Non-Economic Due Process
We take note of economic substantive due process, but we will not develop that theme in this book. SCOTUS was aggressively using the contracts clause of the first Constitution, and some interpret that as evidence of growing attention to individual sovereignty. Two additional premises question that conclusion. First, SCOTUS now considered corporations as persons, so contract enforcement was a mixed action, raising matters like strikes, pickets, walkouts, etc. Second, a manual labor contract between an individual and a corporation is not liberty. If I am an unskilled laborer whose hands are infinitely substitutable using other laborers, then I have little premium to offer a corporate employer. Denying collective action by labor is not fair economic substantive due process.
We do look at non-economic substantive due process. When Congress and then the states were building the Bill of Rights, one of the governing epistemologies saw the human mind as a blank tablet upon which the physical and moral laws of the universe were impressed. These moral laws were so basic that they governed human beings around the globe. They were so fundamental that the Founding Fathers did not include them in any proposed amendment, because enumerated rights rested upon them. Nature had already impressed these upon the human mind. These fundamental rights, whether mystical or secular, needed a Constitutional home. Slaughterhouse removed the privileges and immunities clause from contention, so jurists found a home in the due process clause of the 5th and 14th Amendments. The triangle of sovereignty began changing public policy.
The courts were slow to recognize a triangle of power among the federal government, the state governments, and individuals. In the early days of the republic, the anti-Federalist myth that their governments were closer to the people and hence more representative carried for a while. Some of these states governed significant territory, numerous subpopulations, and diverse economic interests. Economic elites controlled many state governments and governed in their own interests. Their use of the police powers, left to the states in the original distribution of power, became increasingly onerous. Average people often found themselves at odds with both the central government and the state government. Because of the division of power, the individual had difficulty getting one of these governments to balance the other. The triangle of power emerged by necessity, even if extremely slowly.
In its focus on the 2nd Constitution, this book examines the emergence and development of the triangle, and more explicitly on individual sovereignty. Clauses in the Bill of Rights and the Civil War Amendments were critical resources for individual sovereignty in the calculus of power. The book’s viewpoint requires a genetic or developmental trace of the evolution of individual sovereignty. We thematically look at cases over a lengthy period to see how the court proceeds in this endeavor, sometimes backtracking, and sometimes taking a bold leap forward. The genetic method chronologically looks at theme-related cases. This makes the book unique in two respects: the chronological theme development and the emphasis on individual sovereignty. The variations between and among judges is of far less importance than stare decisis, the major source of continuity. The latter is an important force for legal coherency, legal order, and precedential guidance.
Although not planned that way, the court system became the arbiter among the three powers. It could stop central or state government actions. The Bill of Rights’ negative logic meant that a government action may have intruded into a forbidden area. The court could affirm the Constitutionality of a government action or mark it as a governmental intrusion into forbidden territory.
Justice Rehnquist v Sustainable Case Law
Stare decisis leads to a subtheme in the book: Justice Rehnquist. He saw himself as a leading conservative jurist, but therein lies the problem. Ideology and stare decisis may not always be the best of friends. The juristic record becomes increasingly entangled when ideology serves as a guide instead of stare decisis. There is considerable evidence of this during the Rehnquist era, presented in the chapters that follow, and that would include the years when Rehnquist sat on the court before he became Chief Justice. Rehnquist would often use case-specific rules and methods that became what Justice Souter called unsustainable case law. Stare decisis is a friend forever of sustainable case law. Highlighting some of the dispositional problems with Rehnquist decisions, the book uses the sustainable case law standard instead of applauding either a conservative or liberal point of view. Here, then, is a third unique feature of the book: an application of the sustainable case law standard.
Sustainable case law raises the distinction between “originalism” and “Living Constitution,” or the equally broad distinction between strict constructionism and loose constructionism. Originalists seek out sometimes obscure comments that relate to Justice Marshall as supporting strict construction, but the proof of the pudding is in the delicacy they savor. Examine Marshall’s interpretation of the “necessary and proper” clause. The anti-Federalists were worried that this clause gave the central government unbridled power. Justice Marshall partially obliged them. The narrow interpretation of necessary and proper is that the policy chosen is the best single way to achieve a legitimate government object. This is the interpretation favored by Jefferson. The alternative interpretation of the necessary and proper clause is that it empowered any Constitutional means to get to a legitimate government end. The Federalists favored this interpretation and Justice Marshall wrote it into Constitutional interpretation. This is loose constructionism, but it is a fundamental Constitutional decision: The Constitution Marshall was expounding.
Original Interpretation
Original meaning is itself a chimera. Madison and Jefferson made it abundantly clear what was in their thoughts. The written trail gets very narrow as we move down the roster of those at the Philadelphia Hall or in the first Congress. Assuming we are not divining the thoughts of people dead 200 years, what is it that we must understand or where do we locate original meaning? The originalism idea seems to purport that there was a common meaning and that it is discoverable. What if, as indeed occurred, there were several meanings? What if the past does not present itself as a monolith? The sleight of hand called public understanding has all these problems and more. We have little access to the thoughts of commoners. Is a legal exposition of the day enough replacement? Exactly how elite is the “public understanding”?
A brief word on semantic analysis is in order. Here the Constitution already contains its meaning; look at what it says. This may well be a vehicle for avoiding history wars and the myth of public understanding hundreds of years ago. What was, for example, the public understanding of impeachment? Constitutional experts sitting before a Congressional committee cannot all agree on even this question. Far more serious, however, is how Justice Scalia used jargon and pretense to reveal the hidden meaning of the 2nd Amendment. The technique may fool part of the public, requiring closer reading, but it demonstrates how politics creeps into judicial interpretation under the guise of semantic analysis, or the Constitution already says what it means, or perhaps, what Scalia wants it to mean.
A simple comparison of originalism with the discipline of history reveals how preposterous is the claim definitively to reconstruct the Constitutional understanding of an era long since passed. Each generation of historians seek to question, provide narrative for, and broaden our understanding of the past. If it were possible to closely restore the past and its understanding of itself, then there should not be a need for our contemporary Greek historians, Roman historians, and of course American historians. Modern disciplines of history are not just interested in events 30 years ago but all literate and preliterate societies. If history is alive and well, as it will be for generations to come, what is it that the originalists claim to do that would be non-revisable with each changing court or even changing context?
If an originalist discovers original meaning, some originalists argue that the court’s decision must reflect that original understanding. The jurist is free from the burden of case precedent. There are several originalist doctrines, but they all share a common feature. Originalism is a method for sneaking politics into judicial decision-making and draping that decision with a thinly veiled ideology. It is laudable that Congressional members are increasingly familiar with the colonial period. Most, however, are not historians. Because understanding the past is not monolithic,