Strengthening Constitutional Self-Government

About Us

David F. Forte

Transcript of Constitution Day Lecture

Ashland University – September 15, 2000

In 1997, by a 4 to 3 vote, the Supreme Court of Ohio declared that the provision of the Ohio Constitution requiring the General Assembly to “secure a thorough and efficient system of common schools throughout the State” compels the legislature to spend more money on poorer school districts (DeRolph v. State, 1997). After the legislature made some significant increases in funding those districts, the Ohio Supreme Court three years later evaluated how well the legislature had done. A good honest try, the Court stated by the same 4 to 3 margin. But not good enough (DeRolph v. State, 2000). The Court failed to say what would be good enough. It had left no legal standard by which the legislature could judge whether its actions were constitutional. All the legislature could do was to guess what would “satisfy” the majority of the court.

The political nature of the decision was revealed by the author of the majority opinion, Justice Alice Resnick. After a few days of highly critical editorial comment against the decision, Justice Resnick suggested that the Governor, the leaders of the state assembly and Senate, and she get together to see if they could work out a mutually satisfactory plan. This time, the howls were in defense of something called the separation of powers. Justice Resnick backed down. The legislature remained under a mandate to devise some kind of funding that would suit four justices who did not indicate what will satisfy them. Even should the legislature, for the time being, placate the court, it remains under continuing threat to have its legislative agenda overthrown again whenever the court thinks that it is not doing enough. Moreover, Justice Resnick indicated that the Court stands ready to check on the substance of the educational process as well as its financial base.

Justice Resnick’s decision and offer to move into the legislating process is emblematic of the judiciary today at the state and federal level and of our new constitutional order. Courts and judges—especially at the higher levels—have lost their bearings, their sense of place, the assurance of their role in a republic under the law. They have become something more. Some believe they have become another legislative branch—one that determines the social structure of our nation without any political check. Worse, the last presidential election highlighted that the President may now be reduced to an elector of those who truly rule us.

All this is true, but there is something more particular in the political persona of this institution that now rules so intrusively. The political culture of courts today is not, as is sometimes charged that of a legislature manqué. Rather, led by the example of the United States Supreme Court, courts now style themselves as administrative agencies.

Let us recall from our basic political science courses what administrative agencies are. They are parts of the government that regulate in detail the activities of the citizens in specialized areas. Congress gives them wide discretion. The courts do not significantly check them, and they are not formally subject to executive direction. They can make rules, enforce their own rules, and often adjudicate infractions of them.

For the last forty years, aided by an expansive use of their injunctive powers, the courts have adopted a similar governmental persona. For example, until the Prison Litigation Reform Act passed by Congress in 1995, federal courts had virtually taken over the regulation of the nation’s prison systems. Federal courts regulated the number of prisoners in a jail, the square footage in each cell, exercise times, the availability of Playboy magazine, the numbers of prison guards, the degree of medical care, rights of consortium, ventilation, plumbing, noise, insulation, diet, telephone usage and libraries.

Despite some recent checks by the Supreme Court, federal courts are still regulating massive areas of the educational system of the country. As of spring 2000, nearly fifty years after Brown v. Board of Education, there were still 445 desegregation cases pending in which the United States was a party. The administrative agency attitude is present in abortion regulations, environmental decrees, family relations, business structures, employment law, and other areas. It may be dismaying for a democratic people, but it is not longer surprising when in Ohio, the Supreme Court declares itself competent to monitor the fiscal and pedagogical structure of the state’s school system.

How did our courts come to be thus? When did the self-identity of judges change from adjudicators to administrators?

To find out, let us go back to the beginning. In 1787 and 1788, the bitter battle over the ratification of the Constitution blazed. In the Constitutional Convention, most of the Federalists had hardly thought about the judiciary. But the anti Federalists did. They worried mightily about the federal judiciary.

In January of 1788, the anti-Federalist with the nom de plume of Brutus warned of the Federal judiciary to the New York State ratifying convention.

[T]hose who are to be vested with [the judicial power], [he wrote], are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications (The Anti-Federalist, Letter XI).

Because they are in such an unchecked position, Brutus went on, they will naturally aggrandize power to themselves and to the central government. “In their decisions,” he said, “they will not confine themselves to any fixed or established rules” (Id. at 165). “This power,” he concluded, “will enable them to mould the government into almost any shape they please” (Id. at 167).

Not a bad prediction for a losing party.

