Rights

Chapter 1
RIGHTS

OUTLINE
The Idea of a Right
Oliver Wendell Holmes, Yankee from Olympus
The History of Rights
The Rights of Man
Federalist 84
Social and Political Contexts
Charles Warren and Louis Brandeis, “The Right to Privacy”
RAV v. City of St Paul (1992)

Throughout U.S. history the meaning of the Constitution has emerged from disputes over rights and liberties. When William Marbury appealed to the Chief Justice of the United States in 1803 for a job that he had been promised, he thought the promise gave him a right to the job. The Chief Justice acknowledged that Marbury had a right to the job he was promised, although he never actually got the job. When Linda Brown’s parents objected to the segregated schools in Topeka, Kansas in 1950, they based their objection on a constitutional right to equal protection of the law. Linda Brown’s claim was upheld and the Supreme Court ordered the schools desegregated. While new forms of segregation have emerged, we see them in terms of the right Linda Brown won. Just a few years ago, in 2003, John Lawrence asserted a right to sexual privacy and when his claim was accepted by the Supreme Court the implications were widespread and appear to have set off the struggle over single sex marriage. Each of these struggles relied on existing ideas about constitutional rights and liberties, and each added some ideas of their own.

This chapter offers a look at legal rights and liberties as a perspective for understanding the Constitution. First, we introduce the concepts of “rights” and “liberties,” indicating their significance as ideas. We suggest that it is on the basis of these ideas that rights and liberties should be understood as political resources. Second, we sketch the history of rights and liberties in the United States, focusing on constitutional law and the Bill of Rights. This leads into a discussion of context, that is, the social and political institutions through which rights and liberties emerge and in which they can be observed. These three considerations—ideas, history, and context—are the basis for a view of the Constitution that will be developed in the cases and materials and summarized in the Conclusion to this volume. In the Conclusion, we will turn to the ideology of rights and suggest the superiority of the ideological view that has guided our presentation of the Constitution. The ideological view demonstrates how important lan-guage and ideas are to interpreting the Constitution and compares this view to the formal or political approaches to rights.

THE IDEA OF A RIGHT

In order to understand the common denominator of this volume, one has to compre-hend what rights and liberties are. We begin with attention to the evolution of the idea itself, the notion that there are rights. In most of this discussion, liberties are included in the idea of rights. This is followed by a more philosophical inquiry into the nature of these social phenomena—the sorts of things we take rights (and liberties) to be. Then we look at the characteristic forms of rights and liberties, suggesting some of the differences between them. Finally, we indicate that it is valuable to be able to understand what rights and liberties are. They are political resources that can be used to serve political interests. Rights have clout.

Evolution of the Concept

It has become common to speak of individual rights and even to distinguish them from the rights of a community. But this is a modern practice. The concept of a right did not exist in Aristotle’s day over two thousand years ago. At that time, there was a great deal of attention to ideas of justice and right conduct, a sense of what was the appropriate thing to do. Sometimes we think of the law that predated our current understanding of rights as “natural” law. It didn’t come from courts but from “the way things are”, the natural order. This was the way earlier people treated “the legal precepts that governed kings, counselors, and courts” (Pennock, 1981:13).

The idea of “rights” guaranteed by a constitution changed the way we look at law. The antecedents of constitutional law include the idea that law is simply found or discovered. Rights appeal to custom as a source of judgment but they also feature written declarations and judicial interpretation. The evolution of law from the ancients through the middle ages was through the Roman Empire. One of the great achievements of Rome was administration through set rules and regulations that were more important than custom, so that the governance of strangers was possible (Wolin, 1960:27). In the Roman Empire, political problems that had been obscured by the homogeneity of the earlier Greek city-states were handled through universal norms developed from a range of cultural traditions. These universals became the law of the Roman Empire, which helped to promote a common citizenship (Barker, 1930:23). The codification of this tradition ultimately became a source of “Higher Law” in the Middle Ages, when it was appealed to against the “sinfulness” of mankind and when it served as a limitation on rulers. The texts of the Roman law, the scriptures, and the ecclesiastical tradition placed law above politics. What the medieval jurists lacked was an institutional base in the secular realm. They found it in the professions. The legal notion of right action, or a reasonable decision came to be characterized as the “right reason” of those men learned in the law. The Inns of the Court in medieval England, dating back to 1569, provided an opportunity for men of position to work in the law as a profession, and to develop a socially desirable form of expertise independent of popular custom. Although the ways of thinking about law developed at this time emerged from religious and royal authority it came to claim a universal validity. Ultimately, by the time England was colonizing North America, the Inns had established independent authority and professional mysteries described by Edward Corwin as the “science of bench and bar” (Corwin, 1928:37). Ultimately it would be as professional mystery that law found its institutional base in judicial authority.

According to Corwin, the legacy of John Locke for the United States was the creation of rights. Rights transformed the professional mysteries of lawyers and judges, in particular the interpretation of legal rules, into the basis for government. The form rights took, as things citizens could hold with the help of the law, became a building block for government. Rights, because they could be used many different ways, were a unit of political exchange comparable to money in the economic sphere. Rooted in the “legal reasoning” of lawyers and judges, rights became the basis for relating the individual to the state. As we said at the beginning of this chapter, rights emerged from past conflict or the threat of conflict to provide the agents who holds then with a warrant for taking or refusing to take an action. Thus, legal forms provide the framework for constitutional democracy in the United States.

Through rights, law became associated with individualism and distinguished from communitarian or collective interests based on fixed relationships, like an accident of birth. With rights, the language of social relations and, ultimately, much of the language of politics, would be grounded in a formal autonomy of individuals and an official respect for members of the community in their citizenship. People could speak of what they took to be “right” as guaranteed by the government. That guarantee began to determine what was right. The legal culture of the United States places the official right of the government apart from the customary right of religion or expertise. Exactly how far apart and what the relationship is between the culture and legal right is interesting but difficult to establish (and it is not the subject of this investigation).

The Practice of Rights

Constitutional rights are most completely and usefully understood a practices (Flathman, 1976)—those ways of understanding by which we get around in the legal world. Rights, as practices, are not just ideas. They are relevant to politics and social life because people believe them, use them, and act on them. But rights depend on knowledge. Although they may not be widely known, they must be knowable. The practice of rights exists along with other social practices, such as politics and economic relations. Consequently, the fulfillment of biological needs (such as eating, sleeping, and reproducing) is required at some level for the enjoyment of rights to be possible. In liberal societies, rights as a social practice exist in conjunction with legal, administrative, and electoral processes. Rights also must have substance; the practice of rights is an abstraction from specific rights to have or do something. For instance, we have property rights in things like land, houses, or promised benefits; thus, we build on the land, remodel the houses, and expect the benefits.

Rights are more than matters of opinion. As practices they are part of the conceptual capacity we have to reveal the world. When we say “I own that house” or “I have a right to a hearing,” we are saying something about how we view the world. Such a world may attach us to a house or, if we don’t own one, leave us scrambling. Often a claim about a legal part of the world is not so much different from describing the color of a house or telling who was driving a car on a particular day. There may be competing interpretations and we might have to defend our claim, but most of the time we say a house is painted red or that we drove to the store, there is not much dispute. When observations are contested, however, or when they matter a great deal, it may bear examining the nature of the practice. In this regard, the interpretation of rights is based on social research.

Rights, and claims for rights, do not blend well with generosity, gratitude, loyalty, and friendship. Rights are possessive assertions, and they appeal to the state for protec-tion. They function differently from voluntary attributes such as generosity or friendship. Like any aspect of our culture, rights cannot be isolated from these other concepts, but the relationship is not harmonious. Rights are contentious. Rights claims are even more incongruous with relationships such as sisterhood or feelings such as love. Relationships based on a bond like sisterhood affect us more deeply than rights, and of course they do not need to be enforced by government.

