America's Prophets: How Judicial Activism Makes America Great : How Judicial Activism Makes America Great 9780313377099, 9780313377082

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AMERICA’S PROPHETS

“The prophet’s word is a scream in the night. While the world is at ease and asleep, the prophet feels the blast from heaven.” —Abraham Joshua Heschel, The Prophets (Jewish Publication Society, 1962)

AMERICA’S PROPHETS How Judicial Activism Makes America Great

DAVID R. DOW

Library of Congress Cataloging-in-Publication Data Dow, David R. America’s prophets : how judicial activism makes America great / David R. Dow. p. cm. Includes bibliographical references and index. ISBN 978-0-313-37708-2 (alk. paper) 1. Political questions and judicial power—United States. 2. Judges—Political aspects— United States. 3. Judicial review—United States. 4. United States—Politics and government. I. Title. KF5130.D69 2009 347.73′12—dc22 2008051399 British Library Cataloguing in Publication Data is available. Copyright © 2009 by David R. Dow All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2008051399 ISBN: 978-0-313-37708-2 First published in 2009 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48-1984). 10 9 8 7 6 5 4 3 2 1

For Katya and Lincoln; and of course Whitney, Winona, and now Franklin, too.

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CONTENTS Acknowledgments Introduction: Judges and Prophets 1 2 3 4 5 6

What Exactly Is Judicial Activism? A Short History of “Activist” Judges Griswold v. Connecticut and the Rise of Judicial Prophecy Prophetic Interpretation of Biblical Law The Idea of American Law Contemporary Problems for the Activist Judge: Race, Religion, Same-Sex Marriage, Abortion, and Euthanasia

Index

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ACKNOWLEDGMENTS For helping me sharpen my thesis while it was still a work in progress, I am grateful to the following institutions and individuals: the Boyd School of Law at UNLV; Tulsa University School of Law; the Boniuk Center at Rice University; the Florida State University College of Law; my colleagues in the history department at Rice and at the University of Houston Law Center, especially Dean Nancy Rapoport, Dean Ray Nimmer, Associate Deans Seth Chandler, Richard Alderman, and Ron Turner; the Houston and Nashville chapters of the American Constitution Society; the Harris County Democratic Lawyers Association; Cassandra Jeu; my parents; my five brothers; and most of all and always, my wife and our son, Lincoln. For financial support, I thank the University of Houston Law Foundation. My brother Leon helped immensely with chapter 4. My brother Mark, the best writer, best editor, and best reader I know, helped (again) with it all. My sister-in-law Stacy Schusterman had an insight that caused me to rethink my entire discussion of the meaning of liberty. Toward the end of the book, I reached an impasse and considered abandoning the project altogether. I worked through it with the help of the usual suspects in unusually spectacular settings: walking with my mom, dad, and brother Steven up to Stewart Falls, near Sundance, Utah; hiking to Midway Pass, near Aspen, Colorado, with Katya, Lincoln, and our dog, Winona; hiking up to American Lake, again in Aspen, with Katya and Lincoln and our dear friend David Jones (who, with weary legs, told me when I asked him how he was doing, “One foot in front of the other, pal”); and sitting on the ground next to my bike in Park City, Utah, near the top of Sweeney’s Switchbacks, gulping down oxygen, having earned the ride down. Thanks, too, to Colleen and Doug Elliot, who more or less browbeat me over burgers and

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excellent margaritas out of abandoning the book. And thanks to my brother Stuart for the title. I’ve been thinking about the central ideas in this book for many years, and it has been shaped by three wonderful teachers. David Johnson, my debate coach of many years and a connoisseur of political literature, taught me about the importance of authenticity more than a decade before Charles Taylor’s magnificent book on the relationship between authenticity and ethics. From Burke Marshall, my teacher of constitutional law at Yale, I learned from a man who had learned from history that a generation’s prejudices routinely blind it to pervasive inequality. He epitomized the belief that academic theory’s only value is how (and whether) it helps us live more just lives. With Charles Garside, my history teacher at Rice, I spent many hours, even during the final years of his life, discussing alienation and prophecy. His field was the Reformation, but his knowledge was without apparent limits. The last word he said to me was avanti. (Sometimes the truth is trite.) If you’re very lucky, you will have one memorable teacher in your life. Not counting my parents, I’ve had three.

INTRODUCTION: JUDGES AND PROPHETS If a majority of our fellow citizens were to conclude that you and I, and society as a whole, would be better off if we ate bran flakes instead of cold pizza for breakfast, could the government compel us to start eating bran? Do we have a “right” to eat whatever we want, and if so, must judges uphold that right even if a majority of the citizens disagree? Why can the government force us to wear seatbelts, but not compel us to exercise (or can it)? How is it possible (or is it) for the state to prevent two men from marrying one another but not be allowed to prohibit a black person from marrying a white person? Questions like these, or some variation on them, lie at the center of the debate over judicial activism. At times, the majority can compel the minority to behave in a certain manner, even if the minority believes that the majority’s action is offensive, but not always. At times, the majority can intrude into one’s private life, but not always. There are times when someone must say that the majority has gone too far. In our legal culture, it is judges who must say that, and when they do, they are being judicial activists. In this book, I will argue that judicial activism is not a bad thing, it is a basic and essential feature of our society, and I will show that it has its roots in the prophets of the Hebrew Bible. The prophets of the Old Testament were judicial activists, and in a sense, contemporary judges who are willing to be judicial activists are America’s prophets. The debate over judicial activism has raged among legal academics and theorists for well over half a century. In the mid-1950s, a brilliant law professor at Yale, Alexander Bickel, coined the phrase “countermajoritarian difficulty” to describe the problem presented by judicial activism. Because we believe in the principle that the majority rules, because that is how our government and

