John Adams once observed that the purpose of a true republican form of government was to provide as much happiness to as many people as possible. At the time of ratification of the Constitution, Benjamin Franklin said that the new document would be workable only until such time as when the people became so corrupt as to make way for a despot. Thomas Jefferson saw property rights as the life force of the democracy, and presciently announced that any gap between rich and poor, laborer and employer, the propertied and non-propertied would result in an intolerable diminishment of liberty. Certainly, these men and their colleagues at the Philadelphia Convention of 1776 had not defined or even contemplated such things as the post- reconstruction era passage of the Fourteenth Amendment and the ensuing doctrine of “substantive due process,” which would be used for centuries to come to ensure compliance by the several states with the Federal Bill of Rights, the expansions of the rights to privacy and free speech under the First Amendment or the vast array of regulatory and economic prescriptions and proscriptions to be advanced under the umbrella of the Commerce Clause.
What the Framers were attuned to was what they did not know; therefore, they drafted, some would say, an organic living document, the Constitution and the Bill of Rights, which were themselves based upon the principles enunciated in yet another organic document, the Declaration of Independence.
Supreme Court Justice Ruth Bader Ginsberg has championed the case for the organic Constitution, the “living organism” in a collegial rivalry with her fellow associate Justice Anton Scalia, who makes a compelling argument that the Constitution is not a living document at all, but just a document; a contract between the governed with the government to be read strictly and literally and limited to interpretation within its written boundaries. What would the founding fathers think or say if they were on the scene today? This paper will address that question in the context of some of the most significant opinions of the United States Supreme Court, with emphasis on the opinions of Justice Louis D. Brandeis, whose 1920s body of work has had a profound transformative effect on American Democracy.
Thomas Jefferson was cautious about the exercise of Judicial Power to the point of specifically equating judicial activism with Oligarchy.i He cautiously began the discussion of how contemporary America views the application of the Bill of Rights to principals of ordered liberty; this can be reduced to Jefferson’s fear of Judges, and the creation of a “government by Judiciary” through the transformation of the Fourteenth Amendment.ii
Some say that the Framers intended the Bill of Rights to apply to the National Government and not the States, a position affirmed by the Supreme Court in Barron v. Baltimore (1833).iii Judicial Activists as well as many Legal Scholars now believe that the Fourteenth Amendment prescriptions for due process and equal protection of law were intended to extend the Bill of Rights to the States. In Gilbert v. Minnesota (1920),iv the United States Supreme Court decided that the abridgment of speech by a state was not protected by the Federal Constitution. In his dissenting opinion, Justice Louis D. Brandeis expressed that such a state law infringement on basic rights “is not one merely of state concern, because such a state law affects. . . rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. There are rights which are guaranteed protection by the Federal Constitution.” Justice Brandeis went on to say in his dissent in Gilbert v. Minnesota, supra, that the Fourteenth Amendment was not intended solely to protect acquisition and enjoyment of property, but also to protect core liberty interests.
￼Within a short time, other Supreme Court Justices would quote Justice Brandeis’ dissent on Gilbert for majority opinions expanding Fourteenth Amendment protections to core civil rights violations by States.
Justice Brandeis wrote many of his most important opinions in the 1920s, paving the way for an expansion of civil liberties, establishing a constitutional basis for privacy, and supplying a strong permanent foundation for the requirements of free speech in a democratic society as well as other fundamental rights. In his powerful and prescient dissent in Olmstead v. United States v, Justice Brandeis condemned government, prosecutors, police and informants for illegal wiretapping and for breaking the law in order to convict an accused. He used his dissent in Olmstead to emphasize to all government officials, from Police Investigator to President, that when any government official violates citizen’s constitutional rights as a means to prosecute alleged criminal conduct, it undermines the law and forfeits its legitimacy.
“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law, the ends justify the means. To declare that the Government may commit crimes in order to secure the conviction of a private criminal, would bring terrible retribution against this pernicious doctrine thus court should resolutely set its face.”vi,vii
In the majority opinion in Olmstead, Chief Justice Taft had emphasized that the Framers, in drafting the Fourth Amendment, had nothing more in mind than the general warrants used by ￼the British in the 1760s and 1770s, and that the Fourth Amendment thusly appealed to little else. In his recently published biography of Louis Brandeis, historian Melvin I. Urofsky captured the essence of the Justice’s philosophy on adhering to not merely the letter, but the spirit of 1776 and how the Framers drafted the Constitution with Government oppression in full view.