Historically and epistemologically, the social world precedes the individual, and society is the source for the meaning and significance of rights. In the United States, however, rights appear to come first because of a picture of the “autonomous individual” associated with liberalism. The picture has shaped legal practice in the United States. However, despite the emphasis on the individual and individual rights, rights are social phenomena; they involve interactions among people and cannot have any meaning simply in terms of individuals. Society remains the basis for rights. Rights work to the extent that individuals are expected to satisfy their interests and desires within stipulated limits guaranteed by the state. The state is presumed to be autonomous—a neutral referee and servant of the community. Founded on this basis, the U.S. government is built on practices that dissolved natural law into the natural rights of “life, liberty, and estate.”

Forms of Rights

Wesley Hohfeld, a U.S. law professor writing in the early part of the twentieth century (1919), developed an influential analysis of rights. He looked at the mass of professional activity involving rights and tried to make sense of it. The result was a catalogue of rights that has become something of a standard. It is not absolutely clear what he intended, but there are indications that Hohfeld’s effort was prompted by his desire for better use of legal forms. His description became a standard for proper use, a sort of grammar or guide for how to do things right. Like all grammars, however, the Hohfeldian scheme drew from actual practices. This formulation, somewhat modified and more con-cerned with practices, serves as an introduction to the subject of constitutional rights. It sets out four main kinds or forms of rights: power, claims, immunities, and liberties.

Powers are available to people by virtue of specific authority or provisions of law. In the Hohfeldian formulation, specific grants of consent are not required, although in more general terms powers in a constitutional democracy depend on popular consent or at least acquiescence. People with power derived from the Constitution are usually in positions defined by law. The government has the power to prosecute people it believes have com-mitted crimes, and police searches stem from a similar power. Many of the guarantees that the Constitution holds out to individuals stand against these powers. Although many constitutional guarantees are a barrier to individual acts of government, constitutional rights, such as due process of law and equal protection of the law, are generally guaranteed by the power of the government.
What have been called “rights in the strict sense,” or claims, are referred to in law as the expectations between individuals and of individuals contracting with the government. In this sense, claims exist where some person or institution has a definite duty to the holder of the right. In the case of government officials, for instance, considerations of public trust and responsibility exist when such persons claim power over others or the right to legislate in certain areas. Similarly, welfare recipients or the holders of other entitlements provided for by statutes—statutory entitlements—have claims to certain benefits if they meet the eligibility criteria. Like all of these kinds of rights, claims are popularly referred to as “rights.”

The rights explored in this volume are all associated with the Constitution. Powers provide a background for understanding constitutional rights. Claims have recently become important in the constitutional setting. The rights conventionally associated with civil liberties, however, are called immunities and liberties. An immunity is an exception to power. Most of the constitutional due process protections that delineate the criminal process are immunities. The Fourth Amendment protections against unreasonable searches and seizures are good examples of rights as immunities. The government’s power to police is conditioned or limited by public immunity from unreasonable searches and seizures. As instances where a general liability does not hold, immunities are a special, specifically delineated form of liberty. Liberties are rights held against authorities. They limit interference with a variety of activities deemed worthy of special protection. The government’s duty not to interfere with the exercise of free speech comes, not from the freedom to speak, but from the right or liberty not to be interfered with in the conduct of that activity.

Whatever their specific form, rights exist as practices characteristic of the U.S. political experience. Like elections, in which the struggles are over votes, contests over rights, such as equal protection of the laws or freedom of expression, are part of U.S. politics. Knowledge of rights is a key to the American experience that can be brought to bear in politically significant ways. Because they are social practices, rights in general, par-ticularly the claims, immunities, and liberties that are the focus of this book, are the socially recognizable forms in which individuals can stand against the government.

Rights as a Political Resource

Because rights contain beliefs about how things should be done, they are a political resource. This idea can be traced to a time when critics of the Supreme Court pointed to the political nature of the Court during the struggles over New Deal legislation. At that time, law was not just out there, it took a political stand. Later, this insight, termed “legal realism” in the law schools and “judicial behavioralism” in social science departments, was expanded to incorporate a political view of the courts and their processes that spread throughout U.S. culture. During this period, people lost track of the distinctively legal nature of the process. This conceptualization of the legal order as just a political arena, however, would have to be changed in order to place ideas bout rights at its core instead. When this was done, the belief in rights by the practitioners of law and the institutions charged with their preservation would make their rights potential resources. By appealing to rights or calling the attention of those responsible for them to pos-sible transgressions, rights would empower those who could invoke them.

Over twenty-five years ago Stuart Scheingold (1974) provided a reconsideration of what he calls “the myth of rights” (83). He described rights as a belief system to which one could appeal for redress. The significance of rights thus lies less in the political power behind them, and much more in their congruence with beliefs about social justice or right conduct. There is still a connection between rights as a resource and the power to go to court, but Scheingold identified a source of power that could be extended beyond the courtroom by an appeal to rights. The struggles over rights and liberties, as described in the chapters that follow, exemplify both the litigious and the more broadly political char-acter of rights as resources.

The shift toward greater appreciation of law as a resource was aided in the civil liberties area by the mobilization of masses of people around legal rights that they hoped to expand and incorporate into law. Again, the insight was first as politics in the legal sphere, in which the contests were over rights and the outcomes were new laws. As the struggles were treated with greater sensitivity, however, the interconnection between political struggle and conceptual development could not be ignored. Some of the most impressive developments were in the work of journalists whose stories of litigation strategies were held together by the emergence of new concepts of rights. Thus, in Simple Justice (Kluger, 1976), the legal fight to eliminate segregation in the South was presented as a gradual reconstruction of the right to equality in the Constitution. This fight continued until the Supreme Court was willing to say that segregated educational facilities were not compatible with the concept of equality.

The area of civil liberties has thus been a sphere in which politics and ideas are intertwined. Abolitionists made the first “group claim” to constitutional liberty in the early part of the nineteenth century. Their contributions to national law, most notably the Fourteenth Amendment, became the foundation for the later expansion of constitutional rights and liberties. The next creative development was focused on the protections of property. The craftsmanship of various legal scholars and Supreme Court justices in the late nineteenth century exemplified this development. With the shift of judicial attention to political rights after President Roosevelt had remade the Supreme Court by appointing three new justices, the politics of rights in the civil liberties arena was underway. It was facilitated by groups such as the American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People’s (NAACP) Legal Defense Fund. The result was to transform the Bill of Rights from a document with limited application to the national government to one for all Americans.

Litigation is part of the political culture that relates to the means for resolving or subverting conflicts. Although litigation, like political action generally, is theoretically open to all, an unequal distribution of knowledge and resources restricts and skews participation. Lawyers and judges control who gets to use the courts to resolve a dispute, and they thus monopolize access to rights. Most people are excluded from the exercise of meaningful power in this arena. This is true even at the constitutional level. Knowledge of the Constitution, which should be widespread, has become a tightly controlled political resource. The people from whom the Constitution gets its authority, nonprofessional people, must employ others to advise them on the use of their rights. Use of the resource has come to require familiarity with legal practices and judicial opinions on the Constitution. Because the knowledge of rights is not widespread, becoming familiar with this resource is itself a political activity that enables individuals to attain their own goals. The purpose of the pre-sent work is to increase the general capacity for constitutional interpretation by introducing people without legal training to the practice of fundamental rights.

