Rehnqust 1976 The Notion of a Living Constitution

Summary

Distinguishes decisions acting where neither the legislative nor executive branches have acted vs reviewing statutes enacted by the legislature...but all examples are examples of judicial review.

Cases cited do not match any of his "three serious difficulties". The cases are ones of judicial review of enacted statutes [Dred Scott, Lochner]. His objection is to the judiciary acting "because no other branch of government will do so." [desegregation, reapportionment, discrimination generally.]

Rehnquist's argument concering the elected branches supports Need entry for Chevron-NRDC unless "these branches overstep the authority given them by the Constitution."

2023-09-20: Rehnquist The Notion of a Living Constitution 1976

• "living Constitution." The phrase is really a shorthand expression that is susceptible of at least two quite different meanings. (694) [emphasis added]
• The first meaning [the Holmes version] was expressed over a half-century ago by Mr. Justice Holmes in Missouri v. Holland "... When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters." (694) [emphasis added]
• The framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live. (694)
• Where the framers of the Constitution have used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen. (694)
• ... a second connotation of the phrase "living Constitution," ... the brief [case not cited] urged "... Prisoners are like other 'discrete and insular' minorities for whom the Court must spread its protective umbrella because no other branch of government will do so ..." (695) [emphasis added]
• Under this brief writer's version of the living Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so. (695) [emphasis added] [see Brown v. Board of Education of Topeka (1954) and the reapportionment cases among other examples. Consider unconstitutional majority statutes or procedures.]
• What we are talking about, however, is a suggested philosophical approach to be used by the federal judiciary, and perhaps state judiciaries, in exercising the very delicate responsibility of judicial review. (695)
• When these branches overstep the authority given them by the Constitution, in the case of the President and the Congress, or invade protected individual rights, and a constitutional challenge to their action is raised in a lawsuit brought in federal court, the Court must prefer the Constitution to the government acts. (696) ["overstep" -- other branch(es) of government did address the issue contra "second connotation above"]
• A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution. (696) [bring back the pillory]
• The brief writer's version seems instead to be based upon the proposition that federal judges, perhaps judges as a whole, have a role of their own, quite independent of popular will, to play in solving society's problems. (698)
• At least three serious difficulties flaw the brief writer's version of the living Constitution. (699) [emphasis added]
  • First, it misconceives the nature of the Constitution, which was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times. (699)
  • Second, the brief writer's version ignores the Supreme Court's disastrous experiences when in the past it embraced contemporary, fashionable notions of what a living Constitution should contain. (699)
  • Third, however socially desirable the goals sought to be advanced by the brief writer's version, advancing them through a freewheeling, non-elected judiciary is quite unacceptable in a democratic society. (699) [overlaps with first objection?]
• Although the Civil War Amendments were designed more as broad limitations on the authority of state governments, they too were enacted in response to practices that the lately seceded states engaged in to discriminate against and mistreat the newly emancipated freed men. (699) [emphasis added] [concedes incorporation is original intent.]
• I think they would have said that those amendments were designed to prevent from ever recurring abuses in which the states had engaged prior to that time. (700) [backward looking only...no proscriptive content]
• [Regarding first objection:] The brief writer's version of the living Constitution, however, suggests that if the states' legislatures and governors, or Congress and the President, have not solved a particular social problem, then the federal court may act. (700) [reprise Brown v. Board of Education of Topeka (1954) add all equal protection cases such as Shelley v. Kraemer (1948)
• Even in the face of a conceded social evil, a reasonably competent and reasonably representative legislature may decide to do nothing. (700) [continues with a list of possible reasons]
• [Regarding second objection:] [recount DredScott-Sandford (1856) and Lochner-NewYork (1905) -- both instances of judicial review overturning laws, not examples of where the legislature "failed or refused to do so."...does not match the second objection as detailed in Constitutional Interpretation page 16ff] [limited number of errors does not preclude all future decisions...otherwise mistaken convictions] [neither Dred Scott nor Lochner "embraced contemporary, fashionable notions"...does not match the second objection. Both fit the desires of the court, not the will of the people as expressed in duly enacted law which matchs ShelbyCounty-Holder (2013) and Burwell v. Hobby Lobby Stores, Inc. (2014) .]
• This school of thought appears to feel that while added protection for slave owners was clearly unacceptable and safeguards for businessmen threatened with ever-expanding state regulation were not desirable, expansion of the protection accorded to individual liberties against the state or to the interest of "discrete and insular" minorities," such as prisoners, must stand on a quite different, more favored footing. (702) [emphasis added] [aren't slave owners and businessmen individual(s) [with rights and] (liberties)...clearly there is another element at play.]
• They [safeguards for individual liberty] assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone's idea of natural justice but instead simply because they have been incorporated in a constitution by the people. (704) [instrinsic worth lies in the liberties. safeguards have worth to the extent that they suceed in guarding the liberties.]
• [Regarding third objection:]
• ... various individual value judgments are debated likewise take on a form of moral goodness because they have been enacted into positive law. (704) [Jawohl! The Nuremberg Laws.]
• It should not be easy for any one individual or group of individuals to impose by law their value judg- ments upon fellow citizens who may disagree with those judgments. Indeed, it should not be easier just because the individual in question is a judge. (705)
• The brief writer's version of the living Constitution, in the last analysis, is a formula for an end run around popular government. (706)