The Supreme Court: Republican Schoolmaster
by
Ralph A. Rossum
Salvatori Professor of American Constitutionalism
Claremont McKenna College
Ralph Lerner has described the United States Supreme Court as a "republican schoolmaster," intended by the framers of the American Constitution to be "an educator, molder, and guardian of the manners, morals, and beliefs that sustain republican government."[1] Straussian scholarship on the Supreme Court has been largely built on this understanding. As Walter F. Berns has noted, through the cases it decides, the Court offers "authoritative definitions of what is permissible in the name of liberty and what is impermissible"; in so doing, it has "a profound effect on our opinions, our habits, our tastes, and ultimately, therefore, on the future of republican government in the United States."[2] Straussian constitutional scholars identify and examine the Court's teaching on the principles of the American constitutional order to determine whether and how well the Court has discharged this "awesome responsibility"[3] assigned to it by the framers. They treat the justices as teachers from whom they can gain instruction on the principles, problems, and prospects of the American democratic republic.[4]
Straussian constitutional scholarship ranges over many topics and pursues many different approaches and questions.[5] Nonetheless, it can be characterized by three distinctive features: It takes seriously and as worthy of careful study 1.) the opinions of the Court itself, 2.) the political and legal thought of its most prominent justices, and 3.) the Constitution and what it originally meant (as opposed to what it means to the contemporary Supreme Court).
The first distinctive feature of Straussian constitutional scholarship is that it takes the Supreme Court seriously, treating its opinions as the source of serious instruction on the American constitutional order and therefore as worthy of serious study and consideration. While it finds most opinions wanting, it insists that it is only by beginning with the assumption that an opinion may actually teach the reader some important lesson that the rare exceptions will be identified and their value derived. In this respect, Straussian constitutional scholarship differs from most other scholarship on the Court, which tends to view the Court as solely a political institution; the justices as simply reflecting their ideological, demographic, educational, and professional predilections; and their opinions as either unimportant -- because merely epiphenomenal -- or as interesting only because they reveal how coalitions are built or agenda are advanced.
Straussian constitutional scholars are open to the possibility that the Court can be a teacher from whom they can learn about the American regime; they begin, at least, with that assumption. They, therefore, engage in a careful reading of what the justices have actually written to gain instruction on the ends of republican government and their relation to such principles as freedom, property, equality, representative government, and fairness. John A. Rohr, for example, argues that an attentive citizenry can be taught how to understand, appreciate, and apply what he calls "regime values" (i.e., the ends that the American political system is designed to secure) through a careful study of U.S. Supreme Court opinions.[6] Rohr is especially interested in concurring and dissenting opinions, as they offer the reader "the opportunity to follow a public debate in a highly structured and formal context." This public debate, he observes, "necessarily points to higher questions on the nature of the common good."
Straussian constitutional scholars consider a Court opinion as a text to study, not as a datum to process. Thus, American Constitutional Law, a constitutional law casebook edited by two Straussians, begins by declaring that "[c]ases should be examined not merely to foster an appreciation of what court majorities have thought of particular issues at certain points in time . . . , but also to gain a deeper and fuller understanding of the principles that lie at the very heart of the American constitutional system."[7] To that end, it gives lengthier excerpts from fewer cases and more extensive passages from concurring and dissenting opinions than other casebooks, thereby allowing the reader to enter fully into the argument before the Court; it also gives priority to those (often older) cases where the constitutional principles at issue are most fully elaborated (rather than most recently considered).
Court opinions are, of course, written by individual justices, and a second distinctive characteristic of Straussian constitutional scholarship is that it takes seriously the political and legal thought of its most prominent justices. Their studies of John Marshall, Joseph Story, Roger Taney, Oliver Wendell Holmes, George Sutherland, and Felix Frankfurter are illustrative. Central to these studies has been what these justices have taught about natural rights.
Thus, Robert Faulkner, both in his magisterial book on John Marshall[8] and elsewhere, argues that the "Great Chief Justice" understood that the "purpose" of the Constitution was to "attend to the basic needs and thus the natural rights of men: protecting the lives, the liberties, the property, of as many people as possible."[9] That purpose was "the guiding star of Marshall's constitutional interpretation."[10] Faulkner approaches Marshall as a teacher and explores what "his thought reveals" concerning the "political philosophy at the core of American jurisprudence." What he finds is a jurisprudence based on the principles of classical liberalism that is capable of protecting "interested" and "acquisitive" individualism but that "fails to encourage high and unusual aspirations."[11]
Peter Schotten finds a similar natural-rights jurisprudence in the writings of Joseph Story.[12] He shows how Story's strong belief in the principles of the Declaration of Independence led him to favor a strong national government ("a strong and enduring Union comprised a necessary condition for the protection of important natural rights"[13]) and to oppose fervently slavery and the slave trade. Schotten concisely summarizes Story's jurisprudence by concluding that it was "based on the writings of Publius and the political philosophy of Locke, his desire to promote an enduring veneration for the Constitution so interpreted, his efforts to place all American law within this legal context, his conviction that the Constitution's final authority must be avoided if at all possible, and his judgment that its primary and most obvious meaning must never by compromised."[14]
Hadley Arkes's impressive new book on Justice Sutherland is subtitled: "Restoring a Jurisprudence of Natural Rights."[15] Arkes uses the opinions of this much-maligned member of the "Four Horsemen" to provide a primer on the limits of governmental power.[16] He faults contemporary conservative jurists, the political heirs to Sutherland's opposition to the New Deal (e.g., Chief Justice William Rehnquist[17]), for rejecting the natural-rights principles of Sutherland's jurisprudence and for embracing instead the principles of legal positivism, and he criticizes contemporary liberal jurists (e.g., the late Justice William Brennan) for likewise rejecting the premises of natural-rights jurisprudence even as they ground their decisions in an appeal to its logic. Arkes argues that Sutherland's defense of natural rights not only provides the basis on which to re-establish logical coherence for contemporary judicial conservatism but also exposes the fundamental inconsistencies that lie at the heart of contemporary judicial liberalism.[18]
