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Judicial Power



           The high priest of the pernicious concept known as the “Living Constitution” was the late Supreme Court Associate Justice William J. Brennan, Jr. According to Brennan, the Constitution of the United States of America

embodies the aspiration to social justice,[i] brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline.  The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.  * * * When Justices interpret the Constitution they speak for their community, not for themselves alone.  The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought.  * * * But the ultimate question must be, what do the words of the text mean in our time.  For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.[ii]

           In other words, the concept of a “Living Constitution,” so central to liberal jurisprudence and evident in so much Supreme Court adjudication, means no Constitution at all. 

A “Living Constitution” is anti-democratic because it removes from the public forum and from those politically accountable, and thus from the electorate itself, important issues of social, economic, and other policy, and reposes those issues in federal judges, especially nine unelected philosopher kings and queens appointed for life and accountable to no one.


What has made it possible for the “Living Constitution” to thrive is the so-called Incorporation Doctrine—a judicial construct at which the Founders, federalist and anti-federalist alike, would doubtless have scoffed.


           An examination of the Incorporation Doctrine begins with an undeniably valid premise: The Bill of Rights was intended by Madison who introduced it, by the Congress that approved it, and by the states that ratified it, to apply only to actions by the federal government. Indeed, the First Amendment begins by reciting that “Congress shall make no law . . . .” [iii]  

           Never was a political intent, or a legal statement, clearer.  Even those who would have it otherwise concede that in the early days of the Supreme Court of the United States it ruled squarely that the Bill of Rights was not applicable to the states.[iv]   Eminent constitutional law scholars have recognized that “[t]his holding was correct historically because the drafters of the Bill of Rights designed the amendments as a check on the new national government.”[v]

           How, then, has the Supreme Court been able to hold unconstitutional under the federal Constitution acts of the states violating such rights as free speech, protection against double jeopardy, and many other guarantees found in the federal Bill of Rights?

           The answer lies in the Incorporation Doctrine and the Due Process Clause of the Fourteenth Amendment:  “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”[vi]

           Even though the federal Bill of Rights contains at least thirty specific rights-guarantees—one of which is the Fifth Amendment’s own Due Process Clause—in a series of cases beginning with Gitlow v. New York[vii] the Supreme Court ruled that the Fourteenth Amendment’s Due Process Clause, as the centerpiece of the “Living Constitution,” “incorporates” many of those same guarantees, thus making them applicable to state action.



[i] On August 1, 2005, Dr. Thomas Sowell wrote at www.townhall.com: “I never cease to be amazed at how often people throw around the lofty phrase ‘social justice’ without the slightest effort to define it.  It cannot be defined because it is an attitude masquerading as a principle.”


[ii] Speech by Associate Justice of the Supreme Court William J. Brennan, Jr., to the Text and Teaching Symposium, Georgetown University, October 12, 1985, Washington, D.C., reprinted in “The Great Debate: Interpreting Our Written Constitution,” published by the Federalist Society as Occasional Paper No. 2 (1986).

[iii] Emphasis added.

[iv] Barron v. Mayor and City Council of Baltimore, 32 U.S.  (7 Pet.) 243 (1833).

[v] Nowak and Rotunda, Constitutional Law (fourth edition), 332.

[vi] Emphasis added.

[vii] 268 U.S. 652, 45 S.Ct. 625 (1925).  


Gitlow v. New York[i]

“Incorporating” the Bill of Rights

            Benjamin Gitlow was an interesting character.  At 18, he was a Socialist.  At 22, he was the first president of the Retail Clerks Union of New York, and at 26 Gitlow was elected to the New York State Assembly.  In 1919, Socialists of a more revolutionary flavor, like Gitlow and the legendary John Reed, founded the Communist Labor Party, which later became the Communist Party of the United States.  Gitlow ran as the Communist candidate for Vice President in 1924 and 1928.

            Before his Quixotic quest for high political office, Gitlow spent three years in New York’s Sing Sing prison on a conviction for violating that state’s 1902 criminal anarchy law.  That statute made it a crime to encourage the violent overthrow of the United States government. 

According to the Supreme Court of the United States, “[t]he indictment was in two counts. The first charged that the defendant had advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled ‘The Left Wing Manifesto’; the second that he had printed, published and knowingly circulated and distributed a certain paper called ‘The Revolutionary Age,’ containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence and unlawful means.”[ii]

At his trial, in two New York appellate courts, and in the Supreme Court of the United States, Gitlow argued that the criminal anarchy statute as written and applied to him violated the Due Process Clause of the Fourteenth Amendment.  But not because there were any procedural (i.e. “process”) irregularities in either the law or its use against him, but because the statute was “substantively” unconstitutional in its punishment of what Gitlow rightly characterized as pure speech.

 In effect, though not explicitly, Gitlow was invoking against state action proscribed by the Fourteenth Amendment, the First Amendment which applied only to action by the federal government.

