Read an ExcerptConstructing Civil Liberties
Cambridge University Press
0521811783 - Constructing Civil Liberties - Discontinuities in the Development of American Constitutional Law - by Ken I. Kersch
This is a book about the paths of constitutional development culminating in the U.S. Supreme Court's landmark civil liberties and civil rights jurisprudence of the 1960s and 1970s. The roads to Mapp v. Ohio (1961) (search and seizure/privacy), University of California Board of Regents v. Bakke (1978) (affirmative action), Engle v. Vitale (1962) (separation of church and state), and other emblematic decisions marking the high tide of twentieth-century constitutional liberalism, I argue here, should be understood not as the issue of a single, linear and unidimensional path marked by the post-New Deal Court's newfound willingness to protect "personal" (as opposed to "economic") rights and liberties, and tracing out the implications for particular fact scenarios of abstract principles such as "privacy," "liberty," or "equality." These doctrinal landmarks are, rather, the diverse endpoints of a layered succession of progressive spirited ideological and political campaigns of statebuilding and reform. In the heat of these campaigns - whose center was typically outside the Court - it was apparent to the participants that key rights and liberties conflicted, and the meaning of both was contested. As such, it was understood by those animated by a strong substantive vision that some key rights and liberties would have to be jettisoned or circumscribed to advance others. Only after these campaigns succeeded, as part of the process of ideological institutionalization, were backwards-looking narratives created - off the Court and on - that worked to legitimate these achievements as rights-protecting triumphs and part of a linear, teleological march of progress.1
The narrative of constitutional development concerning rights and liberties that I characterize as backwards-looking pivots around the centerpoint of the New Deal. That narrative has shaped the agenda for constitutional scholars for most of the last century. One of its most significant characteristics was that the developmental trajectory it imagines - a linear, teleological trajectory of barrier, breakthrough, and apotheosis - was highly court-centered. As such, it launched a raft of court-centered constitutional scholarship whose questions were framed by the pull of the narrative. At the core of this work were questions concerning judicial review, judicial activism, and judicial restraint. Since the reformers who made this constitutional revolution (chiefly Progressives and New Dealers) were at first outsiders to the role of shaping legal doctrine, they began their careers as critics of court power. Once they took hold of the reins of state and began to staff the courts themselves, however, the scholarship shifted, and they began to ask new and multi-layered questions that reflected this developmental sequence. Rather than simply decrying judicial review and judicial activism, their new task was to remain at least rhetorically consistent with the views on which their newfound power had been won, while moving, in turn, to justify both. This involved the formulation of new constitutional theories that set out in nuanced ways why judicial review and judicial activism were justified in some circumstances (for ends that they approved) and not others (for ends that they opposed). This new constitutional thinking began by stipulating a level of statism that was foreign (or fundamentally antagonistic) to the old constitutionalism. And it posited a new imperative involving the protection of civil liberties and civil rights. Structured as it was, the new constitutional scholarship was in its very sinews heavily implicated in the political project of justifying, institutionalizing, and (as conditions worked to decay its foundations) defending the New Deal constitutional regime.
