The new ‘super-legislature’


“Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men in different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

Who wrote this reactionary little argument for a strict interpretation of the Constitution? Justice Scalia, trampling in one way or another the rights of minorities, or maybe Justice Thomas, arguing for some antediluvian interpretation of the Commerce Clause? Actually, it was Justice Benjamin Curtis, writing in dissent in the 1857 decision Dred Scott, where he challenged Chief Justice Taney’s contention that the due process clause of the Fifth Amendment somehow contained a constitutional right to own slaves. Curtis was as right then as he is now.

Despite Mr. Min’s claim that Taney was an originalist, no tenable originalist reading of the Constitution could support his decision. The Constitution as it was framed did contemplate the existence of slavery in some states. Just because it did, however, does not mean that it forbade Congress from passing laws that restricted the right to own slaves in federal territories. By analogy, the same argument would mandate the death penalty in the Virgin Islands, because the Constitution contemplates the possibility of capital punishment in the Fifth Amendment. Nevertheless, Chief Justice and Southern partisan Taney was intent upon creating a federal right to own slaves where none had previously existed. He did, and 630,000 American lives were lost when the issue was revisited by force three years later.

Most of 20th Century Supreme Court jurisprudence notwithstanding, Justice Curtis was right also in his larger point, that the Constitution itself is abandoned whenever courts decide to declare that the Constitution means not what it says, but whatever a few people in black robes would like it to mean. The history of substantive due process provides an excellent opportunity to study the judicial branch’s will to power, its miserable decline from its original role and Machiavellian rise to become a super-legislature, utterly unaccountable to the democratic process.

As many better writers than this one have noted, it is impossible to deny the fact that the word “due” is followed by the word “process.” A substantive, however, rather than a procedural, right has been read into the phrase ever since Chief Justice Taney laid the precedent for this species of judicial arrogance. It is important to distinguish here between two varieties of substantive due process. The first is the incorporation of Bill of Rights against state legislation via the Fourteenth Amendment’s Due Process Clause. Although I will not discuss it further, at least that kind of substantive due process may be restricted to the plain meaning of the Bill of Rights. The second variety, of which Dred Scott, Lockner and Roe v. Wade are all a piece, allows the Supreme Court to create freedoms which had never been protected, promulgated or heretofore recognized within the Constitution itself. Whatever one may think as a matter of policy about owning slaves, making contracts or having an abortion, the Constitution does not require states or the Federal Government to allow any of those acts.

Maybe it isn’t such a bad thing for judges to make up rights because they feel like it, or even because they personally believe they are representing the popular will or the current feeling about what rights must be protected by the federal government. Personally, though, I would prefer for the Court to stay in the business of interpreting law, rather than creating new ones out of thin air (or out of penumbrae). The Supreme Court may amend the Constitution by a 5-4 majority, though Congress and the individual states need to each assemble a 2/3 or 3/4, respectively. Despite those overwhelming requirements, the States have still ratified amendments that ended slavery, protected minorities, and expanded suffrage for women. All those amendments were worthy additions to our Constitution, and they were decided democratically. I would argue, then, that if you want a right protected that isn’t already protected, convince your friends, neighbors, and enemies that it must be protected and let the democratic process do its work. Most judges would do well to learn something from your example.

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