incorporation decisions betrayed our essentialrnbelief in dual sovereignty andrnwrongly reduced state citizens’ rights tornself-government. Remarkably, some legalrnhistorians have even suggested a reexaminationrnof the conditions underrnwhich the Reconstruction amendmentsrnwere passed. These amendmentsâ€”thern13th, 14th, and 15th, dealing with slavery,rnthe franchise, and the exercise ofrncontract and property rights by the newrnfreedmenâ€”were, as most Southernersrn(but only a few law professors) remember,rnthe dubious products of coercion,rnsince the Southern states, then underrnmilitary occupation, were required tornpass them as a condition of re-admissionrnto the union. No one expects, and indeed,rnprobably no one in the legal academyrnadvocates, the invalidation of the Reconstructionrnamendments, but the merernfact that their legitimacy has begun to berndiscussed ought to cast doubt upon thernbroad and unwarranted construction ofrnthese amendments.rnSeveral judges, lawyers, and legalrnscholars have also concluded that constitutionalrnlaw ought to be about more thanrnthe self-indulgence mandated in Casey,rnand many state legislatures and Congressrnhave taken tentative steps to curb the explosionrnin litigation based on the manufacturernof new victims’ rights. Hinderingrnreform is the fact that the current Presidentrnis sympathetic to the trial lawyersrnwho reap most of the profit from this litigation.rnStill, it is significant that the onlyrnone of President Clinton’s vetoes whichrnhas been overridden was of a bill restrictingrnprivate securities fi-aud litigation, andrnimposing sanctions on abusive plaintiffsrnand their lawyers.rnThe notion that we have overemphasizedrnrights and neglected responsibilitiesrnis also evident in the movement for arnconstitutional amendment to reverse thernSupreme Court’s 1989 five-to-four decisionrnprotecting flag-burning. This ruling,rnwhich was contrary to the opinionsrnof Earl Warren and Hugo Black, two ofrnthe greatest champions of civil libertiesrnin the history of the Court, is a sign ofrnhow far the individualistic ideology ofrnself-indulgence has gone. Forty-ninernstate legislatures have petitioned Congressrnto pass the flag amendment, and itrneasily achieved the required two-thirdsrnmajority in the House of Representatives,rnbut, at this writing, it is still two orrnthree votes short in the Senate, where thernindividualistic ideology is stronger. Therncurrent text of the amendment (“Congressrnshall have the power to prohibit thernphysical desecration of the flag of thernUnited States”) is notâ€”alas!â€”much ofrnan exercise in dual sovereignty, andrnwould have the effect of reinforcing arnpower of the central government, but therngrassroots movement pushing for thernamendment does so in the spirit of community,rnof piety, of shared responsibility,rnand of respect for the self-sacrifice thatrnthe flag represents.rnMost of these encouraging SupremernCourt decisions have been by a slim fiveto-rnfour majority (as have the most discouragingrndecisions), and the retirementrnof any one of the conservative majority ofrnthe Court (Rehnquist, O’Connor,rnScalia, Kennedy, or Thomas) could leadrnto a sudden reversal of these benevolentrndevelopments. Any appointments byrnDemocrats would likely bolster thernrights-oriented, pro-affirmative action,rnand anti-federalistic views of the Clintonrnappointees, Breyer and Ginsburg. Moreover,rnif congressional Republicans givernin to the President’s badgering, he mightrnwell have a chance to pack the lower federalrncourts. Ironically, if the Court keepsrnits present composition, it is likely to deferrnmore and more to the lower courts,rnand thus, if the President has his way, thernpromising flowering of the jurisprudencernof the Old Republic may bernnipped in the bud.rnBut even the present five-person majorityrnof the Supreme Court cannot alwaysrnbe counted on to do the right thing.rnJustices O’Connor and Kennedy were,rnafter all, members of the plurality whichrnissued the “mystery passage” in Casey,rnand Justice O’Connor, a former state legislator,rnhas often refused to articulaternclear rules of law, instead engaging inrnline-drawing and balancing tests whichrnare appropriate for the people’s representativesrnbut not for its judges. The “balancingrntest” regarding governmental entanglementrnwith religion, to whichrnJustice O’Connor was devoted, led her torndissent in the case overruling RFRA, andrnthough she voted on the right side of therndecision to allow New York to provide remedialrneducation in a private-school setting,rnshe has joined with four otherrnmembers of the Court (one of them JusticernKennedy) to bar even nonsectarianrnprayers at middle-school commencements.rnJustice O’Connor generally canrnbe counted on to take a position againstrnrace-based governmental actions, butrneven there she has left the door open tornstates to discriminate on the basis of racernif they can arficulate a “compelling reason.rnThere are still many good years left inrnJustice Scalia and Justice Thomas, andrnThomas is emerging as a powerful advocaternof original understanding and dualrnsovereignty. Ceorge Bush’s boast whenrnhe nominated Thomas (that race playedrnno part in his selection, and that he wasrnthe most qualified person for the job)rnseems to have proved fine (at least withrnregard to the latter assertion). However,rnthere have been rumors that JusticernRehnquist, who has served long andrnhonorably, may be ready for retirement.rnAnd Justice O’Connor and JusticernKennedy, while having joined in somernlaudable decisions, have also demonstratedrna reluctance (as they did inrnCasey) to overrule previous Court precedentsrneven if the reasoning used to reachrnthem is deeply suspect.rnThe fact that President Clinton wasrnreelected even though Senator Dole hadrnpromised to appoint judges committedrnto interpreting rather than rewriting thernConstitution suggests that most Americansrnare still indifferent to the law-makingrnof our unelected Platonic Guardians.rnOn the other hand, the fact that thernAmerican public returned majorities tornCongress who are generally committedrnto reining in the judges suggests the contrary.rnStill, if even the extraordinarilyrnpopular flag amendment founders in thernSenate, it is unlikely that constitutionalrnamendments will reverse the nefariousrnSupreme Court precedents, especiallyrnthose regarding abortion and state-sponsoredrnreligious exercise. Friends of thernOld Republic should wait to see whetherrnthe Court continues along the path representedrnby recent decisions on race andrnfederalism, and to see whether a conservativernRepublican is elected in 2000. Ifrnnot, then the people of the states wantingrnto restore the Old Republic might be leftrnwith no other option but that taken byrntheir forefathers after the election ofrn1860.
January 1975April 21, 2022By The Archive