An Entrenched Legacy

An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Court’s power has grown mainly because of certain constitutional decisions during the New Deal era that initially seemed to portend a lessening of the Court’s power.

When the Court retreated from enforcing separation of powers and federalism as the twin structural protections for individual liberty in the face of FDR’s New Deal agenda, it was inevitably drawn into an alternative approach, substantive due process, as a means for protecting individual rights. This has led to many controversial judicial rulings, particularly regarding the recognition and enforcement of privacy rights. It has also led to the mistaken belief that the judiciary serves as the only protection of liberty and that an inherent conflict exists between individual liberty and majoritarian rule. Moreover, because the Court has assumed sole responsibility for preserving liberty, the whole area of individual rights has become highly centralized. As Garry argues, individual rights have been placed exclusively under judicial jurisdiction not because of anything the Constitution commands, but because of the constitutional compromise of the New Deal.

During the Rehnquist era, the Court tried to reinvigorate the constitutional doctrine of federalism by strengthening certain powers of the states. But, according to Garry, this effort only went halfway toward a true revival of federalism, since the Court continued to rely on judicially enforced individual rights for the protection of liberty. A more comprehensive reform would require a return to the earlier reliance on both federalism and separation of powers as structural devices for protecting liberty. Such reform, as Garry notes, would also help revitalize the role of legislatures in our democratic system.

“This is a clear and well-informed addition to the line of strong critiques of the modern practice of judicial review.”—Robert F. Nagel, University of Colorado

“Patrick Garry’s new book is a brilliant, incisive, and comprehensive account of sweeping—and very troubling—changes in the fundamental structural dimensions of our constitutional practices over the last century. Garry provides illuminating analyses of the Constitution’s original structural design for the protection of individual freedom, grounded in the separation of powers and federalism; the Court’s retreat from serious enforcement of that structural design in the face of the economic crisis of the Great Depression; and the Court’s resulting assumption in the mid-twentieth century of an activist role as ultimate policymaker in the area of individual rights, a role at odds with the Founders’ constitutional design and with representative democracy. A tour de force.”—Jack Wade, Lecturer in Law and Associate Professor of Law, University of Mississippi School of Law

“In An Entrenched Legacy Patrick Garry takes up the central question of constitutional law. The question is not whether liberty is the goal of our constitutional system. It surely is. The question is how our the Constitution was basically designed to secure liberty. Was it by entrusting unelected federal judges with a practically unchecked power to interpret the Bill of Rights? Or was it by stating with care the extent of our national government’s powers, dividing them among the three branches, and by reserving general authority to the states? Garry’s book is a lucid and cogent argument that it is the latter. Combining careful historical research with lucid exposition of Supreme Court cases, Garry shows how the Supreme Court since the New Deal has dismantled much of the founders’ deft design, and thus made its own emergence as high protector of liberty almost inevitable. Call it a usurpation or call it progress if you like. Either way Garry’s telling of the story is spot on and timely. An Entrenched Legacy is for specialists and general readers alike. It thesis is important, its prose clear as a bell.”—Gerard V. Bradley, Professor of Law, University of Notre Dame

“In this important book, Patrick Garry argues that allowing judges to pick and choose which rights are ‘fundamental,’ impose national standards for their enforcement, and remove policy from democratic debate is both a thin reed on which to secure our liberties, and a recipe for democratic atrophy. Garry calls for revitalizing democracy and protecting individual liberties through a renewed focus on the constitutional structure of government, including separation of powers, enumerated powers, and most importantly, a truly revitalized federalism. A fine contrarian work, this book will interest students of constitutional law and history, administrative law, and all those citizens who just want to understand the barren nature of so much political debate.”—Bradley A. Smith, Professor of Law, Capital University Law School, and former Chairman, Federal Election Commission

“Garry’s book does an excellent job describing how a Constitution that originally employed federalism and the separation of powers to protect the people has been transformed into one that relies on the Supreme Court. Garry also argues persuasively that this transformation has greatly empowered the Supreme Court even in areas where the Court claims to grant deference to the political branches.”—Michael Rappaport, Professor of Law, University of San Diego