Not all the justices who have attracted the scholarly attention of Straussians have embraced a natural-rights jurisprudence. Roger Taney, for example, is presented by Kenneth M. Holland as "the first legal positivist to serve as Chief Justice."[19] Holland traces Taney's emphasis on man-made or positive law to his enthusiasm for Jacksonian democracy and its belief in the wisdom of the people, and to his "severe distaste" for the abolitionists' natural-rights attack on slavery. Holland also explores the profound consequences of Taney's legal positivism. It led him, Holland argues, to deny the claims of vested rights, to argue that convention and not nature is the source of all political rights, and to reject the doctrine of inherent crimes. It "rendered him incapable of making judgments as to what was the core and what was the periphery of the Constitution," and it therefore led him "to the mistaken assessment that Negro citizenship on a national scale was a greater threat to the quality of popular government than the perpetuation of slavery."[20] It led him to become a supporter of southern secession even though he was still sitting on the High Bench; in so doing, it led to his being "hooted down the pages of history."[21]
The embrace of legal-positivist premises has not always led to condemnation; in the twentieth century, it has more commonly led to popular adulation, as in the cases of Oliver Wendell Holmes and Felix Frankfurter. Nonetheless, Walter F. Berns argues that, as a consequence of Holmes's legal positivism, "no man who ever sat on the Supreme Court was less inclined and so poorly equipped . . . to teach . . . what a people needs to know in order to govern itself well."[22] Holmes's legal positivism led him to embrace judicial restraint, but not because of a well-developed understanding of the judicial role but because, as Berns points out, "he was simply of the opinion that what others regarded as constitutional questions were in fact merely political questions to be decided with finality in the political process." For Holmes, "the majority, or the stronger, were to rule and would receive no instruction from him concerning the manner of their rule because, in this area, the Constitution did not care."[23]
Likewise, Richard G. Stevens faults Frankfurter for his legal positivism, attributing to it his easy acceptance of the notion of a living constitution. As Stevens points out, a living constitution can evolve (or devolve) in many ways; absent a natural-rights benchmark, there is no way to judge the transformation. A cancer, after all, "is a living thing." Stevens observes that it is a "small step" from embracing new rights in the name of a living constitution to rejecting old rights on the ground that while they might have been constitutionally protected yesterday, they are not today.[24] Legal positivism tied to the notion of a living constitution can easily led to "judicial willfulness"; however, it can also lead to judicial "abandonment of the Constitution as a limitation on government." Stevens criticizes Frankfurter's legal positivism for teaching that the Constitution is a "neutral document" not aimed by its founders at justice, and he rejects Frankfurter's particular doctrine of judicial restraint, based on that legal positivism, for teaching that "nothing is just but as we will it so."[25]
A third distinctive feature of Straussian constitutional scholarship is that it is committed to "taking the Constitution seriously." In fact, two Straussians have published books with that exact title.[26] Most constitutional scholars pay little or no attention to the Constitution itself; they quote approvingly Charles Evans Hughes's famous words that "the Constitution is what the Court says it is" and approach the Constitution almost exclusively through what the Court has said about it in its most recent opinions.[27] They treat the Constitution as an empty vessel, devoid of meaning, until content is poured into it by the Court. Straussians, by contrast, insist that the Constitution has independent meaning and therefore must be kept central to the study of constitutional law.[28] While they certainly turn to Court opinions for instruction on what the Constitution means, they distinguish the Constitution from its judicial gloss. And in seeking to understand the Constitution on its own term, they generally follow Joseph Story's sage advice in his Commentaries on the Constitution of the United States:
[T]he Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of a practical nature, founded on the common business of human life, adopted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.[29]
This aptly summarizes George Anastaplo's approach in The Constitution of 1787: A Commentary.[30] Proceeding "section by section" and reflecting on its provisions as an ordinary citizen would, Anastaplo concludes that the Constitution tends toward legislative supremacy. He also concludes that judicial review is highly suspect; noting the "complete silence in the Constitution about judicial review," he wonders "if it is likely . . . that judicial review was indeed anticipated, when nothing was said about it, considering the care with which [for example] executive review is provided for."[31]
Taking the Constitution seriously (or, as Story put it, expounding the Constitution in its "common sense") means paying attention not only to its text but also to its context -- to what those who drafted and ratified it intended for it to accomplish. It means identifying, through a careful study of documentary evidence, the ends of the Constitution and the means for their achievement.[32] Francis Canavan has described this means-ends approach[33] well:
When deciding whether an exercise . . . of any power of government exceeds constitutional limits, the Court cannot draw a conclusion from the letter of the Constitution as though it were deriving a theorem in geometry. It must decide what the letter of the document means in the light of history, precedent, and other relevant considerations; what ends it was designed to achieve or evils to avert; how they are to be reconciled and combined with other constitutional ends, and how the attainment of these ends is affected by the facts of the case.[34]
Straussian constitutional scholars are originalists; [35] they seek to identify and preserve the Constitution's original meaning,[36] convinced that, in the words of James Madison, "[i]f the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable [government] more than for a faithful exercise of its powers."[37] They have sought the original meaning of such basic constitutional features as separation of powers[38] and federalism;[39] not surprisingly, they have also sought the founding generation's original understanding of the judicial article itself.[40]
The bulk of their attention, however, has been directed toward the original meaning of the Bill of Rights and the Fourteenth Amendment. Herbert J. Storing's and Robert A. Goldwin's work on the First Congress's adoption of the Bill of Rights is especially instructive. Storing argues that Madison "took a narrow view of the meaning of a bill of rights . . . with the aim of preserving not only the constitutional scheme [from the prospect of a second constitutional convention] but also the vigor and capacity of government [from the prospect of disabling structural amendments]."[41] Goldwin elaborates on this theme in a splendid book whose title is its thesis: From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution.[42] Storing and Goldwin both observe that Madison sought to have his amendments incorporated into the body of the Constitution itself on the grounds that "it will certainly be more simple, when the amendments are interwoven into those parts to which they naturally belong."[43] However, Madison's Federalist colleagues, who unenthusiastically joined his efforts to adopt a Bill of Rights even though they saw no need for one, refused to accommodate him on this matter. They agreed with George Clymer that the amendments should be placed at the tail of the Constitution so that the Constitution "would remain a monument to those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amendments."[44] Of course, in the twentieth century, the Bill-of-Rights tail has come to wag the Constitutional dog; contemporary constitutional law now regards the original Constitution as a "superfluity (when not an actual threat) to the protection of rights, and ascribes "perfection" to the Bill of Rights -- or more accurately, to activist judges interpreting (or better still, non-interpreting) its provisions.[45] Storing reflects on "what our constitutional law would be like today if there had been no Bill of Rights."
