Corrupted by Power: The Supreme Court and the Constitution

All Rights Reserved © 2004 by Robert E. Riggs

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The disposition of mankind, whether as rulers or as fellow citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power.

John Stuart Mill

Contents

Preface

Acknowledgments

1 The Power of Judicial Review

2 Judges Amend the Constitution

3 Fabricating More Rights

4 Amending the Fourteenth Amendment

5 A Right to Advocate Crime

6 Protecting Obscene Speech

7 The New Right of Commercial Speech

8 Laws Touching Religion

9 Can the Court Be Curbed?

Endnotes

Preface

Controversy over Supreme Court decisions is commonplace. This is notably true of issues decided on constitutional grounds which involve large questions of public policy. Abortion, school vouchers, affirmative action, internet pornography, flag desecration—the list is easily extended—create controversy that continues long after a Court decision is announced and regardless of the case outcome.

This book will of necessity engage in that controversy because opinions are difficult to suppress. But that is not the primary issue. The real issue is how the Constitution is to be amended. Article V of the Constitution provides for amendment by a two-thirds vote of each house of Congress, followed by approval in three-fourths of the states. This has been done twenty-seven times, including the first ten amendments constituting the Bill of Rights.

By contrast, the Supreme Court, an unelected body with lifetime appointments, has amended the Constitution unnumbered times, often by a vote of 5 to 4. Calling certain of their decisions amendments is not simply a way of disagreeing with the outcome. Nor is it even a way of saying they are inconsistent with original understandings of those who framed and ratified the Constitution—although they usually are, to the extent the original understanding can be determined. Rather, such decisions are demonstrably amendments because they are inconsistent with what the Constitution previously required, as authoritatively stated in previous decisions of the Court.

Numerous opinions of the Court have proclaimed the Court’s prerogative to declare what the Constitution means. If the Court in 1875 or 1905 or 1920 or 1950 says the Constitution means one thing, and in 1960 or 1975 or 2005 the Court says it means something quite different, the Constitution has been amended. It will not do simply to say that the Court now has new insights or that changing times require changing interpretations. Such arguments go to the desirability of the change, that is, whether the new interpretation is better policy than the old. It takes nothing away from the fact, call it what you will, that the Constitution has been amended.

This book draws much of its material from Court decisions interpreting the First Amendment to the Constitution, ratified in 1791. The wording of the First Amendment has not changed since its adoption, but its application in the hands of the Court has vastly expanded—mainly since the middle of the twentieth century and mostly in direct contradiction of earlier Court decisions. Illustrations are taken primarily from Supreme Court decisions relating to the constitutional law of obscenity, commercial speech, the right to advocate crime, and freedom of religion. Because the Court’s propensity to modify the Constitution is not limited to First Amendment issues, illustrative decisions affecting other areas of constitutional law are also discussed.

In arrogating to themselves the right to change the Constitution when they think it needs revision, members of the Court need not be accused of ill motives. The cases come before them, a decision must be reached, they consider the facts and the arguments, and they decide according to their best individual and collective judgment.

But they also know what they are doing to the Constitution. They are able, intelligent men and women. They know that the meaning of the Constitution has changed over the years, substantially circumscribing the powers of the states while expanding freedom of expression to the point where liberty has become license. And the process goes on. Nine Justices, or a majority of them, continue to alter the Constitution in ways that fit their own ideas about good government and good social policy.

In the beginning the Supreme Court did not function this way. The circumspection with which those early Justices approached the task of judicial review meant that few state or federal statutes were overturned on constitutional grounds. As the decades passed, however, members of the Court came to recognize the power of an office having final and conclusive judgment on the meaning of the Constitution. Accepting that power, they began to exercise it freely, making invalidation of laws commonplace. Ultimately the right to declare the meaning of the Constitution became the right to change its meaning whenever a Court majority believed, or was persuaded by litigants, that justice or good public policy required a new constitutional rule. By this means has the Court been corrupted by power. It is not the corruption of bribes, or even of bad intentions, but of assuming a right to amend the Constitution in a manner never conferred.

Whatever their intent, recent generations of Supreme Court Justices have worked a profound transformation in the government of the United States. Elected legislatures—both state and federal—have become subject to the shifting policy preferences of an appointed committee of lawyers, any five of whom can annul any legislative judgment. By seizing ultimate power, the Court has weakened local autonomy and undermined democratic government, making courts—rather than legislatures—the forums of last resort in matters of public policy. In the process, not only democratic government but public order, morality and civility have frequently been the losers.