THE HISTORY OF RIGHTS: THE CONSTITUTIONAL BASIS

To know the history of constitutional rights and the process by which it unfolds is to be in a position to take control of it. These rights are products of struggle. They protect the citizen from state power by defining the limits of that power and by setting minimum standards for treatment for all. The Constitution itself set up some relationships. The “founding” of the American Republic established constitutional authority and gives consti-tutional rights meaning today. Judicial review was a subsequent development, and the model for civil liberties—the Bill of Rights—was added later. Struggle over those rights at the federal level fleshed out their basic meaning. With some new developments, the doctrines were extended to the states in the twentieth century. This heritage of substantive growth and dissemination is the basis for the ideology of civil liberties.

Constitutional Law

Two hundred years ago, a revolt in western Massachusetts led by Daniel Shays, a farmer who had participated in the American Revolution, took on monumental proportions. The authorities in Massachusetts had a great deal of difficulty putting down this uprising in which 2,000 men seized an armory and closed down the courts for a time. This revolt was one of the circumstances that led to the constitutional convention in Philadelphia, which would draft the proposal for national union. This convention produced the Constitution as the basis for a new political order, with principles and arrangements drafted at least in part as a response to Shays’s Rebellion.

The Founding. The men who wrote the U.S. Constitution made a major contribution to the “science” of politics. They were well versed in the elements of politics from their study of the past and their arguments over the challenges that faced them in 1787. Their contribution was a careful construction of the institutions of government so that they would endure and provide some degree of stability for the new nation. The Constitution was formulated to provide a written source that would authorize the government to constrain action. According to legal historians, the idea of providing a written basis for the political order stemmed from colonial experience with “trading company charters, proprietary grants or royal charters” (Hurst, 1960:200–201), which relied on written contracts. The idea of a document as the basis for the new government has also been associated by social theorist Max Weber (1968) with the emerging capitalist economy, because capitalism required rational structures of law and administration.

Establishing political order in eighteenth century America required transforming an association into a nation. For Thomas Paine, the contribution of the U.S. Constitution was “to liberty, what a grammar is to language.” Paine wanted people to see the Constitution, not as an act of a government, but rather as the action of a people constituting a government. Americans spoke of a new conception of a “conscious formulation by a people of its fundamental law,” but they included in the conception the idea that constitutions had “to be deduced from a nation’s actual institutions and their development” (McIlwain, 1940:3). Fundamental law would come to be treated as having both natural and deliberate qualities. This is the dual capacity that eventually accorded the justices of the Supreme Court, as legal experts, a special place in setting the boundaries of politics.

The importance of the Constitution made it both a limitation and a source of political power. The shift of authority from the Senate—where it had resided from Rome to the modern West—to the judiciary, was a function of associating “the founding” with a document. The document as a symbol of stability and common agreement established the special role of the judiciary. Judicial supremacy has depended on the Constitution being seen as a Higher Law, with the Supreme Court claiming responsibility for interpreting its meaning. The key to the practice of interpretation, establishing the document’s transcendent qualities, was this claim of special competence. Thus, it was the fact that the fundamental principles of government were set out in a legal document that gave form to the politics of fundamental rights in the United States.

For Alexander Hamilton, judges could handle power beyond popular control because their independence would make them different. He described “the complete independence of the courts” as “essential to a limited Constitution,” which by its nature con-tains exceptions to legislative authority. In Federalist #78, Hamilton argued that, “Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice. . . .” In subsequent papers, Hamilton reviewed the tasks set down for the Court and revealed his conception of the judiciary. In Federalist #81, he said that the Constitution was the source of judicial power. The Courts, he argued, were not to be regarded as superior because they could declare the acts of another branch of government void. Because the Constitution was the fundamental law, acts contrary to it were not valid. The courts did not simply substitute their view for that of the legislatures, according to Hamilton, rather they relied on their learning to understand things beyond the capacity of people operating in the political realm. Hamilton saw a voluminous code of laws as bind-ing the judges. He wrote, “There can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judge.”

Judicial Review. Judicial power in American democracy depended on an authoritative referent to which the claims of expertise could be attached. The Magna Carta, both in the English experience and as elaborated by Coke in the Virginia Charter of 1606, provided a model. This became the basis for royal charters in America. The significance of the charter had grown in England as the classes it served widened and as it became identified with the common law. Although Lord Coke might have been stretching the historical record a bit when he declared in 1628 that “Magna Carta is such a fellow, that he will have no ‘Sovereign,’” this view of the charter model became “a potent weapon . . .” (Roche, 1961a:4). The document had been incorporated into the legal tradition and afforded an institutional setting for constitutional politics. Montesquieu’s discussion in the Spirit of the Laws was reflected in American confidence that institutions would provide the basis for a stable government (Arendt, 1963:186–187).

William Blackstone portrayed expertise as essential to the activity of judging and he said that judges were to have acquired a mode of thinking that would make them reposi-tories of the law (Blackstone, 1859:67). He also provided the substance of what they were to think in his Commentaries on the Laws of England. The work, which collected years of judicial decisions and offered the knowledge needed by a gentleman, acquired its own Higher Law status. Through identification with English custom, and as one of the few available sources of law when it was published in America in 1771, the Commentaries contributed to the supremacy of law over politics.

One of the paradoxes in the development of judicial power is that the Constitution has been transformed from a basis for popular government into a sacred text, a text interpreted primarily by legal elites. The Supreme Court, even after the Founding, was not the institution it is today. During their first three years on the bench, the justices had no cases, and they were decidedly outside of what little limelight there was in the new national government. In the initial plan for the nation’s capital, for instance, the Supreme Court was relegated to a subordinate place. Neither on a hill nor surrounded by a mall, the Court had to share quarters with other institutions for the first 150 years of its life.

The original American practice of sharing the power of interpretation among political leaders was a basis for the struggle between President Thomas Jefferson and Chief Justice John Marshall. Marshall’s position was in the tradition of Blackstone and Hamilton and it advocated a strong role for the judiciary. The Chief Justice took the first steps to establish judicial review in the Constitution by claiming the power to nullify a congressional statute. The steps came in Marbury v. Madison (1803) in a power struggle between the newly elected Jeffersonian Republicans and the outgoing Federalists over appointment of William Marbury as a federal magistrate.

The reading of judicial prerogatives by Chief Justice Marshall in Marbury v. Madison as a foundation for judicial review was, at the time, a standoff in the political struggle for interpretive authority. Marshall asserted his power as a judge to say what the Constitution meant and to determine when Congress had legislated beyond its power. He prevented his decision from being overturned or ignored by holding that Congress had no power to provide for an appeal to the Supreme Court in Marbury’s case. Thus, the Court declined to order Madison to make the appointments. The weakness of the judicial claim at that time is suggested by the strategic retreat taken by the justices. It led to a political standoff between Marshall, the judge, and Jefferson, the president. In itself, however, the fact of a standoff was something of an accomplishment against the tradition of political supremacy as repre-sented by Jefferson.

Marshall had given Hamilton’s suggestions for an expanded judicial role practical significance. The basis of his position was the Blackstonian concept that “The government of the United States has been emphatically termed a government of laws, and not of men.” Thus, law would serve as the means to link interpretive action to the Court. Because the president gained his power as an officer of the law, he would be answerable to the laws for his conduct. Marshall presented his separation of powers argument in terms of differing capacities, saying, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Thus, the institutional standing of the Court was derived from its availability for settling disputes on the basis of a body of law not generally accessible.

