Part IV on interpreting our Constitution: protecting Individual Rights

This series of columns began with a fantasy that infects many a law professor who teaches constitutional law, as I did.

My phone rings. It’s the President telling me that he will nominate me to the U.S. Supreme Court - so I’d better get ready to answer the Senate’s questions about how I would handle constitutional issues.

My starting point is the same starting point that leads off our Constitution in Article I: Our country is a democracy, with decisions to be made by the people and their elected representatives. When examining a new case, I would begin with a default position: “The citizens or the people they elected voted for this, so I should leave it alone.” It would take something unusual and weighty for me to strike it down.

My most recent column described my admiration for the Supreme Court’s description of how to sort this out: the famous footnote 4 in U.S. v. Carolene Products, Inc. (1938) 304 U.S. 144.

The text of the Carolene Products opinion states that the Court would apply a deferential “rational basis” test to ordinary economic legislation. Sounds uncontroversial, but it was a big jump after decades of striking down laws dealing with child labor, union organizing, minimum wages, and maximum work hours.

Footnote 4 summarizes when the Court might apply a much tougher test – now called “strict scrutiny” – to governmental restraints on other types of conduct. I see a theme that unifies these disparate targets of strict scrutiny: protecting the democratic process itself, and protecting people that lack the political muscle to protect themselves from oppressive majority rule.

The first two paragraphs of the footnote apply strict scrutiny to legislation that undermines the electoral process. I fully agree, but would expand it to apply some sort of heightened scrutiny on restraints on education, which is essential to create a citizenry intelligent enough to vote wisely.

The final paragraph of this momentous footnote begins: “Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or racial minorities. . . .” This suggests that the Court will also apply “strict scrutiny” to such statutes.

This, too, fits with the theme because democracy is often unable to protect these groups, as they are too small and politically weak to protect their own interests in the legislative process - and there is something about them that inspires “prejudice” in the majority of voters and their elected representatives.

The classic exemplars of this are people accused of a crime – which are not included in the footnote’s express list of “discrete and insular minorities,” but should be. They are sort of included in the footnote’s first paragraph, which would apply “strict scrutiny” to “legislation appear[ing] on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments.” Five of those “first ten Amendments” (the Fourth, most of the Fifth, the Sixth, most of the Seventh, and the Eighth) are about the rights of criminal defendants.

The majority of voters will hardly ever give much legislative protection to these despised people, who will always have close to zero political power.

This is why the Supreme Court had to step in and adopt the “exclusionary rule” – excluding from criminal trials evidence obtained through Fourth Amendment violations. An awkward and unpopular remedy, sometimes freeing the criminal because the constable has blundered. But it’s the only tool at hand for a judge, who has no authority to do what should be done: punish the constable as well as the criminal. The voters won’t punish the constable, and the Fourth must have some teeth, so the Court really has no other choice.

The lowly political position of criminal defendants has been matched, in some times and places, by Blacks and other racial minorities, by gays, and by women.

Brown v. Board of Education (1954) 347 U.S. 483 showed how the usual theories of interpretation might clash. Textualism would have resulted in a ruling against the Black plaintiffs, because the Fourteenth Amendment says nothing about barring segregation of the races in public facilities. Same result with originalism, given the fact that the Congress that enacted the Fourteenth also mandated segregated schools in the District of Columbia.

But the two factors I favor would have tipped the balance towards a ruling for the plaintiffs. Blacks could never gain enough political power in southern statehouses to desegregate public schools. And this case involved education, which is essential to enable voters to participate effectively in a democracy.

But unlike the never-ending lack of political power of criminal defendants, the status of other groups tends to change over time. Today, women can vote, and they now hold significant political power. If someone proposes legislation restricting them, they can and will fight through the democratic process by organizing, speaking, lobbying, and voting. They don’t always win, but meaningful participation does not require winning every time. Roe v. Wade was decided in 1972, when women had less political power. Today, however, in several states, women (and their male allies) have enough juice to defeat legislative efforts to restrict abortion. So why does an unelected Supreme Court need to preempt this democratic process and declare one side the winner?

Perhaps to a lesser extent, the same is true of other minority groups. Voters today are generally less racist, less anti-religious-minority, and generally more tolerant. Minority groups vote more, organize better, and have more representation in the halls of legislatures.

But not always, and not everywhere. Mississippi is still not California. Can the Supreme Court adopt one rule for a less-tolerant region and another rule for the West and Northeast? That doesn’t feel right.

That’s a problem I would need to work through. Suppose some school district wants to set up a school solely for certain Black boys of a certain age, taught only by Black male teachers, based on studies that allegedly show that this will help the boys learn better. A hard issue, not easily resolved by a simplistic “The Constitution is color-blind.”

“All very interesting, Moskovitz,” says Senator Skeptic, “but let’s get beyond your generalities. How would you have voted in Dobbs v. Jackson Women’s Health Organization [(2022) 142 S.Ct. 2228], where the Court overruled Roe v. Wade?”

That’s a toughie. My “hands-off” general approach does lean in favor of Dobbs, because the text of the Fourteenth Amendment Due Process Clause mentions neither abortion nor privacy. Originalism? The Fourteenth was a product of the Civil War, which was about slavery, not abortion. And, unlike District of Columbia v. Heller (2008) 554 U.S. 570 - where the Court severely restricted our democratically-elected officials’ authority to deal with a serious social problem – Dobbs expands democratic decision-making. And while women held little political power in 1972, that’s changed a lot since then. Though maybe not in all parts of the country.

By the way, Heller is a classic situation where the Court did not need to intervene in the democratic process. Gun owners and their supporters are in no way a despised group excluded from the political process, as shown by their many successes in the legislative process. Their position is nothing comparable to the exclusion that Blacks, gays, women, and religious minorities have faced. They don’t need a judge to intervene and turn their legislative losses into Constitutional victories. Yes, the Second Amendment is in the Constitution and must be given some effect. But – despite the insistence of the current majority on the Supreme Court – it is not the same as the other Amendments, which are designed to protect groups that cannot protect themselves from oppressive majority rulings.

But however I might have voted on the merits, I would not have voted to grant certiorari in Dobbs. Why stir things up when you don’t need to? A few years ago, my young son greeted our stout friend with, “Hi, Fatso!” I later advised him: “What’s the matter with you, Ari? Just because something’s true doesn’t mean you need to say it!”

Or, if it ain’t broke, why fix it?