In answer, Alexander Hamilton, as Publius, wrote Federalist No. 78. Not to worry, Hamilton soothed. The courts are the least dangerous branch, for they will use judgment not will. Now the last thing one can attribute to Alexander Hamilton is naivete. Nor was he dissimulating. If Hamilton had any political fault, it was due to his blunt honesty. He was, I think it fair to say, the most brilliant and insightful of all the framers. John Marshall, not a political ally with Hamilton within the Federalist Party, said as much. In fact, it was Hamilton who created the Constitutional Convention of 1787 out of the ashes of the failed Annapolis convention the year before. Without him, there would not have been our Constitution, nor our government as we know it, nor likely, a single American nation.

Yet, how did it come to pass that the anti federalists were right and the brilliant Hamilton wrong? Was there a flaw in the basic structure of the Constitution? Should the President and Congress have been constituted by the framers as an extraordinary check upon the Court? How did we come from Hamilton’s confidence in judicial “judgment” to Brutus’s prediction of judicial “will.” How did we travel so far from court to administrative agency?

The fact is that the framers simply did not fear the Court so much as to place significant checks upon it. They knew that the amending and impeachment powers were to be limited to extraordinary cases. They expected the appointment power to be used to elevate competency not ideology to the bench. The one real check exercised by Congress until the 1870s was a limitation of federal court jurisdiction, but that was mainly because there was so little federal law to adjudicate. The framers placed few checks on the courts because there was a presumption that courts and judges would simply act differently from the political actors in the executive and legislative branches. Whence came their confidence?

One reason is historical. In the contest with England before the resort to arms, the colonists were almost always supported by the courts. One of the causes of the Revolution was the subversion of the independence of the judiciary by the crown because the courts had become an obstacle to imperial rule. One of the causes of the Constitution were the attacks against the judiciary in two of the states (New York and Rhode Island) when the courts had the effrontery to strike down acts of the state legislature. For the Federalists, the courts had been the champions of limited government.

Furthermore, the framers’ assurance went beyond the immediate history. To understand why Hamilton and the other framers could be so confident of the implicit restraint of the courts, we must engage in a kind of moral anthropology. We must understand how the judges of that era viewed and understood the values they lived by. We must not impute back to them how we ourselves look at politics and power.

First of all, judges then knew (as most judges still know today) that their power is essentially unlimited. What they decide changes individuals’ lives—often forever. They do it everyday. I do it when I sit as acting judge in municipal court. I can decide whether to withhold points from the license of a UPS driver who rolled through a stop sign. If, as standard practice, I put points on his license, he loses his job. His livelihood depends on what I decide to do. And there is nothing he can do about it. I can decide whether to let a man sit for a week or two in jail because he failed to show up for a payment hearing on his fine for littering. And there is little or nothing he can do about it. I have seen lawyers move from respect to sycophancy simply because of the extraordinary power a judge has over their case.

What do men and women judges do when confronted with the enormous power in their hands? In the centuries past, when Christian educated lawyers rose to the bench, they took their places with an informed conscience. As Michael Polanyi has noted, it was this fearful sense of their own power that led them to place moral restraints upon themselves. Polanyi writes: “The freedom of this subjective person to do as he pleases is overruled by the freedom of the responsible person to act as he must” (Polanyi, Personal Knowledge). It was the moral constraints that held judges back and the framers knew well of those constraints and fully expected the judges to abide by them.

There were, I suggest, three moral cords in the American constitutional system that held back the judges from exercising undue power. The first was the sense of what they were obliged to do—the constraint of law. The second was their sense of where they were placed to do it—the constraint of role. The third was their idea of how they were to do it—the constraint of craft.

It was, in other words, a sense of their vocation. Even today, people understand what a vocation is. It is what we are to do, where God places us to do it, and how we are to go about doing it. One’s vocation, for example, may be to teach. It may be to teach at Ashland College. And it is to teach with dedication, preparation, knowledge, and fairness.

Now, what was it that judges believed themselves obliged to do? It was to enforce the rule of law. John Adams knew it and placed it in the Massachusetts Constitution of 1780. John Marshall knew it and made it the centerpiece of his opinion in Marbury v. Madison. The rule of law was the amalgam of positive rules, not just scattered seriatim, but bounded together by established principles and by reason, and receiving its authority from the law of nature. For by what else does law gain its presumption of moral obligation?

Second, where were the judges to perform that function? That was defined for them by their sense of place in the constitutional system. It included respect for the political role of the executive, the legislative role of Congress, and the conjunctive role of the states in the government of the polity. As Chief Justice Marshall declared, “The framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature”(Marbury v. Madison, 1803).

The third principle was how they were to do it. What was their craft? It was the tradition of the common law and its fundamental respect for positive law. The common law respects the positive law, the real written down rules by which we live: the positive law of statutes, understood through rules of statutory interpretation; the positive law of the court, understood by recourse to precedent, and the positive law of the case, constrained by res judicata.

