When Supreme Court Justice Byron White announced his retirement from public life in March of this year, a shudder rippled down the spines of Washington conservatives. Previously, when one or another of the Court’s Nameless Nine had declared his intention to quit the pleasures of wrecking the laws and customs of local communities he had never heard of and spend his remaining years improving his golf game, the Beltway Right had rubbed its hands in glee. Every new vacancy on the Court meant an opportunity to plug one of its own eruditi into the empty socket of American jurisprudence, and even if the Senate Judiciary Committee thwarted its plans and succeeded in ruining each conservative nominee’s reputation by exposing him as a rake, a reactionary, or a scholar who had had too many ideas, there still remained a bottomless pit of money to be raised and volumes of articles to be scribbled on the subject of the unfairness and hypocrisy of it all.
Yet, with the exception of Robert Bork, all of the Republican nominees to the Court in the 1980’s were confirmed, and by the end of the decade one would have expected a genuine legal counterrevolution to have been triumphant or well under way. The last major decision of the Court in the Reagan-Bush era, however, was a signal failure to overturn the 1973 Roe v. Wade ruling by which a right to abortion had suddenly been discovered glimmering in the shadowy bottoms of the constitutional text, and since no small part of the conservative reaction against “judicial activism” was generated by outrage over the Roe decision, the inability of conservative legal hounds to bring it to bay must be chalked up as one more blind alley down which the Reagan Revolution blundered. Indeed, the reason conservative spines should tingle when incumbent justices contemplate retirement nowadays is that the Republican ascendancy of the 1980’s did virtually nothing to diminish the swollen power that the Court has grabbed for itself throughout this century. Hence, when King Bill and his consort replace retiring Justices with the obscurities, misfits, and malcontents whom we must expect them to choose, the new Solomons will receive intact almost all of the power that their predecessors accumulated and that the Republicans and their appointees did nothing to dismantle. Of course, the Court did sway a bit to the right under the influence of the Republican appointments, but at no time did the Reagan-Bush justices seriously seek to reverse and reduce the grandiose pretensions of the Court’s power or undo the damage inflicted on the Republic by Earl Warren and his colleagues.
The premise of the Warren revolution and the ruin it made of the Republic was the dogma handed down from the 1920’s through the 1940’s known as the “Incorporation Doctrine,” according to which the Bill of Rights is “incorporated” within the meaning of the I4th Amendment. Originally intended as a series of limitations on the federal government, the Bill of Rights, as illuminated by the Incorporation Doctrine, has evolved into a constraint on state and local powers and an anvil on which legal and judicial elites can sledgehammer local and state laws and procedures that stand in the way of their political preferences. Legal scholar Paul Murphy, a champion of Warren and his works, actually acknowledges the transparently political baggage that the former Chief Justice successfully snuck under the constitutional tent. Warren, writes Murphy, “utilized the judiciary as a constructive policymaking instrument in a wide range of areas. Intent more upon social ends than upon legal subtleties and refinements, and candidly prepared to say so, he had pushed the nation, through his Court’s legal rulings, to take public actions that Congress was unprepared to recommend and the executive was incapable, unilaterally, of effectively securing.”
In other words, since voters and their elected representatives persisted in the nasty habit of repulsing the legalistic hurricanes that continuously erupt from the nervous systems of the ACLU, the NAACP, labor unions, and communist front groups, it was left up to the valor and ingenuity of such decrepit apostles of progress as Warren himself, Harry Blackmun, the late Thurgood Marshall, William O. Douglas, and William Brennan to fob off on states and cities the “true meaning” of the Constitution as discerned by these sages, and the Incorporation Doctrine was the principal tool by which they did so. As conservative legal scholar Douglas Bradford expressed it in an article in the journal This World last year, “upon this rock [of the Incorporation Doctrine] rests the authority of the federal judiciary to oversee busing, quotas, school district boundaries, abortion, Miranda warnings, probable cause for arrest, prison and asylum standards, libel, pornography, subversive speech, and the separation of church and state.” In the absence of the Incorporation Doctrine, that is, there would in fact be virtually no enduring liberalism in the United States, and the grotesque failure of the “Reagan Revolution” is nowhere more glaringly exhibited than in the inability and perhaps the unwillingness of its Court appointees to challenge this doctrine. Indeed, there now flourishes a school of neoconservative jurisprudence that is actually committed to endorsing and keeping the Incorporation Doctrine in one form or another.
The ostensible reason certain conservatives are drawn to the Incorporation Doctrine is that it seems to offer them an opportunity to encode in the Constitution what they take to be fundamental rights of property and economic enterprise and the protection of a free-market economy. Their views are largely drawn from late 19th-century jurisprudence, when the 14th Amendment was conscripted by the conservative jurists of the Gilded Age to buttress “substantive due process.” Under this interpretation, the Amendment’s prohibition of a state depriving “any person of life, liberty, or property without due process of law” is extended to the substance of what legislatures do, not merely to the procedures by which the laws operate. As legal historian Melvin Urofsky explains the distinction, “Procedural due process . . . regulates the courts and constitutes the rules of the game; substantive due process regulates the legislature and is the game.” By claiming that the I4th Amendment dictates what legislatures may do, the concept of substantive due process essentially brings state legislatures (as well as city and county governments) under the control of the federal courts.