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our society operate, Bickel perceived that there were both constitutional and ethical objections that arise when unelected judges thwart the will of the majority by striking down popularly supported legislation on constitutional grounds.1 Bickel’s academic critique was picked up by many politicians and pundits, who would attack or criticize certain judicial decisions on the basis that those decisions interfered with or overrode the desires of the people. The judicial decisions protecting same-sex marriage in Massachusetts and California are but the most recent illustration of this phenomenon. In this book, I offer a defense of judicial activism. I defend, moreover, specific decisions that have been vociferously impugned as egregious examples of judicial activism (like, for instance, the decision of Roe v. Wade). My defense rests on two perhaps obvious insights. First, I challenge the normative premise that animates the problem.2 That is, I show that we, as participants in the American legal culture, should not be troubled by certain antimajoritarian exercises of judicial power. We should welcome them, for they rest on normative legal principles that are at least as weighty as the principle of majoritarianism. To be sure, we do not want judges to run amok; we do not want them interfering with acts of the majority without having a principled basis for doing so. Consequently, the second aspect of my argument is to articulate the specific criteria that should guide judges when they strike down popularly supported laws.3 I recognize, of course, that identifying the criteria that ought to guide judicial action is not equivalent to a mathematical algorithm. It is not a matter of plugging some value into a computer program and getting the answer. Judges will still have to possess judgment. Nevertheless, the first step to exercising sound judgment is to base decisions on appropriate values, and in this book I show what those values are and what, in our culture, they mean. For heuristic purposes, I compare judicial activism to an ancient method of interpretation that I refer to as “prophetic.” I distinguish prophetic interpretation from its contemporary counterpart, which I refer to as “priestly” adjudication. You can almost certainly name several prophets, even if you are not an expert in biblical studies or an especially religious person. Isaiah, Jeremiah, and Ezekiel are well-known names, even to atheists and agnostics. But you will probably have a much more difficult time naming priests. Once you get past Aaron, or perhaps Eli, the names of the biblical priests—Ahitub and Jotham, for example—are forgotten to almost everyone except experts in the field. There is, I believe, something significant about the fact that most people have an easier time naming prophets than identifying priests. People whose names we remember are people who did something important in their field. There is a certain cosmic injustice about this. We do not know the names of the world’s greatest parents, or the world’s most thoughtful spouses, or the kindest person in America, but we do know Einstein’s name. And Shakespeare’s. If I say, “Name a great president,” you will probably identify

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Lincoln or Washington. Some might say FDR or JFK or Ronald Reagan, but nobody will say William Henry Harrison, who died after less than a month in office, because he did not do anything lasting. We know the names of Mozart and Picasso because of what they accomplished in their professional lives, whereas we know the name of Salieri (if we know it at all) only because he was not Mozart. We remember the names of people who did work that was memorable, important, and enduring. Likewise, I suggest that we remember Isaiah and Amos (but not Shallum or Hilkiah, for example) because the prophets interpreted legal texts in a distinctive and compelling manner, and their mode of interpretation survives into our own time. Contemporary judicial activists are the judges who employ the mode of legal interpretation employed by the biblical prophets. I want to stress here at the outset (and I reiterate later) that my invocation of the prophets is metaphorical rather than literal. There are obvious and salient differences between the Hebrew prophets and Supreme Court justices. Prophets in ancient times, for example, did not actually adjudicate disputes. That responsibility fell to judges, tribal elders, and priests, who according to the prophet Ezekiel, “in controversy shall act as judges.”4 In addition, the texts and norms that many prophets interpreted were not yet written at the time of their interpretations. And there are still further limits to the analogy. Prophets believed they were mouthpieces for God, whose law is immutable. The constitution was written by mere mortals, of course, and it is far from immutable. The prophets, moreover, invoked their understanding of God’s law not to create a nation or to adjudicate disputes but to chastise an entire community for departing from God’s commandments. Further, in that community, unlike our own, the idea of majoritarianism—the idea that the law is whatever the majority says it is—had no place. Studying the prophets is edifying, but Isaiah was not merely an ancient Holmes. Our society is not ancient Israel. Emphasizing differences and distinctions, however, can obscure deep and fundamental similarities. Like ancient Israel, contemporary America is a culture that is defined by certain ideals. Whereas nearly every nation in human history has been constructed on the basis of ethnicity, the United States is different— not unique, perhaps, but in the tiny minority of nations constructed not on blood but on principle. Someone is French (or English or Spanish) based on her DNA. One can become a French citizen (for instance), but one cannot become French. Being American is different. Anyone can become an American, so long as he or she accepts certain principles and values. My objective in this book is to identify those principles and values and to propose the appropriate judicial methodology for implementing them. A number of recent books have defended progressive Supreme Court decisions or argued that the Court has, more or less, behaved the same way for our nation’s entire history. Others have focused on the post–September 11, 2001,