Both New York appellate courts held the criminal anarchy statute constitutional.

So did the Supreme Court, which thus [wrongly] upheld Gitlow’s conviction for pure speech.

Even worse, in doing so the Court made a statement that set the stage for later “incorporation” of virtually every provision of the Bill of Rights into the Fourteenth Amendment’ due process guarantee, and endowed that previously purely procedural amendment (“due process”) with the power to test the substantive content of all state laws:

For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

In other words, the Due Process Clause of the Fourteenth Amendment had First Amendment “content,” and the former’s guarantee that “no state shall deprive any person of life, liberty, or property, without due process of law” meant that “no state shall abridge the freedom of speech.”  And if a state law affecting speech was challenged on the ground that it did abridge free speech, the Supreme Court had the power to assess the substantive content of that law (e.g., punishing pure speech by anarchists) to ascertain if it passed constitutional muster.

That left open the question of what criteria—what litmus paper—the Court would use to decide whether, substantively, a state law was constitutional or not

The Gitlow Court began by observing that there was no absolute right of free speech (or press) under the First Amendment:

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. * * * Reasonably limited . . . this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.

Note that, according to the Court as long ago as1925, free speech is a mere “privilege,” and that it is subject to “limitation.”

Limitation, then, by what standard? 

The Court was not bashful about its answer: “That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question.”

Having concluded that Gitlow’s over-the-top Communist ranting was indeed “inimical to the public welfare,” the Supreme Court upheld his conviction and sentence, employing some hyperbole of its own: “The State [New York] cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.”

Even though the Supreme Court upheld the New York criminal anarchy statute and with it Gitlow’s conviction, more important to the future of constitutional law was that the Court tested that law not by the Constitution’s Fourteenth Amendment (“[N]o state shall deprive any person of life, liberty, or property, without due process of law”), but by the First Amendment (“Congress shall make no law . . . abridging the freedom of speech . . . .”)—and that the essence of the Court’s test was whether “substantively” the statute was “inimical to the public welfare” and thus constitutionally within New York’s power to protect the public.

Justices Holmes authored a dissent for himself and Justice Brandeis.

Most interesting about that dissent is that Holmes and Brandeis shared their colleagues’ view that the Fourteenth Amendment contained First Amendment content which, through “incorporation” would be read into the Fourteenth.

Why, then, did they dissent? 

Not because they believed New York was powerless to punish subversive speech, for they found no fault with the statute itself.

 And not because they believed the Court lacked the judicial power to evaluate the substantive content of the statute, for they assumed that the Fourteenth Amendment’s Due Process Clause could substantively test the constitutional appropriateness of the criminal anarchy statute.

Holmes and Brandeis dissented because they disagreed only about whether under the facts of the case Gitlow’s speech was truly “inimical to the public welfare.”  If it was, he could be sent to Sing Sing.  If not, he should have been set free. 

Those facts were to be assessed under the test the Court had developed in the earlier World War I free speech case of Schenck v. United States, where Schenck and others went to prison for protesting conscription.  In Schenck, Holmes had written that: “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent.”[iii]

In Gitlow, Holmes and Brandeis thought not; there was, in their opinion, no “clear and present danger.”

It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.[iv]

            Thus, Holmes and Brandeis, too, subscribed to their colleagues belief that the Fourteenth Amendment “incorporated” the free speech guarantee of the First Amendment, and that state action allegedly violative of it could be examined substantively by the judicial power of the Supreme Court in order to ascertain whether the law under attack was constitutionally acceptable. 

            During the ensuing years, incorporation of virtually all other provisions of the Bill of Rights occurred—and what started with a case about politics, eventually led to a case about contraception.

[i] 268 U.S. 652 (1925).


[ii] Emphasis added.


[iii] Emphasis added.


[iv] Emphasis added.


Palko v. Connecticut[i]
Divining “Substantive Due Process”


According to Raoul Berger,[ii] following the decision in Gitlow v. New York  legal historian Charles Warren “had prophesied in 1926 that by enlarging the Fourteenth Amendment to protect free speech, the Court had opened the door to adoption of the Bill of Rights.[iii]  Faced with mounting pressure to do so, [Supreme Court] Justice Cardozo, in Palko v. Connecticut fashioned a confining doctrine . . . .”  Presently, we will examine what that “confining doctrine” was, and we’ll see what became of Warren’s prophesy.  But first a look at  the Palko facts are in order.

Palko was indicted in Connecticut for Murder 1, and convicted of Murder 2.  He was sentenced to life in prison.

Connecticut had adopted a statute in 1886 allowing the state to appeal in a criminal case: “Sec. 6494. Appeals by the state in criminal cases. Appeals from the rulings and decisions of the superior court or of any criminal court of common pleas, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court of errors, in the same manner and to the same effect as if made by the accused.”  An even playing field!

Palko appealed. 