In writing this book I have relied primarily on the published opinions of the Supreme Court of the United States. The opinions themselves are quoted frequently, often at some length. I have tried to let my conclusions emerge from their words, at the same time offering my own commentary on what their words mean. Given the evidence of repeated changes in the meaning of the Constitution without benefit of a formal amendment, it is difficult to deny that our governmental system has undergone fundamental changes at the hands of a Court which has taken upon itself the power to amend the Constitution.

Acknowledgments

In writing this book I acknowledge a debt of gratitude to the J. Reuben Clark Law School, Brigham Young University, for giving me the opportunity to teach constitutional law and make it my primary field of research. Without that experience the book could not have been written.

I gratefully acknowledge three friends and former colleagues who read all or a substantial part of the manuscript—Frank J. Sorauf, with whom I served for eleven years in the political science department of the University of Minnesota; and Richard G. Wilkins and Frederick M. Gedicks, colleagues in the J. Reuben Clark Law School. Richard was enthusiastic about the manuscript. Frank and Fred disagreed with the central proposition that the Court has been corrupted by power. Nevertheless their critical comments were very helpful, and the book is better because of them. It goes without saying that they share no responsibility for any errors of fact or for any of the opinions expressed herein.

Thanks also to Professor Paul D. Carrington who graciously consented to my use of extended excerpts from one of his writings entitled, Restoring Vitality to State and Local Politics by Correcting the Excessive Independence of the Supreme Court, Alabama Law Review, vol. 50 (Winter 1999).

For many years everything I have published has been first read to my wife Hazel Dawn. This book was no exception. She listened carefully, more than once to some parts, and offered encouragement and criticism. Both were helpful.

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Last but not least, I acknowledge the inestimable contribution of the excellent Westlaw online legal research service, without which my research would have been far slower, probably less accurate, and undoubtedly more tedious. Thank you, Westlaw.

1

The Power of Judicial Review

Introduction

In one of his essays urging adoption of the United States Constitution, Alexander Hamilton wrote, in 1787: [T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. It is, he said, beyond comparison the weakest of the three departments of power.¹

What he wrote was true in 1789 when the Constitution became operative, and throughout much of the following century. It is no longer true today. Over the years the influence of courts has expanded beyond any expectation. This is partly due to the multiplication of lawsuits but also to the increasing use of the judicial branch as an alternative legislative forum. Groups failing to win their point in Congress, or in local legislative bodies, frequently turn to courts for the desired relief. A victory in court is often as good as a victory in the legislature, and may be even better when it hinges on a point of constitutional law—which a legislature cannot change.

The judiciary at all levels has become more powerful than Hamilton ever imagined. But standing far above the rest is the Supreme Court of the United States, its power resting upon public acceptance of its right to decide what the United States Constitution means. In exercising this power it sets public policy for the entire country. When interpreting the Constitution, the nine Justices of the Court become the nation’s most influential legislators. They speak, and everyone is bound by what they say, even when the decision is supported by a bare majority of five.

And that ruling cannot be changed, except by the cumbersome process of constitutional amendment—or by another decision of the Court.

During the past century the Supreme Court has spoken on a great variety of constitutional issues, always controversial, usually by a divided vote, and not infrequently by a decision overturning a previous decision of the Court. In 1918 and again in 1922, the Court struck down two attempts by Congress to eliminate child labor; yet, two decades later a decision by a differently constituted court eliminated constitutional barriers to national regulation of child labor.² In 1923, by a 5-3 vote, the Court held that a District of Columbia law prescribing minimum wages for women was an unconstitutional abridgment of a right to liberty of contract somehow included in the due process clause of the Fourteenth Amendment. Fourteen years later the Court, divided 5-4, concluded that a state minimum wage law for women did not violate due process after all.³

More recently the Court has found constitutional protection for those who advocate force and violence to achieve political ends, a constitutional right to abortion, a constitutional right to engage in sodomy, a constitutional immunity from the death penalty for certain classes of criminals, and a virtually unlimited constitutional right for adults to produce, distribute, and consume pornographic materials.

Conduct that used to be prohibited has been converted by judicial decision into a matter of constitutional right. Nowhere is this transformation more evident than in the Court’s solicitude for indecent and degrading speech which now floods the land. Under this new constitutional law the principal exception to the free flow of pornography is pictorial material portraying children. Even there, however, the Court has protected the proclivities of pedophiles by giving its approval to computer-generated images of children and pictures of youths who are at least eighteen but merely look young enough to satisfy the peculiar appetites of those who consume such fare.