“Patrick Garry has written a thought-provoking and important book regarding how the U.S. Supreme Court’s constitutional doctrines in areas such as individual rights, federalism, and separation of powers have evolved in recent history. Whether one agrees or disagrees with his thesis, the book advances a significant and novel perspective on American constitutional law with great clarity. Professor Garry also does an excellent job writing about these complex topics in an accessible and interesting manner.”—Mark Kende, Professor of Law, James Madison Chair in Constitutional Law, and Director of the Drake Constitutional Law Center, Drake University Law School

“This is a fresh, contemporary look at the causes and cure for the temptations of ‘judicial activism’ that have led the Court to preempt important questions of policy that properly belong to the people and their elected representatives in our Republic’s constitutional structure.”—Lynn Hogue, Professor of Law,Georgia State University

“Patrick Garry argues powerfully and provocatively that the gradual erosion of judicially enforced federalism and separation of powers inevitably forces the federal judiciary to take up sides in broader political and social conflicts, The end result is a greater centralization of political power not just in the hands of the federal government, but in the judiciary itself.”—Jonathan H. Adler, Professor of Law and Director, Case Western Reserve University School of Law

“In a fluid and engaging style, Patrick Garry synthesizes case law and the secondary literature to break new ground regarding the Constitution’s structural features and the protection of individual rights and liberties. He makes a very compelling case for the revival of federalism and the necessity for judicial restraint in fashioning a rigid codex of national rights and liberties. In a pluralist society, as he clearly argues, there is a need for a more flexible accommodation individual rights and majority rule. He carefully distinguishes between principles of federalism, which he supports vigorously, from the tired and often misappropriated states-rights argument. The author makes an important contribution to understanding the vitality of the Constitution’s structural principles, their utility in protecting individual liberty, and necessity for greater reliance on the democratic process to correct the misuse of governmental power. This book should provoke a lively debate among students of public law, jurisprudence, and political science.”—Edward Keynes, Penn State University

“An Entrenched Legacy provides an original, insightful and well-researched analysis into the reasons and ramifications of the constitutional drift of power to the Court.”—William Quirk, Professor of Law, University of South Carolina

“An Entrenched Legacy is a short book, which is a refreshing change for a legal text. It is crisp and informative, providing the right amount of detail to inform the novice and refresh the experienced lawyer.”—Mathew J. Dowd, Federal Lawyer

“In An Entrenched Legacy, Patrick Garry delivers a forceful indictment of the most basic trajectories of U.S. Supreme Court decision making in the modern period.”—Bradley J. Best, Law and Politics Book Review

Patrick M. Garry is Associate Professor of Law at the University of South Dakota.

Contents

Introduction

1. The New Deal Constitutional Revolution

2. At the Heart of the Revolution: The Constitution’s Structural Provisions

3. How the Administrative State Has Boosted Judicial Power

4. The Court’s Federalism Revolution

5. A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism

6. Contradicting the Federalism Revolution: The Court’s Nationalizing Rights-Jurisprudence

Conclusion: A Stifling of the Democratic Process

Index

Introduction

One of the most enduring and heated public controversies of the past half century has involved the role and power of the Supreme Court. Judicial activism has been blamed for an array of unpopular decisions in which the Court has seemingly gone outside the text of the Constitution to create new kinds of rights. This activism has, according to critics, allowed the Court to masquerade its members’ political views as constitutional principles. Under this interpretation, the Court’s growing power results simply from raw politics, from Justices intent on shaping American society according to their own personal ideology.

