How much longer can we go on playing constitutional pretend — pretending that there’s a serious connection between the Constitution and so much of what passes today for “constitutional law”?
Rarely faced head‐on, the question arises on the few fortunate times when we’re presented with a judicial nominee who’s been so bold as to publicly doubt the connection. At the moment that’s Janice Rogers Brown.
The pretend game is especially well‐played by “moderates” wary of “extremists” like Brown. And no one plays it better in these pages or this town than the wonderfully moderate Stuart Taylor Jr., because no one tries harder than he to find common ground between the warring camps brought forth by such a nominee. Blessed are the peacemakers.
But war is sometimes inevitable, as when great principles are at stake. Witness the procedural battle now going on in the Senate over the judicial filibuster, about which Taylor wrote two weeks ago (“Hit the Brakes!” May 9, Page 60), in truth a battle over the underlying substantive war, about which he wrote the week before when he took an uncharacteristically sharp look at Brown’s nomination for a seat on the U.S. Court of Appeals for the D.C. Circuit (“Radical on the Bench,” May 2, Page 70). No moderate she, her thinking is indeed “radical,” going to the root of the matter. It’s the kind of thinking that awakens Washington from its dogmatic slumbers. That’s why the battle today is so vicious — to turn Henry Kissinger’s famous bon mot about academia on its head — because the stakes are so high.
What’s the Principle?
Like many a moderate, Taylor sees “grave danger” in the Republican effort to bring an end to the unprecedented judicial filibusters that, for two years, have blocked 10 of President George W. Bush’s appellate court nominees. But his criticism is evenhanded, not surprisingly: “Both sides,” he writes, “are hypocritical to pretend they’re driven by principle, not partisanship.”
True, on both sides there’s enough hypocrisy to go around, and both sides are driven by partisanship — no surprise there. But that doesn’t mean that principle is not also at issue. The question is, What’s the principle?
For Republicans, it seems to be “that the Senate’s Article I power to ‘determine the rules of its proceedings’ applies … less to confirmation proceedings than to legislative proceedings,” Taylor tells us, calling the argument “embarrassingly weak.” No, it rests on the history of the extraconstitutional filibuster, which until 2003 had never been used to block judicial nominees with clear majority support. By specifying the few things requiring a supermajority vote, the Constitution fairly implies majority rule for the rest, with “rules of its proceedings” meant mainly for housekeeping. Put it this way: Would constitutional alarms sound were the confirmation rule four‐fifths or nine‐tenths? Then why not when it’s three‐fifths?
For Democrats, the principle seems to be to temper majority rule when a nominee is “outside the mainstream” — that is, to filibuster nominees who fail to reflect “the core values held by most of our country’s citizens,” as Sen. Charles Schumer (D-N.Y.) put it in a 2001 New York Times op‐ed, just as he was launching Senate hearings to push for ideological litmus tests for nominees.
Never mind that judges are supposed to apply the law whether or not it’s consistent with their own or the citizenry’s “core values” (now that is a principle), Schumer’s point is captured by Taylor when he concludes his filibuster commentary by invoking the sword of Damocles. The value of the judicial filibuster, Taylor writes, “is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president.”
“Moderating” influence? Moderating toward what? What sense, if any, do terms like “moderate” and “extreme” make in this context? We hear them all the time, yet they serve mostly to end or to cloud — rather than to aid — debate about what a judge should do or what we, and the Constitution, stand for — about matters of principle. In the end, to say that a judge is “outside the mainstream” is simply to make a political appeal, to trade on the pejorative “extremist.”
Unwilling to Pretend
We come, then, to that issue of principle, and to Taylor’s brief against Janice Rogers Brown, currently a justice on the California Supreme Court. Her chief sin, it seems, is that she stands for something, for principle, not unlike — albeit far from in substance — “the remaining exponents of radical redistributionist and Marxist theories” that Taylor plants opposite her. What is worse, perhaps, is that she is willing to speak truth to constitutional hypocrisy — and plainly, at that. She is unwilling, that is, to play constitutional pretend.
Consider, for example, Taylor’s charge that Brown is “a passionate advocate of a radical, anti‐regulatory vision of judicially enforced property rights far more absolute than can be squared with the Supreme Court precedents.” Quite so, save for the anti‐regulatory part (she’s actually anti‐takings, which is not the same as anti‐regulation). But is the problem with her vision or with the Court’s precedents — with the “labyrinthine and compartmentalized” case law in this area, as Brown has put it?