In most of these matters the Supreme Court has simply changed its mind about what the Constitution permits or requires. This was true of child labor laws, at first disapproved, then later permitted, and of the minimum wage laws for women. It is also true of many other Supreme Court decisions, some of which will be discussed in subsequent chapters. But until the Court changed its mind, the earlier presumably erroneous reading of the Constitution was the law of the land.

With respect to advocacy of violence, abortion, sodomy, the death penalty, and pornography, the Court has also departed from previously accepted constitutional law, not always acknowledging that it is doing so. Each of these issues (and others) will be examined further in the pages that follow, with greater attention given to First Amendment issues.

At this point it is sufficient to reiterate that the judicial branch of government is no longer the weak branch, having, as Hamilton said, neither force nor will, but merely judgment. This unelected committee of lawyers, its members appointed for life, has become the ultimate policy-making organ of the republic. Gordon S. Wood, Pulitzer Prize winning historian of early America, has stated it as clearly as anybody:

Alexander Hamilton called the judiciary the weakest branch of the three branches of government, but today we know better. To us not only does the unelected, life-tenured federal judiciary seem remarkably strong, but at times it actually seems bolder and more capable than the two elective branches in setting social pol-icy…The Supreme Court not only sets aside laws that popularly elected legislatures pass, but also interprets and construes the laws with a freedom that sometimes is virtually legislative in scope.⁴

The Supreme Court cannot, like a legislature, reach out on its own initiative and enact laws on any subject it chooses. But given the litigious nature of our society, the Court’s power is not much limited by the necessity of waiting for someone to sue. Individuals and groups of all ideological stripes, including a vast array of public interest groups, are eager to place their causes within reach of the Court. Thousands of petitions for review are filed with the Court each year, and the Court in its majesty may pick and choose those it wishes to address. Not surprisingly, the Court chooses disputes likely to have an important impact on public policy. When a decision is made it is always authoritative. When the decision declares a rule of constitutional law, it is beyond the reach of legislatures or even of a majority of voters. In such cases the voice of the Court, whether by nine to zero or five to four, is final as well as authoritative.⁵

The Origins of Judicial Review

Judicial review is a name for this exercise of judicial power to appraise the constitutionality of governmental actions and to declare the actions invalid if contrary to the Constitution. It is exercised by both state and federal courts. The concept, at least in limited form, antedates the establishment of the national Constitution, although the expression judicial review was not used to describe it until the following century.

To say that judicial review antedated the Constitution does not mean that the doctrine and practice were the same as today. Eighteenth century Englishmen, whether in England or America, were familiar with the concept of fundamental law that ought to govern the conduct of government. They also had a belief in natural law from which fundamental principles of government could be derived. In political discourse the Magna Carta and other fundamental rules of the English Constitution were repeatedly invoked as standards to which government should adhere, as was the notion of natural law.

The English constitution, however, was never cabined in a single document and its contours were not certain. The contours of natural law were even less certain. Moreover, the belief in fundamental law existed alongside an equally firm recognition of parliamentary supremacy. No English judge in the eighteenth century supposed that he could void an act of Parliament by branding it unconstitutional. Judicial review of Acts of Parliament was not an option. The sanctions for going beyond fundamental law were moral and political, not judicial disallowance.

In the American colonies, prior to the Revolution, judges were not highly esteemed. They were regarded as agents of the crown, lacking even the independence of judges in England. With the dawn of the Revolution, citizens of the new states turned to legislatures to provide guarantees of their rights and safety through simple, understandable, codified written laws. Unhappily, the love affair with legislatures was short lived. Simplicity, clarity and order in state law were lost in a multitude of statutes characterized more by complexity, inconsistency, and confusion.