In pivoting around barrier, breakthrough, and apotheosis, the foundational narrative of constitutional development I describe above - what I will call the "traditional narrative" - is a paradigmatic example of "progressive" history. And, indeed, this should hardly be surprising, as it is directly related to the work of the great progressive historians themselves, such as Charles Beard and Vernon Parrington, who served as the advance guard for the reformist program later institutionalized in the New Deal.2 It is also a paradigmatic example of Whig history. Such histories, as historian Herbert Butterfield has described them, endeavor to cut "a clean path through...complexity" through "an over-dramatization of the historical story" that pits the forces of progress against the forces of reaction. The historical task of the former is to remove the "obstructions" that are either thrown up by or defended by the latter. The Whig historian, Butterfield writes, "very quickly busies himself with dividing the world into the friends and enemies of progress."3
Far from rendering narratives concerning historical trajectories implausible, the Whig approach is enormously seductive. Indeed, Butterfield concludes "[t]he truth is that there is a tendency for all history to veer over into Whig history" to the point where "it has been easy to believe that Clio herself is on the side of the Whigs." What is so seductive about Whig histories is that they are paeans to the illumination and glory of the present. Whig histories of the New Deal and the gradual achievement of court-protected civil rights and civil liberties have been so successful because, despite the anachronistic (and romantic) understanding of many of their purveyors as perpetual outsiders, in fundamental and gratifying ways they reflect and reinforce the discourse of power in contemporary thinking concerning twentieth-century American constitutional development.4
To say that constitutional thinking for most of the last century was written under the intense gravitational pull of the New Deal revolution is not to say that these histories are false in any broad sense or failed to yield important evidence and insights concerning the trajectory of American constitutionalism. After all, there was in fact a New Deal standoff. And it is undeniable that the agenda of the Supreme Court prior to the New Deal was different in important ways from the Court's agenda after it. Nor is it to gainsay that during the heyday of Whiggishness many detailed historical studies were written that effectively steered clear of the snares and perils of Whiggism. But in his anatomy of Whig histories, Butterfield himself noted that "[I]t is true that this tendency is corrected to some extent by the more concentrated labors of historical specialists." Nonetheless, he properly concluded, the tendency to Whig history is "so deep-rooted that even when piece-meal research has corrected the story in detail, we are slow in re-valuing the whole and reorganizing the broad outlines of the theme in light of these discoveries." There remains a persistent "tendency to patch the new research into the old story even when the research in detail has altered the bearings of the old subject."5
My contention in this book is that "research in detail" - my own (as presented here) and that of an ever-growing body of others (including Mark Graber, David Rabban, and G. Edward White's on the freedom of speech; Philip Hamburger's and John T. McGreevy's on the separation of church and state; David Bernstein's on the relationship between the state, the labor movement, and civil rights; Diane Ravitch's on progress in education; Kenneth Murchison's on prohibition; and Michael Klarman, Hugh Davis Graham, and John David Skrentny's on civil rights) has now accumulated to such an extent that it fundamentally undermines the plausibility of the third stage of the Whiggish New Deal constitutional narrative, and, in the process, of the entire narrative itself.6 That third stage, involving the "end" - or the apotheosis - imagines what many today, under the pull of a still prevalent Whiggishness, would continue to call "civil rights and civil liberties," as the essence of the thing itself. Put otherwise, it sees the apotheosis as a "matter of principle."7
This book, in the spirit of the works cited above - which, in the nature of things, is a revisionist spirit - aspires, in a context long set by the pull of New Deal constitutional Whiggism, to unsettle our wonted assumptions. It does so by jettisoning the faith that the idiosyncratic and fundamentally contested policy end points that traditional legal scholars and political scientists dub "civil rights and civil liberties" represent in any broad sense an apotheosis of progress over reaction or the triumph of principle as if this were part of an ineluctable trajectory of history. In the absence of and in place of this faith, this book offers a series of empirical interpretive case studies involving three illustrative sites of constitutional order concerning constitutional rights and liberties - criminal process rights concerning privacy, workplace and labor rights, and civil liberties and civil rights in education - each culminating roughly (depending on the nature of the trajectory under study) with the Warren Court (1953-69) apotheosis, which the most influential scholars in the field have taken to be the high water mark of a judicial solicitude for civil rights and civil liberties. By taking a developmental approach that purposely rids itself of the gravitational pull of the Whiggish New Deal narrative (which many developmental histories do not) I offer, as a substitute for the field's wonted moralism and Whiggism, a sustained contemplation of the genealogy of contemporary constitutional morals.8