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tension between security and liberty.5 I am interested here in a somewhat different issue. In biblical times, the great prophets identified basic values and constructed their social critiques on the basis of those very values. I argue that our Supreme Court justices are America’s prophets, and they must therefore operate as did the prophets; they must construct their decisions on the basis of our nation’s fundamental values.6 The argument unfolds as follows. First, in Chapters 1 and 2, I discuss the meaning of judicial activism in historical terms. I show that judicial decisions deemed by contemporary commentators to have constituted exercises in judicial activism are now, in retrospect, widely regarded as sound. In Chapter 3, I turn to one of the most prophetic opinions in American constitutional history, Justice Douglas’s opinion in the central case of Griswold v. Connecticut. Most contemporary constitutional theorists regard Justice Harlan’s opinion in Griswold as the most important one, but I take a different approach and examine Douglas’s overlooked opinion. I contrast his approach with that embraced by the dissenting justices (Justice Black in particular) to show how these competing opinions embody fundamentally different methods of interpretation. Justice Black was the priest, Justice Douglas the prophet. Next, in Chapter 4, I construct a broad distinction between what I refer to as prophetic and priestly interpretation. I show how the biblical prophets, and the prophet Amos in particular, offered legal interpretations by viewing certain injunctions against the backdrop of overarching cultural values. I apply this model in Chapter 5 to American law by identifying the overarching values that define the American legal culture. We are accustomed to thinking of majority rule as the defining feature of democracy, and majoritarianism is indeed a central principle in American law. Yet there are two other equally basic American values, liberty and equality, and it is the historic interaction among these three values that prophetic judges understand. Finally, having thus identified what a prophetic approach to constitutional interpretation would generally involve, I turn in Chapter 6 to specific contemporary issues, including abortion, same-sex marriage, affirmative action, assisted suicide, and the separation of church and state. The first step to safeguarding a principle is to identify it, understand it, and perceive the risk it confronts. I argue in the following pages that prophetic judges perform that task well, better than any other type of judge. In their hands, our fate as a nation is secure. NOTES 1. According to Barry Friedman, a prominent contemporary theorist, solving this problem (i.e., articulating a theory that explains when the majority may act and when it may not) has become an academic obsession. Among his many fine articles discussing it is The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part 5, 112 Yale L. J. 153 (2002).

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2. Most contemporary efforts to solve the countermajoritarian difficulty (the impressive work of Bruce Ackerman and Akhil Amar comes prominently to mind) attempt to solve the difficulty internally See, for example, Bruce A. Ackerman, The Storrs Lectures, 93 Yale L. J. 1013 (1984); Akhil Reed Amar, Philadelphia Revisited, 55 U. Chi. L. Rev. 1043 (1988). 3. Many theorists (most notably, Paul Brest) have argued that no overarching legal principle can yield uncontroversial answers to controversial questions, or that there are no articulable criteria for confining the exercise of judicial review. Brest’s magisterial article showing that all constitutional theories are vulnerable to the same internal inconsistency remains a classic of the literature. See his The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L. J. 1063 (1981). See also Ackerman, supra, 93 Yale L. J. at 1016, “Hardly a year goes by without some learned professor announcing that he has discovered the final solution to the countermajoritarian difficulty, or, even more darkly, that the countermajoritarian difficulty is insoluble.” 4. Ezek. 44:24. See also Deut. 17:9, 19:17. My discussion of the priests draws heavily on the essay “Priest and Prophet,” by Ahad Ha’Am, in Selected Essays by Ahad Ha’Am (Philadelphia: Jewish Publication Society of America 1912), and the entry “Priests and Priesthood” in the Encyclopedia Judaica, vol. 13, pp. 1070–1090. 5. I discuss a wide range of the academic literature in the notes to Chapters 5 and 6. The recent books I have in mind as touching on subjects related to mine include Jeffrey Rosen, The Most Democratic Branch (Oxford 2006); Jeffrey Toobin, The Nine (Doubleday 2007); Mark Kozlowski, The Myth of the Imperial Judiciary (NYU 2003); Randy Barnett, Restoring the Lost Constitution (Princeton 2005). I am not especially concerned here with the post-9/11 tension between liberty and security, but there are plenty of other books that argue forcefully that the war on terror does not justify—and is, in point of fact, not aided by—deprivation of liberty. See, for example, Jordan J. Paust, Beyond the Law (Cambridge 2007); Louis Fisher, Military Tribunals and Presidential Power (Kansas 2005); Jack L. Goldsmith, The Terror Presidency (Norton 2007); David D. Cole and James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties for National Security (New Press, 3d ed. 2005). 6. As I elaborate in the notes to Chapter 5, my work here has been heavily influenced by Sandy Levinson’s book Constitutional Faith (Princeton 1988), as well as the work of Michael Perry, especially his book The Constitution, the Courts, and Human Rights (Yale 1982). Professor Perry argues that certain instances of judicial review “represent the institutionalization of prophecy.” Id. at 98. However, he largely limits the prophetic role to so-called human rights cases, and he is not especially interested (as I am) in identifying the precise values that must influence judicial prophecy. See generally id. at 91–119. Nevertheless, his suggestion drew a retort from Judge Posner, who asserted that it is unrealistic to expect judges to act as secular counterparts to the prophets of the Old Testament. See Richard A. Posner, The Problems of Jurisprudence 193 (Harvard 1990). Posner, however, misreads the prophetic method when he suggests that the prophets were “free” and entirely unconstrained by positive law. I return to how prophetic interpretation is indeed constrained in Chapters 4 and 5.

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Chapter 1

WHAT EXACTLY IS JUDICIAL ACTIVISM? Jesus was a judicial activist. So was his contemporary, the great Jewish rabbi Hillel. And, as it happens, so were the great Muslim scholar Al Nawawi, the Buddhist Samyutta Nikaya, and even Confucius himself. If, by “judicial activism,” we mean offering an authoritative interpretation of a rule that bears no obvious relationship to the written text, then Hinduism, Taoism, Shintoism, and probably every other religion you can name would not be what they are without judicial activism.1 The Talmud tells a famous story of a cynical young man who walked up to the great sage and asked him whether he could teach him all of Jewish law while standing on one leg. Hillel raised one foot off the ground and said, “Do not do unto others what you would not have them do unto you. All the rest is commentary. Now go and study.” You can flip through the pages of the Hebrew Bible, the five books of Moses, until your fingers blister, and you will not find Hillel’s dictum anywhere. So when Hillel offered that pithy interpretation, was he interpreting Jewish law, or was he just imposing his own personal views? We can ask the same question about Jesus (possibly the most famous judicial activist in history). In the book of Matthew, we find Jesus’s famous sermon on the mount. Jesus was discussing the content of God’s law. He and Hillel concurrently articulated a similar, if not identical, interpretation of biblical law. In chapter seven, verse twelve, Jesus summarizes the moral content of the Bible: “Therefore, all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.” We know this as the Golden Rule. Scholars and theologians have debated the subtle distinction between Jesus’s positive formulation (do unto others) and Hillel’s

