, it is also vulnerable to constitutional objections. The simplest objection is this: how do courts know the direction of history? For the most cynical political scientists, the notion of “living constitutionalism” is pure ideology. For instance, in a case decided on June 25th of 2012, Miller v. Alabama, the courts struck down laws that imposed life sentences without the possibility of parole. Some people might find that the court was correct, but it is difficult to see how the result was mandated by the words “cruel and unusual.” Many political scientists would argue that judicial decisions in these cases simply record the policy preferences of the judges making the decision.

We should always keep in mind that the tendency of courts to exercise power in the name of rights, natural or otherwise, has changed dramatically over the course of American history. In contrast with judicial rulings on federalism, throughout most of the19th century federal court jurisprudence on civil rights was relatively undeveloped. In the aftermath of the Civil War Amendments, however, courts began to apply “substantive due process” to limit various aspects of state regulation. Progressive thinkers, judges, and politicians rejected this form of substantive due process, but this does not mean that the concept was consigned to the historical trash can. During the first years of the 20th century, progressive jurists started to articulate two related doctrines that would eventually lead to a new version of substantive due process. First, progressives argued that courts should back away from “judicial activism” regarding federalism and economic regulation. Secondly, progressives argued that judges should “incorporate” elements of the bill of rights into the meaning of the 14th Amendment. This double standard in constitutional law was articulated in the famous footnote 4 from the Carolene Products case of 1938. During the reigns of Chief Justices Earl Warren and Chief Justice Warren Burger, which stretched from the 1950s to the 1980s, the Supreme Court began to endorse a much more ambitious rights agenda—whether in regards to civil rights for African Americans, the rights of criminal suspects, the right of freedom of speech, or the “right to privacy” that became the basis for the Supreme Court’s abortion decisions. Since the 1980s, the courts have been deeply divided over many aspects of this “rights revolution.” Judges disagree about the scope of rights, and they disagree about what situations demand judicial deference and which demand judicial activism. Neither “wing” of the court has been able to command complete control over the court as a whole, due to the presence of “pragmatic” judges such as Anthony Kennedy or the now retired Sandra Day O’Connor. It is easy to over-exaggerate the political differences between the different wings of the Court. There are many unanimous decisions, and a significant number of decisions do not break down into “Democratic appointees vs. Republican appointees.” Yet it would be completely naïve to deny that politics place a crucial role in judicial decision making.

The transition from any given era of judicial power will have unique explanations, but the usual explanation of political scientists for changes in the patterns of judicial power are quite commonsensical: courts tend to reflect the priorities and interests of the Presidents that nominate them.⁷ So, for instance, modern judicial conservatism is based upon the judges appointed by Reagan and the two Bushes, and they tend (in general) to support the priorities of the Republican party. This connection between appointing party and judicial ideology is far from absolute, but it is true as a general proposition that the courts will “follow the election returns.”

II. The Federal Courts as a System↑

It is always crucial to remember that the American system of federal courts is a hierarchical system. The Supreme Court is at the apex of this hierarchy, and it is the most important court, but this does not mean that the other courts are devoid of political interest. Most federal cases begin in lower federal courts (district courts) and proceed to the Supreme Court by way of appeals courts (also called circuit courts). State Supreme Court decisions can also be appealed to the Supreme Court, and, in some cases, the Supreme Court will have “original jurisdiction.” Cases can be initiated in a number of ways: by federal prosecutors, by individuals, organizations, states, etc. The system of District Courts consists of 678 judges, who preside over approximately 300,000 cases every year. The Appellate Courts or “Circuit Courts” consist of 12 circuits (basically, multi-state regions, though there is also the D.C. Circuit which specializes in a range of questions related to federal administrative law.) About 180 judges sit on the appellate courts, and they usually hear cases in panels of three (panels are used because of the complex, even political character of appellate cases.) Circuit courts hear approximately 50,000 cases every year.

The Supreme Court is distinct from other courts because, in the modern era, it has more or less complete control over its own “docket,” the 80-150 cases which the court takes per year. To determine which cases to hear, the Court relies on the “rule of 4”: if 4 judges want to hear the case, then the court will accept it. The Court tries to separate the important cases from the not-so-important cases, using a few basic rules of thumb. First, courts accept a case when the decisions of appellate federal courts are in conflict. To give a hypothetical example, if the 9th circuit rules that the EPA can regulate carbon dioxide under the Clean Air Act, and the 5th circuit says it cannot, then the Supreme Court is likely at some point to an accept an appeal in a relevant case in order to clear up the discrepancies between the circuits. While the Supreme Court tries to insure that national laws are applied in a consistent way everywhere in the nation, this will often be quite difficult in practice; there are too many laws, too many cases, and this means that federal law can differ from circuit to circuit for extended periods of time. The second, even more important rule of thumb deals with constitutional cases. If a circuit court or state court has held a state or national law to be unconstitutional, then the court will often take the case on appeal, particularly if the lower court has adopted a new or unusual interpretation of the Constitution.⁸

The nomination process for the federal courts is relatively straightforward: the President nominates and the Senate confirms. For much of American history, the appointment process was relatively uncontroversial. Though admittedly an “outlier,” consider the appointment of Justice Benjamin Cardozo by President Herbert Hoover, and his unanimous confirmation by the Senate. Cardozo was chosen by Hoover not because of his partisan affiliation or ideological leanings, but because he was regarded by the elite legal community as one of the finest lawyers and judges in the country. It was still possible, at that time, to think of legal expertise as something that was politically neutral. The universal acclaim showered on Cardozo was a little unusual, but for much of American history the appointment process for judges, particularly lower court judges, tended to resemble the “Cardozo case”; the appointment of a Supreme Court justice was not a momentous event, and there was a sense that it was distinct from the regular political process.⁹

Needless to say, things have changed– though perhaps not entirely (there are still some relatively uncontroversial appointments.) The politicization of the appointment process is best exemplified by the failure of President Reagan’s appointee, Robert Bork, in 1987. The nomination of Bork, a tenured law professor at Yale and one of the most influential legal scholars in the country, led to a massive mobilization of interest groups who hoped to influence the Senate’s vote on confirmation. Bork’s extensive writings were combed for signs of ideological heresy– that is, for signs that he did not fully accept the various revolutions in Constitutional law that had occurred since the mid-1950s.¹⁰

The nomination process became politicized as courts became more politically active, which led political leaders and interest groups to spend much more time and energy investigating the beliefs and predispositions of nominees. One of the most “progressive” Supreme Court Justices of the 20th century was the Chief Justice Earl Warren, who presided over the court from 1954 to 1969; he oversaw some of the most momentous changes in American constitutional law in the 20th century. Warren was a Republican, appointed by a President (Eisenhower) who was at least moderately conservative, and he had no previous judicial experience (though he was both attorney general and governor of California.) The Warren nomination illustrated that judges can do unexpected things; the failure of the Bork nomination showed that interest groups were aware of the immense political significance of judicial appointments, and it also revealed political elites no longer thought legal expertise was a sufficient qualification for a position in the federal judiciary. This has led political parties to be more concerned with the ideological character of their appointees, and (in many instances) it has led interest groups to take a very active role in the appointment process.¹¹