Unquestionably, the Court has decided many highly controversial cases over the past half century. It has crafted a right of privacy, under which it has given constitutional protection to a minor’s right to use contraceptives and obtain an abortion. It has cited “evolving standards of decency” in striking down state capital-punishment laws. It has carved out a dissenter’s right from the First Amendment Establishment Clause and has used this right to nullify holiday religious displays and student prayers recited before high school football games. It has applied its free speech rules to overturn regulations confining sexually explicit programming on cable television to late-night hours and to strike down restrictions on Internet distribution of computer-simulated child pornography. It has given First Amendment protection to nude dancing and has mandated free public education for the children of illegal aliens. And in all these cases, the Court has used its power to overrule the judgment of a democratically elected legislative body.

The Court’s individual-rights activism, however, cannot be explained simply by politics. Justices do not always act as a cohesive liberal or conservative block. Each decision cannot simply be analyzed according to the political views of the respective Justices. Just as the Court itself is larger than any of its individual members, so too are the dynamics of the Court’s role in the constitutional system much larger than the particular ideologies of the Justices. The expanding presence of the Supreme Court in American life, along with its steady encroachment on the legislative process, is in many ways the result of entrenched constitutional forces set in motion during the New Deal—forces that transcend the ideologies of individual Justices.

A constitutional revolution that occurred during the New Deal shaped the role of the Supreme Court for the remainder of the twentieth century and into the twenty-first century. To uphold the economic and social legislation being sponsored by President Franklin D. Roosevelt (FDR), the Court in the late 1930s dramatically changed course and virtually abandoned the constitutional doctrines of federalism and separation of powers. These doctrines had been used by the Court during FDR’s first term to invalidate various federal programs that usurped traditional state powers and breached traditional lines of separation between the branches of government. It has generally been thought that the Court’s withdrawal from the realm of federalism and separation of powers has in turn diminished its role in the constitutional system. But contrary to this general impression, just the reverse has occurred.

Although the constitutional dictates regarding separation of powers were greatly eroded by the New Deal’s transfer of legislative authority to the executive branch, via administrative agencies, the Supreme Court has nonetheless experienced a substantial increase in power as a result of the growth of the administrative state. This increase in power stems from the fact that the Court has far more capacity to review and scrutinize the work of administrative agencies than it does the work of Congress. Consequently, because of the transfer of power from Congress to administrative agencies, the Supreme Court can now exercise authority over matters that were outside its jurisdiction prior to the establishment of the administrative state. A similar effect occurred in the area of federalism. The Court’s abandonment of the federalism doctrine during the New Deal not only favored Congress at the expense of the states, but more generally supported a centralization of power at the national level. This shift of power to the national level inevitably, though again indirectly, strengthened the authority of the Supreme Court. Thus, the areas from which the Court more or less withdrew itself—federalism and separation of powers—turned out to be areas in which it eventually found itself strengthened.

A flip side of the New Deal’s constitutional revolution involved the matter of individual rights. While surrendering much of its authority over the Constitution’s structural provisions relating to limited government, the Court intensified its involvement in the area of individual rights. On one level, this heightened activism may have resulted from the Court’s desire to consolidate its power in an area considered most suitable to judicial involvement; but on another level, it was a necessary reaction to what the Court had done with respect to federalism and separation of powers.

Because of the Court’s abandonment of federalism and separation of powers principles, a more intensive judicial oversight of individual-rights issues was almost an inevitability. The purpose of structural provisions like federalism and separation of powers was not only to provide an organizational scheme for different governmental entities and layers, but to create a system of limited government that would protect individual liberty through the vertical and horizontal checks and balances of federalism and separation of powers. To the framers, the Constitution would safeguard liberty through a government of structurally restrained powers, not through judicial enforcement of selected individual rights.

Under the federalism doctrine, independent state governments would monitor the power of the federal government to infringe on the liberties of its citizens. Whereas the Bill of Rights protections were limited to certain selected individual freedoms, federalism had a much broader scope: it would protect liberty as a whole, in every aspect in which it could be threatened by a distant central government. During the New Deal, however, this liberty aspect of federalism was largely abandoned when the Court upheld legislation giving broad powers to the national government. The notion of protecting liberty through the maintenance of limited and divided government gave way to the desire to ensure economic security through a powerful and activist central government.

