There are different ways to teach Constitutional Law. Some teach it by doctrine. First you cover all of the congressional powers, then you cover all the executive powers, then you move onto the 14th amendment, then you do the Bill of Rights, etc. Because I only have four hours to teach all of ConLaw, this is the only way to cover everything in a meaningful way.
An alternative, and in my mind better approach given more hours, is to teach constitutional law chronologically. (I once tried to rank the top 300 cases of all time by year, and did a lecture where I ran students through all of these cases in two hours). Start with the Marshall Court, work through the Taney Court leading up to the Civil War, handle the post-Civil War cases as the Court grapples with the 14th Amendment, go through the late 19th century as the industrial revolution classes with society, chart the rise of the Progressive era in the early 20th century as the state police power grew, discuss the cases leading up to, during, and after the New Deal, followed by the Warren Court’s focus against segregation, criminal procedure cases, as well as sexual autonomy, into the Burger Court’s ratcheting back of some of that, followed by the Federalism focus on the Rehnquist Court, leading into the Roberts Court. (Randy Barnett’s ConLaw textbook, among others, does this very well).
Moving chronologically allows you to trace certain arcs across the law–the Supreme Court’s cases are not rendered in isolation but as part of a story of our national history. I try to do this in my class, and test this by making one of my exam questions situated in the past, and asking the students how a Court at a given point in time, only with precedents that came before that year, would resolve the issue (for example, how would the New Deal Court handle Obamacare).
Tracing these arcs allows you to isolate and analyze an issue in very different contexts. A perfect example of this is the (to oversimplify) debate between activism and restraint. Generally speaking, people label a decision activist if they disagree with the ruling. But, when viewed across time, the dynamics are hard to pin down.
In a recent speech at the Heritage Foundation, Senator Rand Paul traced just such an arc. Much of the commentary about this speech has been based on a few sound bites about whether activism or restraint is a better judicial philosophy. But the importance of Paul’s speech wasn’t the label–“I’m a judicial activist”–but the perspective. This is something many legal scholars, let alone Senators, lack.
Paul’s speech explored the notions of judicial restraint and activism (or what I, and my friends at IJ would call “engagement”) through six cases: Plessy v. Ferguson, Lochner, Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, and NFIB v. Sebelius. Paul explains that a common thread runs through each case:
If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise.
He traces this thinking back to the King of the Progressives, Holmes:
That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?
He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?
Plessy, and decisions upholding Jim Crow also cited majority rule:
But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important. … . I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.
The FDR Court employed restraint:
We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”
Same for Roberts in NFIB:
He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority . . . In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.
But in cases where liberty prevailed, the Justices were activist.
We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.
So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.
Brown v. Board of Education, activism prevails.
Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.
Paul favorably cites Griswold, even though he respects states rights.
Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?
Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.
(I should note that Paul was apparently reviewing Presidential debates. Take that for what it’s worth).
Paul also tackles Roe in something of a libertarian approach, short of saying it is a horribly wrong decision.
Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.
However not all decisions should defer to the majority. Some courts should apply a presumption of liberty, rather than a presumption of constitutionality. For this Rand cites Randy:
If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.
Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.
I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.
[one person clapping ]
Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?
The presumption of liberty is not unrebuttable. But it puts a thumb on the scale of the individual, over that of the state.
Paul also effectively rebuts the caricature of libertarian theory–that we want no government, and states can do whatever they want. By citing my friend Timothy Sandefur’s excellent new book, Paul explains why John C. Calhoun did not fit in with the notion of courts acting to preserve liberty.
What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.
There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.
Paul’s parting comments about the separation of powers ring very true. As Madison wrote in Federalist No. 51, Ambition must be made to check Ambition.
Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.
However, Congress has failed to check the President, and has ceded far too much power to the Executive, especially when the President is of the same party as the majority in Congress.
Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.
Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.
Paul concludes that his goal is to prevent “too much power from gravitating to one person or body.”
And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.
While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.
I couldn’t agree more. I hope he stays true to these words.