Conventional analysis of Marbury v. Madison has emphasized the ease of this transition from the fact of a written Constitution to the claim of expertise by pointing out that Marshall’s argument proceeds “on the basis of a single textual reliance; namely the fact itself of a written Constitution” (Bickel, 1962:4). To achieve the institutional significance it now has, however, judicial review required intentional political action to transform the idea into political practice. Marshall’s reasoning was not strong, but his was a political rather than a conceptual innovation. Preventing the decision from being overturned immediately was the Chief Justice’s coup. He placed the Court in the mainstream of U.S. politics, so that it could develop along with the other branches of government. The move from legislative supremacy, however, was not complete with Marshall’s assertion in Marbury v. Madison that the power existed.
Fifty-four years after Marshall’s claim, there was a second assertion of judicial review over Congress. This was in the Dred Scott case (1857). Even then, Chief Justice Roger Brooke Taney’s reading of the document with a proslavery emphasis turned out to be antithetical to the direction in which the country was moving, and it did little to enhance the status of the justices. The Civil War sought to establish that the Constitution did not mean what Taney said it meant, and further diminished the stature of the Court. Not until after the Civil War, did the Supreme Court begin to reassert its power. Its initial efforts were uncertain, but the tide of institutional power gathered strength. Thus, in contrast with the prior century, from 1865 to 1970, the Supreme Court held that 84 acts of Congress were unconstitutional, either in part or in their entirety. During roughly the last 100 years, the Court had an emerging professional bar for support.

The second half of the twentieth century saw continued shifts and competing claims in clashes such as that over impoundment and President Richard Nixon’s litigation of “executive privilege.” In United States v. Nixon (1974), the conflict over presidential prerogatives under the Constitution arose with reference to a severely weakened presidency. The capitulation of the president strengthened the image of the Court. The challenge the Court posed to President Nixon should have sounded familiar to those who had been reading the Constitution. “ . . . [B]ut if the courts are the ultimate interpreters of the Constitution and can restrain Congress to operate within constitutional bonds, they certainly should not be empowered any less to measure Presidential claims of constitutional powers.” It was Marshall’s rhetoric employed in a new age.

Judicial review, the authority of the Supreme Court to determine the meaning of a written Constitution, has been “placed” in the document. Judge Learned Hand commented that judicial review, although necessary, is an “interpolation” and not explicitly in the document (Gunther, 1994: 655). And William O. Douglas claimed that “once there is a written Constitution it is but a short step to the assertion of the power of judicial review . . .” (Paulson, 1959:65). This idea of a Higher Law provides the interpretive scheme for the politics of rights. The Supreme Court exercises power that it has built out of the authority given it and the mythology surrounding the Constitution. Although the Court’s contribution is the basis for the exposition of constitutional rights and liberties in the subsequent chapters, the Court’s claims to special competence and considerable exclusivity in the arena of interpretation arise out of the historical context.

Rights and Liberties

A constitution is not just a description of how the government works. At least since the American contribution to this form of government, constitutions have stipulated the government’s obligations to the citizen, which enables the government to claim authority over the population. Thus, the government is dependent on its promises and obligations to the citizen, their rights, and liberties. This reciprocal relationship between liberties and institutions can be traced to the ratification of the Constitution, and the decision to include the Bill of Rights as part of the fundamental law.

The Bill of Rights. Through a network of powers and rights, institutions were cre-ated in 1787 at the Constitutional Convention in order to “form a more perfect Union.” Unlike state constitutions of the period, however, the Constitution drawn up in Philadelphia contained no Bill of Rights. To Alexander Hamilton, in Federalist #84, the Constitution had created a new government of delegated power. He predicted that the government would not claim to exercise power beyond that explicitly granted in the document. Slavery was another reason those who wrote the Constitution had limited enthusiasm for a bill of rights. Such bills conventionally began with images of human equality and dignity, and the compromises that had taken place in Philadelphia denied that equality to black Americans.

Yet, following the fertile summer of 1787, the doctrines of civil liberties became a cause for those who were suspicious of the new Constitution. Thus, in their votes for ratification of the Constitution, the state conventions, beginning with Pennsylvania, made provisions for a bill of rights to be drawn up and added to the Constitution. Well before the power of the courts would turn the Constitution into a professional mystery, the Anti-Federalists gained concessions that became the Bill of Rights. This collection of ten guarantees, many of which address problems stemming from the period of revolution, such as the right to bear arms, became the basis for fundamental rights in the United States.

The suggestions from Virginia became the major factor in shaping these additions to the original document. Thomas Jefferson, among others, demanded a bill of rights, and James Madison was the instrumental force on the scene to draft it. Their concerns were with freedom of religion and the press, protection against standing armies, restraint against monopolies, habeas corpus, and trial by jury. Madison was the key, both during the period of ratification and in the Congress that drafted the Bill of Rights.

Limitations in the Constitution channel human action in order to build a particular kind of institutional structure. There are both implicit and explicit limits. The most impor-tant are part of the Bill of Rights and the Civil War amendments. Much of the relationship between the new government and the states was implied in the Constitution. It was by implication that Indians, slaves, women, and the foreign-born were prevented from full participation in the new policy. The explicit limits in the body of the Constitution appeared, in many cases, to be the protections that balanced the newly created power. Some of these limits carved out powers from the states, such as those having to do with foreign treaties, coining money, and obligations of contract. Others directly addressed congressional power, such as those involving export duties, direct taxes, titles of nobility and habeas corpus, bills of attainder (or legislative punishment without trial), and ex post facto laws (legislation that makes a crime out of something that already happened).

The fundamental rights that we refer to as “civil liberties” are the explicit limits on government power that were added to the Constitution by the Bill of Rights and subsequent amendments. They are largely restraints on Congress, but they amount to a sphere of individual action that is beyond the purview of the government. They are as specific as the right to bear arms and as general as the promise of equal protection of the laws. They vary in the amount of attention they receive, from the often-litigated promise of freedom of expression to the rarely considered protection against quartering of troops. Their concep-tual coherence provides the structure for this book.

Civil liberties can be approached through conceptual categories. The first. freedoms of expression and religion, are characterized by tolerance, a value grounded in social diversity and serving as a safety valve for the expression of dissent. The twin functions of respect for the individual and an open forum for gaining access to the truth are associated with due process. This applies to the criminal as well as the civil processes, whenever people are in jeopardy. Property is the concept we associate with historical protection of settled expectations, not just in land or personal effects, but in promises that come from the state. Liberty, in the constitutional context, has been treated as a lesser right because it has no clear doctrinal foundation, yet it is part of the heritage of republican government that there are spheres where the state cannot intrude. Equality has a limited doctrinal foundation, but it has developed dramatically as the state has taken on increasing responsibility for the maintenance of public welfare.

Incorporation. Although originally meant for the national government, by midway through the twentieth century, federal constitutional rights had been effectively applied to the relationship between citizens and government at every level. By this time, the protection of the Bill of Rights had joined protection for equality and property, which had already been applied to the states through the Fourteenth Amendment. The process that is generally identified with this development is called incorporation. It is a recent and dramatic part of the transformation of constitutional rights. It is hard now to imagine that in this century the First Amendment guarantee of freedom of expression was not a right that applied to state governments. The states did have their own constitutions and generally their own bills of rights with various guarantees similar to the First Amendment freedoms and many of the others. Yet, the federal standard, which began to develop as recently as 1910, was not applied to the states for nearly two more decades. Other federal interpretations of the rights in the Constitution came much later.