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negative statement (do not do unto others),2 but I want to stress the similarity between them. Both articulated a principle that was nowhere explicit or express but that, according to Jesus and Hillel, resided in a text that thousands upon thousands had scrutinized.3 Did these two great men invent something that was not there, or did they notice something that others had overlooked? The answer, of course, is that they did see something new, something others had not seen, or at least had not yet articulated. One thing, therefore, is certain: Just because someone notices something for the first time does not mean that the person who notices it is making something up. Hillel and Jesus were right; their interpretations, while innovative and nonobvious, were nevertheless correct. To be sure, it is true that some people are insane, false prophets, as it were. But it is also true that some people are brilliant. There are prophets. And of course, somebody has to see things for the first time. We do not doubt the continuity of space and time simply because no one noticed the connection before Einstein. We do not doubt that the Earth revolves around the sun, rather than vice versa, just because nobody said so before Galileo.4 Similarly, that no one apprehended it sooner does not diminish the truthfulness of the Golden Rule as a correct statement of biblical law. In this book, I suggest the possibility that judicial activists are people, judges, who see truths that others so far do not.5

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Thirty-six days after voters went to the polls in the presidential election of November 2000, on a windy moonless night, the Supreme Court of the United States, by a vote of five to four, ruled that George W. Bush would be the first American president of the new millennium. Network reporters struggled to make sense of the decision and interpret it for the millions of Americans who had been following the drama for over a month. Constitutional law professors sat next to news anchors in their television studios and tried to explain the legal rationale for the decision. Others took to the editorial pages, with conservatives (not surprisingly) defending the soundness of the decision and liberals (also not surprisingly) assailing it. Philosophers, law professors, and even at least one sitting judge rushed books into print dissecting the case of Bush v. Gore as well as the skirmishes on numerous fronts that had led up to it. Bush v. Gore will be remembered as long as the nation survives, not because it was a commendable piece of constitutional adjudication (for surely it was not), but because it brought the Constitution into the lives of all Americans in an unprecedented way. Even the most visible constitutional decisions of the past half-century—Brown v. Board of Education, Roe v. Wade, the line-item

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veto case (Clinton v. New York), the flag-burning decision (Texas v. Johnson)— were of comparatively limited interest. They did not cause the country to remain in a state of suspended animation for more than a month. Their immediate influence did not stretch from coast to coast. Bush v. Gore reached everywhere; it caused everything to stop. It demonstrated beyond dispute that it is impossible to understand the way our country operates without understanding basic constitutional theory and the role of the Supreme Court in interpreting the Constitution’s provisions. Ironically, the man who became president because of the actions of an aggressive Court promised that, in making judicial appointments to the Supreme Court (as well as the lower federal courts), he would prefer judges who “interpret” the Constitution, instead of those who “legislate from the bench.”6 President Bush said that his favorite justice is Antonin Scalia; in introducing his judicial appointees—including, most prominently, Chief Justice John Roberts and Associate Justice Samuel Alito—he praised them as judges who “strictly interpret” the Constitution instead of arbitrarily imposing their own personal wills on the rest of us.7 Nearly two centuries ago, a famous visitor to the United States, Alexis de Tocqueville, observed that all important social issues in America are ultimately resolved in the courts. De Tocqueville did not mean this as a criticism. His observation, though exaggerated, had elements of truth. De Tocqueville knew that the framers of the Constitution, the men who invented the United States, believed that independent courts were necessary at times to thwart what they described as the “tyranny of the majority.”8 In the past, these important social issues where judges have safeguarded some important value against a tyrannical majority have included racial desegregation and women’s equality. Majorities wanted and fought to keep blacks and whites separate, but judges thwarted them. Schools, neighborhoods, public transportation, as well as golf courses and swimming pools ceased being “white only” only once the federal courts became involved.9 Majorities wanted to keep women in the home and out of the workplace, and again, the federal courts intervened. Women gained entry to certain elite schools and access to certain careers in large part because of judicial involvement.10 Would race and gender discrimination have eroded in America without judicial involvement? Undoubtedly so, but probably not so soon as they did. To be sure, over the past half century, legislatures have enacted many measures designed to eliminate bias against women, blacks, gays, and the disabled (to name just some). Yet the history of the ongoing efforts to eradicate discrimination reveals time and again that American judges did exactly what de Tocqueville predicted they would and what the framers hoped they would. They confronted the majority and thwarted its will, because they saw that the majority was violating constitutional principles. Like Jesus and Hillel, these judges saw truth that many others had yet to apprehend.

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The Supreme Court’s involvement in issues of contemporary ferment did not end with the race or gender cases. The Court now confronts equally incendiary issues, including gay rights and same-sex marriage, assisted suicide, abortion, stem cell research, the teaching of evolution, school prayer, and more. Because the Supreme Court will inevitably be intimately involved in all these issues, we are destined to hear more, not less, of phrases like “legislate from the bench,” “strictly interpret” the Constitution, and the like. Yet although we hear these phrases uttered by many people with intense passion and great frequency, we rarely hear anyone define them. It is therefore important at the outset to ask: What exactly do these expressions mean?