Having given up this structural protection of liberty, the post–New Deal Court began focusing almost exclusively on the substantive individual-rights provisions in the Constitution as a way of protecting individual freedom. It was this focus, for instance, that led the Court to derive new, unenumerated rights out of the general language of the Constitution, such as the right to privacy. Instead of relying upon the structural organization of the Constitution to protect privacy, the Court created a specific substantive right.

In the 1990s, the Rehnquist Court embarked upon a “federalism revolution” that sought to revive the pre–New Deal role and authority of the states. In several high-profile cases, the Court struck down various federal encroachments on state autonomy. But this federalism revival has gone only halfway. Although it has tried to curtail the power of Congress and to reestablish a more balanced intergovernmental relationship, it has not given effect to the liberty-preserving aspects of federalism. And because the Court has not relied on a revived federalism to provide a structural protection of liberty, it has not lessened its activism on substantive individual rights.

In its one-way federalism revolution, the Court has limited the power of only one of the federal branches—Congress. It has not restrained its own power, nor has it applied the federalism doctrine as intended by the framers—for example, as a primary means of protecting individual liberty. The Court has addressed only that side of federalism that looks to governmental organization, not the side that secures liberty. To address this liberty aspect of federalism, however, would necessarily entail a reconsideration of the Court’s role as it has developed since the 1930s.

Throughout the modern federalism revolution, the Court has never cut back on its activism regarding substantive individual-rights issues. Instead of increasing its reliance on a revived federalism to protect liberty, the Court continues to maintain the kind of individual-rights jurisprudence embraced by the Warren and Burger Courts of the 1960s and 1970s. Even though the framers intended the primary security for individual rights to rest in the Constitution’s structural features, the Supreme Court is now widely viewed as the sole guarantor of such rights. But during the debates surrounding the drafting and ratification of the Constitution, the protection of liberty through judicial review of substantive individual rights was rarely mentioned; preserving liberty through judicially created rights that serve as trump-cards on the democratic process was hardly contemplated.

With America becoming an ever more individualistic society, and with individual rights becoming the most heated and publicly followed constitutional issues, as evidenced by the overwhelming weight given to the right of privacy in recent Supreme Court nomination hearings, the Court’s monopolization of these issues has thrust it into an increasingly influential and powerful role in society. Indeed, with its confirmation process so contentious, so “managed like an election campaign,” the Supreme Court has virtually become, according to many critics, “a third political branch.”

Rather than encouraging a decentralized rights-federalism, in which states have greater leeway to balance social values against their own particularized views of individual rights, the Court has consolidated individual-rights doctrines at the national level and dictated to the entire nation a uniform view and application of individual liberty. In this respect, according to Robert Nagel, the Court has proved “hostile to the basic impulses underlying a robust form of federalism.” With issues ranging from what limits should be placed on abortion, to whether pornographic speech can be kept from minors, to how public religious symbols may be displayed, the Court has refused to permit much diversity in state policies and has instead imposed a uniform mandate on the entire country.

Looking back over nearly seventy years of constitutional history, one can detect an inverse relationship between the Court’s activism on substantive individual rights and its enforcement of structural provisions such as federalism. The less the Court enforces these structural provisions, the more it relies on creating and enforcing substantive individual rights. But by stepping back from a reliance on substantive individual rights as the only protection of individual liberty, the Court might rediscover the structural ways in which the Constitution protects liberty as a whole. The chain of reasoning goes as follows: If federalism constitutes a structural protection of liberty, and if only after abandoning federalism in the late 1930s did the Court intensify its scrutiny of substantive individual rights, then the revival of federalism in the modern age should likewise bring about a lessening of judicial activism on individual rights, since a revived federalism would itself serve as a heightened protection of liberty.