The rise of national power led to incorporation of the Bill of Rights. As the locus of power shifted from the states to the federal government after the Civil War, so did the place of civil liberties. The guarantees of equal protection and due process and the protections for property were based on federal supremacy. This and the later incorporation was an assertion of federal supremacy. Anticipated by Justice John Marshall Harlan at the turn of the century, further incorporation relied on the Civil War amendments—particularly the Fourteenth—and the guarantee of a national union that these amendments held out. Nationalization of constitutional rights parallels the establishment of the legal foundations of corporate power. At issue was more than a concern for free expression after World War I or a desire to extend the due process protections in the criminal process. Incorporation meant the ascendancy of the federal judiciary. The process was a manifestation of the rise of judicial review, for after the initial legislation that followed the Civil War, incorporation was brought about by judicial interpretation.

The process of incorporation was uneven, and this unevenness suggests the relative significance of the various rights and liberties we take to be fundamental. Equality under the Fourteenth Amendment was the first right to be made applicable to the states. This was done in 1896, in Plessy v. Ferguson, where a black man had challenged the imposition of segregation in the South. His claim was unsuccessful, but the Supreme Court did consider the meaning of equality in the Constitution as it applied to state legislation. The decision was followed in the next year by protection of property. Under various constitutional doctrines, property dominated constitutional interpretation until well past the turn of the century. Finally, it is the subsequent application of the Bill of Rights to the states that is conventionally associated with incorporation. The process began in earnest in 1925 with freedom of expression. This was followed by incorporation of freedom of the press, the general right to a fair trial, and the limited right to counsel in the 1930s.

The decision by Justice Benjamin Cardozo, in Palko v. Connecticut (1937), was a benchmark in the process of incorporation, and it set the terms by which the debate would be carried out. After this decision, there was little doubt about the supremacy of federal constitutional rights. All that remained was determination of whether incorporation applied in specific contexts. The standard announced in Palko at that time, is now hard to imagine as anything but essential to a “scheme of ordered liberty.”

Gradual expansion of constitutional protections to the states continued under the Palko doctrine for 25 years, until in the 1960s it was transformed into a nearly wholesale application of the criminal procedure protections to cases tried in state courts, with the expectation that fundamental rights for everyone. The process exemplifies the post-1937 shift in the Supreme Court’s attention from constitutional protection of prop-erty to protection of political freedoms. The shift followed Palko and was given its most powerful interpretive reading in United States v. Carolene Products Company (1938). The author of the opinion, Justice Harlan Fiske Stone, inserted a footnote to explain his views about the propriety of turning away from judicial intervention in public regulation of business and toward judicial supervision of the more narrowly defined political and legal process. The footnote is the interpretive source for what has come to be known in constitutional discourse as “the double standard.”

The Double Standard. The double standard is an institutional practice that distinguishes the economy from politics for the purpose of attention by the Supreme Court. By using two standards for review, the justices have given “certain fundamental freedoms” closer judicial scrutiny than others. The distinction has been described in a variety of ways by commentators. As Henry Abraham wrote, “what the post-1937 judiciary did was to assume as constitutional all legislation in the proprietarian sector . . . but to view with a suspicious eye legislative and executive experimentation with other basic human freedoms” (Abraham, 1982:13). The standard has operated as an aspect of constitutional adjudication, although with somewhat diminishing significance over the years. It is triggered when the Court reviews a statute passed by Congress or a state legislature in the area demarcated, roughly, as “the economy.” According to the practice, the justices have merely asked of a particular statute that there be a reasonable basis for it.

One consequence of the double standard is that property has all but been read out of the field of civil liberties. The present volume puts it back in because of recent developments and because the distinction, although employed by the justices, has always been problematic in the least. For Justice Potter Stewart, the dichotomy between personal liberties and property rights was “a false one” (Lynch v. Household Finance Corporation, 1972). Thus, we treat property as a civil liberty due to the interdependence between the rights to liberty, equality, and property.

SOCIAL AND POLITICAL CONTEXTS

In order to understand legal rights, it is necessary to know what can be done with them and how they work. In the case of constitutional rights, this is accomplished by looking at the culture, the structures, and the primary institution associated with these rights—the Supreme Court. The Supreme Court’s commentary on constitutional rights is an important source for understanding the Constitution. It provides a history of the issues that have been raised and how they have been treated. Because that commentary caps the mass of legal activity, this chapter traces its roots in legal culture—from social life to the law office—through its distinctive structures to its expression in opinions of the appellate courts. Subsequent chapters will indicate ways in which a convergence of the legal culture and the larger culture creates particular rights. And throughout this book, we will focus on the legal community and those who fashion the ideas that are its tools.

Legal Culture and Lawyers

Another reason the legal culture has been important in the U.S. is because the country was founded by an agreement—a contractual arrangement—in the form of the Constitution. Although the Declaration of Independence symbolically heralds the national beginnings, the Constitution “constitutes” the nation itself. It has been from the Declaration and the Fourth of July that the United States has drawn its most important symbols but it is in the Constitution that the country finds the meaning of its institutions. Learning the rules and definitions in the Constitution has been a key to becoming an American. This is reflected in the testing of new citizens who must learn the rules of the game in order to become full members of the political system.

The nature of the Constitution cannot be understood except in terms of the general legal culture; in our society, over two hundred years since the founding, the fundamental law has a continuing significance in that it serves as a basis for all subsequent laws that are enacted. These new laws are influenced by constitutional requirements. The current character of law and legal ordering generally go hand-in-hand with a professional understanding of fundamental law.

One measure of the legal culture in the United States is the number of lawyers in this country as compared to others. In the 1850, there were approximately 22,000 lawyers in the United States. The number increased to 114,000 by 1900, and to 600,000 by the early 1980s, more than keeping pace with general population growth. Today, there is mor that one lawyer for every 350 people in the country. No other country in the world relies as heavily as the United States on this sort of professional group for the conduct of public affairs. Japan, for instance, has 1 lawyer for around 10,000 people. Western European countries come out somewhere in between Japan and the United States on the lawyer per capita scale (Scheingold, 2004) .
Alexis de Tocqueville called lawyers an American aristocracy. He meant that they held a place comparable to that of the ruling elites in Europe. Writing in the middle of the nineteenth century, he noted that there were few disputes that did not end up in court. This was not accurate, and it is still technically wrong because few disputes actually go before a judge. But the implication is appropriate in the present setting. The influence of law and lawyers has grown—not as much as the legal profession seems to think and would sometimes want us to believe—and the legal profession does dominate politics. That is obvious. It is less easy to see the reach of legal culture into the processes of social life generally.

In other countries, disputes and conflict do not mature in the same way. Although comparisons emphasize the different ways of doing things, they only begin to suggest the need to better understand the nature of these characteristics. The United States has been uniquely oriented to the resolution of disputes by mechanisms relying on the authority of government. Sometimes these are formal, as in the case of the trial or appeal. More often they are informal and take place in conjunction with governmental authority. Institutions such as courts and administrative agencies play an important role in supporting the professional authority of lawyers in their task of resolving disputes. The tradition has been to take disputes to lawyers and to see disputes in terms of the law. A challenge for understanding this process is understanding the significance of the structures and contexts of the law.