Let me give one final example to illustrate the political character of judicial appointments. The Republican party and the conservative movement were, in general, quite supportive of President George W. Bush, even when he supported policies which departed from (supposedly) core conservative principles (e.g. commitment to nation-building and the “export” of democracy, No Child Left Behind, expansion of prescription drug coverage, etc.) But in relation to judicial appointments, President Bush would receive very little deference from his conservative supporters. His attempt to appoint Harriet Miers to the Supreme Court– an attorney with no judicial experience– was rebuffed by his own party, and by the conservative movement in general. This is because the conservative movement, or elements within it, had spent a great deal of time, money, and energy in creating a kind of judicial training system, the purpose of which was to insure that appointees would share the same general perspective on questions of law, particularly common law. In the 1950s, Eisenhower could pick who he liked; in the 1930s, Hoover could pick who he liked; today, judicial selection is no longer that simple. Interest group politics have extended into the appointment process, even into the system of legal education. This is was probably inevitable. Controversy over appointments and interest group mobilization are signs, not causes, of the underlying politicization of law that has occurred over the past 50 years. Courts have become more politicized, because they exercise more power and more influence. Law, especially constitutional law, has become more controversial. Instead of being the background within which the drama of American politics occurs, constitutional law has in some ways become a central character. Courts have become more politically significant over the course of American history; many would even argue that courts are more significant in the American system than in almost any other nation. What is it about the American political system that enables the judicialization of politics and the politicization of the judiciary?

III. Why are Courts so powerful in the American Political System? Constitutionalism, Adversarial Legalism, and the Separation of Powers↑

American courts are empowered by the “higher law” of the American Constitution itself. Canadians are familiar with higher law constitutionalism– the notion that there is a fundamental law before which all other subordinate laws must bow. The power of judicial review refers to the power to declare statutory law invalid based on the “higher law” of the Constitution, though we should note that it is not so obvious what is included within the Constitution. Some argue that the Constitution protects unwritten natural rights, some argue that the Constitution requires the judiciary to apply an evolving and constantly changing set of principles of justice (based on the well-known ability of lawyers to understand and adhere to moral standards.)

The power of judicial review is more controversial in, and thus more central to, American politics than is the case in Canada. We can see the truth of it by simply considering the “politics” of judicial appointment in Canada. Judicial appointments in Canada are not particularly political, they are often barely covered by newspapers. Why is this the case? That is somewhat more difficult to explain. The simplest answer would be that the U.S. Constitution has been in existence for a great deal of time; many of the innovations in Constitutional decision making that have occurred since the 1950s can be measured against not only the words of the Constitution itself, but also against the way the Constitution was interpreted up until the 1950s. In other words, there are two readily available Constitutional traditions in the USA, one that appeals to those on the right, one that appeals to those on the left, (though admittedly, that is very, very imprecise, for reasons that I will return to; there is a kind of “constitutional center” that was once left of center and is now right of center.)

In the United States, one can make a plausible argument that rights-based judicial review should be close to non-existent, or that judicial review should place significant limits on the regulatory power of the state. In Canada, by way of contrast, it is fairly clear that the Charter of Rights and Freedoms was meant to empower courts, except in regards to the economic and regulatory powers of government¹². We English Canadians knew exactly what we were getting when we adopted the Charter– that is, we knew we were getting a document that would be creatively interpreted by courts, a “living constitution” as opposed to a “constitution.” In the United States, a conservative can argue that constitutional rights were not meant to evolve, and that they were meant to limit the scope of government power; this position might be misguided, it might not be something that anyone can follow consistently, but it is not “incorrect” in any simple way.

In the United States there are (at least) two and probably three constitutional traditions in conflict. These traditions can be understood in terms of three symbols or eras. The first approach can be called “conservative judicial activism,” or “natural rights jurisprudence,” and it draws inspiration from the pre-New Deal “Lochner Era.”¹³ The second approach, “judicial deference,” is associated with the New Deal era, though in our time this approach is usually regarded as politically conservative. According to this approach, judicial power, and the power of judicial review in particular, rests on a fragile basis; courts, being the least democratic branch of a democratic form of government, should hesitate to resolve key social conflicts, and thus should defer to the elected branches of government (unless those branches of government are interfering with the democratic process itself, thereby undermining their claim to democratic legitimacy.)¹⁴ Liberal judicial activism was anticipated by “footnote 4” of Carolene products; this approach favours “human rights” as opposed to economic rights, and believes that the meaning of rights can change over time, in order to account for new political circumstances.¹⁵

Adversarial Legalism

Many aspects of judicial activism that were once controversial have become more accepted over time. Yet it is still the case that judicial interpretation of constitutional rights remains a controversy in the USA, while controversy over courts has largely subsided in Canada. The relatively recent origin of Canadian Charter is not the only explanation of why the interpretation of constitutional rights has, for the most part, been less controversial in Canada. The American public, and American lawyers, have supported the use of litigation as a kind of political tool for a very long time. “Adversarial legalism” is a term used by scholars to explain the tendency of Americans to encourage legal conflict as a way of dealing with political conflict– in essence, courts and even the government take steps to expand the scope of judicial power.¹⁶ In terms of public law, this has meant changes related to the rules of standing. Judicial interpretation and congressional action have expanded the meaning of “case and controversy,” and this has the unavoidable consequence of increasing judicial power. To give only the most prominent example, American courts have expanded the scope of standing to include “cases” that would have been rejected in the past.

Changes in the scope of private law have also shaped the power of American courts. While this has happened in a bewildering number of ways, we can focus on the example of class action lawsuits.¹⁷ One of the traditional understandings of a case in law was that it was meant to be concrete: party a did something to party b, in violation of rule c; the case proceeds through the determination of the facts and exploration of their relation to the relevant principles of law. Class action lawsuits allow thousands, even millions, of “similar” cases to be tried at the same time. We need not consider the full range of reasons why class action lawsuits developed, but we can say, in general, that it reflects the idea that more litigation is better than less. Class action litigation encourages litigation that would never occur if it had to be tried in a piecemeal fashion. It should be obvious how this contributes to the influence of courts– and it is only one of the many changes in private law that has expanded the significance of judicial decision making.

It is impossible to go through all of the ways in which the American political system encourages adversarial legalism, but let me mention another important point: lawsuits cost money, but it has become easier to pay for litigation. (In fact, that is the whole point of class action lawsuits as well.) For instance, hundreds of American statutes have fee-shifting provisions, which allow courts to assign fee awards to successful litigants in cases that are deemed to be in the public interest. In addition, the “interest group legal support structure” for litigation expanded dramatically around mid-century. The notion of a legal support structurerefers to the resources available to groups to litigate important cases. Political scientists like Charles Epp have argued that the expansion of funding for interest groups (whether from foundations, direct charitable giving, or in some cases direct government support) was an essential pre-condition for the expansion of judicial power in the mid-to late 20th century.¹⁸ This is a consequence of one of the essential characteristics of judicial power: it is passive. Courts can only deal with the cases that are brought to them; they are not roving commissions of justice. The immense wealth of American society, and the American proclivity for charitable giving, provides the fuel for interest group litigation.