Its focus would presumably be to a far greater extent than it is today on the powers of government. We might expect a more searching examination by the Supreme Court of whether federal legislation that seems to conflict with cherished individual liberties is indeed "necessary and proper" to the exercise of granted powers. We might expect a fuller articulation than we usually receive of whether . . . "the end" aimed at by given legislation "is legitimate." Might this not foster a healthy concern with the problems of governing, a healthy sense of responsible self-government?[46]
The absence of a Bill of Rights might have obliged the Court to teach more about the limits of governmental power; its passage, however, has allowed the Court to teach other lessons concerning the meaning of its particular provisions. Straussian constitutional scholars have compared the Court's current understanding of these provisions with their original meaning. In books and articles alike, they have addressed the original meaning of such Bill of Rights provisions as the free speech and press clauses,[47] the religion clauses,[48] the due process clauses of the Fifth and Fourteenth Amendments,[49] the criminal procedural provisions of Amendments Four through Eight,[50] the Ninth and Tenth Amendments,[51] and the putative "right to privacy."[52] They have also explored the relationship of the Bill of Rights to the Fourteenth Amendment (i.e., the incorporation doctrine[53]) as well as the original meaning of the Fourteenth Amendment's citizenship[54] and equal protection clauses[55] and its grant of enforcement powers to Congress under Section 5.[56]
Straussian constitutional scholars find that the typically-narrow, original meaning of these provisions contrasts strikingly with the expansive, contemporary interpretations given them by the High Bench. Exploring the deleterious consequences that flow from these interpretations, they charge the Court with rendering opinions that "steadily erod[e] the conditions of civil liberty, to the point where it is appropriate to wonder about the future of liberal democracy in the United States."[57] Thus, for example, they criticize the Court's practice of construing the Constitution on the basis of “the evolving standards of decency that mark the progress of a maturing society,"[58] describing it as a means for transferring power from the popular branches to an "imperial judiciary."[59] Likewise, they condemn the Court's emphasis on group (as opposed to individual) rights in its opinions on racial discrimination, charging that it makes majority and minority interests more fixed and monolithic; renders "factious combinations" -- with their attendant "instability, injustice, and confusion" -- all the more likely; and therefore compromises the "republican remedy for the diseases most incident to republican government" as spelled out in Federalist No. 10.[60] And, they object to the Court's arrogant teaching in Cooper v. Aaron (1958) that its interpretations of the Constitution are as much "the supreme Law of the Land" as the Constitution itself.[61]
Most of all, however, they have attacked the Court’s understanding of the First Amendment. Straussian constitutional scholars have paid as much attention as they have to “free speech and the place of religion in civil society” for “they concern the essentials of how we order our lives together.”[62] Since the First Amendment “states the fundamental requirements of republican government in America,”[63] they regard it as the “first task of constitutional scholarship” to recover “the original meaning”[64] of its famous words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging 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.”
They begin by considering the ordering of its provisions. Rejecting the operating premise of most constitutional scholars that the First Amendment is a “jumble of chaotic parts that could have been put together in any order whatsoever,” they argue that it has an “internal coherence” that explains why “it begins with religious and then goes on to political considerations.”[65] David Lowenthal makes this argument most explicitly. He insists that “the First Amendment is not difficult to interpret. It was not intended to change the body of the Constitution but to stipulate expressly certain limitations on the national government in the name of republican government.” He notes that its “two main parts, one religious, the other political,” parallel the approach that John Locke took in his writings; Locke first settled the religious question in favor of religious liberty in his Letter of Toleration, and then subsequently concentrated in his Second Treatise of Government on the role of government in a civil society with little reference to religion, since at that point he assumed it to be a simply private affair. Lowenthal argues that the framers of the First Amendment adopted Locke’s approach, recognizing that they “could deal with civil or political questions only after the religious question is removed from contention. This explains why the amendment begins by preventing a national religious establishment (while also keeping Congress from interfering with state establishments), and protects the private practice of all religions.” That accomplished, Lowenthal continues, the First Amendment “turns its attention to the means whereby the new national government can be kept responsive to the people. The freedom of speech and press is linked with the right to assemble peaceably and petition the government because all are necessary, together, for sustaining the public and open criticism essential to republican government.”[66]
Beginning with the religion clauses, Straussian constitutional scholars argue that a careful consideration of their words makes it clear that Congress is prohibited from making laws concerning an establishment of religion (i.e., Congress “can neither provide for religious establishments of its own nor interfere with any State religious establishments then existing or later to be developed”[67]) and is barred from preventing the free exercise of religion (i.e., it cannot disallow or forbid various religious groups from practicing their religions as they see fit).[68] An establishment of religion means preferring one religion over others and giving it alone official status, special privileges, or financial support (i.e., Congress is not prohibited from providing aid to religion on a nondiscriminatory basis).[69] And religion itself means “worshipping a being or beings higher than man, and in association with others” (i.e., free exercise of religion is different from “free exercise of thought or moral endeavor.”).[70]
They support their understanding of the religion clauses by focusing especially on the First Congress’s use of the words “respecting” and “an establishment.” Thus, Michael Malbin argues that the framers of the First Amendment used the word “respecting” because of the “dual purpose” it could serve: It not only prohibited laws respecting (i.e., “tending toward”) a national establishment of religion but also prohibited laws respecting (i.e., “with respect to”) existing or future state establishments.[71] Likewise, he argues that the authors of the First Amendment used the words “an establishment” to ensure the legality of nondiscriminatory religion aid.
Had the framers prohibited “the establishment of religion,” which would have emphasized the generic word “religion,” there might have been some reason for thinking they wanted to prohibit all official preferences of religion over irreligion. But by choosing “an establishment” over “the establishment,” they were showing that they wanted to prohibit only those official activities that tended to promote the interests of one or another particular sect.[72]
Given the framers’ original understanding of the First Amendment, it is not surprising that these scholars are quick to attack the Supreme Court’s complete misconstruction of the establishment clause in the seminal case of Everson v. Board of Education[73] and of the free exercise clause in such cases as Wisconsin v. Yoder,[74] United States v. Seeger,[75] and Welsh v. United States.[76] They attack Everson for two primary reasons: First, Justice Black’s majority opinion ignored altogether the debates in the First Congress; it relied instead on Jefferson’s metaphor in his letter to the Danbury Baptist Association of a “wall of separation between church and state”[77] to hold that the establishment clause not only bars nondiscriminatory aid to religion but also forbids the government from fostering religious belief “in order to achieve a secular end.”[78] Second, it incorporated the establishment clause through the Fourteenth Amendment to apply to the states, prompting the unanswerable question of how the establishment clause, intended by its framers to prevent the federal government from tampering with state establishments of religion, can possibly be construed to mandate precisely such tampering.[79]
They attack Yoder, Seeger, and Welsh as particularly egregious examples of the key defects of the Court’s free exercise jurisprudence. Walter Berns has described Yoder, which held that a member of the Old Order Amish religion could disobey Wisconsin’s valid law requiring parents to cause their children to attend school until the age of 16, as “a palpable and unprecedented misconstruction of the Constitution, palpable because in this one respect it can be said that Old Order Amish is now an established religion of the United States (insofar as they alone are exempt from the operation of this law), and unprecedented because this was the first time the Court had held that one’s religious convictions entitle one to an exemption from a valid criminal statute.”[80] They criticize the Court in Seeger for expanding religious belief to include non-religious belief -- it held that any “sincere and meaningful” belief “occup[ying] in the life of its possessor a place parallel to that filled by the orthodox belief in God” was religion. And, they attack the Court in Welsh for going to “even more absurd lengths”[81] and holding that any beliefs “about right and wrong” are religious if they are “held with the strength of traditional religious convictions.”[82] They typically conclude their consideration of the religion clauses by observing that the Court’s understanding of establishment and free exercise is so hopelessly confused that it feels compelled, under the establishment clause, to subordinate religious beliefs to such an extent that they cannot be encouraged even on a nonpreferential basis, while it simultaneously feels obliged, under the free exercise clause, to exalt religious belief (including non-religious or irreligious belief ) to such an extent that the believer is free to disobey an otherwise valid law.[83]
