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Rights and Structure In Constitutional Theory*

Published online by Cambridge University Press:  13 January 2009

Geoffrey P. Miller
Geoffrey P. Miller
Affiliation:
Law, The University of Chicago
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Extract

Ever since the constitutional revolution of the 1930s, constitutional law and theory have been dominated by questions of civil rights. The expansion of rights under the Warren Court constituted a deep-seated shift in judicial attitudes that has proved remarkably stable over time. Despite protests in some quarters that the Burger Court (1969–1986) and the current Rehnquist Court have undermined civil rights recognized during the Warren Court era (1953–1969), the fact is that the changes have been surprisingly marginal. Even precedents that were widely believed to be endangered species a decade ago – such as Miranda and Roe v. Wade – continue in force, although they have indeed been pruned back. Despite their importance, however, these high-profile cases do not go to the core of the Supreme Court's agenda. The core is epitomized by Brown v. Board of Education on the one hand, representing an aggressive and interventionist attitude toward government discrimination against discrete minorities, and footnote four of the Carotene Products case, on the other hand, representing an extraordinarily deference to the political process with respect to economic regulation. The Rehnquist Court's commitment to this core agenda is not dramatically different than that of its predecessors, at least not when the broad sweep of constitutional law is taken into account.

Type
Research Article
Information
Social Philosophy and Policy , Volume 8 , Issue 2 , Spring 1991 , pp. 196 - 223
Copyright
Copyright © Social Philosophy and Policy Foundation 1991

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References

1 Miranda v. Arizona, 384 U.S. 436 (1966) (requiring police to give individuals in custody explicit warnings of their rights before being interrogated).

2 410 U.S. 113 (1973) (recognizing a woman's constitutional right to an abortion in some circumstances).

3 347 U.S. 483 (1954) (overturning legally-compelled racial segregation in public schools).

4 United States v. Caroline Products Co., 304 U.S. 144, 152 n.4 (1938) (suggesting a stricter standard of judicial review for statutes restricting personal liberties as compared with statutes regulating economic enterprise).

5 Myers v. United States, 272 U.S. 52 (1926) (holding that President Wilson could summarily remove a postmaster from office despite the existence of a statute ostensibly requiring Senate approval of such removals).

6 Humphrey's Executor v. United States, 295 U.S. 602 (1935) (declaring illegal President Roosevelt's attempt to summarily remove a member of the Federal Trade Commission from office and upholding a statute requiring a finding of “cause” before such officials could be removed).

7 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (invalidating President Truman's seizure of steel mills to avert a steel strike during the Korean War).

8 426 U.S. 833 (1976) (invalidating federal statute which purported to impose maximum hours and minimum wage limitations on state and municipal employees).

9 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (reversing National League of Cities and holding that federal minimum wage and maximum hour rules could be constitutionally imposed on a metropolitan transit authority).

10 E.g., Macey, , “Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public Choice Explanation of Federalism,” Virginia Law Review, vol. 76 (1990), p. 265CrossRefGoogle Scholar; McConnell, , “Federalism: Evaluating the Founders' Design,” University of Chicago Law Review, vol. 54 (1987), p. 1484.CrossRefGoogle Scholar

11 United States v. Nixon, 418 U.S. 683 (1974) (holding that the President of the United States could constitutionally be required by a court to produce tape recordings of conversations with top aides containing evidence needed in a criminal trial).

12 E.g., Mistretta v. United States, 109 S.Ct. 647 (1989) (upholding constitutionality of United States Sentencing Commission against claim that statute creating the agency unconstitutionally delegated legislative authority and intruded on judicial authority in violation of the principle of separation of powers); Morrison v. Olson, 108 S.Ct. 2597 (1988) (upholding statute creating position of independent counsel to investigate allegations of criminal behavior by high-level executive branch officials); Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986) (upholding statute empowering an administrative agency to adjudicate common-law counter-claims of the sort ordinarily determined by courts of law, and rejecting contention that such authority intruded on the constitutional powers of the federal courts); Bomher v. Synar, 478 U.S. 714 (1986) (striking down provision of Gramm-Rudman-Hollings deficit reduction statute which vested executive powers in the Comptroller General of the United States, a legislative official); INS v. Chadha, 462 U.S. 919 (1983) (striking down nearly 200 federal statutes containing “legislative vetoes” under which congressional bodies could take action with force and effect a law without passage by both houses and presentation to the President); Dames & Moore v. Regan, 453 U.S. 654 (1981) (upholding President's authority to nullify judicial attachments of Iranian assets and transfer the assets to jurisdiction of international claims tribunal); Buckley v. Valeo, 424 U.S. 1 (1976) (striking down provision of federal election campaign law vesting in legislative officials the power to appoint officers of an administrative agency); United States v. Nixon (described above).