By the way, we should not think it strange that positive law operates as a primary moral constraint upon the court, for positive law is law that is outside of the judge. What is outside of the judge limits the judge’s own subjective will. St. Thomas Aquinas, for example, made obedience to the written law an essential moral requirement for the judge.
Quoting St. Augustine, Aquinas wrote

In these earthly laws, though men judge about them when they are making them, when once they are established and passed, the judges may judge no longer of them, but according to them (Aquinas, Summa Theologica).

Over the last two centuries each of these moral cords has been cut away, leaving the judge without the internal moral constraints the framers relied upon, and leaving the constitutional system without the external restraints on the judges, which the framers thought unnecessary.

The first cord to be cut was the sense of natural law. We should be accurate about the place of the natural law at the time of the framing. Natural law was in fact past the time when it was a philosophical discipline. It was not the vigorous school of thought that it was in the high Middle Ages. It was not the dynamic tradition that it has become again in the latter half of the twentieth century. Nonetheless, what the law of nature meant to the framers was that there was something in the nature of man, in the nature of things, in the nature of the social compact, and in the nature of the republic that grounded all that was done and limited all that was done. It meant that the judge had no right to make law out of whole cloth, but that he was limited by the very moral nature of law.

But that view of natural law was waning. In the intellectual history of the West and of the United States, even the idea of natural law was no longer seriously considered by the mid-19th century (with some fortunate exceptions, such as Abraham Lincoln).

The loss of the second cord, of the court’s sense of place, followed more slowly. Throughout the 19th century, the democratization of the republic proceeded apace. The anti federalist impulse grew through Jefferson, Jackson, and ultimately progressivism, even to formal changes in the Constitution itself. But as it proceeded, the court resisted. Despite the rising principle that only those institutions directly accountable to the people had legitimacy, the Court continued to think in republican terms of separation of powers and of federalism.

The Court’s attempt, ultimately unsuccessful, to limit Congressional action under the Commerce Clause was done in the name of protecting of federalism. But the philosophical and political movements of the age continued on. Soon, the Court’s role became a problem for intellectuals. How could one justify its authority when it did not come directly from the people? It was a question that simply had not troubled the framers. Thomas Reed Powell, Edward Corwin, Albert Beveridge, and Roscoe Pound soon convinced a generation of scholars and judges that the Court’s role no longer was to monitor the structure of the constitutional order, that its function no longer was to limit the excesses of the democratic spirit. Rather, the only legitimate function of the court was to facilitate democracy. Politics was not the search for an ordered community through law based on justice. Rather, politics was conflict, and law’s function was to ameliorate that conflict. After 1938, the Court accepted its new role, it gave up on its sense of constitutional place, and its fundamental adjudicative principle was to balance those competing interests that came before it. The court saw itself as a political actor.

The third cord to be cut was the constraint of the craft of the common law. Oliver Wendell Holmes, Jr.’s Path of the Common Law marked out a new path. When Holmes said that the law is only what the judges will say what it is, he left the requirements of precedent and respect for positive law without a grounding. Law and truth became relative and contextual only.

Since 1938, with a loss of its sense of role and loss of respect for the constraints of the common law, Justices of the Supreme Court have lost many of the scruples that limited the exercise of their enormous powers. Often, sad to say, Supreme Court judges have operated under a pretence of the common law method. They salt their opinions with dicta, knowing they can pick up those words to be used later as “precedent” to move the law in the direction they wish. Judges today construct precedents in the same way as congressional committees construct legislative intent. Diogenes would need a very large light indeed.

In the end, it was the ironic triumph of anti federalism that brought about the very court they warned against. As democratization proceeded, it undercut the very moral constraints that kept the courts from becoming the wielders of power that the anti federalists feared they would be. The anti federalist impulse produced its own monster.

All this, of course, did not come about immediately. For a while, after the judicial revolution of 1938, the judges, trying to be true to their role as democracy’s handmaiden, paid respect to the will of Congress and of the States. One thinks of Justice Hugo Black. But soon Justice Black saw what was afoot, and belatedly protested the new order. The courts were free at last of the moral bounds that the framers believed to be the essence of judging. They were free at last to be political actors in their own right. They were free at last to impose their unchecked rules. They were free at last to do their own mischief.

So when Justice Alice Robie Reznick seeks to have the courts administer the funding structure of Ohio’s school, to direct the legislative and financial agenda of the state, and to monitor how well the schools are teaching, she is only acting as an heir to a broken tradition.

So what does the judiciary owe the framers? The first thing they owe is an apology. The framers lodged a confidence in the judiciary of a moral sense of their craft. They left the judges free of the political constraints they placed on the other branches. But that confidence has not been kept. The second thing that the judiciary owes is some reparation: a renewed respect for the original document even over their own self created precedents. To do these things will take courage, and courage cannot be dictated. It can only be assumed.