Their criticisms of the Court’s construction of the second part of the First Amendment, prohibiting the abridgement of the freedoms of speech and press or the rights to assembly and petition, are no less pointed. They see these two freedoms and two rights (hereafter referred to simply as free speech) as “necessary instruments and safeguards of republican government” -- as “the means by which the people are able to communicate with each other and with the government about public affairs.”[84] As a consequence, they argue that the First Amendment should not be construed to shield political movements that seek the overthrow of republican government[85] or to protect vulgar or obscene expression that undermines the moral dispositions of the people. However, they charge, that this is precisely the construction that the justices on the Supreme Court have given it. They attribute the Court’s failure in this regard to the fact that John Marshall never had the occasion to write a definitive statement on the meaning and purpose of free speech in a republican government; Marshall, after all, was “a man firmly attached to republican principles and with a demonstrated and unequaled capacity to expound and defend them.”[86] Instead, the United States had to wait until the early twentieth century for such a statement, and, when it finally came, it was from the pen of Justice Holmes, whose understanding of free speech was so impoverished and whose commitment to republican government was so attenuated that he could write in his dissent in Gitlow v. New York: “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.”[87]
Straussian constitutional scholars argue that free speech was protected by the framers of the First Amendment to facilitate “the promotion of thought and deliberation about matters of public interest – to the end that this shall be an enlightened republic.”[88] And, as Francis Canavan has argued: “[E]nd or purpose is a limiting principle, regulating and restricting the uses or means to those which in some way contribute to the end. If a freedom is guaranteed for the sake of a certain end, those uses of the freedom which make no contribution to that end, or are positive hindrances to its achievement, are abuse of the freedom and cease to enjoy the protection of the guarantees . . . .”[89] The Court, however, has ignored this principle and, over time, has come to regard the First Amendment as protecting not only political speech but all speech (regardless of content) -- and further still, not only all speech but in fact all expressive activity (from flag burning to nude dancing) communicating any message, rational or otherwise (as the Court held in Cohen v. California, it protects “not only ideas capable or relatively precise, detached explication but otherwise inexpressible emotions as well”[90]). Instead of viewing free speech as a means to the end of republican government, the Court has come to view freedom of expression as an end in itself, which it will protect even if it undermines the moral character and decency of the citizenry needed to sustain self-government. Arguing that there is a connection between self-rule and self-restraint, Straussian constitutional scholars criticize the Court for protecting, and thereby legitimizing, unrestrained self-expression at the expense of self-rule. After all, the Supreme Court as a republican schoolmaster educates “most forcefully by what it allows and does not allow to appear in public.”[91] They urge the Court to return to the original meaning of the First Amendment and to restrict the ambit of its protection solely to political speech; they note that if the Court were to do so, it would not leave non-political speech wholly unprotected. As George Anastaplo argues, non-political speech would still be protected by the due process clauses of the Fifth and Fourteenth Amendments which protect our rights to liberty, property, and privacy – rights “more individualistic and less civic-minded (or public spirited) in their primary orientation than are the speech and press clauses of the First Amendment.”[92]
Straussian constitutional scholars also criticize the Court for incorporating free speech to apply to the states. They point out that the framers of the First Amendment were willing to restrict Congress’s control over free speech only because the states, under their police powers to protect public safety and public morals, were left free to do so.[93] The states served the purpose of a safety valve, allowing restrictions on the federal government to remain secure. Incorporation, however, has rendered inoperative this safety valve, and, by doing so, has reduced the Court to an “engineer” who, by trying “to protect too much” has succeeded in “protecting nothing adequately. If, as the courts often say, the Fourteenth Amendment extends fully against the states all the restraints on the government of the United States imposed by the First Amendment, there may be here an instance of ‘engineers’ who, forgetting the nature of government and of men, tried to protect too much and perhaps sacrificed that which had once been securely protected.”[94]
Incorporation not only leads to the potential that political speech will receive less protection at the federal level than the framers of the First Amendment anticipated, it also imposes a “heavy,” “dangerous,” and “needless burden” on the federal judiciary. To cite one example, prior to incorporation, the states were free to regulate obscenity, vulgarity, and other non-protected expressive conduct, subject only to the limits of their own state constitutions as interpreted by their state courts; since incorporation, however, the federal courts and especially the Supreme Court have been forced to grapple with these issues. In the process, the Supreme Court has disgraced itself with such relativistic drivel as “one man's vulgarity is another's lyric.”[95] Additionally, it has demonstrated itself incapable of resolving the complex questions it has arrogated to itself; for example, on the issue of pornography, it remains mired in the same definitional confusion that prompted Justice Stewart to confess in Jacobellis v. Ohio [96] in 1963 that while he “could never succeed in intelligibly” defining it, “I know it when I see it.” Finally, and far worse than merely embarrassing itself, the Court has placed the country itself at risk; by finding it not only “politically uninteresting”[97] but also constitutionally irrelevant how the people in a republican government choose to entertain themselves, it has helped to undermine decent behavior, which, as David Lowenthal observes, is not “the spontaneous product of primordially free individuals” but rather is “the socially inherited product of reason and experience working through centuries to bring our raw natural appetites under control.”[98]
While Straussian constitutional scholars agree among themselves that the First Amendment protects only political speech and that it was wrongly incorporated to apply to the states, they differ among themselves over the level of protection that political speech should receive. At one end of the continuum is George Anastaplo, who argues that the First Amendment absolutely protects political speech and provides for “completely unfettered (even ‘subversive’ if not ‘treasonous’) public discourse of the public business.”[99] At the other end is David Lowenthal, who advances what he calls the “clear danger” rule but what is more commonly called the “bad tendency” rule; it holds that “both Congress and the state legislatures have the constitutional power to make it a crime to advocate, promote, prepare, or incite to the commission of a crime.”[100] In the middle is Francis Canavan, who argues for a sophisticated “balancing” rule in which “a scale of kinds of utterances that are protected in varying degrees by freedom of speech and press” is weighed against “a scale of public interests that justify, in proportion to their importance, limitations on that freedom.”[101] Also in the middle is Walter Berns, who applauds the “clear and present danger” rule for reducing the possibilities that Congress and the state legislatures will abuse their powers yet who also admires the “bad tendency” rule for “never losing sight of the connection between freedom of speech and republican government”; in the end, he prefers the exercise of judicial prudence to the application of court-made rules, announcing that “there can be no formulaic substitute for sound judgment.”[102]
As is readily apparent, Straussian constitutional scholars have roundly criticized the Court for its arrogant and willful refusal to render decisions in conformity with the original meaning of the Constitution, and for its failure to discharge its responsibilities as a “republican schoolmaster.” They have done more, however, than merely criticize and condemn. Taking the Constitution seriously has led them to explore means of restraining the Court and correcting the constitutional damage that it has wrought. Several means of curbing the Court have been identified. In The Supreme Court and Constitutional Democracy, John Agresto discusses at length various of these means, including the amendment process, impeachment, denial of jurisdiction, and Court-packing. He finds them, however, to be "too heavy or too blunt a set of instruments to use against the Court," and therefore he ultimately advocates the rather modest remedy of congressional re-enactment of the "rejected statute in a revised form or on a different constitutional base."[103] Gary L. McDowell favors stronger medicine; he urges Congress to use its powers to organize and oversee the judicial judiciary to revise the rules of civil procedure on such matters as standing, class action, joinder, declaratory judgments, and equitable relief.[104] Ralph A. Rossum goes further still and argues that Congress should use its plenary power under Article III, §2, to restrict the Court's appellate jurisdiction and thereby deny it the opportunity to rule on certain constitutional questions; he notes that Hamilton described this remedy in Federalist No. 80 as the appropriate means to "obviate or remove" any "inconveniences" arising from the Court's exercise of its powers.[105]
This essay began by describing the Supreme Court as a "republican schoolmaster" whose responsibility it is to "transfer to the minds of the citizens the modes of thought lying behind legal language and the notions of right fundamental to the regime."[106] Straussian scholars have demonstrated, however, that the contemporary Court has failed abysmally in this respect; they find, to their regret, that what the Court teaches today more often undermines than sustains republican government. Through its opinions, the Court teaches that the "mode of thought lying behind legal language" is oblivious to, if not contemptuous of, the original meaning of the Constitution and that the "notions of right fundamental to the regime" are not the natural-rights principles that underlie the original Constitution but the historicist and legal-positivistic premises of the justices themselves. If the Court continues to teach these lessons, it is unlikely that Straussian constitutional scholarship will continue to be characterized by the three distinctive features discussed above. Straussian constitutional scholars will doubtless find it impossible to continue to take seriously the Court and its justices, given what they are doing to the Constitution.