American Courts and Statutory Interpretation

In addition to constitutional law and adversarial legalism, the power of American courts is enhanced by the very structure of American government, particularly the separation of powers, and particularly in regards to statutory interpretation. We can see this by considering the fact that American laws are often ambiguous– “standards” or “rules” are standard-less. Why, in general, does the American legislative process produce laws that are somewhat ambiguous, at least in comparison with Parliamentary systems of government? The American legislative process is decentralized and difficult to manage. Parties have only limited control over their own members. As a consequence, divisive social policies produce legislative compromises which are “ambiguous” (everyone thinks they are getting what they want); the legislature will often leave the heavy interpretive lifting for the executive and courts. However, the factors that make it difficult for Congress to create more precise laws will alsomake it difficult for Congress to react to judicial interpretations. Congress attempts to influence judicial decision-making through the creation of legislative histories, which provide more detailed interpretations of Congress’ intentions. Yet legislative histories are not themselves voted on, and they will often contain multiple and conflicting claims. Courts do rely on legislative histories when interpreting statutes, but those histories are rarely more coherent than the laws they attempt to explain.¹⁹

In parliamentary systems, judges expect administrators to be the primary interpreters of statutory law; usually, only openly illegal activity will incur judicial action. Secondly, courts do not rely on “history” or “purpose” in interpreting law (for the most part). In the USA, questions of statutory construction are “for the courts to decide,” though the degree of deference has waxed and waned over the years (particularly in relationship to administrative law). In parliamentary systems, the legislature is the basis of executive power; the executive dominates the legislative process; laws are usually passed in the form that they are proposed by the executive; it is thus very difficult to argue that the executive branch has ignored legislative intent. Interpretive difficulties are usually quickly resolved, before anyone has a chance to file suit. If judges reconstruct the law through their decisions, then usually it will be easy for parliament to respond. In the American system, the legislative branch plays a prominent role in the development of law, and Congress often encourages direct judicial oversight of executive branch bureaucracies. To summarize: American courts exercise considerable power in interpreting statutes, because the language of American statutes tends to be more imprecise, the intentions of the legislature tends to be more obscure, the legislature often wants to restrict the discretion of the executive branch, and the legislature will find it difficult to respond to judicial statutory interpretations.

IV. Civil Rights and Civil Liberties↑

When considering civil rights and civil liberties; the most obvious question is this: “what is the distinction between a right and a liberty?” We need not be concerned with precise distinctions when discussing rights and liberties, as there is considerable disagreement over the meaning of these terms. We can begin with some more or less commonly held opinions about rights and liberties, and move from there towards more rigorous understandings of how rights and liberties relate to American politics as a whole. Rights and liberties can be understood as limits on government action– the lines in the sand that cannot be crossed by the state. In addition, rights can often refer to things that governments must do, the things that it must provide, or the standards it must follow when distributing benefits or regulating human conduct. In general, civil liberties refer to freedom from government; civil rights concern equal treatment by government. But people use the terms almost interchangeably (e.g. we speak of the right to free speech (a limit on government action) and the right to equal treatment under the law (a demand for a specific kind of government action)). We should also keep in mind that governments exist, in large part, to defend our rights and liberties against unjustified incursions by other people. So government is simultaneously a potential threat to rights and liberties, and the guarantor of those rights and liberties.

In American politics, there has often been a great deal of disagreement over what the permanent limits on government should be. Similarly, there has often been considerable disagreement over what equal treatment means in practice. This conflict is rooted in distinct ideological traditions— in particular, the traditions of classical liberalism and progressivism. However, the character of the conflict has changed over time. In the first part of the twentieth century, classical liberals had an expansive understanding of rights and liberties, and were enthusiastic about the power of courts to restrain government; progressives tended to think of rights as nonsense on stilts, as saw courts as the most oligarchic institution in the American political order. During the mid-part of the twentieth century, this began to change: the traditional classical liberal understanding started to disappear, the old progressive suspicion of courts became a central element of conservatism, and second generation progressives supported judicial activism. Thus while Americans have always disagreed about the meaning of rights and the scope of judicial power, the politics surrounding these disagreements have transformed in some interesting ways.

It isn’t surprising that people disagree about the meaning of rights. Why do we modern people—supposedly such scientific skeptics—continually refer to immaterial entities such as rights, things that cannot be seen, measured, or weighed? Indeed, many competent jurists have doubted whether our untutored notions of rights make much more sense than the ancient notion of “taboo.” Supreme Court Justice Oliver Wendell Holmes, one of the most prominent legal thinkers of the early 20th century, observed that “Law is not a brooding omnipresence in the sky”— law and rights do not “exist” like laws of nature, they have to be created. For Holmes, the only question is who will engage in these acts of creation. One might well regard this skeptical attitude to be incompatible with the American political tradition, which is based upon a belief in “natural rights” and “higher law constitutionalism;” however, one might still argue that political communities can create constraints on their own power, in order to better preserve their own freedom and prosperity. Such constraints would be subordinate to the ends they serve, as opposed to being absolute commandments that must be observed in all circumstances. As Justice Robert Jackson put it, “The Bill of Rights is not a suicide pact.” This skeptical view of rights is never politically popular, and at root it is probably false—there really are standards of justice that are independent of human will. Yet skepticism, even if it is false, can still help us to think about the problem of rights, liberties, and justice.

Aristotle’s view of “rights” is a helpful corrective to the naïve view that rights are simply discovered by lawyers (perhaps with the help of law professors) and the skeptical view that rights simply do not exist. Aristotle did not speak about rights and liberties in the modern sense, but he did speak about the advantages and disadvantages of “the rule of law,” or rather the rule of nomos, a Greek word which combines law, custom, and tradition. According to Aristotle, there are reasons to think that rule by “law” or “nomos” is preferable to the rule of human beings. Why might a community benefit from being ruled by “a brooding omnipresence in the sky,” a set of norms that are not regarded as subject to human control? The simplest reason is this: an action cannot be just merely because some person or persons wills it, even if it is willed by a democratic majority, or by a “good king,” or by “the best and the brightest. Yet any “law”—any conception of a higher law, any conception of rights or liberties that place fundamental limits on what can and cannot be done will be rooted in varying claims to rule; and these claims to rule are only partially valid—at least from the perspective of Aristotelian political science. From the perspective of the partisan zealot, their own political beliefs embody the truth, the whole truth, and nothing but the truth.