13 E.g., Carter, , “From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers,” Brigham Young Law Review, vol. 1987, p. 719Google Scholar; Elliott, , “Why Our Separation of Powers Jurisprudence is So Abysmal,” George Washington Law Review, vol. 57 (1989), p. 506Google Scholar; Krent, , “Separating the Strands in Separation of Powers Controversies,” Virginia Law Review vol. 74 (1988), p. 1253CrossRefGoogle Scholar; Strauss, , “Formal and Functional Approaches to Separation-of-Powers Questions – A Foolish Inconsistency?”, Cornell Law Review, vol. 72 (1987), p. 488Google Scholar; Strauss, , “The Place of Agencies in Government: Separation of Powers and the Fourth Branch,” Columbia Law Review, vol. 84, (1984), p. 573CrossRefGoogle Scholar; Note, “A Two-Tiered Theory of Consolidation and Separation of Powers,” Yale Law Journal, vol. 99 (1989), p. 431.

14 The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

15 Virtually the entire thrust of constitutional analysis by American legal scholars during the past fifty years has been to work out the implications of the abstract rights without reference to the consequences that the development of such rights might present for the structure of government and without explicit concern for the importance of structural divisions among governmental bodies as practical safeguards for the rights so developed. Probably the high-water mark of such rights theorizing is Wechsler, , “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, vol. 73 (1959), p. 1CrossRefGoogle Scholar, but the general thrust is evident in a broad cross-section of important constitutional scholarship. Some scholars have proposed theories of rights which are grounded in functional political theories, but even these important contributions do not highlight the role of the Supreme Court in a system of separation of powers. See Choper, J., Judicial Review and the National Political Process (Chicago: University of Chicago, 1980)Google Scholar; Ely, J., Democracy and Distrust (Cambridge: Harvard University Press, 1981).Google Scholar A notable exception to this general failure to consider issues of governmental structure in the context of a theory of rights is the work of Alexander Bickel, which does take explicit account of the political role of the Supreme Court in a system of separation of powers. See Bickel, A., The Least Dangerous Branch (Indianapolis: Bobbs-Merrill, 1962)Google Scholar; The Supreme Court and the Idea of Progress (New York: Harper & Row, 1970). While considering the Court's political role, however, Bickel does not develop a theory of rights grounded in structural considerations drawn from the 1787 Constitution, nor does he consider the importance of rights protections for the articulation of structural doctrine. Thus the present article ventures on largely unexplored turf. There are signs, however, that constitutional scholars are beginning to question the artificial distinction between structure and rights. In addition to the present article, see Amar, , “Of Sovereignty and Federalism,” Yale Law Journal, vol. 96 (1987), p. 1425CrossRefGoogle Scholar (considering the relationship between federalism and individual rights); McConnell, , “Contract Rights and Property Rights: A Case Study on the Relationship Between Individual Liberties and Constitutional Structure,” California Law Review, vol. 76 (1988), p. 267CrossRefGoogle Scholar (considering the implications of rights analysis and structural analysis on the protection of economic liberties). The present article, however, is the most general and systematically developed theory yet proposed in the literature on the relationship between rights and structure in constitutional law.

16 See generally H., Storing, ed., The Complete Anti-Federalist (Chicago: University of Chicago, 1981)Google Scholar; Storing, H., What the Anti-Federalists Were For (Chicago: University of Chicago, 1981).CrossRefGoogle Scholar

17 The doctrinal discussion here is drawn from the cases cited at note 12.

18 INS v. Chadha, 462 U.S. 919 (1983).

19 Morrison v. Olson, 108 S.Ct. 2597 (1988).

20 Ameron, Inc. v. United States Army Corps of Engineers, 610 F.Supp. 750 (D.N.J. 1985), aff'd as modified, 809 F.2d 979 (3d Or. 1986), cert, dismissed, 109 S.Ct. 297 (1988).

21 National League of Cities v. Usery, 426 U.S. 833 (1976).

22 See Hodel v. Virginia Surface Mining Association, 45 2 U.S. 26 4 (1981) (interpreting the National League of Cities decision).

23 The Tenth Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

24 Hodel v. Virginia Surface Mining Association, 452 U.S. at 852.

25 469 U.S. 528 (1985).

26 The seminal article advancing this position is Wechsler, , “The Political Safeguards of Federalism,” in Principles, Politics, and Fundamental Law, p. 49 (1961).Google Scholar

27 The Federalist 53–62 (Madison) (New York: Modern Library, 1937).

28 Ibid., pp. 60–61.

29 See Madison, J., Notes of Debates in the Federal Convention of 1787, pp. 34–35 (New York: Norton, 1966)Google Scholar (discussion of early proposal by Edmund Randolph that “a Union of the States merely federal will not accomplish the objects proposed by the Article of Confederation.”)

30 For example, the national dairy lobby, one of the first political pressure groups in the modern sense, was established in the 1870s out of a preexisting structure consisting largely of state dairy associations. See Miller, , “Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine,” California Law Review, vol. 77 (1989), p. 83.CrossRefGoogle Scholar

31 Garcia, 469 U.S. at 556.

32 The commerce clause is the source of most congressional power to regulate economic enterprise in the United States. Although prior to 1937 the Supreme Court had attempted to identify limits on the powers of Congress under the Commerce Clause, more recent doctrine has essentially abandoned any attempt to limit the authority of the national legislature in this regard. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (commerce clause empowers Congress to prohibit racial discrimination by motel serving transient guests, many of them travelling between states); Katzenbach v. McClung, 379 U.S. 294 (1964) (commerce clause empowers Congress to prohibit racial discrimination by restaurant serving local customer base when a substantial portion of the food purveyed had previously passed in interstate commerce).