Notes
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[1]. Ralph Lerner, "The Supreme Court as Republican Schoolmaster," in 1967 Supreme Court Review (Chicago: University of Chicago Press, 1967), pp. 127-128.
[2]. Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976), ix.
[3]. Ib.
[4]. Some go even further and argue that the justices can and should be "statesmen". See Harry M. Clor, "Judicial Statesmanship and Constitutional Interpretation," South Texas Law Journal, Vol. 26, no. 3 (Fall 1985), pp. 397-433, and Gary J. Jacobsohn, Pragmatism, Statesmanship, and the Supreme Court (Ithaca, NY: Cornell University Press, 1977.)
[5]. See Richard G. Stevens, "The Prospects for Constitutional Law," The Political Science Reviewer, Vol. XXVI (1997), pp, 238-330.
[6]. John A. Rohr, in Ethics for Bureaucrats: An Essay on Law and Values (New York: Marcel Dekker, Inc., 1978), p. 70.
[7]. Ralph A. Rossum and G. Alan Tarr (eds.), American Constitutional Law. 2 Volumes (5th Ed.,; New York: St. Martin's Press, 1999), Vol I, vii.
[8]. Robert K. Faulkner, The Jurisprudence of John Marshall (Princeton: Princeton University Press, 1968).
[9]. Robert K. Faulkner, "John Marshall," in Morton J. Frisch and Richard G. Stevens (eds.), American Political Thought (2d ed.; Itasca, IL: Peacock Publishers, 1983), p. 91.
[10]. Faulkner, The Jurisprudence of John Marshall, p. xiii.
[11]. Faulkner, "John Marshall," pp. 90, 228, 19, and 33. For other Straussian treatments of Marshall, see Morton Frisch, "John Marshall's Philosophy of Constitutional Republicanism," Review of Politics, XX (January 1958); Christopher Wolfe, The Rise of Modern Judicial Activism: From Constitutional Interpretation to Judge-Made Law (Rev. ed.; Lanham, MD: Rowman & Littlefield, 1994), pp. 39-72, and Michael Zuckert, "Epistemology and Hermeneutics in the Constitutional Jurisprudence of John Marshall," in Thomas C. Shevory (ed.), John Marshall's Achievement: Law, Politics, and Constitutional Interpretations (New York: Greenwood Press, 1989).
[12]. Peter Schotten, "Joseph Story," in Morton J. Frisch and Richard G. Stevens (eds.), American Political Thought (2d ed.; Itasca, IL: Peacock Publishers, 1983), pp. 117-141.
[13]. Ib., p. 122.
[14]. Ib., pp. 122, 135.
[15]. Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton, NJ: Princeton University Press, 1994).
[16]. Most of Sutherland's attention focused on the federal government, but in Home Building & Loan Association v. Blaisdell (1934), Sutherland voted against the power of a state to impose a mortgage moratorium during the Great Depression. Arkes defends Sutherland's argument that this moratorium violated the Contract Clause against Chief Justice Hughes's majority opinion and also against fellow Straussian Gary Jacobson's criticisms of Sutherland in Pragmatism, Statesmanship, and the Supreme Court (Ithaca, N.Y.: Cornell University Press, 1977).
[17]. Arkes mentions Rehnquist's "The Notion of a Living Constitution," Texas Law Review, Vol. 54 (1976), p. 693.
[18]. See John C. Eastman and Harry V. Jaffa, "Understanding Justice Sutherland as He Understood Himself," University of Chicago Law Review, Vol. 63 (Summer 1996), pp. 1147-1374.
[19]. Kenneth M. Holland, "Roger Taney," in Morton J. Frisch and Richard G. Stevens (eds.), American Political Thought (2d ed.; Itasca, IL: Peacock Publishers, 1983), pp. 169-194, 170.
[20]. Ib., p. 193.
[21]. Charles Sumner, Congressional Globe, 38 Cong., 2 Sess., 1012 (February 23, 1865. Quoted in Holland, p. 185.
[22]. Walter F. Berns, "Oliver Wendell Holmes, Jr.," in Morton J. Frisch and Richard G. Stevens (eds.), American Political Thought (2d ed.; Itasca, IL: Peacock Publishers, 1983), pp. 295-318, 298.
[23]. Ib., p. 308. See also Walter F. Berns, "Buck v. Bell: Due Process of Law?" Western Political Quarterly, Vol. 6 (December 1953), pp. 762-765, and Robert Faulkner's contrast of Marshall natural rights teaching to Holmes's legal positivism in The Jurisprudence of John Marshall, Appendix I: Justice Holmes and Chief Justice Marshall," pp. 227-268.
[24]. Richard G. Stevens, "Felix Frankfurter," in Morton J. Frisch and Richard G. Stevens (eds.), American Political Thought (2d ed.; Itasca, IL: Peacock Publishers, 1983), pp. 337-360, 347. See also Richard G. Stevens, Frankfurter and Due Process (Lanham, MD: University Press of America, 1987).
[25]. Stevens, "Felix Frankfurter," pp. 356, 360. See also Gary Jacobson's similar conclusions in Pragmatism, Statesmanship, and the Supreme Court, pp. 158-160.
[26]. Gary L. McDowell (ed.), Taking the Constitution Seriously: Essays on the Constitution and Constitutional Law (Dubuque, Iowa: Kendall/Hunt, 1981), and Walter F. Berns, Taking the Constitution Seriously (New York: Simon and Schuster, 1987).