From the Aristotelian perspective, the notions of “rights and liberties” that courts place upon politics are political in character— while claims about rights and liberties might have some partial validity, there are usually opposed viewpoints that contain a good deal of validity as well. Human beings have an unavoidable tendency to turn their political preferences into a “brooding omnipresence in the sky.” This can take a religious forms, as rulers ignore the law while calling on the Lord, ruling above the humble written laws that were created by merely human political action, . Others think that ordinary law can and should be subordinate to “history;” those who have special insight into the historical zeitgeist—lawyers, obviously—should have the ability to dictate the limits of democratic politics, but as part of an ongoing process. The general pattern is always the same—whether relying on appeals to God, History, Equality, Liberty, or the Grand Mystery of Existence, people are tempted to interpret their political preferences as “rights.” This is understandable—it would be nice if everything we happen to prefer, or everything that serves our interests, was written into the very fabric of reality. It is also understandable why so many political activists prefer that major issues in political life be decided by coteries of lawyers and judges; how much easier to achieve what we want through a legal tribunal, as opposed to the never-ending, always incomplete dialogue of democratic politics and representative government. This is understandable—yet this mode of resolving social disagreement has many problems of its own.

I do not want to deny the significance of rights— rights are a necessary component of democratic politics, as it seems absurd to suggest that the will of the majority can determine what is right and wrong, good and bad. Yet we go astray if we think that courts are always the best defenders of rights; we err if we think democratically elected governments do not play a role in actively protecting rights. Courts are not the only, and in some cases not even the best, defenders of civil rights and civil liberties. There is a great tendency, in the United States and elsewhere, to regard courts as the best and noblest of all political institutions. The “approval rating” for the Roberts Court in the USA is about 60%; the approval rating for the President is about 40% ; the approval rating for Congress is of course abysmal (low teens or less). Perhaps there are good reasons to think that courts are far superior to the other political institutions, but there are also reasons to be skeptical about the noble myth of the heroic judiciary. The story of civil rights in the United States, for instance, is not simply a story of how wise and heroic judges opposed ignorant politicians and tyrannical majorities. Rather, the story of civil rights in America deals with political organization, party politics, and legislation.

The advance of civil rights resulted from the ability of African Americans to organize and influence the formerly segregationist Democratic party, which led to two enduring legislative achievements: the Civil Rights Act, and the Voting Rights Act. These laws, created through the normal legislative process, did more to advance legal and political equality than any judicial decision. Lawyers and courts played an important role, but it would be wrong to think of civil liberties and civil rights as the domain of the judiciary alone.

It is understandable why people consider rights and liberties to be the concern of courts, because one of the most dramatic actions in American politics is for a court to strike down a national or state law, on the grounds that the law violates rights and liberties. This is called “judicial review“; the process of comparing a state or national law with a higher law, a superior legal standard. We think of courts when we think of rights, because it is often the case that courts provide the most dramatic instances of the power of rights—the power to strike down a law in the name of rights, the power to restrict any number of government actions. Yet what standards guide this power? How do we determine the boundaries of politics? There are four categories or sources of rights and liberties, though as we will see these categories often overlap.

First, let us deal with the least controversial basis of judicial power: statutory rights. Laws create rights, and in the American system of government, federal law is supreme over state law (assuming, of course, that the federal government has policy authority in the relevant area.) So, in those instances where state laws (or the actions of the state governments) are incompatible with federal law, courts will uphold the requirements of federal law. Of course, federal law can also create rights that must be respected by other individuals as well (e.g. laws against discrimination in employment.)

To apply statutory law, judges must understand the elementary principles of justice; that these principles are often “obvious” does not render them less important. Elementary principles of justice are not “contained” in any law, yet they must be invoked by courts when applying law, or interpreting the “rights” that are conferred by law. Perhaps this is why so many judges are attracted to the habit of “inventing rights;” in actual practice, courts must always apply law to particular contexts, and this means that judges must use their own reason to determine how a law would apply in a situation that legislators could never have anticipated.

Consider the example of United States v Kirby, from 1868. An 1825 Act of Congress imposed penalties against “any person who shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same…” Kirby, a Kentucky sheriff, was prosecuted under this Act; Kirby had been executing a warrant against a Mr. Farris, who had been charged with murder. Yet Mr. Farris was a mail carrier, and he was arrested while “on duty” (in this case, on a steamship) Somehow, Sheriff Kirby was charged under the federal statute—because by the explicit terms of the law, he was in violation. This would be an example of idiotic legal literalism, and the Supreme Court would have none of it; the arrest may have interfered with the mail, but it was clearly an example of a justified interference—and anyone with even ordinary sense could see the significance of “justified” and “unjustified” interference, at least in this instance. Justice Stephen Fields summarized the main issue raised by the case in the following way:

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over the letter.”

Even to apply ordinary statutory law, it is necessary to appeal to principles of reason and justice that exist beyond the law. Without standards of justifications that are not determined by law; we would not be able to have a legal system. The law itself unavoidably points to principles that exist beyond the law. Yet how far do those principles extend? That turns out to be a difficult question to resolve.

Civil Rights and Liberties from the Founding to the Civil War

At no point in American history have individuals ever been in agreement over the meaning of rights, but there is something revealing about the kinds of conflicts over rights that existed at the time of the Founding, particularly conflicts over the Bill of Rights (the popular name for the first ten amendments to the Constitution of 1787.) The Bill of Rights placed limits on the federal government, and they were adopted to reassure those who feared the spectre of a new, quasi-imperial tyranny that would render the states impotent. Many individuals were opposed to the adoption of a Bill of Rights, but these opponents of the Bill of Rights were not radical republicans who thought that the voice of the people was the voice of God. Neither were they Hobbesian authoritarians who believed that the requirements of peace and order trumped questions of individual liberty. Rather, many opposed the Bill of Rights because they thought such a Bill would actually threaten rights. How could this be? How could classical liberals oppose a Bill of Rights?

We can deal with the relatively straight-forward objections. During the post-founding era, those who leaned “liberal” and those who leaned small-r “republican” all agreed that the national government had limited or enumerated purposes or powers (they disagreed about the precise limits of those powers). Here is the problem: the provisions of the Bill of Rights implied that the government had powers which it did not possess. For instance, the first amendment says in part that “Congress shall make no law… abridging the freedom of speech, or of the Press.” “Congress shall make no law respecting an establishment of religion.” But where was Congress granted to make such laws in the first place? Thus, the opponents of the bill of Rights thought that the document implied that Congress possessed general legislative powers, as opposed to the specific power enumerated in the Constitution.

In addition, many founders believed that rights existed by nature, which meant that those rights did not have to written down to exist; they existed as a matter of logic.²⁰ This criticism extended beyond the Bill of Rights to include parts of the Constitution itself. For instance, Article One Section 9 of the Constitution states in part that “no ex post facto law shall be passed.” According to some, this provision was unnecessary, because everyone knows that ex post facto laws cannot really be regarded as laws.