Connecticut’s high court ordered a new trial because the state had been prejudiced in three respects: by the trial judge’s exclusion of testimony of Palko’s confession, by exclusion of testimony to impeach Palko’s credibility, and by jury instructions that were erroneous regarding the difference between Murder 1 and Murder 2.

A second trial was held, and Palko objected that Connecticut was subjecting him to “double jeopardy” in violation not of the Fifth Amendment, which applied only to the federal government, but rather the Fourteenth Amendment’s Due Process Clause, which applied to the states.

This time around, Palko was convicted of Murder 1 and sentenced to death.

The Connecticut Supreme Court affirmed the conviction, and the case went to the Supreme Court of the United States.

There, Palko conceded that the Double Jeopardy Clause of the Fifth Amendment applied only to the federal government, not to the State of Connecticut.  He argued instead “that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also.”  In other words, according to Palko something in the Fourteenth Amendment’s Due Process Clause meant the same thing as the Double Jeopardy Clause of the Fifth Amendment.  (Actually, Palko went even beyond that argument.  According to Cardozo, “ [Palko’s] thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state.)

First, Justice Cardozo’s opinion discussed the Fifth Amendment, and noted that it did not control the decision in Palko, a state case.

Next, he noted that despite the Fifth Amendment’s prohibition of certain conduct by federal authorities, the Supreme Court of the United States in interpreting the Fourteenth Amendment had not applied certain of the former’s restrictions to the states:

The Fifth Amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. This court has held that, in prosecutions by a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer. * * * The Fifth Amendment provides also that no person shall be compelled in any criminal case to be a witness against himself. This court has said that, in prosecutions by a state, the exemption will fail if the state elects to end it. * * * The Sixth Amendment calls for a jury trial in criminal cases and the Seventh for a jury trial in civil cases at common law where the value in controversy shall exceed $20. This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether. * * *

However, Cardozo continued, “[o]n the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress . . . or the like freedom of the press . . . or the free exercise of religion . . .  or the right of peaceable assembly, without which speech would be unduly trammeled . . . or the right of one accused of crime to the benefit of counsel . . . . In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments[iv] have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.”

So which way to go?  Where to draw the line?  How to decide whether a particular guarantee of the federal-protecting Fifth Amendment (or any other ) is somehow magically transported against the states through the conduit of the Fourteenth Amendment?

Cardozo and his seven colleagues (the vote was 8-1) had an answer.  Though his words read today as somewhat archaic, his meaning was clear.  He began with an analogy:

The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.[v]

OK, but what about double jeopardy.  Cardozo applied the same litmus test:

 Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our policy will not endure it? Does it violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”? * * * The answer surely must be “no.”  What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. * * * This is not cruelty at all, nor even vexation in any immoderate degree. If the trial had been infected with error adverse to the accused, there might have been review at his instance, and as often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the presiding judge . . . has now been granted to the state. There is here no seismic innovation. The edifice of justice stands, its symmetry, to many, greater than before.[vi]

At first glance, one could conclude that the near-unanimous decision in Palko v. Connecticut well serves appropriate constitutional principles.  After all, the Court rejected Palko’s argument that the proscriptions against the federal government found in the Bill of Rights are not equally proscriptive of state conduct under the Due Process Clause of the Fourteenth Amendment.  Not necessarily, at least.

But that is a pyrrhic victory indeed.  For in the process of confining the Double Jeopardy Clause of the Fifth Amendment, the Court loosed a doctrine more pernicious than the one it was rejecting.

In assaying the “meaning” of the Due Process Clause, the amorphous, subjective, meaningless Court-created “test” by which to measure unconstitutional state action—“the very essence of a scheme of ordered liberty,” a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” “a hardship so acute and shocking that our policy will not endure it,” and “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”—was worse than no “test” at all because it provided the Court with a roving commission to translate the policy predilections of nine philosopher kings into what was supposed to pass for constitutional law.  That the rights of any American—murderer and mom alike—should rest on such indefensible pap was scandalous, let alone dangerous, in the extreme.

Raoul Berger again:

As in the case of the Chinese “mandate from heaven,” we learn a right is “fundamental” only after the Court attaches that label. * * * “Ordered liberty,” as Louis Lusky states, “is too vague to describe a national objective.  It says that order and liberty are both to be sought, but provides no standard for reconciling the eternal conflict between them.”  “It is a vehicle,” he justly comments, “for whatever meaning the Court gives it, and thus enables the Court to apply its own conceptions of public policy.”

And again:

Justice Byron White likewise regards the concept as no more than a means whereby a majority of the Court can impose “its own philosophical predilections upon State legislatures or Congress.”  And Justice Black maintained that the concept merely embodied “‘natural law due process’ notion[s] by which this Court frees itself from the limits of a written Constitution.”

Today, nearly three-quarters of a century after the Palko decision, those “philosophical predilections” of which Justice White spoke predominate in Supreme Court “interpretation” of the Due Process Clause of the Fourteenth Amendment. 


[i] 302 U.S. 319 (1927).