[27]. For a critique of Hughes’s statement, see Rossum and Tarr, American Constitutional Law, Vol. 1, pp. 1-3.
[28]. See L. Peter Schultz and Gary L. McDowell, "Herbert Storing and the Study of Constitutional Law," Politics in Perspective, Vol. 13, no. 1 (Fall 1985), p. 54.
[29]. Joseph Story, Commentaries on the Constitution of the United States, Vol. 1 (Boston: Hilliard, Gray and Company, 1833), pp. 436-437. Not all Straussians follow Story's rules of interpretation. See Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984, and The Constitution of Judicial Power (Baltimore: Johns Hopkins University Press, 1993), whose approach is more "aspirational" and who regards constitutional law as "an independent moral voice in American politics."
[30]. George Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989). See also John A. Murley, “Our Character as our Fate: The Constitutionalism of George Anastaplo,” Political Science Reviewer, Vol. XXVI (1997), pp. 36 – 89.
[31]. Anastaplo, The Constitution of 1787: A Commentary, pp. 47-48. "[The Supreme Court] has been kept from its full realization as a court, and as a national teacher of what law is, by its diversion into that career as a superlegislature which easily follows from making much of a general power of judicial review." Ib., p. 135. Most Straussians readily embrace judicial review; however, see Christopher Wolfe, The Rise of Modern Judicial Review, who rejects all but what he calls the "traditional form" of judicial review, and Matthew J. Franck, Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People (Lawrence, Kansas: University Press of Kansas, 1996), who rejects the claim that "the Supreme Court more than the other branches of government holds the paramount and final position in determining the meaning of the Constitution." p. 3. See also Ralph A. Rossum, "The Least Dangerous Branch?" in Peter Augustine Lawler and Robert Martin Schaefer (eds.), The American Experiment: Essays on the Theory and Practice of Liberty (Lanham, MD: Rowman & Littlefield, 1994, pp. 241-258, whose views on this matter are quite similar to Anastaplo's.
[32]. Straussian constitutional scholars have distinguished themselves by publishing those Founding-era documents essential for understanding the ends and means of the Constitution. Herbert J. Storing's The Complete Anti-Federalist, 7 Vols. (Chicago: University of Chicago Press, 1981.), with its painstaking research, meticulous editing and annotations, and seminal essay explaining what "The Anti-Federalists Were For," comes immediately to mind; so, too, does Ralph Lerner's masterful contribution to Philip B. Kurland and Ralph Lerner (eds.), The Founders' Constitution, 5 Vols. (Chicago: University of Chicago Press, 1987).
[33]. Rossum and Tarr consistently employ this "means-ends" approach in their casebook, American Constitutional Law. See also Rossum, "A Means-Ends Approach to the Study of the Constitution and Constitutional Law," Politics in Perspective, Vol. 13, no. 1 (Fall 1985), pp. 36-48.
[34]. Francis Canavan, "Freedom of Speech and Press: For What Purpose," American Journal of Jurisprudence, Vol. 16 (1971), reprinted in McDowell, Taking the Constitution Seriously: Essays on the Constitution and Constitutional Law, p. 321.
[35]. They would embrace the approach described by Sir William Blackstone: “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law.” Blackstone, Commentaries on the Laws of England, 4 vols. (London, 1765 - 69), Vol. I, p. 59. By contrast, most contemporary constitutional scholars reject originalism and would endorse instead the words of the political scientist, Martin Shapiro: “As with all other constitutional provisions, it is not the founders’ intentions but our intentions that count. It is, I think, a universally accepted truism that the glory of our Constitution is that it is a generally worded, and thus highly flexible, document that allows – indeed, requires – new interpretations to fit new situations. . . . It too requires that we decide what we want it to mean. . . . It is what we want, not what the founders wanted, that counts.” Shapiro, Freedom of Speech: The Supreme Court and Judicial Review (Englewood Cliffs, N.J.: Prentice-Hall, 1966), p. 93.
[36]. They adhere to original meaning and take seriously the arguments and work of the framers of the Constitution. David Lowenthal explains why in No Liberty for License: The Forgotten Logic of the First Amendment (Dallas,TX: Spence Publishing Co., 1997), p. 60:
To make subservience to the founding fathers not only necessary but admirable, we must lose our sense of superiority to them that has been sedulously cultivated during more than a half-century of the nation’s intellectual life. The fathers of the Constitution were not ordinary men. As a collection of forty, their equal has not been seen since, and certainly cannot be culled from the groves of academe today. Their practical political thought, as it entered the Constitution, was powerful, original, and far-sighted. They had studied law and political philosophy deeply, and knew how to reason and write. . . . Moreover, they sensed themselves in a position of responsibility for the formation and preservation of a new nation, and constantly acted with this responsibility in mind. We who come after them are their heirs and beneficiaries, and by not shouldering that same responsibility we are often led to propose rash changes that can only harm rather than improve the system they created. To be sure, it is impossible to expect men raised under their system not to embody some of the same independence of spirit they exemplified. But independence does not require superficiality, vanity, or folly, and is perfectly consistent with an admiration for the founders best described as “rational reverence” – that is, a reverence that grows deeper the more their work is studied.”
[37]. Quoted in Rossum and Tarr, American Constitutional Law, Vol I, p. 10. They seek not only to identify and preserve the Constitution's original meaning but also to defend it. See, for example, Thomas G. West’s splendid new book, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, MD: Rowman & Littlefield, 1997).
[38]. See Charles R. Kesler, "Separation of Powers and the Administrative State," in Gordon S. Jones and John Marini, The Imperial Congress: Crisis in the Separation of Powers (New York: Pharos Books, 1989), pp. 20 - 40; Edward J. Erler, "The Constitution and the Separation of Powers," in Leonard W. Levy and Dennis J. Mahoney (eds.), The Framing and Ratification of the Constitution (New York: Macmillan, 1987), pp. 151 -166; Murray Dry, "The Congressional Veto and the Constitutional Separation of Powers," in Joseph M. Bessette and Jeffrey Tulis (eds.), The Presidency in the Constitutional Order (Baton Rouge: Louisiana State University Press, 1981, pp. 195 -233; and Robert Scigliano, The Supreme Court and the Presidency (New York: Free Press, 1971), Chapter 1.
[39]. See Michael P. Zuckert, "A System without Precedent: Federalism in the American Constitution," in Levy and Mahoney, The Framing and Ratification of the Constitution, pp. 132 - 150, and Kenneth M. Holland, "Federalism," in Peter Augustine Lawler and Robert Martin Schaefer (eds.), The American Experiment: Essays on the Theory and Practice of Liberty (Lanham, MD: Rowman & Littlefield, 1994), pp. 57 - 76.
[40]. See Lane V. Sunderland, Popular Government and the Supreme Court: Securing the Public Good and Private Rights (Lawrence: University Press of Kansas, 1996), Gary L. McDowell, Equity and the Constitution: The Supreme Court, Equitable Relief, and Public Policy (Chicago: University of Chicago Press, 1982), and Ralph A. Rossum, "The Courts and the Judicial Power," in Leonard W. Levy and Dennis J. Mahoney (eds.), The Framing and Ratification of the Constitution (New York: Macmillan, 1987), pp. 222 - 241.