Others argued that the inclusion of a specific list of rights would lead people to conclude– erroneously– that the rights listed are either the only rights individuals possess, or that the rights listed are somehow more important than those which are not listed. For instance, nowhere in the Constitution does it say that you have a right not to be punished for a crime if you are innocent. Does this mean that a state could pass a law which allows judges imprison those found innocent, if they think it will have a useful effect on the populace? That would seem strange. The constitution itself recognizes this problem, and thus the 9th Amendment states that “The Enumeration in the Constitution of Certain rights shall not be construed to disparage others…” Thus the Bill of Rights acknowledges that the rights listed in the document are neither exhaustive nor supreme.

For most of the 19th century the role of federal courts was limited in regards to the enforcement of constitutional rights. There are several reasons for this. To begin with, the scope of the national government itself was limited, and (leaving aside the question of race, which we will return to later) political elites and the public had a common understanding of rights. Courts did not need to engage in a great deal of review of federal law, because legislators were not inclined to push the boundaries of federal power. Also, keep in mind that the federal bill of rights did not apply to state governments (though state often had their own bills of rights.) In general, state courts placed relatively few limits on the powers of state governments, particular in relation to rights related to freedom of expression or the so-called separation of church and state; states could ban many different forms of “expression,” though this rarely extended to political speech (except in the South, in relation to race and slavery). To give one example: all or most states had provisions regarding the protection of speech, yet most states banned picketing or organized boycotts of businesses, on the grounds that this was “conduct” and not speech. Thus, while states had bills of rights that could be judicially enforced, in many instances courts adopted minimalistic understandings of those rights. In addition, most state legislators simply internalized notions of, for example, property rights, and thus there was little occasion for broad conflicts over constitutional rights in the courts. In an era of minimal government (on the national level), there was minimal judicial review of national laws or state laws, at least in regards to civil rights and liberties.

States courts did play a role in supervising the “police powers” of the state– laws that aim at public health, safety, morality, and so on, powers that encompass much of what we consider to be the most important functions of government. To consider the role played by state courts in limiting government power, we have to consider the related concepts of public purpose and partial legislation. According to the general rule of thumb applied by 19th century judges, state governments can restrict property and individual action if those laws serve a genuinely public purpose. However, a law cannot restrict an individual unless there is a public purpose, and that cannot include the desire to give an advantage to some other person or group. Consider the following contrasting hypothetical laws:

a) A law that requires taxi cab drivers to undergo a criminal background check vs. a law that limits the number of cab drivers in a city
b) A law that subjects food trucks to health inspection vs a law that bans food trucks
c) A law that imposes safety standards on cars vs. a law that requires you to buy a car from Government Motors

19th century American courts, particularly state courts, tried to prevent or limit legislation that provided an advantage to one group at the expense of another; they wanted to prevent established economic interests from transforming economic power into political power– the essence of “partial legislation.”²¹

In the 19th century, courts did not begin with a grab bag of rights, or a hierarchy of preferred or special liberties; instead, they focussed on the purpose of laws and the ends which they pursued. This is what we mean, even today, when we say that rights are not absolute; it means that some restrictions on the right of speech are legitimate, because they serve a legitimate purpose.²² It would not be legitimate to prevent someone from writing articles that criticize the government, but it might be legitimate for me to ask you to not scream about the international Mormon conspiracy during class. For the first part of the 19th century, these judicial restraints on political power were exercised through state courts, and they were fairly minimal (federal courts exercised power through the (dormant) commerce clause, the supremacy clause, and some other crucial federalism-related provisions.)

The Civil War Amendments to the Constitution, in particular the 14th Amendment, transformed the role played by federal courts in the protection of rights and liberties. In previous chapters we addressed how the 14th Amendment increased the power of Congress (de jure, though not always de facto.) In addition, the 14th Amendment– unlike the Bill of Rights– placed direct limits on state governments through the “due process of law” clause, which states that “no state shall deprive any person of life, liberty or property without due process of law.” (The other important guarantee in the 14th Amendment is that of equal protection of the law.)

The text of the 14th amendment raises an important question: what process is due a person under the law? There are two basic answers to this question: “substantive due process” and “procedural due process.” Procedural due process of law places emphasis upon the process of law: if you are being deprived of life, liberty, or property, then a) the state must base its actions on an actual law and b) you are entitled to your day in court. Now, we shouldn’t scoff at these protections; but we should see that the scope of judicial review under such a standard would be extremely limited. Substantive due process of law is based upon the idea that “law” must have certain characteristics in order to be a “law” at all. The first characteristic is generality or universality– the law must apply the same standard to all. In addition, the law must not be arbitrary, and here we encounter some difficulties. It is easy to identify, in the abstract, an arbitrary law– it is a law that serves no public purpose. My favourite example is this: the dictator in Woody Allen’s film ‘Bananas’ who decrees that everyone must wear their underwear on the outside of their pants. The valid purpose standard makes sense, yet clearly there will be disagreements over what constitutes a valid public purpose. In the late 19th and early 20th century, courts dealt with the problem of defining ” valid public purpose” by, in a sense, extending the logic of Federalist Paper #10 into the realm of constitutional law. A law that attempts to create a genuine public good (e.g. health, safety, etc.) is valid, whereas a law that attempts to give an advantage to a narrow group within society is invalid, even if that “narrow group” is backed by the support of a majority of legislators. Laws that gave special privileges to some groups at the expense of others were often referred to as “class legislation,” (ie laws that were intended to grant a benefit to a specific class, as opposed to the general public.) So, as we can see, the “substantive due process” interpretation of the 14th Amendment was an extension of doctrines that had been developed by state court judges during the 19th century. Under this interpretation of due process of law, a law is not really lawful if, in its substance, it promotes partial ends or purposes instead of general or public purposes.²³

It is quite difficult to separate valid public laws from partial legislation. Many of the early cases dealing with “due process of law” took the following form: the state government, in the exercise of its police powers (the general power to legislate in the interest of public health, safety, morality, etc.) would claim that a given law aimed at the public good; opponents of the law would argue in court that the government’s claims were suspect. For instance, if the state granted a monopoly to a small number of slaughterhouses in a city (as in the famous Slaughterhouse Cases of 1873), was this an attempt to protect the public health? Or was this an attempt to limit competition, to give an advantage to one group at the expense of another, ultimately to the detriment of the public? The debate over due process of law and the scope of judicial power would become increasingly controversial over time, as both state and national governments addressed the problem of a rapidly urbanizing and industrializing society, a society that was growing exponentially but one that was also experiencing unprecedented concentrations of wealth and unprecedented economic inequality.

The Progressive Era to the Great Society

The most famous example of “substantive due process” during this era is the case of Lochner v. New York, from 1905.²⁴ This case gave rise to a new verb: “to Lochnerize.” “To Lochnerize,” in relation to judicial review, means to limit government power through a creative or expansive reading of “due process of law.” This case is a good example of the tension between classical liberal constitutionalism (reinforced by the 14th Amendment) and the Progressive “state-building” project; that is, the effort of progressive legislators to extend the scope of government regulation. In this case, the Supreme Court (by a slim majority of 5-4) overturned a New York state law which limited the working hours of bakers. The argument of the majority was that this restriction did not have any plausible connection to the public interest. This case would become, for many, a symbol of judicial excess and judicial arbitrariness; it explains why, until at least the mid-century, progressives regarded the judiciary as the most reactionary (that is, liberal) branch of the national government. Yet while the substance of this decision would be overturned during the New Deal era, the general logic behind “substantive due process of law” would return with a vengeance in the post-World War II period.

