Problems with Courts

There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential about the constitutional or legal culture in which it is enacted—to protect that culturalt attribute against changes in the future. A transformative constitution (or amendment) does the opposite: it tries to change something essential in the constitutional or legal culture in which it is enacted—to make life different in the future, to remake some part of the culture. The symbol of the codifying regime is Ulysses tied to the mast; the symbol of the transformative is revolutionary France.

Our Constitution has both regimes within it. The Constitution of 1789—before the first ten amendments—was a transformative constitution. It “called into life” a new form of government and gave birth to a nation.¹ The Constitution of 1791—the Bill of Rights—was a codifying constitution. Against the background of the new constitution, it sought to entrench certain values against future change.² The Civil War amendments were transformative again. They aimed to remake part of what the American social and legal culture had become—to rip out from the American soul a tradition of inequality and replace it with a tradition and practice of equality.³

Of these two regimes, the transformative is clearly the more difficult to realize. A codifying regime at least has inertia on its side; a transformative regime must fight. The codifying regime has a moment of self-affirmation; the transformative regime is haunted with self-doubt, and vulnerable to undermining by targeted opposition. Constitutional moments die, and when they do, the institutions charged with enforcing their commands, such as courts, face increasing political resistance. Flashes of enlightenment notwithstanding, the people retain or go back to their old ways, and courts find it hard to resist.

Our own constitutional history reveals just this pattern. The extraordinary moment after the Civil War—when three amendments committed to civil equality were carved into our Constitution’s soul—had passed by 1875. The nation gave up the struggle for equality and turned to the excitement of the industrial revolution. Laws enforcing segregation were upheld;⁴ the right of African Americans to vote was denied;⁵ laws enforcing what was later seen to be a new kind of slavery were allowed.⁶ Only after one hundred years of continued inequality did the Supreme Court again take up the cause of the Civil War amendments. It would not be until Brown v Board of Education, in 1954, that the Court again recognized the transformative idea of the Civil War amendments.⁷

One could criticize the Court for this century of weakness. I think it is more important to understand its source. Courts operate within a political context. They are the weakest branch of resistance within that political context. For a time they may be able to insist on a principle greater than the moment. But that time will pass. If the world does not recognize the wrongness of its racist ways, even a strong statement of principle enacted within our Constitution’s text permits a court only so much freedom to resist. Courts are subject to the constraints of what “everyone” with a voice and the resources to make it heard believes is right, even if what “everyone” believes is inconsistent with basic constitutional texts.

Life is easier with a codifying constitution. For here there is a tradition that the text is just meant to entrench. If this tradition is long-standing, then there is hope that it will remain solid as well.

But even a codifying constitution faces difficulties. Codification notwithstanding, if the passions of a nation become strong enough, there is often little that courts are willing to do. The clarity of the First Amendment’s protection of freedom of speech notwithstanding, when the speech was that of communists and anarchists, the government was allowed the power to punish.⁸ The presumption of innocence and equality notwithstanding, when Japan bombed Pearl Harbor, the government was allowed to shuttle every West Coast American of Japanese descent into concentration camps.⁹

These are the realities of courts in a democratic system. We lawyers like to romanticize the courts, to imagine them as above influence. But they have never been so, completely, or forever. They are subject to a political constraint that matters. They are an institution within a democracy. No institution within a democracy can be the enemy of the people for long.

It is against this background that we should think about the problems raised in part 3. In each case, my argument was that we will need to choose the values we want cyberspace to embrace. These questions are not addressed by any clear constitutional text or tradition. In the main, they are questions affecting the codifying part of our tradition, but they are also cases of latent ambiguity. There is no “answer” to them in the sense of a judgment that seems to have been made and that a court can simply report. An answer must be fixed upon, not found; made, not discovered; chosen, not reported.

This creates difficulties for an American court. We live in the shadow of the Supreme Court of Chief Justice Earl Warren. Many people think (but I am not one of this crowd) that his was a wildly activist court, that it “made up” constitutional law and imposed its own “personal values” onto the political and legal system. Many view the Rehnquist Court as providing a balance to this activism of old.

I think this view is wrong. The Warren Court was not “activist” in any sense inconsistent with a principle of interpretive fidelity, and the Rehnquist Court is no less activist than the Warren Court. The question, however, is not what was true; the question is what people believe. What we believe is that the past was marked by activism, and that this activism was wrong.

Footnotes

¹ Missouri v Holland, 252 US 416, 433 (1920). Edit Delete

² See, for example, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 289–90; see also Akhil Reed Amar, “The Bill of Rights as a Constitution” (Yale Law Journal 100 [1991]: 1131), for another such understanding of the Bill of Rights. Edit Delete

³ This is not to deny that some aspects of the equality delineated in the Civil War amendments echoed in our constitutional past. The abolitionists, of course, made great weight of the Declaration of Independence’s claims to equality; see, for example, Trisha Olson, “The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment,” Arkansas Law Review 48 (1995): 347, 364. An amendment can be transformative, however, even if it is simply recalling a part of the past and reestablishing it—as Germany did, for example, after World War II. Edit Delete

⁴ See Plessy v Ferguson, 163 US 537 (1896). Edit Delete

⁵ See A. Leon Higginbotham Jr., “Racism in American and South African Courts: Similarities and Differences,” New York University Law Review 65 (1990): 479, 495–96. Edit Delete

⁶ These laws permitted compelled labor to pay a debt; see Bailey v Alabama, 219 US 219 (1911) (striking peonage laws under the Thirteenth Amendment). Edit Delete

⁷ Brown v Board of Education, 347 US 483 (1954). Edit Delete

⁸ See, for example, Dennis v United States, 341 US 494 (1951) (upholding convictions under the Smith Act, which banned certain activities of the Communist Party). Edit Delete

⁹ See Korematsu v United States, 323 US 214 (1944). Edit Delete