Civil Liberties (Update 2)

views updated

CIVIL LIBERTIES (Update 2)

It is generally thought that one of the principal functions of courts in the American political system is to protect civil liberties. Yet "civil liberties" is an ill-defined concept. The prevalent modern conception of the term focuses on rights like freedom of speech, voting rights, criminal procedure safeguards, and sexual autonomy. Yet the Framers of the fourteenth amendment thought that economic liberties were the most important civil liberties—the freedom of contract, to buy and sell property, to pursue a lawful occupation, and to protect those fundamental rights through the judicial process. For most of the period between the adoption of the Fourteenth Amendment in 1868 and the new deal revolution of the 1930s, it was these economic rights that won the greatest solicitude in the Supreme Court. During the so-called Lochner era—named for lochner v. new york (1905)—the Court invalidated maximum hour laws, minimum wage laws, union protective laws, and other economic legislation, onthe ground of undue interference with liberty of contract.

The modern conception of civil liberties is generally traced to a famous footnote in united states v. carolene products co. (1938), though earlier hints of the shift appear in a handful of cases from the 1920s and 1930s. In the Carolene Products footnote, the Court identified a special role for itself in protecting rights constitutive of the democratic process, such as speech and voting, as well as groups habitually disadvantaged in that process, such as racial and religious minorities. Over the next thirty years, the Court refrained from protecting the old civil liberties of contract and property, while gradually expanding its commitment to the new civil liberties of speech, voting, criminal procedure, sexual autonomy, and racial equality. By the end of the 1960s, a revolution in constitutional doctrine and in the Court's perception of its role in the American political system had taken place.

The civil rights and civil liberties revolutions of the warren court raise three important questions for constitutional theory. First, how much responsibility do court decisions bear for the fundamental changes that have taken place in American society and culture since world war ii—changes like the civil rights and gender revolutions? For example, would it be more accurate to say that brown v. board of education (1954) caused or reflected the civil rights movement ? Second, is it possible convincingly to distinguish the civil liberties activism of the Warren Court from the now-repudiated economic activism of the Lochner era? Third and relatedly, how valid are the claims of modern conservative critics that activist judicial review contains an inherently liberal political bias?

As to the causal consequences of legal doctrine, it is noteworthy that the Court often has claimed for itself a vital role in the protection of minority groups from majoritarian oppression. Justice hugo l. black, in chambers v. florida (1940), stated that courts stand "as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." Similarly, legal scholars frequently assert that Brown played a critical role in inspiring the civil rights movement of the 1960s. Critics have suggested, though, that the Justices possess an obvious incentive to inflate their contributions to social change and that American constitutional history refutes the romantic image of the Court as savior of oppressed minorities. On this view, the Court sanctioned rather than attacked slavery in the antebellum period, legitimized segregation for most of the Jim Crow era, validated the Japanese American internment during World War II, failed to protect free speech during either the First or the Second Red Scares, and approved sex discrimination until after the emergence of the modern women's movement.

Even the most celebrated examples of the Court's supposed role as savior of oppressed minorities are less than compelling, on this view. The landmark decision in Brown was rendered possible by a broad array of political, social, economic, and ideological forces inaugurated or accelerated by World War II; by the time the Court interceded against school segregation, half the nation already was on its side. Similarly, roe v. wade (1973), extending constitutional protection to abortion, was decided at the crest of the women's movement and was supported by half the nation from the day it was handed down. Finally, the Court protected gay rights for the first time in romer v. evans (1996) only after a social and political gay-rights movement had made substantial inroads against traditional attitudes toward divergent sexual orientations.

Whatever the practical consequences of the revolution in civil rights and civil liberties doctrine, the Court's decisions have been intensely controversial. Critics have assailed the Justices for undermining democracy by writing their own value preferences into the Constitution, ignoring traditional constitutional constraints such as text and original intent, and assuming for the Court the role of solving societal problems that were going unaddressed by the political branches. Defenders of the Court's expanded civil liberties role generally have replied in one of two ways. Some have argued that certain rights are too fundamental to be left to the political process, and regardless of whether they are textually enshrined in the Constitution, the legitimacy of the entire political system depends on their being validated in court.