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In 1961, Estelle Griswold, the executive director of Planned Parenthood of Connecticut, and Dr. Charles Buxton, chairman of the Department of Obstetrics and Gynecology at the Yale School of Medicine, opened a birth control clinic in New Haven, Connecticut. They were not performing abortions there. Instead, they were dispensing contraceptives to married women. In so doing, they were breaking the law. It seems hard to believe, but in 1961, Connecticut had a law that prohibited people from using contraception. Married couples were law-breakers if they had safe sex. People who violated this intrusive law could be fined up to $50 or sentenced to sixty days in jail.11 For their role in making contraception available to women who were using it illegally, Griswold and Buxton were charged as accessories to a crime. The Connecticut Supreme Court upheld the convictions. Griswold and Buxton appealed to the Supreme Court of the United States. Later in Chapter 3, I discuss this case in some detail. The only point I want to focus on at the moment is that the Supreme Court reversed the convictions of Griswold and Buxton. The Court ruled that the convictions could not be upheld because the law that Griswold and Buxton had violated was itself unconstitutional. In other words, because the Constitution prevented the state of Connecticut from prohibiting the use of contraception by married couples, the state could therefore not penalize doctors who dispensed such contraceptives. The Court believed that the majority will in Connecticut, as reflected by this law, was tyrannical, and the justices acted to thwart it. The justices weighed what the people had done against an overarching principle, and the principle prevailed. But how could the justices on the Supreme Court be sure that the Constitution did in fact prevent Connecticut from enforcing such a law? How could they know that they were identifying a principle in the Constitution rather than simply making one up? After all, the members of the Connecticut legislature that enacted the law in the first place also took an oath to uphold the

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Constitution of the United States, meaning that they must have believed that the anticontraception law could coexist with the Constitution. Who were the justices to second-guess the Connecticut legislators? Was the Supreme Court that struck down this anticontraceptive law an “activist” Court, and if so, was that activism warranted? Many people accused the justices of imposing their own values, rather than identifying a constitutional principle. Justice Hugo Black, in his dissenting opinion in Griswold, was one of them. Was that a fair criticism? More generally, are there really judges in America who do this? Are there judges on the federal benches who say, “I do not know what the Constitution requires, but I will nevertheless reach this result, because I personally think it is a good result?” Or are there judges who, even more egregiously, say, “I know the Constitution requires a particular answer, but because I personally disagree with that answer, I am going to issue a contrary judgment?” The phrase “judges who impose their own values” is evocative. It implies that there are authoritarian jurists who interfere with our freely made choices simply because they disagree with them. The expression conjures up images of repressive regimes, like the Taliban in Afghanistan or perhaps the mullahs in Iran. It hints at judges who issue decisions based on anachronistic or inappropriate values. Are there judges in our midst who interfere with the will of the majority in order to advance their own values? Is this what the judges in the Griswold case were doing? The answer, as I argue, is no. To be sure, there may well be potential judges who would do just that, who would ignore the Constitution and our society’s values in order to issue rulings consistent with their own personal moral codes, and it would be a grave mistake not to be wary of such judges. But such judges are rare. In recent memory, except for a judge on the Alabama Supreme Court, who kept a statue of the Ten Commandments in his courtroom even after he was ordered to remove it by superior judges, it is hard to think of an example of a judge who subordinated the rule of law to his or her own personal moral or religious code.12 If it is so rare, however, why does so much contemporary political discourse talk about it as if it is a constant threat? The reason, I believe, is that when commentators accuse judges of imposing their own values, that is not what the judges under attack are actually doing. The judges who inspire such venomous attacks—the judges we notice—are those who expand and extend freedom in ways that as yet feel uncomfortable to most of us. We notice these judges because they are prophetic. They are the judges who castigate us, who force us to live in accordance with our own values, even when we would prefer not to.

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Early in American history, a number of states prohibited members of the clergy from holding public office. Many people feared that a religiously devout

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man would feel compelled to adhere to religious law, even where that law conflicted with secular authority. This worry did not vanish with modernity. In 1960, John F. Kennedy became the first Catholic to be elected president, but first, he had to assure voters that if elected, in discharging his executive authority, he would not be beholden to papal authority. In 2004, somewhat less directly, presidential candidate John Kerry, also an observant Catholic, was forced to state that his views toward issues like abortion, euthanasia, and school prayer would not be influenced by Catholic doctrine. In 2007, Mitt Romney struggled to overcome a widespread reluctance among voters to cast their ballots for a Mormon. For much of American history, in short, there has been a worry about a sort of religious infiltration of secular politics, and this worry has existed in surprising locations. We are accustomed to thinking of the South as a region where politics and religion fit together like hand and glove, yet as recently as 1978, the state of Tennessee—the same state that just a half a century earlier had banned the teaching of evolution in the public schools—had a law that barred ministers or priests from serving as delegates to the state’s constitutional convention or from serving in the state legislature. (The Supreme Court unanimously held these restrictions to be unconstitutional.13) In the early twenty-first century, an era when preachers preach political messages from their pulpits and politicians wear their religiosity like a prize, it is almost impossible to believe that states were once concerned with limiting sectarian influence in the political arena. The contemporary tendency is in precisely the opposite direction. Thus, for example, political conservatives applauded the Alabama judge who defied court orders and kept the Ten Commandments on display in his courtroom. High school football teams all across the South routinely ignore federal law and begin football games with a denominational prayer. School boards demand that high school science teachers spend as much time on so-called intelligent design as they spend on the theory of evolution. Members of Congress and state legislators invoke the Bible as authority to prohibit gay marriage or, as in the tragic case of Terri Schiavo, to forbid the removal of a feeding tube. Members of the U.S. Senate running for president write op-ed pieces in the New York Times explaining why they do not accept the theory of evolution.14 These overt displays of religiosity occur in red states as well as blue, in rural America and in big cities, in local politics and in national elections. And, when the religiosity is influenced by or seeks to curry favor with the evangelical right, it slides ineluctably into an attack on judges who resist the religious teaching. Thus, in denouncing the efforts in several states to protect gay marriage, or in castigating the federal courts for refusing to intervene in the Schiavo case, President Bush and his allies routinely insisted that judges are not supposed to impose their personal values on the rest of us. They thereby implied, perhaps intentionally, that judges who issue rulings that permit gays to marry are doing so because they personally support gay rights,