[ii] Government By Judiciary, 273.


[iii] Footnote omitted.


[iv] Footnote omitted.


[v] My emphasis.


[vi] My emphasis.



  Griswold v. Connecticut[i]
Manufacturing the “Right of Privacy.” 


             Estelle T. Griswold was Executive Directgor of the Planned Parenthood League of Connecticut.  Dr. C. Lee Buxton was a licensed physician, a professor at the Yale Medical School, and the league's medical director at its New Haven, Connecticut, center.

            The popularly elected legislature of the state of Connecticut had enacted two statutes dealing with the subject of contraception.  The popularly elected governor of the state had approved them.  Connecticut’s intermediate appellate court had upheld the statutes’ constitutionality.  So did the state’s highest court. In other words, the people of Connecticut and their political and legal institutions all approved of the two statutes.


            One section of the statute provided that “[a]ny person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifth dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” 


The other section provided that “[a]ny person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”


According to the Supreme Court, as part of their medical practice, Griswold and Buxton each “gave information, instruction, and medical advice to married persons as to the means of preventing conception.  They examined the wife [of the married couple] and prescribed the best device or material for her use.  Fees were usually charged, although some couples were serviced for free.”[ii]


Because of this conduct, Griswold and Buxton were charged as accessories to their clients’ crime of using contraceptives.  They were found guilty, and eventually their case reached the Supreme Court of the United States.


The Court’s majority opinion, written by Justice William O. Douglas stands as a testament to the dual vices of “incorporation” and “substantive” due process.[iii]  In a barely three-page opinion, Douglas prospected his way through the Constitution.  Although what he found was fool’s gold, it glittered enough to satisfy six of his colleagues.  Indeed, Douglas’s majority opinion for himself and the others is a love song to incorporation and substantive due process:


[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described in [an earlier case] as protection against all governmental invasions “of the sanctity of a man's home and the privacies of life.
[iv].  We recently referred
. . . to the Fourth Amendment [protecting against unreasonable searches and seizures] as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”[v]


            Next, Douglas noted that there had in the past been “many controversies over these penumbral rights of ‘privacy and repose,’ and concluded that earlier cases—not one of which had ever constitutionally enshrined a “right of privacy” relating to contraception—“bear witness that the right of privacy which presses for recognition here is a legitimate one.”[vi]


Note that in his prospecting through the Constitution for a “right of privacy” by which the Connecticut state law could be held unconstitutional, Douglas invoked provisions of the federal Bill of Rights—which, as we know, were not supposed to apply to the conduct of states.


Incorporation is, of course, unjustifiable even when it involves an express provision of the Bill of Rights, as for example the free speech guarantee of the First Amendment.  It’s even worse when what is incorporated against the states is a provision not expressly found in the Bill of Rights but instead something divined from “emanations” and “penumbras.”


Undeterred by his inventing constitutional law as he went merrily on his way, Douglas concluded by utilizing the weapon that his incorporation had given him, “substantive due process.”


The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” * * * Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.


            Compared to this pretentious mumbo-jumbo, Justice Stewart’s dissent (joined by Justice Black) focused on incorporation and substantive due process.  Characterizing the Connecticut statute as “an uncommonly silly law,” Stewart recognized that the Court was not being asked “to say whether we think this law is unwise, or even asinine.  We are asked to hold that it violates the United States Constitution.  And that I cannot do.”


            Why not, since six of his colleagues apparently had no trouble doing just that?


            In a direct reproach to Douglas having rutted around in virtually all of the Constitution’s amendments, Stewart replied that:


[a]s to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States.  It has not even been argued that this is a law “respecting an establishment of religion, or prohibiting the free exercise thereof.”  And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  No soldier has been quartered in any house [Third Amendment].  And there has been no search, and no seizure.  Nobody has been compelled to be a witness against himself. [viii]


            It appears from the structure of Justice Stewart’s dissent that when he finished his seemingly exasperated search through the Bill of Right for some provision—any provision—from which he could discern the emanations and penumbras that Douglas had discerned, a simple question had to be asked: “What provision of the Constitution,” Stewart wrote, “make[s] . . . this state law invalid?  The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees’.”[ix]


            Well, that wasn’t good enough for Stewart: “With all deference,” he wrote, “I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”


            Stewart ended his dissent by a broad statement about judicial power, and by implication about incorporation and substantive due process:


At the oral argument in this case were told that the Connecticut law does not “conform to current community standards.” But it is not the function of this Court to decide cases on the basis of community standards.  We are here to decide cases “agreeably to the Constitution and laws of the United States.”  It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.  If, as I should truly hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it.  That is the constitutional way to take  this law off the books.


                At the end of these comments, Justice Steward inserted an interesting and important footnote: “The Connecticut House of Representatives recently passed a bill . . . repealing the birth control law.  The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court.”[x] 


Not only did the one-house repeal demonstrate the “silliness” of the statute and its unacceptability to the people of Connecticut, the legislative action underscored that the use of judicial power to rewrite the Constitution through the incorporation and substantive due process doctrines is at once politically arrogant, legally unnecessary, and constitutionally unjustified.


