Whose Constitution Wins?


In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election.

But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional. Adam Cohen, New York Times legal affairs analyst, quoted by Jeffrey Jamison on the blog of the American Constitution Society, January 25

Senate Majority Leader Bill Frist has rushed to accuse Democrats of blocking federal appellate court nominees solely because they are religious. As Abraham Foxman, national director of the Anti-Defamation League, says, “Playing the ‘religious’ card is as unacceptable as playing the race card.”

Meanwhile, embattled House Majority Leader Tom DeLay has convinced the House Judiciary Committee to begin to define the “good behavior” that enables federal judges to stay on the bench for life. So much for judicial independence as one of the bulwarks of the separation of powers. Whichever party is in power will grade “good behavior.”

While assaults on the independence of the federal judiciary are becoming more fiery on both sides of the aisle in Congress, the media have ignored the most important article in many years on an ever graver danger to the Bill of Rights and the Fourteenth Amendment’s guarantees of “due process of law” and “the equal protection of the laws.”

Also ignoring this siren-like warning issued in the cover story of the April 17 New York Times Magazine—(“The Unregulated Offensive,” by George Washington University law professor Jeffrey Rosen)—is, as of this writing, the flailing Democratic leadership in Congress. If the leaders wake up, they can finally energize and focus the party.

Focusing on a quite possible takeover, in the years ahead, of the federal courts by ardent and influentially interconnected supporters of the “Constitution in Exile,” Rosen’s long article, documented with a historical perspective, was preceded by this blazing text:

“They [brandishing ‘the Constitution in Exile’] believe that an individual’s economic rights are inviolable [including corporations]. Which leads them not to believe in the constitutionality of the Environmental Protection Agency, the Occupational Safety and Health Administration, Social Security and the minimum wage.

“They have built a network of scholars, public-interest lawyers and sympathetic judges. The next Supreme Court appointment could be one of theirs.”

While this sounds like a variation on Orson Welles’s radio broadcast of an invasion of Earth by Martians, Jeffrey Rosen—hardly a radical legal historian—makes a case that should alarm anyone who recognizes what the late Supreme Court Justice William Brennan told me in our last conversation: “Look, pal [he called a lot of people pal], we’ve always known—the framers knew—that liberty is a fragile thing.”

The threat to our liberty from the warriors trying to bring back the Constitution in Exile is all about federalism—how power over us is shared between national and state governments. During the 1787 Constitutional Convention in Philadelphia, there were long and bitter arguments about how those powers were to be divided.

As Linda Greenhouse, the New York Times‘ exceptional reporter on the Supreme Court, noted in 2003, the conservatives who yearn to return to the Constitution in Exile—which largely held sway until Franklin D. Roosevelt’s much more democratic New Deal—regard it as “a vision that includes [individual] state sovereignty, limited national power and strong protection for private property”—very strong protection for not only private property but other economic rights.

By contrast, Linda Greenhouse added, liberals have faith in “the ‘Shadow Constitution,’ under which the government has affirmative obligations to alleviate inequality, protect people from harm . . . and surround criminal defendants and prisoners with a range of safeguards.”

Next week: some of the dynamics in this crucial battle as to which of these two constitutions will prevail for years to come. A majority of the Rehnquist Court has been in consonance with the Constitution in Exile, and much depends on who will soon succeed Rehnquist as chief justice.

Until reading Rosen’s article, I had thought that George W. Bush—banking on a less than compelling Democratic opposition that has yet to find its way—would nominate Antonin Scalia. But Rosen persuades me that Clarence Thomas is a more consistent and persistent champion of the sacredness of economic rights. Moreover, Bush would probably relish appointing the first black chief justice, following his father’s lead in bringing Thomas onto the Court.

During Clarence Thomas’s confirmation hearing in 1991, Rosen notes in his article, Senator Joseph Biden, then chairman of the Senate Judiciary Committee, confronted Thomas with the nominee’s admiration for the writings of University of Chicago law professor Richard Epstein, a very influential champion of the supremacy of corporations’ and others’ “economic liberties.”

Thomas said then that he was only interested in Epstein’s “theory.” But as Rosen adds, Thomas, as associate justice, has helped implement the majority of the Rehnquist Court’s rulings upholding the superiority of economic rights, over attempts by Congress to pass laws that would protect many Americans from a range of discriminatory laws by the individual states affecting health, employment, and civil rights. Those laws by Congress have been declared unconstitutional by the current Court.

The lodestar Supreme Court case for champions of the Constitution in Exile is Lochner v. New York (1905). The Court ruled that the bosses of bakery employees had the economic right to insist that their employees work unlimited hours. Since these wage serfs couldn’t even take a day off when they were sick, the public’s health was endangered. This screwing of the workers eventually showed the way for a New Deal Court to authorize collective bargaining.