Other defenders have advocated a more constrained role for the Court, which validates its protection of rights fundamental to the democratic process, such as speech or voting, while continuing to repudiate Lochner -style interventions in behalf of economic rights. This position, known as political process theory, derives from the famous footnote in Carolene Products and has received its fullest elaboration in John Hart Ely's landmark book, Democracy and Distrust (1980). According to this view, courts act legitimately when protecting rights and groups unlikely to receive a fair hearing in the political process. For example, the self-interest of legislators seeking reelection often biases the political process against affording due recognition to the right of the political opposition to speak freely and have its political strength fairly measured. According to political process theory, judicial intervention in this context is vital to maintaining the integrity of the democratic process. Critics, however, have questioned the capacity of political process theory to provide a principled distinction between the contested value choices implicated in defining a properly functioning political process and those involved, for example, in resolving substantive constitutional disputes over abortion, school prayers, and affirmative action. For these critics, the only difference between the Warren Court's protection of democratic values such as speech and voting and the Lochner -era Court's protection of economic liberties lies in the competing political agenda of the Justices.

This criticism leads naturally to a third question that has dominated the popular debate over judicial review since the heyday of the Warren Court—does judicial review contain an inherently liberal political bias? Conservative critics largely have succeeded in winning this rhetorical battle; even liberal newspaper journalists generally seem to accept the view that judicial activism is a practice engaged in only by liberal judges. A broader historical perspective tends to refute this view. For much of the Court's history, it was advocates of progressive constitutional thought who challenged judicial review for blocking economic redistribution, whether in the form of a mildly progressive income tax, debtor relief laws, minimum wage and maximum hour legislation, or union protective measures.

Perhaps of greater present relevance, the performances of the burger court and the rehnquist court have corroborated the politically double-edged nature of judicial activism. Conservative activism has invalidated race-based affirmative action, minority voting districts, hate speech regulation, environmental land-use restrictions, and campaign finance reform. Liberal activism, on the other hand, has undermined school prayer, abortion regulation, restrictions on indecent speech, and discrimination against African Americans, women, and gays. Thus, judicial review has no intrinsic political bias.

Still, the conservative critics of the Court's expanded civil liberties role may have a point. To observe that judicial review is a politically double-edged sword is not to deny that the practice has any systematic bias, only to suggest that the bias operates along an axis other than partisan politics. Justices of the U.S. Supreme Court (indeed of any state or federal court) are overwhelmingly upper-middle-class or upper-class and extremely well-educated, usually at the nation's most elite universities. Moreover, unlike legislators who generally share a similar cultural background, federal judges enjoy a relative political insulation that significantly reduces any offsetting obligation to respond to the nonelite political preferences of their constituents. Throughout most of American history, this elite cultural bias yielded a constitutional jurisprudence that was somewhat more protective of property rights than was majoritarian politics. Since the constitutional revolution of the 1930s, though, social and cultural issues largely have displaced economic ones from the forefront of the constitutional agenda. And on these issues, a culturally elite bias has roughly correlated with a politically liberal one. That is, on the culture-war issues of school prayer, abortion, pornography, gay rights, and flag desecration, liberal opinion tends to be strongly correlated with years of education and economic class.

This point about the culturally elite bias of judicial review is not inconsistent with the earlier one about the limited capacity and inclination of the Justices to deviate from majoritarian norms. Dominant social mores set the broad boundaries within which judicial review operates; the Court never strays far from them. Thus it is implausible to expect the Court to have invalidated racial segregation before the dramatic transformation in American racial attitudes spawned by World War II; forbidden sex discrimination before the rise of the women's movement; or banned prayer from the public schools before the gradual undermining of the nation's unofficial Protestant establishment. Yet within the parameters established by dominant public opinion, the Justices enjoy some room for maneuver. Plainly the Court's decisions invalidating school prayer or flag-burning prohibitions and protecting the procedural rights of alleged criminals have not commanded majority support. Within the limited playing field that dominant opinion establishes for judicial review, then, the culturally elite values of the Justices may bias outcomes on certain issues in a particular direction.

Michael J. Klarman
(2000)