The Disintegration of the Historical Conditions that Produce
Whiggish Constitutional Histories
While the traditional Whiggish narrative of contemporary rights and liberties - and the questions it perpetually throws up in legal scholarship - still defines the field, it is not nearly as predominant as it once was. Indeed, it is this decomposition in plausibility that has made possible both this study and other revisionist accounts of contemporary civil rights and civil liberties. Signs of the disintegration of the Whig narrative are apparent even in the work of leading constitutional Whigs such as Bruce Ackerman and Akhil Amar, who, for example, have both been influenced by the cyclical and decidedly non-progressive critical elections realignment theory of political scientists such as Walter Dean Burnham.9 Although both Ackerman and Amar fashion teleological constitutional narratives that reach their apotheosis in contemporary constitutional liberalism, their pointed rejection of what Ackerman calls "the bicentennial myth" - which holds that the meaning of the constitution is ineluctably tied to its meaning at one fixed time, located in a remote eighteenth-century past - plainly invites consideration of regimes and change into grand narratives of American constitutional history. Work in other areas, although not necessarily reflecting an express anti-Whiggism, clearly evinces a new attraction to questions that either challenge the traditional narrative and the conclusions scholars have drawn from its assumptions or, alternatively, originate wholly outside it. For instance, much of the new constitutional scholarship emphasizes the relative unimportance of judicial review as a political (and, hence, intellectual) problem, choosing to focus instead, even in explicitly constitutional studies, on either politics or the Constitution outside the courts. And even the work that does accord significant constitutional importance to courts increasingly treats those institutions as influenced by external political or ideological forces or heavily implicated in a regime-sustaining ideological endeavor. While puzzles of New Deal vintage, of course, continue to preoccupy many law professors and political theorists, this persistence is chiefly a matter of the institutional structure and politics of contemporary intellectual life (large ships turn slowly). In its most dynamic elements, the turn in the field is decidedly post-judicial review.10
These new preoccupations are not so much aberrations as a return, following a sustained and highly atypical period of elite consensus over fundamental (and fundamentally political) constitutional commitments, to the contemplation of a normal state of affairs in American constitutional politics. Indeed, looked at retrospectively, the work of Rawls, Dworkin, and Ackerman seems to have been written at the high-water mark of contemporary constitutional liberalism, just before its tide began to recede. The realignment toward conservative national politics that began with Ronald Reagan's election to the presidency in 1980 ushered in a sustained challenge to key commitments of the New Deal regime (and its later outgrowths, such as the Great Society), including its basic assumptions concerning principles of structure and rights.11 This political turn changed the composition of the federal judiciary (including the Supreme Court), and both altered and reflected shifting public attitudes toward centralization, statism, and long since reified contemporary definitions of civil liberties and civil rights.12 Despite the institutional encrustation of statist liberalism within university faculties that tracked the imperatives and commitments of the prevailing regime, new paths of intellectual inquiry, both off campus and on, gradually opened up. The current Supreme Court commonly splits 5-4 on the most contentious issues of structure and rights. In an atmosphere in which both sides hurl charges of judicial activism on some issues and call just as vehemently for restraint on others, where charges of hypocrisy are endemic, and whereon some issues (most prominently, free speech) it is becoming increasingly difficult to label particular arguments and holdings as self-evidently "liberal" or "conservative," the intellectual and political influence of consensus theories positing a triumph of principle has sharply diminished.