And dangerous—because Douglas’s ersatz “right to privacy” would later be employed by the Supreme Court in Roe v. Wade to justify invalidating virtually every state law affecting abortion.


[i] 381 U.S. 479, 85 S.Ct. 1678 (1965).


[ii] Emphasis in original.


[iii] Justice Goldberg concurred in an opinion joined by Chief Justice Warren and Justice Brennan.  Justices Black and Stewart dissented.


[iv] Footnote omitted.


[v] Emphasis added.


[vi] Emphasis added.


[vii] Emphasis added.


[viii] All footnotes have been omitted.  Following this passage, Steward addressed Douglas’s majority and Goldberg’s concurring opinions’ references to the Ninth Amendment, as a source of emanations and penumbras: “The Court also quotes the Ninth Amendment, and . . . [Justice] Goldberg’s concurring opinion relies heavily upon it.  But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.  The Ninth Amendment, like its companion the Tenth . . . was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States.  Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.”

Whatever power the Ninth Amendment might have to invalidate federal legislation, it has not been incorporated against the states through the Fourteenth Amendment—nor without the Incorporation Doctrine could it be part of the Fourteenth.


[ix] Emphasis added.


[x] Emphasis added.


Shapiro v. Thompson[i]

The invented “Right to Travel.”


            The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”


            The Constitution’s Fifth Amendment, which contains no Equal Protection Clause, provides that: “[n]o person shall . . .  be deprived of life, liberty, or property, without due process of law . . . .”


            When stated in the abstract, few would disagree with the proposition that Americans, at least domestically, have an unfettered “right to travel.”  We think of commuters living in Connecticut working in New York, of San Franciscans weekending in Nevada, of Texans visiting New Mexico.


            But examining more closely any so-called constitutional “Right to Travel” brings into question whether such a “right” actually exists and, if it does, what it is grounded in and what it protects.


            Congress, for example, under its Commerce Clause power, has long imposed substantial restrictions on interstate travel.  There are federal taxes and license fees that affect virtually everything that moves interstate (and intrastate as well).  There are hundres, if not thousands, of safety regulations that burden travel.  There are laws criminalizing a host of activities that have even a tenuous connection to interstate commerce.


            On the state level, parolees and probationers can be prohibited from moving out of state.  “Entitlement” benefits can be terminated if a recipient leaves the state.  Government employment can be denied to someone who does not reside within the state.  There is no requirement to publicly educate children residing temporarily in a state.  Child abandonment is punished more severely if the abandoner then leaves the state.


            Clearly, government on all levels has consistently and substantially burdened the so-called right to travel.


            So the question is: when are such burdens constitutional, and when are they not?  When do federal and state burdens on interstate travel violate the Equal Protection and Due Process Clauses, and when do they not?


            This question arose in Shapiro v. Thompson, in the context of a durational residence requirement for receipt of welfare benefits—akin to laws regulating eligibility to vote, to obtain professional and other licenses, and to attend state universities.


            At issue in the case were state and federal statutes that restricted certain categories of welfare benefits to those who had resided in Connecticut, Pennsylvania and the District of Columbia, for a minimum of one year before applying for those benefits.


            The key to how the Court would answer the constitutional question lay in what “test” it would apply to the statutes.  For the state cases, the test would be derived from in the Equal Protection Clause of the Fourteenth Amendment.  For the District of Columbia case, from the Due Process Clause of the Fourteenth Amendment.


            According to the opinion,


                        In upholding the equal protection clause argument,[ii] the Court

                        has applied an equal protection doctrine of relatively recent

                        vintage: the rule that statutory classifications [e.g., here, between

                        more than one-year and less than one-year residents] which either

                        are based upon certain “suspect” criteria or affect “fundamental

                        rights” will be held to deny equal protection unless justified by a

                        compelling governmental interest.[iii]


            It’s obvious that in Shapiro and all equal protection cases the game was rigged because selection of the test would determine the outcome of the inquiry.


            If in Shapiro a “fundamental” right was involved,[iv] and the Court found no “narrowly tailored” governmental legislative interest that was “compelling,” the durational residency requirement would be ruled unconstitutional.


            On the other hand, if there was no “fundamental right,” the constitutional bar would be much lower and the durational residency requirement would survive.


            Since the Court’s majority opinion was written by the High Priest of the Church of the Living Constitution, Associate Justice William J. Brennan, Jr., the outcome in Shapiro was not surprising.  For himself and Justices Douglas, Stewart, White, and Fortas, Brennan ruled that the “right to travel” was “fundamental,” and that the governments’ proffered reasons to justify the durational residence requirement were not “compelling.”


The bare majority’s rationale is best explained by the dissent of Justice Harlan.  He began by establishing that the test propounded and applied by the majority was a significant departure from the Court’s prior jurisprudence.


