2023-09-11: Added Bork Neutral Principles and Some First Amendment Problems 1971

• A persistently disturbing aspect of constitutional law is its lack of theory, a lack which is manifest not merely in the work of the courts but in the public, professional and even scholarly discussion of the topic. The result, of course, is that courts are without effective criteria and, therefore we have come to expect that the nature of the Constitution will change ... as the personnel of the Supreme Court changes. In the present state of affairs that expectation is inevitable, but it is nevertheless deplorable. (1) (emphasis added)
• The first section centers upon the implications of Professor Wechsler's concept of "neutral principles," [ Toward Neutral Prinicples of Constitutional Law ] and the second attempts to apply those implications to some important and much-debated problems in the interpretation of the first amendment. (1)
• The Supreme Court and the Demand for Principle
• ... when is authority legitimate? It arises when any court either exercises or declines to exercise the power to invalidate any act of another branch of government. The Supreme Court is a major power center, and we must ask when its power should be used and when it should be withheld. (1)
• Our starting place, inevitably, is Professor Herbert Wechsler's argument that the Court must not be merely a "naked power organ," which means that its decisions must be controlled by principle.' (2)
• The requirement that the Court be principled arises from the resolution of the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic. The anomaly is dissipated, however, by the model of government embodied in the structure of the Constitution, a model upon which popular consent to limited government by the Supreme Court also rests. (2) [Where is the statement of judicial supremacy in the Constitution?]
• The anomaly is dissipated, however, by the model of government embodied in the structure of the Constitution, a model upon which popular consent to limited government by the Supreme Court also rests. (2) (emphasis added) [what basis? role of the court in the Constitution's text does not include judicial review of constitutionality.]
• Majority tyranny occurs if legislation invades the areas properly left to individual freedom. [Rights?] Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. [Filibuster? Senate structure? Electoral College structure?] This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court's power to define both majority and minority freedom through the interpretation of the Constitution. (3) (emphasis added)
• This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court's power to define both majority and minority freedom through the interpretation of the Constitution. [Majority / Minority dilemma does not include issues of federalism]
• But this resolution of the dilemma imposes severe requirements upon the Court. For it follows that the Court's power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. ... if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. (3)
• This is, I think, the ultimate reason the Court must be principled. If it does not have and rigorously adhere to a valid and consistent theory of majority and minority freedoms based upon the Constitution, judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate. (4)
• ... no argument that is both coherent and respectable can be made supporting a Supreme Court that "chooses fundamental values" because a Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society. (6) [What is "due process"? What is "unreasonable search"? Civil forfeiture violation of "takings clause"? these are value choices. ]
• We have not carried the idea of neutrality far enough. We have been talking about neutrality in the application of principles. If judges are to avoid imposing their own values upon the rest of us, however they must be neutral as well in the definition and the derivation of principles. (7)
• [Regarding, for example:] Griswold v. Connecticut .... question of neutral definition arises: Why ... married couples? Why ... contraceptives? Why ... only to sex? (7) (emphasis added)
• The question of neutral derivation also arises: What justifies any limitation upon legislatures in this area? What is the origin of any principle one may state? (7) (emphasis added)
• ... NAACP v. Alabama," the State was held unable to force disclosure of membership lists because of the chilling effect upon the rights of assembly and political action of the NAACP's members. (8) [Bork defends the penumbra (his word) of right of assembly and political action]
• But Justice Douglas then performed a miracle of transubstantiation. ... first amendment's penumbra a protection of "privacy" ... asserted that other amendments create "zones of privacy." ... "zones of privacy" created an independent right of privacy, a right not lying within the penumbra of any specific amendment. (8)
• He did not disclose, however, how a series of specified rights combined to create a new and unspecified right. (9)
• Griswold, then, is an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it. (9)
• [Declares power utility seeking to overturn pollution regulation "identical" to married couple seeking to overturn contraceptive ban. "The impossibility is related to that of making interpersonal comparisons of utilities."] (10)
• Where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute. (10)
• Legislation requires value choice and cannot be principled in the sense under discussion. Courts must accept any value choice the legislature makes unless it clearly runs contrary to a [value] choice made in the framing of the Constitution. (10)
• It follows, of course, that broad areas of constitutional law ought to be reformulated. [Griswold and] Griswold's antecedents were also wrongly decided, e.g., Meyer v. Nebraska,"'which struck down a statute forbidding the teaching of subjects in any language other than English; Pierce v. Society of Sisters, which set aside a statute compelling all Oregon school children to attend public schools; Adkins v. Children's Hospital," which invalidated a statute of Congress authorizing a board to fix minimum wages for women and children in the District of Columbia; and Lochner v. New York," which voided a statute fixing maximum hours of work for bakers. (11)
• "[A]re we all ... at the mercy of legislative majorities?" The correct answer, where the Constitution does not speak, must be "yes."