Justice Brandeis’ dissent in Olmstead, invoked Chief Justices Marshall’s reminder, “‘We must never forget that it is a Constitution we are expounding.’ Times had changed since 1791 and Justice Brandeis, in Olmstead, cited case after case to show that the Court had constantly read Constitutional provisions to take into to account, conditions never envisioned by the Framers. The technical nature of the entry did not matter as much as the intent of the Amendment [Fourth], to protect people in their homes and businesses. Time works changes, brings into existence new conditions and purposes. Subtle and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to attain disclosure in court of what is whispered in the closet.”viii
Further in his dissent in Olmstead, Justice Brandeis’ best juxtaposed the question of whether or not the Framers would agree or disagree with the proposition that the Constitutional safeguards they envisioned should be marginalized by government excess or minimized by restrictive judicial interpretations by the Supreme Court, as follows:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their ￼emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth”ix Olmstead, supra.
In the Olmstead dissent, Justice Brandeis not only wanted to call attention to the issues of privacy and respect for the law; but also about how the due process clause of the Fourteenth Amendment should be interpreted. Justice Brandeis would later remind his colleagues that in revisiting the opinion and dissents in Olmstead, “. . .reviews of the opinion would see that . . . in favor of property, the Constitution is liberally construed. . . in favor of liberty, strictly.”x Brandeis especially wanted to advance the idea he originally set forth in Gilbert v. Minnesota, supra, that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the States. Court Justice McReynolds extended this judicial philosophy in two of his leading opinions following Gilbert, and soon thereafter, the Court would apply First Amendment free speech protections to the States, on the basis of the Fourteenth Amendment, Gitlow v. New York (1925).xi
Later on, in his concurring opinion in the Whitney v. California (1927)xii, Justice Brandeis again guided the court back to the Framers’ principles on liberty and government oppression. Whitney involved a 1919 California legislative act which targeted Communist Party activity and perceived Communist threats to violently overthrow society. The broad question presented by Whitney went far beyond free speech and Socialist activist Charlotte Whitney’s conviction under the California Criminal Syndication Act of 1919 for helping to organize the ￼Communist Labor Party in the State. The law made it a felony to organize or knowingly become a member of an organization founded to advocate the commission of crimes, sabotage or acts of violence. Whitney denied that her group ever intended to become an instrument of crime or violence and the State offered no evidence at her trial that the Party had ever engaged in violent acts. Nonetheless, the trial court found her guilty and on appeal her conviction was affirmed, essentially based upon the rationale that the Federal Due Process Clause did not protect ones liberty to destroy the social and political order. It was in this posture that the case came before the Supreme Court, and upon which Justice Brandeis rendered his landmark concurrence in Whitney. Whitney presented only Due process and equal protection grounds. Because the Court had not therefore determined when “present danger” became “clear” in the context of its’ prior First Amendment rulings, Justice Brandeis, joined by Justice Holmes, went on a rant against the Court’s restrictive interpretation of Free Speech.
Once again, Justice Brandeis, here in collaboration with Justice Holmes, posited that the Framers surely had in mind more than simply allowing people to engage in hearty debate. Justice Brandeis described in vivid detail the intention of the Framers in protecting Free Speech as republican “civil virtue” or “civil courage” virtues which go far beyond traditional notions of free speech and extend to the very nature of democratic society. In enunciating these principals, Justice Holmes stated, “Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” “…Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears…Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion…Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it,” Whitney v. California, supra, Brandeis, L., concurring.xiii
Obviously one could shed different Judicial light on the question of whether or not the Framers would be inclined to agree or disagree with current governmental and judicial abdications of practical rights in pursuit of ordered liberty. The Roberts Court has relied less and less on expansive Fourteenth Amendment Substantive Due Process analysis in securing rights, privileges, and immunities guaranteed by the first ten Amendments to the Constitution to the States. In his recent publication “Reading the Law”xiv, co-authored with constitutional scholar Bryan Gardner, Supreme Court Justice Anton Scalia has stated that devotees of Substantive Due Process have exceeded any reasonable interpretation of the intent of the Framers and have far exceeded that intent by inventing doctrine and ascribing motives never offered or intended by the men who wrote the Constitution.