Look at Lucas v. South Carolina Coastal Commission (1992). Writing for the majority there, Justice Antonin Scalia lamented the Court’s 70‐odd years of ad‐hoc regulatory takings jurisprudence, even as he was adding another year to the string. The implication, plainly, is that the Court still had not found the principle of the matter. And it hadn’t.
What would Taylor have? Less passion from Brown? A less “radical” approach — one that avoids going to the root of the matter? The virtue of someone like Brown is that she’s willing and able to go to first principles to straighten out the mess the Court has here, as in so many other areas of our law. In a word, she has a vision. It’s a vision of the Constitution, and of the yawning gap between it and much of our modern constitutional law.
A Vision Lost
Therein lies the problem, of course, because the “mainstream” has largely lost sight of that vision. Indeed, Taylor himself recognizes that when he frames his critique with a question that speaks volumes about modern constitutional confusions. Drawing on charges that Brown, were she on the Supreme Court, would be active in holding Congress to its enumerated powers, he asks: Where is the conservative outrage over the president’s having nominated someone who believes the Court has authority to find so many of the administration’s programs to be without constitutional authority?
Conservatives like Robert Bork and Scalia, after all, have made careers railing against “judicial activists.” Yet here comes Brown, who believes the Court should “actively” hold the federal government to its enumerated powers while securing our rights, both enumerated and unenumerated, against every government — federal, state, and local.
Modern liberals recoil against the first of those — “the Supreme Court’s recent 5–4 decisions that constrain Congressional power,” as Schumer put it in that New York Times piece. Yet what else could James Madison have meant except limited government when he wrote in Federalist 45 that the powers of Congress would be “few and defined”? Modern conservatives recoil against judicial enforcement of unenumerated rights, fearing “judicial activism.” Yet what is the Ninth Amendment about if not unenumerated rights? Or the 14th Amendment’s privileges or immunities clause? Or the very structure of the Constitution itself? If we’re going to be originalists, let’s do it right.
To answer Taylor’s question, then, it would seem that there are enough thoughtful people in the Bush administration to have appreciated the constitutional dilemma before the nation — the crisis of legitimacy — and the need to bring it out in the open. In a word, we have a Constitution authorizing limited government, yet Leviathan surrounds us — and Justice Brown is perceptive and secure enough to say so, as Taylor amply notes. For that she should be commended, not criticized.
Yes, she believes that Lochner v. New York (1905) was rightly decided. It was. Let’s remember that the case was not brought by overworked bakers, as modern myth would have it. Indeed, the statute at issue was a classic example of special‐interest pandering — large bakeries “rent‐seeking” at the public trough. Brown grasps that because she understands public choice economics. That’s more than can be said of the sainted Justice Oliver Wendell Holmes Jr., who could not have been more wrong in dissent when he contended that the Constitution is neutral between capitalism and socialism. Among its many limits on power, our fundamental law speaks explicitly of property and contract. That’s the stuff of capitalism, not socialism.
In a similar vein, Taylor is struck that Brown has “called for a new ‘conceptual approach’ that would invalidate laws redistributing wealth from one group to another.” Yet the Court itself took that approach in 1936 in United States v. Butler, when Justice Owen Roberts held the taxing power at issue to be unconstitutional, “the expropriation of money from one group for the benefit of another.”
To be sure, that was one year before the constitutional revolution that is primarily responsible for the constitutional dilemma we have today. Following fast upon President Franklin Roosevelt’s notorious Court‐packing scheme, the Court caved to political pressure in 1937 and opened the floodgates for the modern welfare state. That’s when politics trumped law on a grand scale, and it’s never been the same since.
Boston University’s Gary Lawson put the upshot well in the 1994 Harvard Law Review: “The post‐New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.” But take it from someone who was there, Rexford Tugwell, one of the principal architects of the New Deal: “To the extent that these [New Deal policies] developed, they were tortured interpretations of a document intended to prevent them.”
The New Dealers knew exactly what they were doing to the Constitution. Janice Rogers Brown understands that, too. We’re fortunate to have so radical a nominee before us.