Government by Judiciary

15. "The Rule of Law"

Judiciary_301-350.indd 7 5/7/11 1:11 PM 15 "The Rule ofLaw" ER a generation the constitutional basis for the "revolutionary" changes wrought by the Warren Court has gone virtually unchallenged.1 Justice Black, to be sure, unremittingly attacked decisions which to his mind rested on supraconstitutional authority, but his views could be heavily discounted because he himself was guilty of wholesale importation and participated in some of the Court's most debatable constitutional revisions. In a perceptive essay, Thomas C. Grey noticed a turning of the tide, the joinder of distinguished commentators in Black's criticisms; although he dissents, he called for a clear statement and adequate defense of the position.2 With Grey, I consider the question whether the Court may "enforce principles of liberty and justice" when they are "not to be found within the four corners" of the Constitution as "perhaps the most fundamental question we can ask about our fundamental law," excluding only "the question of the legitimacy ofjudicial review itself."3 The issue may for present purposes be stated more concretely : given that the Fourteenth Amendment plainly left suffrage and segregation to the States, may the Court "interpret" it in exact contraI . "The I 5 years since [Warren] became Chief]ustice have been years of legal revolution . In that time the Supreme Court has brought about more social change than most Congresses and most Presidents." Anthony Lewis, "A Man Born to Act, Not to Muse," The New York Times Magazine, June 30, I968, in Levy, Warren I5I. Justice Douglas complained that one decision entailed a "vast restructuring ofAmerican law."Johnson v. Louisiana , 406 U.S 356, 394 (I972), dissenting opinion. Professor Lusky refers to "a revolutionary change in the criminal process." Lusky I6r. A. T. Mason, The Supreme Court: Palladium ofFreedom I70 (I962): "On May I7, I954, the Court initiated the greatest social revolution of this generation." See also supra Chapter I4 note I36. 2. "Do We Have an Unwritten Constitution?," 27 Stan. L. Rev. 703- 705 (I975). 3· Id. 703. Judiciary_301-350.indd 8 5/7/11 1:11 PM GOVERNMENT BY JUDICIARY diction of the framers' design-to take control away from the States? Where is the constitutional authority for a power so awesome? It is important to make clear at this point what Part II of this study is not about. It does not deal with the interpretation of amorphous constitutional provisions such as "commerce,"4 which, unlike "due process ," have no historical content; nor with the weight to be accorded "enigmatic" history. As Part I demonstrated, the framers of the Fourteenth Amendment made their intention abundantly plain: to exclude suffrage and segregation from the ambit ofits terms. For me those terms, "equal protection" and "due process," illuminated by clear history, are neither "vague" nor "ambiguous." Nor will I deal with whether or not judicial review is antidemocritarian,S for if judicial review of the Warrenite scope was authorized by the Constitution, its antidemocratic nature has constitutional sanction. Nor will the craftsmanship ofthe Court, about which rivers of ink have been spilled, come into question.6 If judicial intervention with respect to suffrage, for example, is without constitutional warrant, it cannot be excused by the most elegant craftsmanship . Nor will consideration be given to the extensive debate about 4· Professor Frankfurter commented on Marshall's "use of the commerce clause" to subject state authority "to such limitations as the Court finds it necessary to apply for the protection of the national community" as an "audacious doctrine, which, one may be sure, would hardly have been publicly avowed in support ofthe Constirution. Indeed The Federalist in effect denied it." The Commerce Clause Under Marshall, Taney and Waite 1819 (1937). Had it been avowed it would have wrecked adoption of the Constirution. For the Founders' jealous attachment to State sovereignty, see Raoul Berger, Congress v. The Supreme Court 260- 264 (1969). T hat attachment was made explicit by the Tenth Amendment . That Marshall's views have carried the day is of no moment in a discussion that seeks to build on first principles. See infra at note 15, infra at notes 29- 30, 56- 57. 5. I consider that Eugene V Rostow failed to meet Henry Steele Commager's attack on the antidemocratic administration ofjudicial review up to r937. Rostow, "The Democratic Character of]udicial Review," 56 Harv. L. Rev. 193 (1952); Commager, "Judicial Review and Democracy," 19 Va. Quarterly Rev. 417 (1943). See infra Chapter 17 at note 69. Leonard...