No Justice of the twentieth century had a greater impact on American Democracy then did Justice Louis Brandeis. Historians and Legal Scholars now believe that the Reconstruction Congress intended for the Fourteenth Amendment to apply to the Bill of Rights to the States.
In the 1920s, when Justice Brandeis asserted the position that the Fourteenth Amendment operated on political as well as property rights, he stood nearly alone; his application of the idea of “incorporation” during his Supreme Court tenure set the stage for the great Judicial “rights revolution” of the 1950s and the 1960s.
Today, the vast majority of scholars and judges now agree with Justice Brandeis’ position that the Framers intended to protect the “right to be let alone,” and his warnings about violations of our rights to privacy and free speech become all the more critical in these times of technological intrusion and stifling national security policies.
The Framers understood that democracy is a work in progress; “a daily, a weekly, a monthly process,” as President Kennedy once described it.xv The Framers knew the difference between the vision and the view. Strict Constructionists see what is in front of them, not what lies ahead. They see a brown bag under the front passenger seat of a vehicle in a high drug use neighborhood, and the Framers view of the Fourth Amendment as limited to the Kings Writs of Assistance in pre-revolutionary America; They see the right to Free Speech as a vehicle to enable corporations to make unlimited contributions to political campaigns but stifle ordinary political, religious, and artistic expression on the basis of post September 11, 2001 national security ￼exigencies; they view the right to counsel of ones choice in a criminal trial as reserved for those who have money for lawyers, and regard the Great Writ of Habeas Corpus, once held with the esteem of a sacrament, now eviscerated by the Anti-Terrorism and Effective Death Penalty Act of 1996xvi, and essentially reduced to its nuisance value.
In what may be his two most significant Judicial opinions, his dissent in Olmstead and his concurring opinion in Whitney, Justice Brandeis made it powerfully clear that a democratic society must never sacrifice liberty for security or marginalize freedoms out of fear of the unknown. These principles were founded squarely on the writings of the Framers, and in particular, Benjamin Franklin, who wrote: “They, who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
So what would the Framers have thought about the prospects of Article III Judges expanding judicial review from the narrow confines of supervision of procedure in the courts as a means of securing constitutional boundaries and imposing limitations on power to the outright control of legislative policy making?
The Framers never dreamed that Judicial power could be expanded to the point where courts substitute their own views of public policy for those of legislative bodies as they have done since the late nineteenth century.xvii The concept of Substantive Due Process would be expanded much further years later by Supreme Court Justice Hugo Black who would develop the doctrine of “natural law due process,” not directly derived from the Constitution by rather created by individual justices’ interpretations of “ordered liberty”xviii, dissenting opinion; but where do these judges derive the authority to apply such dogma? Or, put another way, whence ￼does the Court derive the power to free the American people from the “chains of the Constitution.” From the “tyranny of the dead,” that is, the Founders?”xix
Justice Anton Scalia, examined the effect of the Court’s expansion of its interpretive role as it specifically relates to the democracy and the political process. In his recent book, “Reading the Law,” Justice Scalia traced the expansion of judicial activism in the Burger, Rhinequist and Robert’s Courts.
In United States v. Nixon (1973),xx in a unanimous opinion authored by Chief Justice Warren Burger, the Court directly intervened in a dispute between the House Judiciary Committee and the Executive Office of the President and carefully circumscribed the long standing doctrine of Executive Privilege when it distinguished documents related to national security from materials related to suspected criminal wrongdoing in the White House.
The effects of United States v. Nixon on the political process and the democracy were and continue to be very significant and go to the core of the Framers concept of the doctrine of separation of powers. In the advent of U.S. v. Nixon, the American Presidency has been cut down to less than imperial size and made to bear some resemblance to its second cousin, the Prime Minister, in terms of the accountability of the office to the co- equal Legislative Branch.
In Bush v. Gore (2000)xxi, in a 5-4 decision, the Court imposed itself directly in the Presidential electoral process, side stepping further review by the state court and literally electing the next President of the United States.