A renewed emphasis on the Constitution’s structural protections of liberty would also help revive a notion that has practically disappeared in constitutional law: the notion that individual freedom can and must coincide with majoritarian rule. Indeed, this liberty-protecting role of federalism has been recently resurrected by political liberals in their crusade to keep same-sex marriage an issue of state jurisdiction. Yet by monopolizing within itself all authority regarding individual-rights issues, the Court has set in motion a growing antagonism between democratic rule and individual liberty. It has declared that, even in a democracy, a centralized high court offers the only protection for liberty, and that this protection trumps every other concern of society. Thus, any issue involving individual rights gets swept up by the courts and withdrawn from the political process, including even the military’s handling of detained foreign combatants. Because such handling obviously involves the individual rights of those foreign combatants, the Court has intervened in an area traditionally governed by the President.

Contrary to the growing diversity in American society, the Court is becoming an increasingly centralizing institution. With respect to religion, for instance, the Court’s centralized mandates impose a contrived uniformity on society. By using the Establishment Clause to create an all-encompassing “dissenter’s right,” the Court dictates how every state and community must handle any issue surrounding the public expression or display of religious beliefs.

The development of the right of privacy also reflects the way in which the Court uses centralized mandates concerning individual rights to dictate policy choices and social values to the nation at large. According to the Court’s privacy rulings, a centralized judiciary can better determine the parameters of individual autonomy and dignity than can any democratically elected legislature. The Court has defined privacy as involving those individual choices “central to personal dignity and autonomy” that help “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” And the choices that qualify as vital to human development, according to the Court, include the choice to engage in sexual conduct and the choice to have an abortion. Consequently, under the Court’s privacy rulings, a judicially articulated national mandate on sexual privacy can trump all other community values or morals.

Perhaps more than any other individual right, the right of privacy is one that could be adequately secured through the Constitution’s structural provisions. Privacy is not the kind of minority-rights issue on which the courts should possess sole authority. Everyone, regardless of race, religion, or income status, is interested in privacy; it is not a special concern of an isolated minority group. Indeed, if one is to believe the courts, everyone sees sexual conduct as being essential to self-definition; thus, everyone has an interest in, for example, the issue of contraception availability. Consequently, privacy can be best protected through the Constitution’s structural provisions that ensure the integrity and functioning of the democratic process.

Protecting privacy interests through structural provisions of the Constitution would also allow for more flexibility, in contrast to the locking-in of particular judge-made versions of particular rights. Because of the way privacy has evolved as a court-created right, there exists an unprincipled arbitrariness in the current constitutional doctrines. Why, for instance, did the Court pick sexual activity as the area covered by privacy rights? And what if there are many people who define themselves not through their sexual activities but through some other activity? Indeed, evidence that the framers did not recognize or even contemplate any kind of right to sexual privacy can be seen in the plethora of eighteenth- and nineteenth-century laws punishing adultery.

The irony of the constitutional right of privacy created by the courts is that it exists in a society where every aspect of personal privacy other than sexual conduct is being eroded. Sexual privacy is constitutionally protected, even though identity and informational privacy are under increasing attack from new technologies. Yet the Court has not extended its privacy concerns to those attacks. And even more ironical, especially when one considers the constitutional efforts the judiciary has made to create a right of privacy, the Supreme Court has greatly aided the invasion of privacy by ruling that the media may publish or broadcast with impunity the contents of intercepted personal communications known to have been unlawfully intercepted, so long as the media did not participate in the unlawful interception.

The Court’s privacy decisions have been among those that have attracted the most vehement criticism. However, to understand the dynamics of these decisions, one must look not just to the decisions themselves but to the underlying constitutional foundation and impetus for those decisions. Furthermore, only by assessing this constitutional framework can one begin to fully address the effects of these so-called activist decisions. The individual-rights activism of the Court not only exerts a stifling effect on the democratic political process; it breeds a public dependence on the moral and cultural edicts of a centralized judicial authority. Because many individual-rights cases now involve controversial and unsettled moral issues, the more the courts monopolize these issues the more the public becomes dependent on letting some higher, undemocratic institution address the cultural dilemmas that an increasingly fragmented public would just as soon avoid.

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