33 This strategy has proved quite successful for many special interest factions. In the case of the dairy industry's campaign against margarine (1875–1950), for example, the evidence shows that the dairy lobby was able to manipulate the dynamics of federalism to its own advantage by obtaining overlapping state and federal regulation. See Miller, Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine. On the other hand, the effect of federalism on interest-group activities is not always clear-cut: in some cases, regional or stateby-state differences could neutralize interest-group organization at the national level, and thus serve as a device for combatting faction rather than as a means for encouraging it. See ibid., p. 130.

34 The Federalist, pp. 560–61 (No. 84, Hamilton) (Modem Library ed. 1937).

35 Ibid., p. 559.

36 A proposition documented in Ernst Cassirer's outstanding The Philosophy of the Enlightenment (Princeton: Princeton University, 1951). The fact that Madison does not expressly refer to Newton probably reflects the fact that Newtonian ideas were so deeply engrained in the structure of eighteenth-century thought that explicit reference to them may have been unnecessary.

37 Federalist No. 51 (Hamilton or Madison).

38 Federalist No. 48 (Madison).

39 Ibid.

40 Hamilton argues there that a provision guaranteeing the liberty of the press could not be given any articulable meaning and that the protection of the press must accordingly be left to public opinion and the general spirit of the people.

41 The American doctrine of judicial review (the power of the federal courts to nullify unconstitutional action by the legislative or executive branches) is nowhere expressly granted in the Constitution itself. Instead, the doctrine developed by judicial interpretation in Marbuty v. Madison, 5 U.S. (1 Cranch) 137 (1803). The basis for the doctrine, as articulated in the Marbuty decision, is that the Constitution is law, and courts have always enjoyed the power to interpret the law. Because the Constitution is fundamental law, federal courts must therefore apply the Constitution rather than a statute when the Constitution and the statute are in conflict. The justification for judicial review I propose here is novel and quite different from the conventional justification for judicial review drawn fromMarbury and similar cases.

42 See Madison, James, Notes of Debates in the Federal Convention of 1787, pp. 336–43 (New York: Norton, 1966).Google Scholar

43 See generally Sherry, , “The Founders' Unwritten Constitution,” University of Chicago Law Review, vol. 54 (1987), p. 1127.CrossRefGoogle Scholar

44 Most notably, Locke seems to consider the judiciary as a subset of the executive power. See Locke, , Two Treatises of Government, pp. 409–12 (Mentor ed. 1960)Google Scholar (distinguishing “federative,” “executive,” and “legislative” powers). And Montesquieu is notoriously ambiguous about the role of the judiciary in government, only sometimes giving it independent status and never stating that the courts should enjoy an independent power of judicial review of legislation for constitutional validity.

45 See especially A. Bickel, The Least Dangerous Branch.

46 See Wechsler, Toward Neutral Principles of Constitutional Law.

47 Locke, Second Treatise on Government ¶¶ 16–21, in Two Treatises of Government.

48 Federalist Nos. 21–22 (Hamilton).

49 Hamilton observes that “[i]t is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrasts to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tamish the lustre of those bright talents and exhalted endowments for which the favored soils that produced them have been so jusdy celebrated.” Federalist No. 9 (Hamilton).

50 Ibid.

51 Miller, “Public Choice at the Dawn of the Special Interest State: The Stoiy of Butter and Margarine.”

52 418 U.S. 683 (1973).

53 United Slates v. Mistretta, 109 S.Ct. 647 (1989).

54 109 S.Ct. at 651, citing S. Rep. No. 98–225 (1983).

55 Sunstein, , “Naked Preferences and the Constitution,” Columbia Law Review, vol. 84 (1984), p. 1689.CrossRefGoogle Scholar In this and other work, Sunstein documents the existence of underlying principles of constitutional law, cutting across traditional doctrinal categories. Sunstein's work on “naked preferences” demonstrates that the Supreme Court, under a variety of different constitutional provisions, will strike down legislation that is purely a preference for one group over another not supported by any convincing public interest justification. See also Sunstein, , Interest Groups in American Public Lam, Stanford Law Review, vol. 38 (1985), p. 29CrossRefGoogle Scholar.

56 See generally Stone, , “Content Regulation and the First Amendment,” William & Mary Law Review, vol. 25 (1983), p. 189Google Scholar (discussing distinction between content-based and content-neutral restrictions).

57 The Fourth Amendment generally protects against unreasonable police searches and seizures. The Fifth Amendment safeguards, generally, the right to federal indictment by a grand jury, the right to be free of double jeopardy, the privilege against compelled self-incrimination, the right not to be deprived of life, liberty, or property without due process of law, and the right not to have private property taken for public use without payment of just compensation. The Sixth Amendment generally provides for the right to a speedy trial, the right to confront adverse witnesses in criminal cases, the right to compulsory process to obtain defense witnesses, and the right to the effective assistance of counsel.