• The equal protection clause has two legitimate meanings. It can require formal procedural equality, and, because of its historical origins, it does require that government not discriminate along racial lines. (11)
• The bare concept of equality provides no guide for courts. All law discriminates and thereby creates inequality. The Supreme Court has no principled way of saying which non-racial inequalities are impermissible. (11)
• There is no principled way in which anyone can define the spheres in which liberty is required and the spheres in which equality is required. These are matters of morality, of judgment, of prudence. They belong, therefore, to the political community. In the fullest sense, these are political questions. (12)
• Wechsler said he had great difficulty framing a neutral principle to support the Brown decision, though he thoroughly approved of its result on moral and political grounds.
• It is the fact that history [of the Fourteenth Amendment] does not reveal detailed choices concerning such matters [segregation] that permits, indeed requires, resort to other modes of interpretation. [privileges or immunities; due process; equal protection. Does "equal protection of its laws" forbid segregation and miscegenation?] (13)
• ... it is the same case as Griswold v. Connecticut and not susceptible of principled resolution. (14)
• A court required to decide Brown would perceive two crucial facts about the history of the fourteenth amendment. First, the men who put the amendment in the Constitution intended that the Supreme Court should secure against government action some large measure of racial equality. Second, those same men were not agreed about what the concept of racial equality requires. (14)
• ... the Court cannot decide that physical equality is important but psychological equality is not. Thus, the no-state-enforced-discrimination rule of Brown must overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson. (15)
• I doubt, however, that it is possible to find neutral principles capable of supporting some of the other decisions that trouble Professor Wechsler. (15)
• Shelly v. Kraemer ... private, racially restrictive covenant. ... judicial enforcement of a private person's discriminatory choice constituted the requisite state action. (15)
• The principle would apply not merely to the cases hypothesized by Professor Wechsler--the inability of the state to effectuate a will that draws a racial line [gift not exclusion, not analogous] (15)
• ... or to vindicate the privacy of property against a trespasser excluded because of the homeowner's racial preference .... [trespass prima facia illegal, race not a consideration] (15)
• [is a gated community analogous to a private club in controlling its membership?]
• [Henkin:] Generally, the equal protection clause precludes state enforcement of private discrimination. In the few instances in which the right to discriminate is protected or perferred [liberty; property; privacy; voluntary association] by the Constitution, the state may enforce it. (16)
• [Henkin] converts an amendment whose text and history clearly show it to be aimed only at governmental discrimination into a sweeping prohibition of private discrimination. (16)
• There appear to be two proper methods of deriving rights from the Constitution. (17)
• (specified rights) The first is to take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules. (17) [examples? can these be realized without "derivative rights"?]
• (derivative rights) The second method derives rights from governmental processes established by the Constitution. ... derivation is essential to the interpretation of the first amendment, to voting rights, to criminal procedure and to much else. (17)
• They [derivative rights] are given to the individual because his enjoyment of them will lead him to defend them in court and thereby preserve the governmental process from legislative or executive deformation. (17) [rights given, not inherent? are specified rights inherent?]
• [quite abbreviated statement of Bork's theory of rights]
• The distinction between rights that are inherent and rights that are derived from some other value is one that our society worked out long ago with respect to the economic market place ... (18)
• The state legislative reapportionment cases were unsatisfactory precisely because the Court attempted to apply a substantive equal protection approach. (18)
• The principle of one man [sic person], one vote was not neutrally derived: it runs counter to the text of the fourteenth amendment, the history surrounding its adoption and ratification and the political practice of Americans from colonial times up to the day the Court invented the new formula. (18) [how counter 14th?]
• The principle was not neutrally defined: it presumably rests upon some theory of equal weight for all votes ... (18)
• To approach these cases as involving rights derived from the requirements of our form of government is, of course, to say that they involve guarantee clause claims. (19)
• The topic of governmental processes and the rights that may be derived from them is so large that it is best left at this point. (19)
• I turn next to a suggestion of what neutrality, the decision of cases accord- ing to principle, may mean for certain first amendment problems. (20)
• Some First Amendment Problems: The Search for Theory