The value of substantive due process as understood through an expansive view of the 14th Amendment to defenders of free enterprise comes mainly from its application to local and state licensing laws. The leading Court rulings in this held remain the 1873 “Slaughterhouse Cases,” in which the Court narrowly upheld (thereby rejecting substantive due process claims) a Louisiana statute that limited the location of slaughterhouses to certain areas of New Orleans. Butchers outside the area challenged the law on the ground that it violated their right to exercise their trade as guaranteed in the Bth and 14th Amendments and the 1866 Civil Rights Act. Justice Samuel Miller, speaking for the five-vote majority on the Court, rejected their argument, stating that to use the 14th Amendment to authorize federal protection of individual rights within and against the states would “fetter and degrade the State governments by subjecting them to the control of Congress” and would “constitute this court a perpetual censor upon all legislation of the States.”
Miller’s view prevailed, but not for long. By the I890’s, the idea of using substantive due process to resist efforts of Progressivist reformers to regulate business at the local level had proved too useful for the judicial defenders of laissez-faire to resist, even at the expense of sacrificing federalism. Up through the 1930’s, when conservative Justices used it to resist Wilsonian and Rooseveltian attempts to regulate the economy, the substantive due process view prevailed, until Roosevelt’s own political manipulation of the Court allowed it to be replaced, at least for economic purposes.
Although the legal reasoning by which substantive due process is applied to economic cases differs from that by which the Incorporation Doctrine was developed, the effects are essentially the same. In both, a branch of the federal government—the Supreme Court—dictates what state legislatures may and may not do, and in both, the 14th Amendment is invoked as a basis for this expansion of federal power and the corresponding diminution of state and local authority.
Today the principal exponent of reviving substantive due process reasoning in economic liberty eases is Professor Richard Epstein of the University of Chicago, but while Professor Epstein is involved largely in the theoretical elaboration of the argument, the main pioneer of this school on a practical level has been Clint Bolick of the Landmark Legal Foundation and more recently of the Washington-based Institute for Justice. Mr. Bolick and his attorneys have mainly sought to use substantive due process arguments to oppose local licensing laws that they claim violate citizens’ rights to engage in private enterprise. Thus, they have supported litigation aimed at overturning Washington, D.C., licensing laws banning bootblacks from city sidewalks and a Houston, Texas, law that banned jitneys because of their competition with local streetcar companies. In these and similar cases, Bolick argues that such laws are also racially discriminatory, since they usually have the effect of pushing out black competitors in favor of white businesses and since they were often passed in the first place for precisely that purpose.
The specific results of Mr. Bolick’s efforts—overturning obsolete or irrational licensing laws that restrict competition—are no doubt commendable, but, like the original substantive due process cases, their effects on conservative legal strategy in the longer term are likely to be pernicious. Reliance on the Incorporation Doctrine and substantive due process theory by conservatives contradicts and weakens whatever efforts the right might make against the use of these same principles by the left, and if the legal history of this century proves anything, it is that the left will be the ultimate beneficiary of any centralized legal system and the principles that support it. There is no way decisions such as Roe v. Wade or similar rulings on prayer in schools, burning the flag, obscenity, civil rights, or entire casebooks of other victories for legal liberalism, can flourish without the kind of interpretation that the left has imposed on the 14th Amendment and that Professor Epstein, Mr. Bolick and his colleagues, and their adherents are zealous to perpetuate.
Local licensing laws, moreover, may have few economic merits, though in the original Slaughterhouse Cases the purpose of the law was to protect public health against the disease that accompanies the professional slaughter of cattle. The fact is that states and local communities may have any number of perfectly valid and legitimate reasons for enacting legislation limiting local enterprises, and certainly the approval or disapproval of nine men in Washington (or of political ideologues in universities and foundations) should have nothing to do with how communities govern themselves.
The whole point of the U.S. Constitution as it was originally written and adopted was to enable the people of one of the world’s largest and most diverse countries to govern themselves without coming under the centralized dominance of a particular interest, faction, or region. Throughout American history, it has been that very feature of the Constitution that has so profoundly offended and alarmed the legions of those armed with a Better Idea—High Federalists, abolitionists. Social Darwinists of the Gilded Age, Wilsonian apostles of the New Freedom, Rooseveltian peddlers of the New Deal, New Frontiersmen, Great Society social engineers, lunch-counter liberators, civil-liberties Stalinists, abortionists, common criminals, and overeducated freethinkers who feel oppressed because someone can read the Ten Commandments on a school bulletin board. Each and every one of them has sought to gut the dispersion of political power promised in the old Constitution and tried to get the federates on his or her side, usually by wheedling the branch of the federal government least responsive to the voters into forcing everybody else to conform to his or her hobbies and obsessions.
What has stood between these platoons of crackpots and crusaders and the ordered way of life most Americans prefer to follow has not been the presidency, the Supreme Court, Congress, the news media, churches, or big business, and certainly not any “conservative movement” headquartered on K Street or Capitol Hill. What has resisted them has been the American people themselves, organized and represented in decentralized local institutions of government at the levels of county, town, and state, and their resistance has been overcome only when their enemies have captured the Supreme Court and turned it into a political weapon to advance their pet causes. If Americans are going to recapture their country, they’ll have to do so by stripping the Court of the powers it has seized under such fictions as the Incorporation Doctrine and substantive due process, dismantling the Court’s appointment of itself as the “perpetual censor upon all legislation of the States” that Justice Miller warned against, and preventing the exploitation of Court and Constitution as the “constructive policymaking instruments” into which Earl Warren transmuted them. So far, the Reagan Revolutionaries and their tax-exempt allies in the Beltway Right have shown little capacity to accomplish that counterrevolution and precious little interest in even trying.