Wechsler 1959 Toward Neutral Principles of Constitutional Law

Notable Items:
Core Objection to Brown: "But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant." (34) [Those that wish not to associate may avoid public accomodations to whatever extent they wish. They may choose to attend private Christian Academies, dances at private clubs, drink at private clubs, refrain from public transportation, etc.]

"Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion. To write it is for me the challenge of the school-segregation cases. (34) [Desegregation ended forced separation. Christian Academies allow voluntary seperation. State duty to prevent coerced separation and allow voluntary separation in private activities.]

[Public accomodation is open to all members of the public. No legimate basis to exclude a law-abiding portion of the population when there is government action or funding (via appropriations or tax law).]

Response to Learned Hand's lectures The Bill of Rights

... that judicial review is clear from the duty that the Constitution imposes on state courts when faced with a Constitutional matter.
... that the authority of the Supreme Court, tasked with review of state court decisions on such matters, is no less.
... therefore, the Supreme Court is tasked with judicial review via its appelate jurisdiction.
"The courts have both the title and the duty when a case is properly before them to review the actions of the other branches in the light of constitutional provisions, even though the action involves value choices, as invariably action does." (19) The standard of review is principled decision making. In the text leading to this statement, both originalism (example: 4th amendment and freedom of speech or press page 18) and rejection of "history and tradition" (example: due process page 19)
A principled decision, in the sense I have in mind, is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. (19) The court must provided reasoned explanation of its decisions. Its [enforced segregation] human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of freedom to associate, a denial that impinges in the same way on any groups or races that may be involved. (34)