One approach is to view the ordinary processes as existing in the “shadow of the law.” The idea is that law sets the frame within which struggles are resolved. The conception of shadow or frame (which will be discussed further in reference to plea bargaining in the discussion of Due Process later in this volume), suggests that informal negotiations are influenced at least to some extent by the formal requirements of the criminal justice system. This characteristic of the legal culture can also be extrapolated to include the myriad transactions of business, civil law, and even the supposedly informal processes of mediation and arbitration which Christine Harrington wrote about 25 years ago (Harrington, 1980). Work in the tradition of law and society has explored the extent to which the legal culture influences the rest of society. An insightful formulation focuses on the “transformation of a dispute” with attention to the way the dispute is defined by participants (Mather and Yngvesson, 1980–1981; See also, Mather, et al., 2001). Even when a dispute does not get into the professional legal sphere, the categories of fundamental rights and constitutional law—such as what it means to be treated equal—influence political issues ranging as widely as racial injustice and feminist politics. Legal activity was so significant to social and political processes in the 1970s that the expansion of legal services became a central theme in the movement for social justice. In the area of the law under consideration here—constitutional rights and civil liberties—group activity, such as that by the NAACP Legal Defense Fund and the American Civil Liberties Union, has brought to the forefront the legal needs of those without the ability to pay.

Comparison of different levels of legal activity and discussion of the legal system’s influence on other social and political processes suggests that litigation has an affect on societies’ health. Unlike some professional activities (medicine, for example), legal activity may be something we could do without (or at least do with less of). Although it is easy to criticize unnecessary surgery, the criticism of excess law is much harder because it is intrinsic to the practice of law to generate more activity. Law must be evaluated in terms of the social life it supports, and legal or professional forms should be compared with more democratic or popular forms. The amount and quality of legal activity, its nature, and its effect must be assessed by democratic standards. Some structures created by legal culture are wholesome, whereas others are not. Thus, in order to evaluate the system, we must have information about the nature of law, its structures, and its processes. It also means gaining a deeper understanding of professional legal activity in order to make knowledge of the law more generally available, and thus more democratic.

The influence of the Constitution is generally felt through intervening processes, conventions, and structures. Because U.S. legal culture has become a professional one, these intervening structures have acquired great significance for constitutional interpretation. Yet, it must also be acknowledged that from the beginning—the environment out of which the Constitution sprang—legal culture in the United States has been a culture of apparatuses, a context for getting things done, an arena of authoritative action. From the culture generally and its orientation toward law, we turn to some specific characteristics.

Structures and Courts

There are many ways to describe the structures of the law. One could look through the eyes of the participants, such as plaintiffs, whose problems make the work of the legal system, or one could look through the eyes of practitioners, such as lawyers or judges. One could also look at the most obvious physical manifestations, such as the courthouses and the prisons, and get some sense of the legal system. In the section that follows, we focus on the structural elements necessary to understand the operations of rights in the United States. We start with the most general logical relations, and then move to some institutional distinctions bearing on kinds of sanctions, where the dispute is brought, and the sort of law that in employed.

Dispute Processes. The peculiarities of the U.S. system of courts and law can be traced to the job these institutions have in handling disputes and resolving conflict. Disputes are such a common characteristic of social life that they offer a perspective on courts and a chance to generalize about how any why the courts work as they do. When two persons come into a conflict, a common response is to call upon a third for assistance, thereby revealing what Martin Shapiro calls “the logic of the triad” (Shapiro, 1981). This logic accounts for the challenge to any institution attempting to resolve two-party conflicts.

The challenge is that a new conflict may emerge between the losing party and the institution settling a dispute after a decision has been announced. The very decision it is called upon to make is thus a threat to the effectiveness of a court because it produces an “unstable” and potentially explosive situation involving the institution and the losing party.

Much of what courts do can be understood as attempts to prevent their claim to neutral third party status from breaking down. There are circumstances where, in order to avoid this institutional failure, the two parties make a prior agreement to respect the third-party decision, regardless of who wins or loses. Limited democracies such as the United States do not have to depend on these prior agreements or specific acts of consent. Courts in such systems rely on the authority of the institution to back up their decision. Many of the most important institutional practices are aimed at enhancing this authority. For instance, in courts where a number of judges join in the decision, agreement on the bench is an important element for increasing the authority of the institution. The effort to achieve such agreement is one of the more obvious examples of institutional practices aimed at enhancing a court’s capacity to deal with a dispute.

Shapiro’s description of courts provides a link between dispute processes generally and institutional structures. Building from a widespread phenomena—the triadic structure of dispute resolution—Shapiro has described court-like institutions in terms of the way they respond to conflict and maintain authority over a dispute. His contribution to our understanding of courts incorporates institutional structure and law into the process of dispute resolution. This is a step beyond mere identification of a basic form that can be found in most societies. It is a basis for pulling together a number of facets of the legal system. Disputes take place in a context, and the context is so general and so familiar that it is often taken as a given. Yet, this context provides the structures that make both disputes and their resolution what they are in a society. By affecting the opportunities for justice, they control the access to justice. In the following discussion, these structures are presented as the institutional structures bearing on constitutional rights.

Institutional Structures. Disputing brings people into contact with the institutions responsible for maintaining social order and charged with resolving problems. The form U.S. legal institutions take originated in England, but they evolved according to the American experience. In the United States, we distinguish among disputes on the basis of the penalty imposed. We also distinguish according to whether civil or criminal law applies. In the criminal law, the more extreme penalties are called felonies and the minor cases are misdemeanors. A distinct institutional structure has developed where the penalty is a criminal sanction with prosecutors operating to impose it. We also distinguish by jurisdiction. There are many, but the most important jurisdictional distinction is between state and federal courts. Federal courts are actually the newer development. State courts predate the Constitution and in generally they have less to say about this body of law. There are also differences in court structure: at the initial hearing, the trial court, and the appellate court. Finally, there is a distinction between the law that comes from judges, the law passed by legislatures, and the law established in the Constitution. These are the court structures in the United States, and they have influenced the development of constitutional rights.

The distinction between criminal law and civil law begins with the basis and meaning of the penalties provided by each. Civil penalties do not include incarceration and the moral sanction that goes with it. Civil disputes involve a conflict of interests, with a finding for one party or the other on the basis of right or the stronger claim, but not on the basis of guilt or innocence. In criminal law, social morality is involved. The finding is of “guilt,” with its connotations of evil or wrongdoing, or “innocence,” with its contrary implications of blamelessness and purity. Criminal penalties imply transgressions for which the guilty party is expected to feel responsible. In civil actions, legal responsibility is much less likely to imply evil conduct. Civil law is, however, the “larger” body of law, in that it constitutes the more ordinary processes of social life: the law of family, business, and property. Consequently, in the civil context, the parties are individuals or private groups. They have their own lawyers. Nobody is paid by the government to protect the social interests. In the criminal context, however, one party is an individual, but the other is always the government. The rights that are the focus in this book involve both criminal and civil matters. A unique aspect of the Constitution is that its guarantees are the ones from which the others derive their authority, and these guarantees cut across institutional structures.

At another level of abstraction, or at least at the next level in the legal process, there is a distinction between trial and appellate courts. A trial court is a court where one starts in the process. It is where matters of “fact” are determined, sometimes with the help of a jury. The contribution to the reading of the law is minimal here. But at the next level, the appellate courts, what the justices or judges have to say about the meaning of the law will be recorded and have a continuing influence beyond the particular case. A dispute that gets to the appellate level may have great significance for the development of legal doctrine. It is here that the commentary on legal traditions goes forward to set the context for subsequent disputes.
In the United States, there are many, many places you may (or may not) go for a legal forum. The most dramatic distinction is between the various state systems and the federal system. These different forums have different judges, different processes, and they enforce different laws. Each has some affect on a dispute. Most law is state law, both criminal and civil. We tend to think of the federal government as bigger and as more important than state government. Actually, it is not nearly the size, nor do we think that it has the collective importance, of the fifty state systems. In both civil and criminal situations, the states provide the law of social life, business, and politics. Federal law has been added to the law that existed in the colonies. Although federal law has grown substantially, it is still highly specialized. Where it governs a situation, however, it has come to have supremacy. Constitutional law is a branch of federal law, and because of the Fourteenth Amendment, the rights and liberties that the Constitution guarantees now apply to all relevant contexts in all the states. This is a unique aspect of the constitutional sphere; although it is “federal,” it is law for the states as well.