In terms of civil rights and civil liberties, the significance of the New Deal era can be summarized very quickly. During the 1930s and 1940s, federal courts started to back away from the standards of “substantive due process” of law exemplified by the Lochner decision, but, at the same time, the Supreme Court began to lay the groundwork for future expansions of judicial power. As in the case of federalism, courts started to treat “economic rights” as interests that were best protected by the political process. According to this perspective, the realm of economic regulation required a much broader scope for government experimentation, and the old hostility to “class legislation” had to be abandoned under modern circumstances. At the same time, courts were hesitant to adopt “procedural due process” entirely; that is, they did not want to say that courts can never examine the substance of law to determine if the categories it creates are arbitrary. And thus, the Supreme Court invented the “double standard” in American constitutional law.

This “double standard” is an attempt to explain why certain kinds of liberties– e.g. economic interests– are left to the political arena, and why other kinds of rights—”human rights”— are the proper objects of judicial solicitude. The post-New Deal Supreme Court was filled by FDR appointees, and they were very suspicious of the old jurisprudence of substantive due process. As we saw in the case of Wickard v. Fillburn, the court was generally deferential to the powers government to regulate “economic activity,” but while the court was willing to accept a massive expansion of government power in the economic sphere, it began to carve out a sphere of (supposedly) non-economic rights that would receive “heightened protection” from the courts.

The double standard was articulated first in an otherwise unimportant case– the United States v. Carolene Products, from 1938. The case dealt with a federal law with prohibited the shipment of certain skimmed milk substitutes in interstate commerce– again, based upon the economic theory that it is vital, during a depression, to insure that people can only buy the most expensive types of milk products. In upholding this law, the court reflected the basic New Deal consensus that the older approaches to federalism, property rights, and substantive due process were incompatible with modern democratic society– lawyers and judges simply should not have the power to determine the scope of economic regulation. In the now famous “footnote number four,” however, the court raised the question of whether judicial review based on substantive due process could in fact enhance democracy in some instances, even if it should no longer be used to defend economic rights. In this footnote, Justice Stone argued the following points:

1) There is a general presumption of constitutionality regarding legislation, but that presumption is weaker when certain “preferred freedoms” are at risk (in general, rights associated with the Bill of Rights, such as the first amendment) (why are some freedoms preferred? how do we know?)

2) In addition (and he was somewhat sketchy here) laws which undermine the democratic process should not be given the presumption of constitutionality.

3) Finally, laws which target discrete and insular minorities should be subjected to more exacting judicial scrutiny.²⁵

Thus, while certain kinds of economic rights should no longer be protected, this does not mean that the courts should abandon judicial review altogether; they need not even abandon substantive due process.

The modern law of civil liberties required one additional piece to be complete: the doctrine of incorporation. The doctrine of incorporation is an attempt to explain why the federal bill of rights should be applied against state governments. Originally, the Bill of Rights was primarily an aspect of federalism (e.g. a limit on the power of the national government, not a limit on the power of government per se.) “Incorporation” refers to the idea that the 14th Amendment’s “due process of law” clause– which places limits on the states– encompasses or “incorporates” the Bill of Rights. So, for instance, the First Amendment states that Congress shall make no law respecting an establishment of religion; under the incorporation doctrine, the literal meaning of the first amendment is abandoned, and states are prevented from making laws respecting religious establishments… whatever that might mean in practice.

With the “double standard” and the doctrine of incorporation in place, the stage was set for the massive transformation of judicial power that coincided, more or less, with the Great Society era. The key transformation in civil liberties can be understood as follows: under the “old system” (pre-New Deal, pre-progressivism) government was constituted as “islands of power” within “vast seas of rights.” The purposes of the federal government were limited, and state governments were constrained by the public purpose requirement. Over time, many jurists, politicians, and political thinkers objected to the rigidity of the “public purpose” standard. Given the complexity of a modern economy, many doubted whether the old standards were relevant, many more doubted if courts had the capacity to discern what “the public purpose” consisted of. By the 1950s, a new conception of government power, rights, and liberties began to emerge: “rights” are now like islands in vast sea of general government power. Certain rights are “preferred freedoms” that must be protected, especially given that many of the old restrictions on government power (e.g. non-delegation doctrine, enumerated powers doctrine, etc.) had been eliminated.

The Rights of Criminal Suspects

Federal Courts have transformed the processes of detention, interrogation, and prisons through the “incorporation” of the rights of criminal suspects. This aspect of the rights revolution is in many ways no longer controversial, but this does not mean that the revolution was unproblematic from a constitutional perspective. The criminal rights revolution, even if it has been successful in the court of public opinion, provides many examples of courts exercising legislative power. Consider, for instance, the example of “the exclusionary rule.” According to the exclusionary rule, evidence seized in violation of law cannot be used as part of a criminal prosecution—the illegally seized evidence is “excluded” from the trial. The exclusionary rule is based upon the fourth amendment of the Constitution, which reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The question is why the exclusionary rule is required by the fourth amendment, given that in most nations (though not Canada) the question of police misconduct is separate from the question of whether evidence can be used in court. The exclusionary rule looks like a reasonable policy solution, but it may not be the best, and it isn’t clear why this one particular solution should be enshrined in law forever. In announcing the exclusionary rule, the court appeared to be crafting a policy—legislating, instead of judging. As further evidence, consider the fact that, though the U.S. Supreme Court articulated the exclusionary rule in Mapp v. Ohio in 1961, this rule was only applied prospectively. In other words, the court did not allow those who had already been incarcerated to contest their convictions based upon the exclusionary rule—it would have been too disruptive, and too expensive. In this instance, the court was acting just like a legislature: creating a new rule that governs future conduct (as opposed to applying pre-existing rules discovered in the Constitution.) Furthermore, courts have “adjusted” the exclusionary rule in many particular circumstances, creating ever more complex sub-rules to address unexpected problems with judicially crafted policy. Incorporation of the right against unreasonable “search and seizures” provides a very good illustration of “legislating from the bench”: courts selected a solution from a variety of possible options and remedies; the remedy was only applied to future cases; and the rule was adjusted in response to changing circumstances.

Freedom of Religion and the Separation of Church and State

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”This part of the first amendment is both famous and controversial. We should recall the easily overlooked point that what was once an element of “federalism” (Congress shall make no law) has been turned into a “fundamental” or “preferred” freedom. Unsurprisingly, this had drawn federal courts into a host of unending controversies, which we will attempt to explain by considering the meaning of the Constitutional text.