The poor performance of legislatures worked to the advantage of the judiciary. As early as the 1780s, ebbing confidence in popularly-elected legislatures had prompted reconsideration of the value of an independent judiciary, leading ultimately to the coordinate role assigned to the judiciary in the new Constitution. Judicial review by state courts, though controversial, was not unknown in 1787. At least two state courts had previously voided legislative acts as unconstitutional, despite threats from aggrieved legislatures to evict the offending judges from office for daring to challenge legislative supremacy.⁶

At the 1787 Constitutional Convention in Philadelphia there was general agreement that state laws conflicting with the Constitution should have no force or effect. The post-independence experience with a national government dominated by the several states had left the delegates at Philadelphia with little doubt that the new national government must be supreme in carrying out the powers delegated to it. A proposal to permit Congress to void any state law conflicting with national law was defeated, but a federal supremacy clause, now appearing in Article VI of the Constitution, was accepted without dissent.⁷

The supremacy clause, intended to insure that states could not set aside or ignore federal law, has an important bearing on judicial review. It reads as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Any sensible reading of this clause leads to the conclusion that judges in state courts were authorized to disallow state laws conflicting with federal authority. State laws could be reviewed not only for their inconsistency with the Constitution but also with federal laws and treaties. It presumably follows by implication that federal courts, in reviewing state laws, could exercise the same discretion.

No great leap of logic is required to infer that the federal judiciary might also exercise a judicial veto on Acts of Congress that conflicted with the Constitution. On this point, however, the framers were not in agreement. The prime motive of most delegates to the Philadelphia Convention was to establish a national government that could exercise its authority without dependence upon state governments. They agreed that the new government, though limited to the powers delegated in the Constitution, should not be hampered by the states in carrying out those powers. From this consensus arose the general willingness to require state courts to disallow contrary state laws.

But as to the relationships among the three branches of the federal government, the same consensus did not exist. A proposed judicial veto of acts of Congress was discussed but never directly addressed by a vote of the convention. Of those who spoke to the subject some favored such a power, while others were opposed. Alexander Hamilton favored a judiciary that could disallow national legislation not authorized by the new Constitution. James Madison, the architect of the Constitution to a greater extent than any other individual, was ambivalent.⁸ As a result of the differing opinions, the finished Constitution said nothing on the subject, leaving the power, if there were one, to implication.

Judicial Review and the New Constitution

Quite apart from the Supremacy Clause, the logic of a written Constitution superior to other law undoubtedly supported the idea of judicial review. If, in the course of a dispute before the courts, the act of a state legislature or of Congress was found to conflict with the Constitution, surely the superior law should prevail. Yet, such logic had not been wholly convincing to the framers of the Constitution. A number of them supposed that Congress and the executive, as well as the judiciary, could decide what was and was not constitutional.

Nor was the country as a whole fully persuaded that the judiciary should be the final authoritative interpreter. In particular, Jefferson (who did not attend the Convention) and Madison (who did attend the convention) never espoused that belief. On this point, historian Gordon S. Wood states unequivocally that Jefferson and Madison never believed that judges had any special or unique power to interpret the Constitution.⁹

Despite the silence of the Constitution, federal judges could not forever avoid the need to deal with a perceived conflict between federal law and the Constitution. In 1792 Congress enacted a Pension Act which required federal Circuit courts (then generally consisting of two Supreme Court Justices and one federal district court judge) to accept applications for pensions from disabled soldiers and make a preliminary decision on their eligibility. Three federal Circuit courts (sitting in New York, Pennsylvania, and North Carolina, respectively) declined to comply with the Act on the ground that it violated the constitutional separation of powers. Screening of applicants for pensions, they all said, was not a judicial function; and if it were, the provisions of the Act giving the Secretary of War and the Congress the right to override the initial court decision was itself a violation of the separation of pow-ers.¹⁰

The most striking thing about each opinion is its extreme deference to Congress and the judges’ obvious reluctance to place themselves in opposition to any act of Congress. The New York circuit, acknowledging the benevolence of the legislation, offered to receive and act on the applications for pensions in the capacity of commissioners rather than judges. The Pennsylvania circuit, in a letter addressed to the President of the United States, assured him that their decision, though it became necessary, it was far from pleasant. To be obliged to act contrary either to the obvious directions of congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, we hope never to experience again.

The North Carolina circuit was equally deferential.

The matter ended without a final decision on the constitutionality of the legislation. When one of the applicants, William Hayburn, carried his case to the United States Supreme Court, that body, judiciously, put off hearing the case until the next court term. In the meantime, Congress—also acting judiciously—made the hearing unnecessary by revising the legislation to avoid the conflict identified by the courts.

Eleven more years passed before the Supreme Court actually held an act of Congress unconstitutional. In the meantime, as the issue arose, judges continued to express either uncertainty or reluctance to exercise judicial review of federal legislation. In Hylton v. U.S. (1796)¹¹ Justice Samuel Chase managed to convey both sentiments, while joining a Supreme Court decision that the federal tax at issue was within the powers of Congress: As I do not think the tax on carriages is a direct tax, he wrote, it is unnecessary, at this time, for me to determine, whether this court constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it but in a very clear case.