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rather than because the law compels that result. Indeed, this canard was even propagated by Justice Scalia himself, who accused his fellow justices in one case of “sign[ing] on to the so-called homosexual agenda.”15 These critics similarly implied, again perhaps intentionally, that judges who declined to intrude in the Schiavo case did so because they personally supported the right to die, rather than because the law demanded that outcome. Most of us, however, have no way of knowing whether a judge’s personal moral code contributes to her decisions. We do not have any idea whether the judges involved in the Schiavo case believe that assisted suicide is immoral or is a basic human right. Being a judge involves the inherent occupational risk of having to do something that the judge would personally prefer not to. A judge might feel sorry for a small investor who lost everything because of the Enron collapse or for the families of cigarette smokers who died of lung cancer, yet these same judges might not accept the legal theory that would permit that investor or the widow of the smoker to recover any money. This conflict—between what the law requires and what the judge as an individual might prefer—is a recurring phenomenon in American jurisprudence. Most famously, before the Civil War ended slavery, there were judges in the North who personally abhorred slavery yet were compelled by the Fugitive Slave Act to return escaped slaves to their Southern owners. Thoreau had the luxury to go to jail rather than pay taxes he believed would help pay for the Mexican War, which he deemed unjust. Judges cannot live with such moral purity, unless they are willing to resign the first time the law diverges from their personal ethical codes.16 Consequently, because we typically do not know how judges personally feel about the matters before them, there is no justification for accusing judges of imposing on us their own personal values. All we can ever justifiably say is that their legal interpretations are wrong, but saying that requires that we identify the correct interpretation and show why it is correct. The correct interpretation will be the one that the Constitution requires, for the Constitution is our culture’s higher law. What judges must do is enforce that higher law, even when the higher law is at odds with an outcome we would prefer. Judges do not have the authority to compel us to live in accordance with their values, but they do have the duty to force us to live in accordance with our own values, and it is easy to confuse these two things. When judges enforce constitutional provisions or values that we have been violating or ignoring, they are necessarily requiring that we behave differently from the way we have been acting. As we see in greater detail in Chapter 2, whenever judges enforce some individual’s rights, they are telling the majority of the population that it cannot treat the individual the way it wants to. When, for example, a judge rules that an individual can protest against the war by burning an American flag,17 or by proclaiming “Fuck the draft,”18 the judge is also telling the majority of the citizens that they cannot prohibit the protestors from expressing themselves in that fashion. It is facile to conclude

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that these judges must be imposing their own values on the rest of us, for the simple reason that they have forced us to alter our actions. In fact, these judges, as I show, are imposing on us our own values. History can be our guide here. On many past occasions, contemporaries believed that the Supreme Court was imposing its own values when it issued controversial rulings. But historical distance has demonstrated that the justices were correctly identifying American constitutional values, not imposing their own. Most famously, in 1954, after nearly a hundred years of ignoring the Constitution’s command that we not treat blacks as inferior, the Supreme Court ruled that states cannot segregate citizens on the basis of race. Brown v. Board of Education19 may be the most famous case in the past half century or so where the Court forced us to change our behavior, but it is hardly the only one. Thus, nearly a decade after Brown, states were still finding ways to evade its central command, still finding ways to discriminate against blacks; at last, in the 1962 case of Baker v. Carr,20 the Court told us that we must count the votes of all citizens equally. Both Brown and Baker v. Carr, as we see in Chapter 2, evoked howls of protest. The Court, we were told, was imposing its own values. Time has shown those condemnations to be wrong. In 1963, in Gideon v. Wainwright,21 the Court said that we cannot imprison people without providing them with a lawyer. In 1965, in Griswold v. Connecticut,22 the Court told us that we cannot prevent married couples from using contraceptives. In 1967, in Loving v. Virginia,23 the Court told us that we cannot prevent whites and blacks from marrying one another. In 1985, in Batson v. Kentucky,24 the Court told us that we cannot strike people from juries just because they are black. In 1996, in the United States v. VMI,25 the Court told us that we cannot prevent women from attending prestigious state-run military schools. In 2003, in Lawrence v. Texas,26 the Court told us that we cannot interfere with private sexual activity between consenting adults, even if they are the same gender. In all these cases, politicians who disagreed with the Court’s judgment said the same thing: that the elitist justices were “legislating from the bench,” that they were creating (rather than interpreting) the law, that they were forcing their own liberal values on the rest of us. In all these cases, the critics, and the majority, were wrong. The justices arrived at correct interpretations of constitutional principles. In America, legislatures represent the will of the people (at least in theory).27 If we do not like what our elected officials are doing, we replace them in the next election. Consequently, it is fair to ascribe what the legislature has enacted to us. We, in a sense, are the legislature, so when the Court nullifies a law that we have enacted (or at least supported), it is interfering with our choice, with our preference, with our prejudice. Clearly, therefore, when the Court strikes down a law that the majority has supported, it is acting in a way with which the majority, at that particular historical moment, disagrees. Does that mean, however, that the Court is imposing its own values on us? It is easy

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to think so, as I have suggested, but I argue in the following pages that it is also a mistake to think so. In all these cases I have mentioned, and in others I discuss later, the Court, far from imposing its own values, was safeguarding our own. Time has proved these reproaches to have been warranted. Of all the cases where critics have charged that the judges are imposing their elite, liberal values on the rest of us, history has sided with the judges nearly all the time. The reason for this nearly constant historical validation will become clear in Chapter 5. In short, it is because the justices have perceived the direction of American legal history in a way that the populace as a whole has not. They have been prophetic. If one believes in the concept of higher law—and the very foundation of American law presupposes its existence—then there must be some authority or institution that can identify this law, that can tell us when we are not adhering to it. In biblical times, that responsibility fell to the prophets. In modern America, that responsibility lies with the courts.