There are also different sources of law. Generally, these are distinguished in terms of common or judge-made law, statute law made by legislatures, and constitutional law—ostensibly made by the people, but that has come to be dominated by the appellate courts. Common law is the oldest form and was originally derived from the norms of the community and announced by judges. It is becoming less “common” as the society becomes more professionalized. Statute law, made by legislative bodies, is newer. Legislatures simply used to appropriate money. Only in the last 200 years have they become major sources of law. Finally, constitutional law is the fundamental law, the law that delineates the basic rights and principles by which people are governed. Although at the national level, Supreme Court justices seem to be the source of constitutional law, their decisions are actually interpretations of the Constitution. Constitutional law gains its status as an expression of popular will. Although the ideology of popular sovereignty as a basis for the authority to govern still exists, it is necessary to come to terms with the impact of judicial interpretation.

In constitutional law, appellate courts have been very influential. As the United States developed, legislative bodies and the citizenry became increasingly deferential to the higher courts on issues of constitutional interpretation. The deference resulted from the importance attached to the claim of judicial review, the special capacity to tell what the law means. The claim is part of an old tradition that goes back to the seventeenth century. At that time, English jurists claimed that the sovereign did not have the ultimate capacity to say what the law was because he was not trained in its mysteries. In the United States, this assertion has been linked with separation of powers, resulting in a special claim to expertise based on compe-tence in an assigned task.

The form of this claim differs, depending on whether the issue is constitutional law or statutory interpretation. In the case of the Supreme Court, for instance, its authority to interpret the meaning of statutes passed by legislative bodies depends entirely on its being the court of last resort. That position is also a factor when the Court interprets the Constitution. But for their constitutional authority, the justices of the Court rely more heavily on a claim of expertise. In order to evaluate this claim, we now turn to the tradition of constitutional interpretation.
Constitutional Interpretation and the Supreme Court

To understand what constitutional law has become and the major contemporary source of this law, it is necessary to be familiar with the Supreme Court. Anthony Lewis, one of the journalists who has helped to fashion our view of the institution, called the Supreme Court “a different kind of court” (1964). The simplicity of the observation should not mask its insight. The institution was the only court established in the Constitution, and it is thus sometimes called an “Article III” court. This in itself is unique and a great deal follows from this fact, but the Constitution says little about this institution. The document does not even say how many justices it should have or what sort of preparation they should have. Consequently, although the number of justices has changed nearly half a dozen times, the institution persists. It is a different kind of court for many reasons, but is a court nonetheless. The discussion of interpretation that follows is based on the interaction between being a court and being unique.

The Supreme Court is an appellate court, like many others. But it is alone at the top of the judicial process in the United States. It has authority, not only over the federal courts, but also over the state courts. It is rare in this regard, and it is the institution that anchors the federal system. The Supreme Court is the final appeal for the enormous number of cases generated in the United States. A rough estimation of the number of these cases would be around 10 million per year. Of these, approximately 300,000 are appealed to the higher courts in the states and in the federal system. About 5,000 of these eventually reach the Supreme Court. But the justices actually choose only about 100 of these cases to consider in depth and comment on extensively. There are many theories about what gets chosen. Clearly the cases have to be of interest to the justices and usually that means they are of some general significance. And, if they weren’t before they were taken by the Court there will very likely become important.
The Supreme Court stands alone at the top of a legalistic polity. This position in the legal system in the United States makes it different from the other courts in America. It has often been remarked, in a clever jest, that the Supreme Court is not final because it is infallible, but that it is infallible because it is final. Certainly, with that final say in legal matters the Court has come to be viewed as special, sometimes even infallible. There is more insight to the jest than it might initially seem. It is not an accident that when we are serious about continuing to battle we say we are going to take a case “all the way to the Supreme Court.”

Because the Supreme Court is the last official word on the Constitution, short of constitutional change through amendment, it deserves careful attention. As noted above, however, the Supreme Court addresses relatively few cases. This leaves a variety of other less visible sources of constitutional law, or at least constitutional interpretation. The pipeline for cases coming up the appellate ladder is so narrow at its oracular confluence that some issues are never addressed by the Supreme Court. This results in authoritative decisions from lower courts as a result of negotiation and consent, as often as from a formal decision. Such decisions will be woven into the material that follows.

The Supreme Court can also be distinguished from other courts by some of its functions. Most courts are primarily engaged in the resolution of conflict, but the Supreme Court is known to make policy or general rules while it handles its cases. In this sense, constitutional interpretation is the product of choices that have given the original document meaning. The justices transform the law while applying it. In practice, the real-life drama is far removed from the workings of the appellate process, and it often seems that the individual cannot help but be ignored. Yet, it is from these individual disputes that the law is fashioned, and the institution therefore maintains its authority by settling disputes. Wherever choices indicate a decision of governing institution, however, they constitute public policy and for all the texture of the dramas that are carried to the Supreme Court the result is an abstraction: law.

As part of two legal systems, the federal and the state, the Supreme Court is the court of last resort. As with all federal courts, the justices are appointed by the president, paid out of the national treasury, and they serve for good behavior, which in practice has meant for life. In this system, these are standard practices. But there is a special quality to Supreme Court appointment due to the fact that the Court is sitting at the peak of legal power. Such an appointment does not go to the timid, and the pursuit of the position belies the tradi-tion of passivity often associated with the judicial process and especially judicial selection. The process is political and a nominee’s political party activity influences the appointment decision. In the case of the Supreme Court, there is just (a little) more concern about the quality of the nominee than there might be for a lower court justice. Life tenure in the national limelight heightens that concern; like other institutional parameters, it sets the stage within which the justices operate. Moreover, many a justice has sought to stay on past the tenure of some hated president. Justice William O. Douglas hung on longer than any justice in history. Among other things, he appeared to hope he could avoid allowing Republican President Gerald Ford to nominate his successor. A retirement from this institution has thus become a policy decision of some significance. It is not to be taken lightly and often looms over the appointment of a successor as it did in the nomination of Clarence Thomas to replace Thurgood Marshall and Harriet Miers to replace Sandra Day O’Connor. As it turned out being a woman (and a Bush Administration insider) was not enough to warm the Senate to a Miers appointment when it turned out she had very little stature as a student of the Constitution. This failed nomination was followed by the nomination of an equally conservative but more experienced jurist in Sam Alito.

The Supreme Court has appellate jurisdiction over disputes about law or facts. Congress sets the basic regulations and makes changes in the Court’s jurisdiction when it chooses to do so. Although direct limitation of the Court in substantive areas is difficult to accomplish, it is often tried. In the early 1980s, there were as many as thirty bills pending in each legislative session to limit the Court’s authority. Although up until the 1920s the justices had little discretion in the cases they took because they were not allowed to exercise their discretion, since then, they have been able to choose from among the 5,000 cases that are appealed annually. This gives the Supreme Court the opportunity to influence its calendar and to take a more active role in setting its agenda than is usually the case with courts. In addition, statements in judicial opinions and occasional public statements by the justices stimulate appeals by indicating judicial predispositions. For example, the exclusionary rule, which prohibits the use of illegally obtained evidence, is a case in point. This rule has been subject to criticism by members of the Supreme Court since the 1970s, and challenges to the rule have been looked on favorably, although it has not been eliminated.

