Leaving the U.S. Constitution (for now)

I have taught American Constitutional Law at the University of Toronto two years in a row. It is no hyperbole, or conventional good manners, for me to say this was a rare privilege. I will not be teaching the same course next year; I may still have a chance to teach a different course.

I just want to set down some last thoughts (for now).

I came to have great sympathy for the "original intent" approach to reading the Constitution in grad school days. I was influenced by Walter Berns (I still own several of his books), and I sympathized with Rehnquist and Bork as well. Berns was deeper than Bork in that he tried to show how the Constitution was based on an understanding of the need for a strong government, balanced against "natural right," and the "natural rights" of individuals. Not every imaginable individual right is natural, or compatible with effective government, or a decent society.

Part of the argument about the Warren and Burger courts hinged on whether it made sense to incorporate the Bill of Rights, which limits what Congress can do, into the 14th Amendment, which restricts states. Was it part of the "original intent" of the drafters of the 14th to incorporate in this way? Almost certainly not--the intent was almost certainly to ensure that blacks had most (not necessarily all) of the rights that whites pretty much had without question. Was there some underlying "intent" from the beginning that some of the individual rights in the 1st 10 or so amendments would apply against the states? This gets a bit hazier. In the Slaughterhouse case, there was at least a lively debate about the "privileges and immunities" clause.

Jack Balkin takes up the question whether it is possible to argue both that Brown v. Board was correctly decided, and that it was consistent with the "original intent" of the 14th Amendment, ratified in 1868. Some original intent conservatives, naturally, try to say both. They would never want to say in public that Brown was wrongly decided. Balkin shows, however, convincingly in my view, that virtually no white person in the U.S., at the time the 14th was drafted and ratified, wanted de-segregated schools. They didn't even necessarily want blacks to have the right to vote--that was covered in the 15th Amendment, ratified in 1870. The 14th was intended to achieve "civil equality" for blacks.

Civil equality was distinguished from political equality-- the equal right of blacks to vote, serve on juries or hold political office, and it did not mean social equality, including the rights of blacks to intermarry with whites or the right to associate in civil society with whites on an equal footing. A strict colorblindness rule was rejected because it would give blacks the vote and lead to racial mixing. That is why the language of the Fourteenth Amendment is carefully chosen to guarantee only civil equality-- this is what the words "privileges and immunities" and "equal protection of the laws" meant in 1868-- and that is why a Fifteenth Amendment specifically guaranteeing blacks the right to vote (a feature of political equality) was required in 1870.

Surely there is a real question as to whether the original intent folks would truly reject most decisions of the Warren and Burger court any more. Rehnquist made his name by criticizing Miranda, and then when he had a chance to vote to strike it down, he upheld it. (For which Scalia criticized him). Isn't it better to have some fairly strict police procedures, so that police officers do not function like vigilantes? Several of my students made a nice argument, in their longer essays, to the effect that the U.S. has achieved a really elegant solution on capital punishment. Since public opinion, in many states, still clearly favours this practice, the Court has simply required that certain criteria be met. States can have no executions, or a few, or more as in Texas; there will at least be some consistency that this happens only in the case of murder, not "ordinary" murder, etc.

Complaints about judicial activism are especially bitter now when it comes to sexual matters, with or without abortion in the mix. Does anyone really want to go back to the old laws against birth control or inter-racial marriage? Don't these cases support the suggestion that there has always been an underlying sense that personal liberty should be maximized as much as possible, and that in this light, the lifting of old moral restrictions is a good thing?

I kept asking my class: can we think of more or less secular or non-theocratic arguments on behalf of at least some of the old moral laws? I gave Berns' example about pornographic or banned books. We have all been taught to side with the intellectuals and the authors. No banning of books! Side with Socrates, not with the narrow-minded priests, etc. But real libraries are always limited in how many titles they can purchase. Most titles will not be controversial, but a few titles will be. Isn't it healthy, in a democracy, to have a public debate about the controversial books? Maybe some little atheist kid who wants to masturbate won't be able to get his grubby hands on Lady Chatterly's lover, or Cather in the Rye. Is that such a bad thing?

Of course, this debate has been rendered obsolete by technology. By an anachronism, the U.S. government can rather heavily regulate "broadcast" media, but not satellite radio, or (strictly) cable TV. So some family values types are trying to extend this control to cable.

The internet cases have been amazing. One was dramatized on one of the Law and Order series. A young man can set up a video camera in his room, and videotape sex with young ladies (or other parties) who have come there (so to speak). He does not need their consent for the videotaping, nor for making the video available on the Internet, as long as he does not charge for access to the videotape itself. (Presumably he would have to share the royalties). In an actual case, the young man was simply selling advertising, and the young woman in question had no right to restrict the distribution of the tape at all. Amazing.

Was there some kind of original intent to ensure the majority could control the sexual or other content of publicly available media? I don't know. Berns always said: free speech was primarily designed to protect political speech--part of a rational discourse about how we should live.

Abortion I think is different from birth control or same sex marriage. I suspect it will turn out to be an anomaly that an absolute (or near-absolute) right to abortion was achieved in 1973, where same sex marriage is still an issue in 2005. It would make sense to me to allow same-sex marriage, even as a constitutional right, and leave abortion to the states in a manner similar to the capital punishment decisions: criteria must be met.

Sat Jun 4, 2005 6:16 pm MST by robertll | Email Article |

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Leaving the U.S. Constitution (for now)