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In biblical times, when the prophets told the masses that they could not continue behaving as they had been, there was an authoritative source, other than their own personal beliefs and values, that underlay their criticisms. They apprehended truths that others had overlooked. In Chapter 4, I suggest an analogy between biblical prophecy and judicial activism, and in considering this analogy, it is important to be mindful that biblical prophets served two general functions. At times, his role was to deliver a divine message, to serve as an intermediary between the people and their God. In this capacity, the prophet was a messenger. Second, he was also at times an intercessor, or intervener, someone who attempted to prevent impending doom. Speaking of Abraham, the first man in the Bible to be designated a prophet, the book of Genesis says: “Since he is a prophet, he will intercede [pray] for you to save your life.”28 (At times, the intervention was literally to save a life, as when Moses intervened on behalf of the Israelites, when they were slaves in Egypt.) In contrast to the biblical priests, who were concerned first and foremost with ritual and religious rites, the prophets were concerned primarily with morality, with wrong versus right.29 Their intercession was often not intended to save an individual life; it was driven by the goal of preserving a way of life. Biblical scholars have observed a significant difference between the preclassical prophets, on the one hand, and the classical prophets, on the other. Thus, while preclassical prophets, like Samuel, emphasized obedience above all else, for the classical prophets, like Isaiah and Jeremiah, morality mattered more than conformity. For the preclassical prophets, the greatest sin was idolatry; the classical prophets, in contrast, reserved their harshest condemnation

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for sheer immorality. The classical prophets played an important role in developing the idea that “right” has meaning apart from what the majority says it means. If the masses were acting unethically, the prophetic role was to tell them so. Speaking of the Hebrew prophets, the great biblical scholar Abraham Joshua Heschel wrote, “the prophet was an individual who said No to his society.”30 Critics of judicial activism, including even some justices, often speak of judicial unaccountability as a regrettable fact. This critique ignores the wisdom of the prophets. For although it is true that judges, once confirmed by the Senate, are politically unaccountable, this fact is not something to lament. Unaccountability is essential. Jeremiah and Isaiah were accountable to no one but God, to no idea but truth. They did not rebuke the people or intercede in their affairs simply because the people were making a choice that differed from the choice the prophets might have made for themselves. Instead, the prophets rebuked and interceded because the choice that the people had made was wrong, inconsistent with enduring principle and higher law. The prophets were able to intervene in this manner only because they were unaccountable, only because their vision was not distorted by popular ideology. The framers of the Constitution were educated and literate men who knew the Bible and the prophetic literature well.31 They knew that societies require an institution that is capable of resisting the tendency of the majority to stray. That is why they designed the judicial branch of government to be immune from political pressure. Our framers knew that our judges must be unaccountable if they are to be able to tell us no.

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If the phrase “judicial activism” means anything, it means “prophetic.” A judge who is vilified as an activist is a judge who behaved like a prophet, a judge who was willing to reach the correct result, even though reaching that result exposed her to the wrath of the masses: a judge who was willing to tell us no. In truth, however, the phrase “judicial activism” means nothing. As we see in Chapter 2, it is a phrase used to describe not a method of analysis but a result. Many (perhaps even most) critics of the judges who brought an end to racial discrimination, or who protected homosexual rights, or who refused to intervene in the Schiavo case, were not critical of the court’s reasoning. They objected to the court’s results. As we will also see, however, the method that a judge used to reach the objectionable result will ordinarily be nearly the same as the method used by the judge who reached a differing result. In mathematics, this phenomenon cannot occur. If two mathematicians use the same data and the same method, they get the same answer. Law is different. How this can happen—how two judges can use nearly the same method and yet reach two different answers—will be a subject I explore in some detail in

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Chapter 4. The important point for now is simply that it is possible; it is possible because very small differences in emphasis and focus can result in significantly different outcomes. William James once said that the differences among human beings are very small, but very important. The same might be said for differences among judges. The methodology used by Justice Antonin Scalia is nearly identical to the method championed by Justice William Brennan, the modern Court’s most famous liberal. Yet from a seemingly trivial methodological difference came profound differences in outcome. How and why that can happen becomes clear, I hope, in Chapter 5. But it really all boils down to this: Judges are either prophets or priests. In every society based on law, the society’s legal interpreters fall into these two camps. Priests are champions of society’s rituals. They adhere to ritual because ritual has always been adhered to. It does not matter to priests whether a ritual “makes sense”; this question—whether something makes sense—is not necessarily unimportant to a priest as a personal matter. As a judicial matter, however, it is just not a priestly concern. America’s central ritual is democracy, and the priest accordingly believes that it is the majority’s job, not a task for the society’s legal interpreters, to decide whether a ritual makes sense. Prophets, on the contrary, view it as precisely their job as legal interpreters to determine whether a ritual makes sense, when called on to enforce that ritual. Priests, in short, ask, “Is this something we have always done?” If the answer is yes, then they say we must continue doing it. Prophets only begin by asking this priestly question. If they reach the same answer that the priests have reached, however, they ask an additional question, namely: “Is this something we ought to continue doing?” I suggest in Chapter 4 that we can think of priests and prophets as judges taking a ride together on a train. The priests are seated facing the rear. They can see backward on the rails all the way to the depot from which the train began its journey. They believe that their job is to be experts on all that has transpired between the origin of their culture and the location at which they reside at the moment. The prophets face sideways. Turning their heads one way, they see what the priests see. Turning their heads the opposite direction, they see forward. They cannot see to the end of the track, perhaps, but they can see some distance into the future. Of course, to continue with this metaphor, there will be spots in the future that the prophetic judge, not matter how keen her vision, cannot see (think of a train track that rounds a bend). Nevertheless, the prophetic judge can see some distance into the future, and the prophetic judges believe that their job is to ascertain, based on the vector from which they have come, where they are going.