Put otherwise, the study of American constitutionalism has once again assumed its place, not as a branch of consensus moral philosophy, but within the larger, messier, and decidedly less pristine study of American politics. To the extent that political practice implicates important creedal principles - and I believe it does - it also entails both contestation over the meaning of those principles and the perpetual imperative of making tragic choices between those principles - such as liberty and equality or privacy and publicity - when, as is commonly the case, one conflicts with another. The meanings are defined and choices made in concrete political circumstances and institutional contexts, with the decision in each case shot through with pull of specific, historically situated goals, aversions, hopes, and fears. As a distinctively political study (as opposed to a philosophical one), politics is constituted by contestation and by choice between incommensurables. As such, it is not linear.13
American constitutionalism is, however, developmental. To the extent that it represents the enshrinement of a choice or principle in either constitutional doctrine or another political institution, the subsequent meaning of that institutional achievement is not determined by the intent animating the initial achievement. Rather, that achievement lives in an "interinstitutional" environment characterized by patterns of intercurrence, where "different institutional rules and norms will abut and grate as a normal state of affairs." This is as true for civil rights and civil liberties as it is for any other aspect of law within political life. To the extent that it is a narrative positing a linear progression toward an equilibrium (such as "the protection of civil rights and civil liberties"), that narrative is not developmental in the sense in which we understand the processes of political development today. In this book, I provide a series of case studies canvassing the multifarious ways in which constitutional development concerning civil rights and civil liberties reflects the patterns of development and change identified in recent, groundbreaking work by scholars of political development.14
Traditional, linear, Whiggish narratives of constitutional development concerning civil rights and civil liberties make critical errors that successful developmental narratives attentive to processes such as intercurrence, path dependency, and unintended consequences would not. A Whiggish narrative may posit a normatively desirable constitutional policy choice as reflecting a sweeping and cross-institutional foundational commitment to a core political principle. So, for example, as I show in the substantive chapters that follow, a Whiggish narrative may imagine the forces of progress to be broadly committed to a "right to privacy" and to the value of privacy itself. But in doing so, it would need to focus almost exclusively on the end point - contemporary understandings of that right - and the issues of sexual and reproductive autonomy surrounding it. In the process, it would need to excise from constitutional history the elaborate campaign against privacy and for publicity by the progenitors of the contemporary right to privacy who built the New American State, which serves as the foundation for the new constitutionalism to which it is currently committed. A Whiggish narrative will commonly define the contemporary legal landscape, to the extent that it is defined by what we today understand to be "civil libertarian" commitments, as uniquely the product of the pursuit of either founding or noble constitutional principles. But, as I demonstrate below in exploring the emergence of the contemporary civil libertarian doctrine concerning the separation of church and state, an archeological exploration of the genesis of that doctrine may demonstrate that its roots are actually in a unique convergence of half-understood and half-remembered (and, at times, highly ignoble) passions and prejudices, hopes and fears among progressive elites. In a similar dynamic, I demonstrate the way in which many contemporary "civil libertarian" criminal process protections have their roots not in reformist campaigns but in the resistance to the progressive-spirited campaign for prohibition. A Whiggish narrative will tend to view its great reformist breakthroughs as moments that largely clear the field, in the process sweeping away obstacles to a new and more enlightened order. While these breakthroughs often have precisely those effects along the policy dimension targeted by reformers, however, they are just as likely to set up new institutions that constitute new obstacles to the next reformist campaign - as I show in my discussion of the way in which progressive and New Deal labor constitutionalism represented a direct assault on American blacks and, as such, a new barrier to the cause of civil rights. To the extent they are undergirded by claims on behalf of democracy (and, in American constitutionalism, they typically are), Whiggish narratives skew the causal analysis of constitutional change toward society-centered, and away from state-centered, explanations, even though, in certain cases, the latter explanations are clearly predominant. For example, as I show in my discussion of the genealogy of contemporary concern for racial group rights, claims of that sort were alien to American blacks prior to the constitutional innovation according such rights to organized labor. Black Americans adopted self-understandings and a politics of group rights only after they became trapped in a constitutional order structured in significant part by the reformist campaigns of organized labor that constitutionally privileged such claims. Whiggish narratives of constitutional development typically position themselves as liberatory, evolutionary, and "living," in contradistinction to more constricting "conservative" constitutional understandings anchored in interpretive originalism or conceptual formalism.15 But, as the history of affirmative action and my discussion of the process of institutionalizing group rights in the Supreme Court's labor picketing decisions shows, these narratives are just as likely to hew to regime-defining formalisms in the face of altered demographics and a shifting institutional environment, as are ostensibly conservative constitutional visions.
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