The “compelling interest” doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the long-established rule that a statute does not denying equal protection if it is rationally related to a legitimate governmental objective.

            This “rational relation” test actually bespeaks of the core constitutional principle of separation of powers because it embodies a respect for legislative/executive power and a restraint on judicial power.  Given that  legislatures and presidents/governors are politically accountable, when they act the Court should defer except in instances of manifest unconstitutionality.


            Justice Harlan then proceeded to explain why he opposed that “increasingly significant exception,” and this portion of his dissent serves as a preface to a consideration of, and the necessity for, restrained judicial power.[v]


The second branch of the ‘compelling interest’ principle is even more troublesome. For it has been held that a statutory classification is subject to the ‘compelling interest’ test if the result of the classification may be to affect a ‘fundamental right,’ regardless of the basis of the classification.

            Harlan then reminded the majority of the slippery slope it has gone down:

This rule was foreshadowed in Skinner v. Oklahoma . . . in which an Oklahoma statute providing for compulsory sterilization of ‘habitual criminals’ was held subject to ‘strict scrutiny’ mainly because it affected ‘one of the basic civil rights.’ After a long hiatus, the principle reemerged in Reynolds v. Sims . . .  in which state apportionment statutes were subjected to an unusually stringent test because ‘any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. * * *  The rule appeared again in Carrington v. Rash . . .  in which, as I now see that case, the Court applied an abnormally severe equal protection standard to a Texas statute denying certain servicemen the right to vote, without indicating that the statutory distinction between servicemen and civilians was generally ‘suspect.’ This branch of the doctrine was also an alternate ground in Harper v. Virginia Bd. of Elections . . . and apparently was a basis of the holding in Williams v. Rhodes . . . .  

And here it is again, as Justice Harlan wrote:

It has reappeared today in the Court's cryptic suggestion . . . that the “compelling interest” test is applicable merely because the result of the classification may be to deny the [persons seeking benefits] “food, shelter, and other necessities of life,” as well as in the Court's statement . . . that “(s)ince the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.[vi]

            Harlan then characterized the “fundamental right” branch of the compelling interest test as “particularly unfortunate and unnecessary” primarily because it could (and later did) vitiate the customary equal protection test.  He observed that: “[v]irtually every state statute affects important rights. This Court has repeatedly held, for example, that the traditional equal protection standard is applicable to statutory classifications affecting such fundamental matters as the right to pursue a particular occupation, the right to receive greater or smaller wages or to work more or less hours, and the right to inherit property. Rights such as these are in principle indistinguishable from those involved here, and to extend the ‘compelling interest’ rule to all cases in which such rights are affected would go far toward making this Court a ‘super-legislature’.”[vii]

            In using the characterization “super-legislature,” Harlan was politely criticizing those of his liberal colleagues who worshiped at the altar of a Living Constitution, as exemplified by Justice Brennan.  The last paragraph of Harlan’s dissent eloquently invoked his fears about separation of powers generally, and the need to restrain judicial power in particular:

Today’s decision . . . reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.  For anyone who, like myself, believes that it is an essential function of this Court to maintain the constitutional divisions between state and federal authority and among the three branches of the Federal Government, today’s decision is a step in the wrong direction.  This resurgence of the expansive view of “equal protection” carries the seeds of more judicial interference with the state and federal legislative process . . . .

            The “peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles [that] is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises” is at the root of a judicial arrogance that knows no bounds and which is yet to be satisfactorily contained.


[i] 394 U.S. 618, 89 S.Ct. 1322 (1969).


[ii] The following footnote appears in the text: “In characterizing this argument as one based on an alleged denial of equal protection of the laws, I do not mean to disregard the fact that this contention is applicable in the District of Columbia only through the terms of the Due Process Clause of the Fifth Amendment.  Nor do I mean to suggest that these two constitutional phrases are ‘always interchangeable . . . .  In the circumstances of this case, I do not believe myself obliged to explore whether there may be any differences in the scope of the protection afforded by the two provisions.”


[iii] Harlan, J., dissenting.  The current “suspect”—“fundamental”—“compelling” test has an additional element: the legislation must be “narrowly tailored” to achieve the governmental interest.


[iv] No “suspect classification,” like race, was involved.


[v] Even though Shapiro did not involve a “suspect classification,” Harlan explained the genesis of that branch of the “compelling interest” test: “The branch which requires that classifications based upon ‘suspect’ criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. United States . . . been regarded as inherently ‘suspect.’  The criterion of ‘wealth’ apparently was added to the list of ‘suspects’ as an alternative justification for the rationale in Harper v. Virginia B. of Elections . . . in which Virginia's poll tax was struck down. The criterion of political allegiance may have been added in Williams v, Rhodes . . . . Today the list apparently has been further enlarged to include classifications based upon recent interstate movement, and perhaps those based upon the exercise of any constitutional right, for the Court states [that:]

The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving * * * appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.