Some social scientists and legal historians have turned away from the Supreme Court’s pronouncements on the Constitution and that of the other appellate courts, characterizing these holdings as atypical and unrepresentative of legal activity in the United States. For example, a generation ago Morton Horwitz considered constitutional law to be “episodic” and “buttressed by a rhetorical tradition that is often an unreliable guide to . . . legal change in America” (Horwitz, 1977:xii). Due at least in part to this criticism of excessive attention to appellate courts, there has been more attention to other things in recent years. This includes attention to the law in action, to the political behavior of judges, to intermediate courts and local trial courts, and to the impact of judicial decisions in the community. The turn from appellate courts among social scientists began as a healthy reaction to the perhaps excessive attention to appellate judges in the law schools. But, we may have over reacted, leading to the belief that there was little reason to study high courts at all.

Let us be clear that even as social scientists, there are lots of reasons to study doctrine. The tradition of commentary on the Constitution is, among other things, an excellent guide to national ideology. Although appellate court opinions are not representative of the mass of legal or even judicial activity, these opinions are authoritative attempts to relate legal concepts to changing social and political conditions. And, if they are opinions of the Supreme Court, they get a great deal of attention. The resulting commentary accommodates contemporary issues and values with tradition. By telling us what the government thinks about itself, the opinions of the Supreme Court constitute a running commentary on fundamental political concepts. From this body of discourse, the student can observe change and/or continuity and examine the judicial contribution to the structure of U.S. politics.

SUGGESTED READINGS:

Edward S. Corwin, The “Higher Law” Backgrounds of American Constitutional Law. Ithaca, N.Y.: Cornell University Press, 1928.

Richard Flathman, The Practice of Rights. New York: Cambridge University Press, 1976.

Leslie Freeman Goldstein, “The ERA and the U.S. Supreme Court.” Law and Policy Studies 1 (1987): 145–61.

Gerald Gunther, Learned Hand: The Man and the Judge. Cambridge: Harvard University Press, 1994.

Louis Hartz, The Liberal Tradition in America. New York: Harcourt Brace, 1955.

James Willard Hurst, The Growth of American Law: The Law Makers. Boston: Little, Brown, 1960.

Lynn M. Mather, Craig A. McEwen, Richard J. Maiman Divorce Lawyers at Work: Varieties of Professionalism in Practice New York: Oxford University Press, 2001.

Martin Shapiro, Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press, 1981.

Schneider, Elizabeth “The Dialectic of Rights and Politics: Perspectives from the Women’s Movement,” N.Y.U. Law Review 61 (1986): 589.

Stuart Scheingold, The Politics of Rights. 2nd Ed. Ann Arbor: University of Michigan Press, 2004. Selections for Rights and Liberties

Alexander Hamilton, Federalist #84.

Catherine Drinker Bowen, Yankee from Olympus: Justice Holmes and His Family, Little, Brown, 1944

The Rights of Man, 1789.

ENDNOTES:

Syllabus

Bill of Rights and Equal Protection
Political Science 365 UMass, Amherst
Spring 2008 T&Th 2:30-3:45 Dickinson 216
Prof. John Brigham Thompson 434
brigham@polsci.umass.edu
Office Hours Tues 1-2:15 and by appointment.

The course will draw from relevant court decisions and supplementary materials in order to examine the nature of constitutional rights, the federal death penalty, racial liberalism, and the concept of governance through crime and the threat of terrorism. The subject of the course will ultimately be what we discuss in class.

While the tradition of constitutional law study in political science examines only Supreme Court opinions we will also look at state and federal appeals courts, news reports, TV, movies and other cultural sources to better understand constitutional practices.

Readings for this course will available in the Textbook Annex and on the Web. Some have been written and prepared by your professor and Professor Christine B. Harrington of New York University for a book titled The Constitution: Law, Politics and Society and consist of essays, cases and materials from Vol. II, Ch.1 Rights, Ch. 2 Freedom, Ch. 4 Due Process and Ch. 6. Equal Protection. These materials are currently available online at “borandep.blogspot”.

We will spend roughly three weeks on each section. Because we are not tied to a text we will be able to explore some areas in greater depth, add new cases and ignore others. While we will conduct some of the class through “Socratic” dialogue we will attempt to minimize the competitive quality characteristic of much American law study. Discussion will be expected to be cooperative and the most appreciated comments will be ones that contribute to collective understanding. Participation will be evaluated accordingly.

For web work we will use Google, “lexis/nexis” through the UMass Library and “findlaw” for Supreme Court Cases. Parts of films will be shown in class and you may wish to borrow or rent them to view on your own.

Rights: A Constitution of the Living
1. Essay: 1Rights, Federalist #84, Barron v. Baltimore, In re Cheney.
2. Marriage Politics and Parking Spaces, Rec: Const of Interests Ch. 1&2.
3. Brigham, “Original Intent and Other Cult Classics,” Dred Scott v. Sandford, Carolene Products Footnote.

Films: The Night of the Living Dead (1968).

Due Process: The Federal Death Penalty
1. Essay: 4Due Process.
2. Military Tribunals and Detention: Hamdan v. Rumsfeld; Const of Interests Ch. 3.
3. The Federal Death Penalty: Brigham, “Unusual Punishment.” Gary Sampson Material; US v. Billy Jo Lara (2004).

Films: Dead Man Walking (1995); Elizabeth Garbus and Jonathan Stack, Final Judgment: The Execution of Antonio James, (1996).

Equality: Beyond Racial Liberalism
1. Essay: 6Equality, Plessy, Weiner Americans W/out Law Intro & Ch. 1.
2. Citizenship: Weiner Ch. 2Rodriguez, Grutter and Legacy Preferences,
3. Emergencies: Weiner Ch. 3 Korematsu, Hamdi
4. Racial Liberalism: Weiner Ch. 4 Brown, Parents Involved

Films: When the Levees Broke Act IV (2006)

Freedom: Pornography and Intolerance
1. Essay: 2Freedom, US v. Amer. Library Assn. (2003); Grokster
2. Sex and Crime, Lawrence v. Texas. Const. of Interests Ch. 5
3. Domestic Surveillance: “governingthroughcrime” (blogspot), Const of Interests Ch. 6

Films: Little Children (2006).

Grading:
There will be a mid-semester exam March 13 and a final. Prior to each exam students will be given a participation grade based on work in class, including discussion, praxis and quizzes. If a student is satisfied with the participation grade there is no need to take the exam.

There is a praxis or “Constitution in the community” dimension of the course. All students are expected to work on constitutional law in the community, engaging in practice relating to the meaning of the Constitution. This will involve roughly 1-2 hours of work a week and it will be worth approximately 1/3 of the grade for the semester. It does not have to be a new thing. It can be something you already do.

Before the midterm you will be required to submit a progress report of 1-2 pages. A final report of 4-5 pages will be due the Thursday before the last week of classes. Grading for this section will be on a 4 pt scale from 0 for no engagement to 4 pts for creative and sustained work.

Examples:
1. Engagement…journal, documentary, etc (Check out www.aidemocracy.org/).
2. Cyberspace…offers widespread opportunities for praxis such as editing Wikipedia.
3. Publication…draft or prepare for submission an article on constitutional law.
4. Casework…Law has been developed in cases for 100 years.
5. Service …1-2 hours per week community service. Consider ARISE, ABC fundraising.
6. Conversation…family or other off campus conversation. Must be fully documented.

Books: At the textbook annex and cheaper used…

Mark Weiner Americans Without Law (NYU Press, 2006).

John Brigham The Constitution of Interests (NYU Press, 1996).