`Let us begin with the “free exercise” clause of the first Amendment. In general, the free exercise clause prevents Congress or the state governments from interfering with individual religious belief. Yet what if your religion has strange beliefs, or more importantly, strange beliefs that require strange actions? Congress itself has been deferential to religion in many instances. For instance, draft laws exempt conscientious objectors from being forced to join the military, for fairly obvious reasons. Just how far does the first amendment go , in itself, in protecting the free exercise of religion? There are two basic answers to this question. The first answer is that the law cannot target religion, but otherwise valid laws are still valid even if they affect religious belief. The second answer is that the first amendment creates a special space for religious believers, and demands that “special accommodation” be made for religious practices.

In addition,the first amendment states that Congress shall make no law respecting an establishment of religion; as transformed by the doctrine of incorporation, this mean that “no government” shall make such laws. But what is a law respecting an establishment of religion? What restraints are imposed by this clause? One thing is relatively clear: American governments cannot create a national or state religion, or force people to adhere to a particular religious belief or practice. Yet others argue that the first amendment prevents governments from becoming excessively involved or intertwined with religion. This is the “wall of separation” doctrine, a phrase not found within the Constitution. If applied with ruthless consistency, the wall of separation doctrine leads to absurd results—or, if you prefer, results that demand a jihad against all religious believers, whatever their faith may be. The Supreme Court has difficulty applying the doctrine in a consistent fashion. Its inconsistent rulings insure that litigation over “the separation of church and state” will always be a part of American politics.

Consider the case of Everson v. Board of Education (1947) This case raised the question of whether a state government could pay for bussing for Catholic schools. The court announced that the state can provide this aid, on the grounds that providing aid to students attending a school is no different from providing mail service or police protection to a religious school or religious institutions. But the language of the decision, in addition to affirming that the establishment clause applies to state governments, also implied that the courts should erect some kind of “wall of separation” between church and state. It is not enough for states to refrain from creating an “establishment of religion;” they must also refrain from privileging religion.

The attempt to apply some version of the “wall of separation” doctrine has led to incoherent judicial decisions. The jurisprudence based on the establishment clause yields no certainly about the meaning of law, and delivers instead an assortment of almost random results. School prayers, even if non-sectarian, voluntary, or limited to reading a Bible passage, are unconstitutional. Educational goals inspired by religion are unconstitutional. Schools cannot allow students a “time out” for religious instruction if it takes place in schools, but this is acceptable if it is done somewhere else. Some forms of aid to religious education are acceptable, yet some are not. For instance, aid for building construction, loan of free texts, tax exempt status for parochial schools, and income tax deductions for tuition payments are all acceptable. Yet governments cannot reimburse parents tuition costs, supply counseling, or give money for purchase of instructional materials.

Do these distinctions make sense? Do they follow any pattern? It is difficult to tell. The rules followed by the Court in adjudicating religious controversies are known as the Lemon test. According to the Lemon Test, government support of religious education is acceptable if i) there is a secular purpose, ii) the primary effect neither advances nor inhibits religion, and iii) there is no excessive government entanglement with religion. It does not take a degree in political science to recognize how easy it would be to disagree about the meaning of this test in practice.

Perhaps the most controversial question in contemporary law is whether the first amendment provides an exemption from otherwise valid anti-discrimination laws. In the case of Hosana Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission (2012), the court ruled that the government cannot interfere with decisions related to the hiring of religious ministers or officials. Unlike many controversial cases, this decision was unanimous, and a brief consideration of the details of the case will help us to understand why. Cheryl Perich had been employed as a teacher at Hosana Tabor, but she had been relieved of her duties because of her narcolepsy (a medical condition that causes you to fall asleep at various times over the course of the day.) Ms. Perich filed a charge with the Equal Employment Opportunity Commission, arguing that her dismissal violated the Americans with Disabilities Act. Hosana Tabor argued that the First Amendment provided a “ministerial exemption” from discrimination laws, and that according to its internal policies, Ms. Perich was a kind of religious official within the organization, not merely a “lay teacher.” The unanimous decision of the court was in some ways not surprising—a contrary decision would have made religious practice impossible, or at least extremely inconvenient. Thus, while the “wall of separation” doctrine seems to apply special restrictions on religious practices, the “free exercise” clause allows religious groups the special privilege of being exempted from otherwise valid laws.

What we should note here is that the religion-related provisions of the First Amendment, which may have made a great deal of sense when looked at in the light of federalism, became an endless source of controversy once applied to state governments. The notion that religion can be separated from government, in an age when government affects every aspect of our lives, is appealing only to anti-religious fanatics. One might well argue that, in practice, this issue is not of great substantive importance—what does it matter if people are prevented from saying a prayer at a student council meeting, or setting up a nativity scene in some rural post office? There is something to that objection; in response, one could argue that the Supreme Court’s incoherent “wall of separation” jurisprudence has done nothing to bridge the cultural divide in American politics.

The Problem of Freedom of Speech

The first amendment states that “Congress shall make no law… abridging the freedom of speech, or of the press.” Applying this in practice is notoriously difficult— especially since the provision has been incorporated by the 14th Amendment and applied to state governments. In a federal system, it would be possible to apply the first amendment in a very rigorous way against the national government. Yet it is impossible for all forms of speech and expression to be completely and utterly free. Speech or expression can cause unjustified harms, and therefore some limits on speech can be justified. Inevitably, there are disagreements over the harms that justify limits on speech or expression. Consider the following example: if I steal your diary, and attempt to have excerpts published in a student newspaper, should you be able to request a judicial injunction to prevent publication? Very few people would agree with the claim that the publication of stolen documents should be protected by first amendment.

As you consider your response to that hypothetical case, consider the following actual case from the Supreme Court of the United States: New York Times v. United States, 1971 During the late 1960s, the Pentagon had commissioned a massive study of the war in Vietnam in order to understand why the war effort had failed. The New York Times acquired a copy illegally, and began to publish parts of it. Should the First Amendment allow a newspaper to publish those illegally obtained papers? If you think an injunction is appropriate in the case of your diary, why not when the interests of the nation as a whole are at stake?

When we say that the first amendment is not absolute, what we are really saying is that certain restrictions on expression can be justified (e.g. to prevent the publication of private or illegally obtained information). The restrictions are justified in order to prevent unjustified harms, but the problem is that there will always be disagreement over the meaning of “harm.” Consider the case of Brown v. Entertainment Merchants Association (2011)This case dealt with a California law which prohibited the sale of extremely violent video games to minors.The Supreme Court ruled that the law was unconstitutional. The majority, consisting of Scalia, Kennedy, Ginsburg, Sotomayor, and Kagan, ruled that content based restrictions of speech directed at children are invalid. The obvious objection is that the Court was not about to prevent states from restricting the sale of pornographic video games to children. Yet if a state can decide that an exposed buttock will cause harm to children, why might it not also conclude that seeing images of people being dismembered might be unhealthy as well? Justices Alito and Roberts, though agreeing with the conclusion of the majority, thought that the law should be struck down because the standard it had created was far too vague. In dissent, Justice Thomas argued that the First Amendment right to freedom of speech did not create a right to communicate and sell to children. Stephen Breyer, in a separate dissent, essentially agreed with Thomas’ opinion: the first amendment was never intended to prevent parents from controlling the images that their children are exposed to.