[41]. Herbert J. Storing, "The Constitution and the Bill of Rights," in Toward a More Perfect Union: Writings of Herbert J. Storing, edited by Joseph M. Bessette (Washington, D.C.: AEI Press, 1995), p. 122.
[42]. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington, D.C.: AEI Press, 1997).
[43]. Helen E. Veit, et al. (eds.), Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins University Press, 1991), p. 118.
[44]. Ib., p. 120.
[45]. See Ralph A. Rossum, “The Federalist’s Understanding of the Constitution as a Bill of Rights,” in Charles R. Kesler (ed.), Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1987), pp. 219 – 233.
[46]. Storing, "The Constitution and the Bill of Rights," p. 118. (Emphasis in the original.)
[47]. See George Anastaplo, The Constitutionalist: Notes on the First Amendment (Dallas, TX: Southern Methodist University Press, 1971); Walter F. Berns, The First Amendment and the Future of American Democracy; Francis Canavan, Freedom of Expression: Purpose as Limit (Durham, NC: Carolina Academic Press, 1984); Harry M. Clor, Public Morality and Liberal Society (Notre Dame, IN: University of Notre Dame Press, 1996); Murray Dry, "Flag Burning and the Constitution," 1990 Supreme Court Review (Chicago: University of Chicago Press, 1991); and David Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment.
[48]. See Walter F. Berns, The First Amendment and the Future of American Democracy; Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: AEI Press, 1978); Gary D. Glenn, "Forgotten Purposes of the First Amendment Religion Clauses," Review of Politics, Vol. 49, No. 3 (1987), pp. 340 - 367; and David Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment.
[49]. Eugene W. Hickok and Gary L. McDowell, Justice vs. Law: Courts and Politics in American Society (New York: Free Press, 1993), Chapter 4; Christopher Wolfe, "The Original Meaning of the Due Process Clause," in Eugene W. Hickok, The Bill of Rights: Original Meaning and Current Understanding (Charlottesville: University Press of Virginia, 1991), pp. 213 - 230.
[50]. Bradford P. Wilson, "The Fourth Amendment as More Than a Form of Words: The View from the Founding," in Eugene W. Hickok, The Bill of Rights: Original Meaning and Current Understanding (Charlottesville: University Press of Virginia, 1991), pp. 151 - 171; Steven R. Schlesinger, Exclusionary Injustice (New York: Marcel Dekker, Inc., 1977); Hadley Arkes, Beyond the Constitution (Princeton, NJ: Princeton University Press, 1990), Chapter 8; and Ralph A. Rossum, "'Self-Incrimination': The Original Intent," in Eugene W. Hickok, The Bill of Rights: Original and Current Understanding (Charlottesville: University Press of Virginia, 1991), pp. 273 - 287.
[51]. Edward J. Erler, "The Ninth Amendment and Contemporary Jurisprudence," in Eugene W. Hickok, The Bill of Rights: Original and Current Understanding (Charlottesville: University Press of Virginia, 1991) pp., 432 - 451; and Walter F. Berns, "The Meaning of the Tenth Amendment," in Robert A. Goldwin (ed.), A Nation of States (2d ed.; Chicago: Rand McNally, 1974).
[52]. Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (Princeton, NJ: Princeton University Press, 1986), Chapters XV - XVII.
[53]. Compare Richard G. Stevens, "Due Process of Law and Due Regard for the Constitution," Politics in Perspective, Vol. 13, No. 1 (Fall 1985), pp. 25 - 35, and George Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995) with Michael P. Zuckert, "Completing the Constitution: The Fourteenth Amendment and Constitutional Rights," Publius, Vol 22 (1992): 22.
[54]. See Edward J. Erler, "Immigration and Citizenship," in Gerald Frost (ed.), Loyalty Misplaced: Misdirected Virtue and Social Disintegration (London: Social Affairs Unit, 1997), pp. 71 - 90. Erler argues that illegal aliens are not "subject to the jurisdiction" of the United States and that Congress is therefore free to deny citizenship to their children who are born on U.S. soil.
[55]. See Judith A. Baer, Equality Under the Constitution: Reclaiming the Fourteenth Amendment (Ithaca, NY: Cornell University Press, 1983); Edward J. Erler, The American Polity, Chapter 5, and Ralph A. Rossum, Reverse Discrimination: The Constitutional Debate (New York: Marcel Dekker, Inc., 1980).
[56]. Michael P. Zuckert, "Congressional Power Under the Fourteenth Amendment -- The Original Understanding of Section Five," Constitutional Commentary, Vol. 3 (1986): 123.
[57]. Berns, The First Amendment and the Future of American Democracy, p. x.
[58]. The words are from Chief Justice Warren’s opinion in Trop v. Dulles, 356 U.S. 86 (1958). See Walter F. Berns, Taking the Constitution Seriously, p. 236: “The Framers . . . provided for a Supreme Court and charged it with the task, not of keeping the Constitution in tune with the times but, to the extent possible, of keeping the times in turn with the Constitution.”
[59]. See Walter F. Berns, For Capital Punishment: Crime and the Morality of the Death Penalty (New York: Basic Books, 1977), p. 5, and Franck, Against the Imperial Judiciary.
[60]. Edward J. Erler, "Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education," Harvard Journal of Law and Public Policy, Vol. 8 (1985), pp. 399 - 426; and Ralph A. Rossum, "Plessy, Brown, and the Reverse Discrimination Cases," American Behavioral Scientist, Vol 28, No. 6 (1985).
[61]. McDowell, Equity and the Constitution, p. 128 - 129, and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984), p. 118.
[62]. Harvey C. Mansfield, “ Foreword,” in Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, ix.
[63]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, xvii – xviii.
[64] . Ib., xxii.
[65]. Ib., xvii.
[66] . Ib., p. 272 - 273.
[67] . Anastaplo, The Amendments to the Constitution: A Commentary, p. 56.
[68]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, pp. 196 - 197. Anastaplo supplies an important insight: “Although Congress cannot interfere at all with state religious establishments, it is evidently left free by the First Amendment to supervise state prohibitions of the free exercise of religion. Congress is kept from prohibiting the free exercise of religion, but it is not kept from correcting state interferences with the free exercise of religion. In this field, unlike that of religious establishments, the states need not be left alone by Congress to develop their local preferences in whatever way they choose.” Anastaplo, The Amendments to the Constitution: A Commentary, p. 56.
[69]. See Berns, The First Amendment and the Future of American Democracy, p. 7; Anastaplo, The Amendments to the Constitution: A Commentary, p. 56, and Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p. 222.
[70]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p.222. As Lowenthal notes, the word religion “cannot be thought to include non-religion and irreligion -- that is, belief as such. The freedom of religion is not a freedom of any opinion about religion, including atheism. For a religion is more than a belief or set of beliefs, even about some divinity. Religion presupposes a community of worshippers and a being (or beings) being worshipped.” Ib., pp. 198 - 199.