In a subsequent decision of the Supreme Court (1798), dealing with a state law rather than a federal statute, Justice James Iredell expressed no uncertainty about the power but nevertheless great reluctance in its exercise: [I]t has been the policy, he said, of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.¹²

As the eighteenth century came to a close and the country moved into its second decade of the Constitution, the logic of judicial review under a written fundamental law was having its effect. A kind of judicial review did exist. It was being exercised, if infrequently, in state courts and by federal courts dealing with state law. Although its application to federal law by federal courts was largely prospective, the belief in the right of courts to do so was gaining force.

Yet never during this period was judicial review regarded as a routine aspect of judicial business. Courts approached it gingerly, with deference and even awe at the prospect of collision with the dictates of legislatures. Even judges who acknowledged their power to invalidate federal law were agreed that its exercise would be exceptional, limited to flagrant and obvious violations of the Constitution, and never in a doubtful case.¹³

Marbury v. Madison, and Beyond

The first Supreme Court decision holding an act of Congress invalid under the Constitution did not occur until 1803, fourteen years after the new national government was formed, in the case of Marbury v. Madison.¹⁴ The facts of the controversy reflected the on-going rivalry between the two major political parties, Federalist and Republican (forerunner of today’s Democratic Party). The 1800 national elections had placed a Republican (Thomas Jefferson) in the presidential office and given his party a majority in both houses of Congress. Before the

Republicans took office, the lame duck Federalist Congress created a number of new judgeships, and the departing President (John Adams) proceeded to fill them with members of his own party after approval by the lame duck Federalist majority in the Senate.

Unhappily for William Marbury, some of the commissions signifying appointment to office remained undelivered when President John Adams’ term of office expired. Marbury’s commission to serve as a justice of the peace in the District of Columbia was among those signed by the President and sealed, but not delivered. The new Republican administration, incensed by this eleventh hour attempt to entrench Federalist partisans in the federal judiciary, refused to deliver some of the commissions.

Marbury thereupon brought suit, asking the Supreme Court to order Jefferson’s Secretary of State (James Madison) to deliver the commission. Marbury was able to apply directly to the Supreme Court because the Judiciary Act of 1789, creating the federal court system, had given the Supreme Court jurisdiction to issue writs of mandamus to persons holding office under the authority of the United States. Marbury asked for such a writ, directing Madison to deliver the commission.

For John Marshall, who wrote the opinion, and his Federalist colleagues on the Court, the occasion presented a special incentive for striking down a congressional enactment. If they granted the mandamus as requested, the Justices could be quite sure Madison would refuse to comply. This would be a genuine blow to judicial authority. Alternatively, if no mandamus were issued the Court’s decision would be self-enforcing.

The Court prudently chose the latter course by invalidating the portion of the Judiciary Act that conferred jurisdiction to issue the writ. Article III of the Constitution specified that the Supreme Court should have original jurisdiction in all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, and appellate jurisdiction in all other controversies specified in

Article III. In deciding Marbury’s plea, the Court concluded that the grant of original jurisdiction was definitive; hence Congress was not entitled to enlarge that jurisdiction by requiring the Supreme Court, rather than a lower court, to issue such writs.

The decision was arguably sound in its constitutional law and, politically, it was a master stroke. In the course of the opinion John Marshall was able to scold the Republican administration for failing to deliver Marbury’s commission, which he said was Madison’s duty under the law. Yet, by refusing to order Madison to do it, he shielded the Court from a presidential challenge to judicial authority that almost certainly would have followed. Compliance with this first ever Supreme Court invalidation of an act of Congress was assured because the Court could enforce the decision itself, simply by doing nothing. And finally, just a note of irony. As John Adams’ Secretary of State, John Marshall himself had inadvertently initiated the factual basis for this lawsuit by failing to deliver Marbury’s commission in the closing hours of the Adams presidency!

Marbury v. Madison did not initiate a rash of Supreme Court decisions invalidating federal law. Quite the contrary, no congressional act was again held unconstitutional until the Dred Scott decision in 1857, fifty-four years later.

Nevertheless, during the intervening years, the right of courts to engage in judicial review continued to grow in acceptance and respectability. State judiciaries increasingly made use of the practice, and the Supreme