The “absolutist” reading of the first amendment from this case illustrates one of the basic problems of American jurisprudence: even when there are fairly serious disagreements amongst legal experts, courts have the power to invalidate democratically enacted laws. Had the Founders known that the Bill of Rights would be applied to the states, would they have allowed a mere majority of judges to exercise the power of judicial review? It is difficult to know; given the uncertainty of legal reasoning (at least in many difficult cases), one suspects that they might have structured the federal judiciary in a different way, had they known how far judicial power would eventually extend.

The Problem of Privacy and Substantive Due Process of Law

The right to privacy is the basis of abortion rights in American law. Courts have overruled laws that prohibit contraceptives (Griswold v. Connecticut 1965) on the basis of the “right to privacy.” The “right to privacy” was then used as the basis for the 1973 Roe v. Wade decision, which limited the power of state governments to regulate abortion. The right to privacy is controversial because it is not explicitly mentioned in the Constitution– and thus, like the “right to work as many hours as you like” from Lochner, it is based on a kind of substantive due process (e.g. a law is not really a law if it violates “privacy.”) Conservative opponents of “the right to privacy” usually argue that, given the fact that it is not specifically mentioned in the Constitution, it should not be invoked by courts. The counter-charge of liberal supporters is that not all rights need to be enumerated; as stated in the 9th Amendment, “The Enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

But what makes something a right? How do we know that there really is a right to privacy? Can judges simply assert it, or must they explain the justification for the right? In Griswold v. Connecticut, the court argued that not all rights need to be enumerated, but the argument it provided in support of an unwritten right to privacy had serious flaws. In a 7-2 vote, the court invalidated an old (and unenforced) Connecticut law that made it illegal to use contraception. However, there were six separate opinions in the case. Though a majority of justices agreed upon the outcome, they didn’t agree as to why it was the correct outcome. According to Justice Douglas, “… the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In other words: a) the 9th Amendment, combined with b) the 14th amendment “due process” clause which incorporates the Bill of Rights,c) considered in light of the penumbras/emanations of other rights (1st Amendment protection of the right of association, 3rd Amendment’s prohibition against quartering of soldiers in private homes, 4th Amendment’s guarantee against unreasonable search and seizure, etc.)…leads to d) … the conclusion that the states cannot prohibit contraceptives.

Douglas’ decision is judicial decision making by free association. FDR appointee Justice Hugo Black, in dissent, observed that “This is an uncommonly silly and asinine law.” Yet he also observed that the decision gives “the federal judiciary the power to invalidate any legislative act which the judges find irrational, unreasonable or offensive…. even though I like my privacy as well as the next one, I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Yet while Douglas’ opinion gives no convincing explanation as to why there is a “right” in this specific instance, Black’s opinion ignores the 9th Amendment.The Framers would not have argued that, simply because the “right to privacy” is not mentioned in the Constitution, then there cannot be a “right to privacy.” Yet how do we know if there is such a thing as a “right to privacy”? How do we know when “invasions of privacy” are justified?” Is something insulated from law/public power merely because it is done in private? It is easy to understand why the specific issues raised in this case lead people to have sympathy with the notion of a right to privacy. No one likes the idea of police snooping around the bedrooms of the nation. (At least, I hope no one finds that appealing.) Nevertheless, is it possible to say that the law must be indifferent to all matters of sexuality, even though sexuality is usually considered private? We see right away that in cases dealing with marital rape, incest, pedophilia, etc., government has an interest in matters dealing with sex. This is because government has the power to prevent individuals from harming others. There is a principled basis for the state limiting these kinds of sexual activity, not least because they involve sex against consent or with those who cannot really consent.

 Yet consider the following example. In 1978, a Family Court in Rhode Island removed children from parents who were having group sex parties. In order to have their children returned to them, the parents had to agree to receive psychiatric counseling, and they had to agree to end the group sex parties. Was the state justified in doing this? Is there anything about the nature of the family which should insulate them from being restricted by the state from doing this? I am not sure that there is. There is nothing about the family or sexuality which marks it off as a sphere of human activity that cannot be regulated by law.   The problem with the right to privacy is not that it isn’t found in the Constitution, the problem is that it doesn’t make any sense to speak of a “right to privacy;” the mere fact that an act is private tells us absolutely nothing about whether it can be regulated by law. You could argue that the government has no legitimate interest in preventing people from using contraception, on the grounds that there is nothing necessarily harmful about contraception. This would be similar to the reasoning used by the court in Lochner v. New York (1905), but then this raises simply another question: why should some types of rights or activities be subjected to “substantive due process” but not others?

The controversy over the “right to privacy” became more politically significant with the case of Roe v. Wade. (1973). The specific issue– abortion– was more politically controversial than the issue of contraception: laws against abortion were actually enforced, the applicability of “privacy” in the abortion context was open to dispute, and a large number of states were affected. In addition, the Court did not merely invalidate laws; it created a new scheme for abortion regulation–the famous, “trimester framework,” which allowed states more leeway in the “second two trimesters” of pregnancy than in the first. In practice, the court has enforced a health exception to the trimester framework, health being understood to include “mental health.” As a consequence, access to abortion is less regulated in the United States than in “post-religious” nations such as France and Germany.

While some of the details of “abortion rights” jurisprudence have changed, it remains the case that federal courts have seized control of the issue, and federal politicians remain reluctant to challenge courts for control of the issue. Whatever your final opinion on abortion might be, we have to recognize why abortion rights are so controversial from a legal perspective: as in the case of judicial decisions that struck down minimum wage and maximum hours laws, the post-Roe abortion jurisprudence of the Supreme Court is based upon “substantive due process of law,” the notion that certain so-called laws are invalid because they violate general principles of lawfulness. The problem is that the notion of “substantive due process of law” is correct—there are indeed laws that are arbitrary and unjust in themselves; it is indeed impossible for courts to perform their function in a political system if they can only rely on the text of laws and constitutions. Invariably, the act of judging forces judges to move beyond the law, and even beyond the Constitution. Yet what if anything constrains judges when they do this? It is one thing to supplement a statute, in order to take into account a situation not anticipated by legislatures; it is something else to resolve major social issues on the basis of broad social theories. As Aristotle would have predicted, if you create a judicial institution in which un-elected officials sit in supervision of the legal and political order, the individuals who constitute that tribunal will be guided by political conceptions of justice— the tribunal will not rule as a neutral umpire, but will reflect the political divisions in society as a whole. The history of judicial power in the United States reveals a great difficulty with the experiment of constitutional democracy: the constitutional rights that we imagine to be the universally-agreed upon norms of political life are in fact sources of political conflict.

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