Harlan continued: “I think that this branch of the ‘compelling interest’ doctrine is sound when applied to racial classifications, for historically the Equal Protection Clause was largely a product of the desire to eradicate legal distinctions founded upon race. However, I believe that the more recent extensions have been unwise. For the reasons stated in my dissenting opinion in Harper v. Virginia Bd. of Elections . . . I do not consider wealth a ‘suspect’ statutory criterion. And when, as in Williams v. Rhodes . . . and the present case, a classification is based upon the exercise of rights guaranteed against state infringement by the Federal Constitution, then there is no need for any resort to the Equal Protection Clause; in such instances, this Court may properly and straightforwardly invalidate any undue burden upon those rights under the Fourteenth Amendment's Due Process Clause.”  (Emphasis added.  Footnotes omitted.)

[vi] Emphasis added.  Footnotes omitted.


[vii] Emphasis added.  Footnotes omitted.


Missouri v. Jenkins (I)[i]

Running local public schools


The most famous equal protection case of modern times is the 1954 public school desegregation case of Brown v. Board of Education.[ii]  Its reverberations have been felt for decades, and a host of cases have been decided since 1954 concerning the appropriate remedy for the official racial segregation that Brown rightly ruled unconstitutional.


One of those cases was Missouri v. Jenkins.


In 1990, the Harvard Law Review wrote that: "For the thirty-five years since the Supreme Court placed responsibility for school desegregation on the federal district courts, the “activist” district judge has stood astride the

most active fault lines in the Constitution’s allocation of power. Simultaneously hailed as the embodiment of the rule of law and condemned as its antithesis, federal judges’ efforts to restructure historically  local institutions have stirred the passions of citizens, legislators, and legal academics.  Amid this clamor, however, the

Supreme Court has maintained a near-Sphinx-like silence, offering only the occasional cryptic rebuke as district judges restructured electoral districts, school systems, hospitals, and prisons.  Last Term, in Spallone v. United States and Missouri v. Jenkins, the Court examined the constitutional limits on the powers of a district judge."[iii]


In Jenkins, a federal civil rights lawsuit claimed that the Kansas City, Missouri, School District and the State of Missouri had operated a racially segregated school system.


The federal district judge ordered a desegregation remedy that included directions for the public financing necessary to implement the order.  But after examining several provisions of state law, the judge concluded that the school district would be unable to pay its share.


At that time, the Missouri Constitution prohibited raising property taxes above $1.25 of assessed valuation, without a majority vote; a two-thirds majority was required to raise property taxes over $3.37.


But far be it from federal District Judge Russell G. Clark to let a mere state constitution stand in his way of boldly exercising judicial power.


Ultimately, to fund the necessary costs, the district judge ordered an increase in the property tax rate beyond the state constitutional limits.  He also imposed an income tax “surcharge” on people having the misfortune to reside in the Kansas City School District.  (So much for federalism and separation of powers.)


On appeal to the United States Court of Appeals for the Eighth Circuit, the judges of that court had the good sense to reverse the income tax surcharge.  But, in an exercise of Solomonic wisdom, they approved the property tax increase by ruling that Judge Clark had acted within his allowable discretion to order it. 


However, said the appeals court in an apparent compromising nod to the principle of judicial restraint, from then on the judge should not actually set the property tax rate himself.  It would be better, according to the Court of Appeals, if the federal district judge simply enjoined the enforcement all state laws that could interfere with the school district’s ability to raise revenue.  Like, one supposes, the Missouri Constitution’s cap on property taxes.[iv]


Although the Supreme Court ruled unanimously that that Judge Clark had abused his discretion when he ordered the property tax increase, it split over the remedy the Court of Appeals concocted: having the district judge simply enjoin any state law or constitutional provision that got in the way of the school district raising revenue to comply with the desegregation remedy.


Because of what Judge Clark had done, aided and abetted by the Court of Appeals, the Supreme Court faced some serious and difficult questions: Did his original order exceed the power of a federal district court?  Did it run afoul of the Tenth Amendment?  These, United States Supreme Court Justice White wrote for himself and four other justices,[v] were “difficult constitutional issues.”  Difficult indeed!


So difficult it seemed that White opted not to address them, choosing instead to make an end run around the problem by concluding, in language so opaque as to baffle even most constitutional lawyers, that Judge Clark’s tax increase “contravened the principles of comity that must govern the exercise of the District Court’s equitable discretion.” 


Well, whatever this meant, lower court Judge Clark had erred—the Supreme Court ruling that the Court of Appeals’ solution of simply overriding state statutory and constitutional provisions was acceptable because it was supported by previous cases that had placed upon wrongdoing local governments the responsibility for desegregating public schools.  Included in that responsibility was the task of funding the desegregation efforts.