In Citizens United v. Federal Election Committee, (2010)xxii the Roberts Court again imposed the Court on the national electoral process by ignoring the chief issue presented by the litigants at bar and carving out an issue which would enable them to radically alter McCain ￼Feingold, which had theretofore set the bar for campaign finance reform, and utilizing the free speech guarantees of the First Amendment, gave private corporations, domestic and foreign and Political Action Committees the unfettered right to make unlimited campaign contributions to political candidates of their choice in national elections.
In Skilling v. United States, (2010)xxiii the Court in a series of majority and concurring opinions invalidated certain provisions of the federal mail fraud statute. Justice Ruth Bader Ginsberg, writing for the majority, struck down the “honest services” provisions of the law for constitutional vagueness and in so doing nullified the Enron era convictions of Enron CFO Jeffrey Skilling, Health Com CEO Richard Scrushy, and Canadian Publishing magnate Conrad Black, thusly handing a major setback to the Administration in its efforts to prosecute epidemic corporate fraud.
And in National Federation of Independent Business v. Sebelius (2012)xxiv or “Obamacare,” Chief Justice Roberts, writing for the majority upheld the core provisions of the Administration’s controversial Health Care reform act, demonstration the Court’s reluctance to overturn an act of Congress.
Each of these decisions had major impacts on the American Democratic process and the society itself; they went beyond mere questions of the application of constitutional provisions to specific rights.
So it is that our delicate and imperfect balance of power, the checks and balances devised by the Framers to protect against the onset or recurrence of tyranny, comes and goes, rises and falls and invariably effects the democracy.
￼￼Would the framers be happy or even content with the current state of judicial primacy in American life and more importantly with the application of guaranteed constitutional protections to core rights? The answer is probably as elusive as the great experiment itself.
No reasonable view of the Federalist Papers or the Debates preceding the Ratification of the Constitution or reading, the political and philosophical views of the Framers of the Constitution could lead to any conclusion other than that, John Adams, Thomas Jefferson, Benjamin Franklin, and their contemporaries would differ in their answers to the question. There are too many variables at play to answer the question definitively and that indeed may have been the Framers greatest strength, the ability to deal with the uncertain; however, given the restraints of this papers’ prompt, I believe that the Framers would be essentially dissatisfied with the contemporary U.S. political system as outlined in this paper.
i Peterson, Merrill D. Thomas Jefferson and the New Nation; a Biography. New York: Oxford UP, 1970. Pgs. 37, 61, 102. Print.
ii Peterson, Merrill D. Thomas Jefferson and the New Nation; a Biography. New York: Oxford UP, 1970. Pgs. 284, 491-493. Print.
iii Barron v. Baltimore, 32 U.S. (7 Pet.) 243. 8L. Ed. 672. (1833)
iv Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125 (1920)
v Olmstead v. United States, 277 U.S. 438 (1928)
vi Urofsky, Melvin I. Louis D. Brandeis: A Life. New York, NY: Pantheon, 2009. Print. vii Olmstead v. United States, 277 U.S. 438 (1928)
viii Urofsky, Melvin I. Louis D. Brandeis: A Life. New York, NY: Pantheon, 2009. Chapter 25: A New Agenda: The Court and Civil Liberties. Print.
ix Olmstead v. United States, 277 U.S. 438 (1928) x Olmstead v. United States, 277 U.S. 438 (1928) xi Gitlow v. New York, 268 U.S. 652 (1925)
xii Whitney v. California 274 U.S. 357 (1927)
xiii Whitney v. California 274 U.S. 357 (1927)
xiv Scalia, Antonin, and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts. St. Paul, MN: Thomson/West, 2012. Print.
xv Address Before the 18th General Assembly of the United Nations, September 20, 1963. Series 3. United Nations General Assembly. Digital Identifier: JFKPOF-046-041.
xvi Full Title: An Act To deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.
xvii Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard UP, 1977. Pgs. 300-305, 307. Print.
xviii IN RE WINSHIP , 397 U.S. 358, 381-382 (1970)
xix Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard UP, 1977. Pg. 282. Print.
xx United States v. Nixon, 418 U.S. 683 (1974) xxi Bush v. Gore, 531 U.S. 98 (2000)
￼￼￼￼￼￼￼￼xxii Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
xxiii Skilling v. United States, 561 U.S. ___ (2010)
xxiv National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012)