understanding
meets the criteria
that any theory
of constitutional
adjudication must
meet in order to
possess democratic
legitimacy. Only
that approach is
consonant with
the design of the
American Republic.
moral perceptions, so that it would be difficult to say that the various moral balances struck are unreasonable.
Original understanding avoids the problem of the level of general ity in equal protection analysis by finding the level of generality that interpreta- tion of the words, structure, and history of the Constitu tion fairly supports. This is a solution generally applicable to all constitutional provisions as to which historical evidence exists. There is, therefore, a form of consti- tutional decision making that satisfies the requirement that principles be neutrally defined.
. . .
Neutrality in the Application of Principle
The neutral or nonpolitical application of principle . . . is a requirement, like the others, addressed to the judge’s integrity. Having derived and de- fined the principle to be applied, he must apply it consistently and without regard to his sympathy or lack of sympathy with the parties before him. This does not mean that the judge will never change the principle he has derived and defined. Anybody who has dealt extensively with law knows that a new case may seem to fall within a principle as stated and yet not fall within the rationale underlying it. As new cases present new patterns, the principle will often be restated and redefined. There is nothing wrong with that; it is, in fact, highly desirable. But the judge must be clarifying his own reasoning and verbal formulations and not trimming to arrive at results desired on grounds extraneous to the Constitution. This requires a fair degree of sophistication and self-consciousness on the part of the judge. The only external discipline to which the judge is subject is the scrutiny of professional observers who will be able to tell over a period of time whether he is displaying intellectual integrity.
An example of the nonneutral application of principle in the service of a good cause is provided by Shelley v. Kraemer, a 1948 decision of the Su- preme Court striking down racially restrictive covenants. Property owners had signed agreements limiting occu pancy to white persons. Despite the covenants, some whites sold to blacks, owners of other properties sued to enforce the covenants, and the state courts, applying common law rules, enjoined the blacks from taking possession.
The problem for the Supreme Court was that the Constitution restricts only action by the state, not actions by private individuals. There was no doubt that the racial restrictions would have violated the equal protection clause of the fourteenth amendment had they been enacted by the state legislature. But here state courts were not the source of the racial discrimi- nation, they merely enforced private agreements according to the terms
of those agreements. The Supreme Court nonetheless held that “there has been state action in these cases in the full and complete sense of the phrase.” . . .
. . . The impossibility of applying the state action ruling of Shelley in a neutral fashion may easily be seen. Suppose that a guest in a house be- comes abusive about political matters and is ejected by his host. The guest sues the host and the state courts hold that the property owner has a right to remove people from his home. The guest then appeals to the Supreme Court, pointing out that the state, through its courts, has upheld an abridg- ment of his right of free speech guaranteed by the first amendment and made applicable to the states by the fourteenth. The guest cites Shelley to show that this is state action and therefore the case is constitutional. There is no way of escaping that conclusion except by importing into the rule of Shelley qualifications and limits that themselves have no foun dation in the Constitution or the case. Whichever way it decided, the Supreme Court would have to treat the case as one under the first amendment and displace state law with constitutional law.
It is necessary to remember that absolutely anything, from the signifi- cant to the frivolous, can be made the subject of a complaint filed in a state court. Whether the state court dismisses the suit out of hand or pro- ceeds to the merits of the issue does not matter; any decision is, according to Shelley, state action and hence subject to constitutional scrutiny. That means that all private conduct may be made state conduct with the result that the Supreme Court will make the rules for all allowable or forbidden behavior by private individuals. That is not only a complete perversion of the Constitution of the United States, it makes the Supreme Court the supreme legislature. The result of the neutral application of the principle of
Shelley v. Kraemer would be both revolutionary and preposterous. Clearly, it would not be applied neutrally, and it has not been, which means that it fails Wechsler’s test.
Shelley was a political decision. As such, it should have been made by a legislature. It is clear that Congress had the power to outlaw racially restrictive covenants. Subsequently, in fact, in a case in which as Solicitor General I filed a brief supporting the result reached, the Supreme Court held that one of the post-Civil War civil rights acts did outlaw racial dis- crimination in private contracts. That fact does not, however, make Shelley
a proper constitutional decision, however much its result may be admired on moral grounds.
The Original Understanding of Original Understanding
The judicial role just described corresponds to the original under standing of the place of courts in our republican form of government. . . .
The structure of government the Founders of this nation intended most certainly did not give courts a political role. The debates sur rounding the Constitution focused much more upon theories of repre sentation than upon the judiciary, which was thought to be a compara tively insignifi- cant branch. There were, however, repeated attempts at the Constitutional Convention in Philadelphia to give judges a policymaking role. The plan of the Virginia delegation, which, amended and expanded, ultimately be- came the Constitution of the United States, included a proposal that the new national legislature be controlled by placing a veto power in a Council of Revision consisting of the executive and “a convenient number of the National Judiciary.” That proposal was raised four times and defeated each time. Among the reasons, as reported in James Madison’s notes, was the objection raised by Elbridge Gerry of Massachusetts that it “was quite for- eign from the nature of the office to make them judges of policy of public measures.” Rufus King, also of Massachu setts, added that judges should “expound the law as it should come before them, free from the bias of hav- ing participated in its for mation.” Judges who create new constitutional rights are judges of the policy of public measures and are biased by having participated in the policy’s formation.
The intention of the [Constitutional] Convention was accurately de- scribed by Alexander Hamilton in The Federalist No. 78: “[T]he judi- ciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”3 The political rights of the Constitution are, of course, the rights that make up democratic self-government. Hamilton obviously did not anticipate a judiciary that would injure those rights by adding to the list of subjects that were removed from democratic control. Thus, he could say that the courts were “beyond comparison the weakest of the three depart ments of power,” and he appended a quotation from the “celebrated Montesquieu”: “Of the three powers above mentioned [the others being the legislative and the executive], the JUDICIARY is next to nothing.” This is true because judges were, as King said, merely to “ex- pound” law made by others.
Even if evidence of what the founders thought about the judicial role were unavailable, we would have to adopt the rule that judges must stick
3 The Federalist No. 78, at 465-66 (Alexander Hamilton) (Clinton Rossiter ed., Mentor
1961).