It is accepted by all the parties, as it was by the courts below, that the imposition of a tax increase by a federal court was an extraordinary event. In assuming for itself the fundamental and delicate power of taxation the District Court not only intruded on local authority but circumvented it altogether. Before taking such a drastic step the District Court was obliged to assure itself that no permissible alternative would have accomplished the required task. We have emphasized that although the “remedial powers of an equity court must be adequate to the task, . . .  they are not unlimited” . . . and one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions. Especially is this true where, as here, those institutions are ready, willing, and—but for the operation of state law curtailing their powers—able to remedy the deprivation of constitutional rights themselves.


Note that the White majority did not rule that the district court could under no circumstances “intrude on local authority” or “circumvent it altogether.”  To the contrary, the Court expressly approved such a “drastic step” so long as “no permissible alternative would have accomplished the required task.”  Thus, despite the lip service White’s majority paid to the principle of judicial restraint, in the end federal judges could override even state constitutions.  Goodbye, Tenth Amendment.


The only reason the Court in Jenkins reversed Judge Clark’s tax increase was because there was an alternative—the injunction method imposed by the Court of Appeals.


In an opinion concurring with the majority’s ultimate conclusion—that the injunction remedy was appropriate—Justice Kennedy, joined by Chief Justice Rehnquist and Justices O’Connor and Scalia, took issue with the broad assertion of federal judicial power found in White’s opinion:


In my view, however, the Court transgresses . . .  when it . . . embrace[s] by broad dictum an expansion of power in the Federal Judiciary beyond all precedent. Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.


Implicit in Kennedy’s statement is an extremely important, albeit implicit, point.  Not only is federalism implicated in federal judges tinkering with the machinery of state taxation, but so too is separation of powers because the judiciary is tinkering with laws enacted by state legislatures.  And for that matter, also implicated is the Constitution’s Article III because it is the federal courts that are straying from their constitutional limits in exercises of judicial power with little or no regard to judicial restraint.


As Justice Kennedy said in concluding his concurring opinion, while this case happens to arise in the compelling context of school desegregation, the principles involved are not limited to that context. There is no obvious limit to today's discussion that would prevent judicial taxation in cases involving prisons, hospitals, or other public institutions, or indeed to pay a large damages award levied against a municipality under [a federal civil rights law].  This assertion of judicial power in one of the most sensitive of policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies.”

 The “form” of which Justice Kennedy spoke is that of federalism, separation of powers, and the power of the courts not to make law, but instead to interpret it—a power which if not restrained, as it was not in Jenkins, will necessarily and ultimately continue to undermine both federalism and separation of powers, as it did in Jenkins and countless other cases.[vi]

[i] 495 U.S. 33, 110 S.Ct.  1651 (1990).


[ii] 347 U.S. 483, 74 S.Ct.686 (1954).


[iii] 104 Harvard Law Review 297 (1990).  In the Spallone case, I submitted an amicus curiae brief on behalf of residents of the City of Yonkers.  Based on my reading of the applicable precedents and the views of the various justices on the issue presented, I adopted the strategy of aiming the amicus brief solely at Justice White.  Chief Justice Rehnquist wrote the Court’s opinion—that the district court had abused its discretion by holding individual councilmembers in contempt—joined by Justices O’Connor, Scalia, Kennedy, and by Justice White, the fifth vote!


[iv] By 1995, when the case was back in the Supreme Court, hundreds of millions had been spent in compliance with Judge Clark’s order and the cost of his “remedy” was running about $2,000,000 annually.


[v] Justices Brennan, Marshall, Blackmun, and Stevens, not surprisingly, joined White’s opinion.


[vi] A classic example of district court remedial powers run amok—recall Justice Kennedy’s prediction about prisons—is Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996).  Justice Thomas’s concurring opinion in that case lays bare the excesses of the trial court, at the intersection of federalism and separation of powers. 


The Constitution charges federal judges with deciding cases and controversies, not with running state prisons.  Yet, too frequently, federal district courts in the name of the Constitution effect wholesale takeovers of state correctional facilities and run them by judicial decree.  This case is a textbook example.  Dissatisfied with the quality of the law libraries and the legal assistance at Arizona’s correctional institutions, the District Court imposed a statewide decree on the Arizona Department of Corrections (ADOC), dictating in excruciating minute detail a program to assist inmates in the filing of lawsuits—right down to permissible noise levels in library reading rooms. 

Such gross overreaching by a federal district court simply cannot be tolerated in our federal system.  Principles of federalism and separation of powers dictate that exclusive responsibility for administering state prisons resides with the State and its officials.  * * * Even when compared to the federal judicial overreaching to which we now have become accustomed, this is truly a remarkable case.  The District Court’s order vividly demonstrates the danger of continuing to afford federal judges the virtually unbridled power that we have for too long sanctioned. 

We have here yet another example of a federal judge attempting to direc[t] or manag[e] the reconstruction of entire [state] institutions and bureaucracies, with little regard for the inherent limitations on [his] authority.” [Citing Missouri v. Jenkins; emphasis added.]