[71]. Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment, p. 15. See also Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p. 192.
[72]. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment, p. 14. (Emphasis in the original.) Both Malbin and Berns, The First Amendment and the Future of American Democracy, pp. 7 - 8, note that the First Congress reenacted the Northwest Ordinance of 1787, which set aside federal lands in the territory for schools and which justified that set aside as follows: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged.” They question how Congress could consistently promote religious and moral education while simultaneously banning all forms of assistance to religion.
[73]. 330 U.S. 1 (1947).
[74]. 406 U.S. 205 (1972).
[75]. 380 U.S. 163 (1965).
[76]. 398 U.S. 333 (1970).
[77]. They point out that the Court ignored the fact that Jefferson “did not think a ‘wall of separation between church and state’ prevented him from requiring the daily ‘free exercise’ of religion” at his University of Virginia. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p. 189. (Emphasis in the original.)
[78]. Berns, The First Amendment and the Future of American Democracy, p. 60. See also pp. 65 and 75. See also Anastaplo, The Amendments to the Constitution: A Commentary, p. 57, and Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, pp. 203 – 221. They all rely heavily on Tocqueville’s arguments in Democracy in America and Washington’s “Farewell Address” to support their argument that governments must collaborate with religious institutions to curb licentiousness and corruption and promote morality and common decency.
[79]. Anastaplo, The Amendments to the Constitution: A Commentary, p. 57. See also Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, pp. 228 – 236.
[80]. Berns, The First Amendment and the Future of American Democracy, p. 38
[81]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p. 265.
[82]. While technically Seeger and Welsh involve statutory construction of the conscientious objector section of the Selective Service Act, and not constitutional construction of the free exercise clause, they are open windows into the Court’s understanding of what constitutes religion.
[83]. Berns, The First Amendment and the Future of American Democracy, p. 78; and Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment, p. 40.
[84]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p. 19; see also p. 156. See also Anastaplo, The Constitutionalist: Notes on the First Amendment, p. 115, and Anastaplo, The Amendments to the Constitution: A Commentary, p. 55.
[85]. “Criticism of the government, to keep it republican and working properly, begins with speaking and writing – the work of individuals – and culminates in peaceable assemblies and petitions – the work of groups. But here protected freedom ends. By the clearest implication, the First Amendment entitles no one, individual or group, to disobey, assemble riotously or violently, rebel, or replace republican government with some non-republican form of government.” Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, pp. 20 - 21. (Emphasis in the original.)
[86]. Berns, The First Amendment and the Future of American Democracy, p. 147.
[87]. 268 U.S. 652, 673 (1925). Lowenthal calls this “the single most disgraceful sentence in our jurisprudence.” No Liberty for License: The Forgotten Logic of the First Amendment, p. 35. They also excoriate Holmes for his famous dissenting dictum in Abrams v. United States, 250 U.S. 616, 639, in which he declares that, according to “the theory of our Constitution,” “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” As Walter Berns has pointed out, ideas that lose out in the competition of the market could “logically be suppressed. By the only relevant criteria – those supplied by the marketplace – they are false and, to say the same thing, unpopular; and to the extent that they are unpopular, they can be ‘safely’ suppressed. The more obnoxious they are held to be, the more unpopular they will be; and the more unpopular they are, the more safely those who hold them may be persecuted. It would seem, therefore, that the ‘truth’ that wins in the market provides a very good ground indeed upon which those who subscribe to it can ‘safely’ carry out their wishes, including a wish to extirpate the last vestiges of what the market has characterized as obnoxious ‘thought.’” Berns, The First Amendment and the Future of American Democracy, p. 154.
[88]. Harry M. Clor, Public Morality and Liberal Society, p. 215.
[89]. Francis Canavan, “Freedom of Speech and Press: For What Purpose?” American Journal of Jurisprudence, Vol. 16 (1971), reprinted in McDowell, Taking the Constitution Seriously, pp. 305 – 343, 309. See also Canavan, Freedom of Expression: Purpose as Limit.
[90]. 403 U.S. 15, 26 (1971).
[91]. Harry M. Clor, “Obscenity and Freedom of Expression,” in Harry M. Clor (ed.), Censorship and Freedom of Expression: Essays on Obscenity and the Law (Chicago: Rand McNally & Company, 1971), p. 108.
[92]. Anastaplo, The Amendments to the Constitution: A Commentary, p. 54.
[93]. Harry M. Clor, Obscenity and Public Morality (Chicago: University of Chicago Press, 1969), p. 97, and Berns, The First Amendment and the Future of American Democracy, pp. 121, 146.
[94]. Anastaplo, The Constitutionalist: Notes on the First Amendment, p. 54.
[95]. The words are from Justice Harlan in Cohen v. California, 403 U.S. 15, 25 (1971). See Berns, The First Amendment and the Future of American Democracy, p. 200: “Do we really live in a world so incapable of communication that it can be said that ‘one make’s vulgarity is another’s lyric’?”
[96]. 378 U.S. 184 (1964).
[97]. See Berns, “Beyond the (Garbage) Pale,” in Harry M. Clor (ed.), Censorship and Freedom of Expression: Essays on Obscenity and the Law (Chicago: Rand McNally & Company, 1971), p. 57: “Is it politically uninteresting whether men and women derive pleasure from performing their duties as citizens, parents, and spouses or, on the other hand, from watching their laws and customs and institutions ridiculed on the stage?”
[98]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, pp. 102, 100.
[99]. Anastaplo, The Amendments to the Constitution: A Commentary, p. 54. See also Anastaplo, The Constitutionalist: Notes on the First Amendment, pp. 15 – 23.
[100]. Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, p. 79. This is the rule that Justice Sanford applies for the Court in Gitlow v. New York (1925). Lowenthal argues that this was also the “accepted rule of the Supreme Court and all the courts of the nation” from the time of the founding until Holmes and Brandeis, “in an unjustified rupture” of our country’s “long tradition,” formulated the “clear and present danger” rule. Ib., pp. 79, 27. See also pp. 74 – 78, in which Lowenthal catalogues ten specific defects of the “clear and present danger” rule.
[101]. Francis Canavan, “Freedom of Speech and Press: For What Purpose?” p. 334.
[102]. Berns, The First Amendment and the Future of American Democracy, pp. 158, 177.
[103]. Agresto, The Supreme Court and Constitutional Democracy, pp. 125, 131. See also Berns, The First Amendment and the Future of American Democracy, p. 53, and Lowenthal, No Liberty for License: The Forgotten Logic of the First Amendment, pp. 270 – 271.
[104]. Gary L. McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge: Louisiana State University Press, 1988).
[105]. Ralph A. Rossum, Congressional Control of the Judiciary: The Article III Option (Cumberland, VA: Center of Judicial Studies, 1988).
[106]. Lerner, "The Supreme Court as Republican Schoolmaster," p. 180.