• ... that most abiding problem of our public law: the role of courts in general and the Supreme Court in particular in our constitutional tradition; their special function in the maintenance, interpretation and development of the organic charter that provides the framework of our government, the charter that declares itself the "supreme law." (1)
• The Basis of Judicial Review
• Let me begin by stating that I have not the slightest doubt respecting the legitimacy of judicial review, whether the action called in question in a case which otherwise is proper for ad- judication is legislative or executive, federal or state. (2)
• [Learned Hand:] ... that it was therefore "altogether in keeping with estab- lished practice for the Supreme Court to assume an authority to keep the states, Congress, and the President within their prescribed powers"; and, finally and explicitly, that for the reason stated "it was not a lawless act to import into the Constitution such a grant of power." (3)
• [Supremacy Clause] may be construed as a mandate to all of officialdom including courts, with a special and emphatic admonition that it binds the judges of the previously independent states. (3)
• ... if a state court passes on a constitutional issue, as the supremacy clause provides that, it should, its judgment is reviewable, subject to congressional exceptions, by the Supreme Court, in which event that Court must have no less authority and duty to accord priority to constitutional provisions than the court that it reviews. (4)
• Is it a possible construction of the Constitution, measured strictly as Judge Hand admonishes by the test of "general purpose," that if Congress opts, as it has opted, to create a set of lower courts, those courts in cases falling within their respective jurisdictions and the Supreme Court when it passes on their judgments are less or differently constrained by the supremacy clause than are the state courts, and the Supreme Court when it reviews their judgments? Yet I cannot escape, what is for me the most astonishing conclusion, that this is the precise result of Judge Hand's reading of the text, as distinct from the interpolation he approves on other grounds.
• [Learned Hand:] ... this power [of judicial review] it need not be exercised whenever a court sees, or thinks that it sees, an invasion of the Constitution. It is always a preliminary question how importunately the occasion demands an answer. (5)
• For me, as for anyone who finds the judicial power anchored in the Constitution, there is no such escape from the judicial obligation; the duty cannot be attenuated in this way. (6)
• Only when the standing law, decisional or statutory, provides a remedy to vindicate the interest that demands protection against an infringement of the kind that is alleged, a law of remedies that ordinarily at least is framed in reference to rights and wrongs in general, do courts have any business asking what the Constitution may require or forbid, and only then when it is necessary for decision of the case that is at hand. [Re: Marshall's three questions in Marbury v. Madison] (6)
• ... the only proper judgment that may lead to an abstention from decision is that the Constitution has committed the determination of the issue to another agency of government. (9)
• [digression into certiorari]
• The Standards of Review
• I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved. (15)
• No legislature or executive is obligated by the nature of its function to support its choice of values by the type of reasoned explanation that I have suggested is intrinsic to judicial action - however much we may admire such a reasoned exposition when we find it in those other realms. (15)
• So far as possible, to finish with my point, I argue that we should prefer to see the other clauses of the Bill of Rights read as an affirmation of the special values they embody rather than as statements of a finite rule of law, its limits fixed by the con- sensus of a century long past, with problems very different from our own. (19)
• The courts have both the title and the duty when a case is properly before them to review the actions of the other branches in the light of constitutional provision.... This calls for facing how determina- tions of this kind can be asserted to have any legal quality. A principled decision, in the sense I have in mind, is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices must, of course, survive. (19)
• The virtue or demerit of a judgment turns, therefore, entirely on the reasons that support it and their adequacy to maintain any choice of values it decrees, or, it is vital that we add, to maintain the rejection of a claim that any given choice should be decreed. (19)
• Some Appraisals of Review
• [two groups of cases: extending free speech to film; school desegregation]
• I do not know, and I submit you cannot know, whether the per curiam affirmance in the [4th Circuit] Dawson case, involving public bath houses and beaches, embraced the broad opinion of the circuit court that all state-enforced racial segregation is invalid or approved only its immediate result and, if the latter, on what ground. (22)
• Is this "process of law," ... that alone affords the Court its title and its duty to adjudicate a claim that state action is repugnant to the Constitution? (23)
• The phase of our modern constitutional development that I conceive -- we can most confidently deem successful inheres in the broad reading of the commerce, taxing, and related powers of the Congress, achieved with so much difficulty little more than twenty years ago -- against restrictions in the name of state autonomy to which the Court had for a time turned such a sympathetic ear. (23)
• Finally, I turn to the decisions that for me provide the hardest test of my belief in principled adjudication, those in which the Court in recent years has vindicated claims that deprivations based on race deny the equality before the law that the fourteenth amendment guarantees. The crucial cases are, of course, those involving the white primary, the enforcement of racially restrictive covenants, and the segregated schools. (26)
• The primary and covenant cases present two different aspects of a single problem - that it is a state alone that is forbidden by the fourteenth amendment to deny equal protection of the laws, .... (27)
• The problem became difficult only when the states, responding to these judgments, repealed the statutes, leaving parties free to define their member- ship as private associations, protected by the state but not directed or controlled or authorized by law. (27)
• Smith v. Allwright means rather that the constitutional guarantee against deprivation of the franchise on the ground of race or color has become a prohibition of party organization upon racial lines, at least where the party has achieved political hegemony. I ask with all sincerity if you are able to discover in the opinions thus far written in support of this result -- a result I say again that I approve -- neutral principles that satisfy the mind. (29)
• The case of the restrictive covenant presents for me an even harder problem. Assuming that the Constitution speaks to state discrimination on the ground of race but not to such discrimination by an individual even in the use or distribution of his property, although his freedom may no doubt be limited by common law or statute, why is the enforcement of the private covenant a state discrimination rather than a legal recognition of the freedom of the individual? (29)
• What is not obvious, and is the crucial step, is that the state may properly be charged with the discrimination when it does no more than give effect to an agreement that the individual involved is, by hypothesis, entirely free to make. [Shelley v. Kraeamer 1948] (29)
• Black v. Cutter Labs: Here a collective-bargaining agreement was so construed that Communist Party membership was "just cause" for a discharge. In this view, California held that a worker was lawfully dismissed upon that ground. A Supreme Court majority concluded that this judgment involved nothing but interpretation of a contract, making irrelevant the standards that would govern the validity of a state statute that required the discharge. Only Mr. Chief Justice Warren and Justices Douglas and Black, dissenting, thought the principle of Shelley v. Kraemer was involved when the state court sustained the discharge. (30)
• Wechsler's Core Issue of Brown
  1. ... not that the Court departed from its earlier decisions holding or implying that the equality of public educational facilities demanded by the Constitu- tion could be met by separate school (31)
  2. ... that the Court disturbed the settled patterns of a portion of the country .... (31)
  3. ... history does not confirm that an agreed purpose of the fourteenth amendment was to forbid separate schools .... (31)
  4. ... that the Court may have miscalculated the ex- tent to which its judgment would be honored or accepted .... (32)
  5. ... that the Court did not remit the issue to the Congress, acting under the enforcement clause of the amendment. (32)
  6. The problem inheres strictly in the reasoning of the opinion, .... the separate-but-equal formula was not over- ruled "in form" but was held to have "no place" in public educa- tion on the ground that segregated schools are "inherently un- equal," .... (32)
• ... two decisions I have mentioned will remain, as they now are, ad hoc determina- tions of their narrow problems, yielding no neutral principles for their extension or support. (31)
• Lastly, I come to the school decision.... The problem inheres strictly in the reasoning of the opinion,.... Does the validity of the decision turn then on the sufficiency of evidence or of judicial notice to sustain a finding that the separation harms the Negro children who may be involved? (32)
• Rather, it seems to me, it must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved. (33)
• Its [enforced segregation] human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of freedom to associate, a denial that impinges in the same way on any groups or races that may be involved. (34)
• Does not the problem of miscegenation show most clearly that it is the freedom of association that at bottom is involved, the only case, I may add, where it is implicit in the situation that associa- tion is desired by the only individuals involved. (34)
• But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. (34)
• Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion. To write it is for me the challenge of the school-segregation cases. (34) [Desegregation ended forced separation. Christian Academies allow voluntary seperation. State duty to prevent coerced separation and allow voluntary separation in private activities.]