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There is one particular ritual that lies at the heart of the contemporary distinction between priestly and prophetic judges. It is the ritual of democracy.

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Neither priests nor prophets are indifferent to democracy. Both accept that idea that in many (if not most) matters, “the majority rules.” But whereas the priests place the will of the majority on an altar, prophets are willing to say that the masses can be wrong. Priests answer questions placed before them by asking what the masses have said; in particular, they frequently determine whether we have a right to do something by asking whether the masses say we do. Prophets also begin by asking what the people have said, but they are willing to say that the masses can be wrong. Thus, for example, if the majority declares that marriage is a relationship between one man and one woman, then, for a priestly judge, there is no constitutional right that permits two men (or women) to marry. For a prophet, the majority’s declaration is not irrelevant, but it is also not decisive. Let me close this chapter with two important caveats. First, if it is correct to say, as I have said, that a judicial activist is actually a prophet, and if it is also correct to say that a prophet is a judge who is willing to tell the masses no, then we can see that the judges who invite the most vehement charges of activism are those who are least willing to defer to the political majority on the mere basis that it is the majority. But I do not mean to suggest that prophets are indifferent to majoritarianism, for in resolving many disputes, the prophets do defer to majority will as readily as do the priests. Part of being a prophet, therefore, lies in explaining why, in some disputes, deference to the majority is wrong. When they rebuked the people of Israel, the biblical prophets identified the legal rule that the masses were violating. Judicial prophets must do the same. I show in Chapter 5 that there is a particular method that judges should use when they do say “No”, and I will argue that if they adhere to this method, there is no reason for us to be concerned that they are being nondeferential when they strike down acts enacted by us, the majority. Judges should strike down racial segregation, they should safeguard the wall of separation between church and state, they should permit terminally ill patients to end their lives, they should reject as discriminatory laws that prohibit samesex marriage. I demonstrate that judges who do all these things are not “activists” bent on imposing their own personal values on the rest of us. Rather, they are America’s prophets. Judges who issue these rulings do so because they are able to apprehend the very essence of our Constitution and America’s higher law, and because they are willing, like the biblical prophets, to tell us, the majority, that we have strayed. Second, the distinction between priests and prophets, like many distinctions, is not absolute. Many judges, even most judges, have both priestly and prophetic tendencies. An ordinarily priestly judge will at times act prophetically, just as a typically prophetic judge will at times at in a priestly manner. Moreover, the distinction between priest and prophet is emphatically not equivalent to the distinction between conservative and liberal. One of the

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Supreme Court’s greatest prophets, Chief Justice John Marshall, was not remotely liberal; one of the Court’s most reputed liberals, Hugo Black, was not remotely prophetic. In the words of Solomon, “where there is no vision, the people perish.”32 Our judicial prophets can be either conservative or liberal; the one quality they are required to possess, to warrant the label of prophet, is vision. NOTES 1. I am talking about the Golden Rule as an illustration of the exercise of judicial activism. Instances of the “identification,” or perhaps the invention, of this rule in various traditions can be found at http://www.religioustolerance.org/reciproc.htm. 2. There is a concise summary of this debate in the Hertz edition of the Torah. See J.H. Hertz, ed., The Pentateuch and Haftorahs (Soncino Press, 2d ed. 1992). 3. Here it is worth stressing that throughout this book, I do not use the word text exclusively to refer to something written; that is, a “text” can be unwritten, and many of the “texts” that both Jesus and Hillel cited and commented on were unwritten and were passed down from one generation to the next orally. 4. In many ways, law and science are different. In one important way, however, they are the same: In both domains, there are truths to be discovered. Of course, legal truths are contingent in a way that scientific truths are not. At a given historical time, however, in a given legal culture, there are nonetheless truths, however unstable they may be. 5. My claim has therefore both an ontological and epistemological dimension. I am less concerned with defending the ontological claim here than the epistemic one. I profited from an email exchange I had many years ago with Frank Michelman concerning this distinction. 6. George W. Bush, State of the Union, February 2, 2005, available at http:// www.whitehouse.gov/news/releases/2005/02/20050202-11.html. 7. George W. Bush, radio address, July 10, 2004, available at http://www .whitehouse.gov/news/releases/2004/07/20040710.html. 8. The concept appears in Federalist no. 10, authored by Madison. It appears as well in John Stuart Mill and de Tocqueville. A comprehensive discussion appears in Lani Guinier, The Tyranny of the Majority (1994). 9. It is possible to overstate the role that federal courts played in this development and thereby understate the role that legislatures played. Jeffrey Rosen has prominently argued that the divide between the judicial and political branches was not wide, and that the judicial branch largely reflected popular sentiment. See Rosen, The Most Democratic Branch (Oxford 2006). The U.S. Congress unquestionably played a major role in both race and gender equality (while playing little to no role in equality relating to sexual orientation, and equally little role in constructing a robust conception of liberty). Nevertheless, I believe Jed Rubenfeld is correct when he argues that major decisions of constitutional law have been radical, in the sense of being unmoored from popular opinion. See Rubenfeld, Revolution by Judiciary (Harvard 2005). I think my discussion, in Chapters 3 and 6 especially, demonstrates the role that judges make (and have made) in giving content to the central values that define

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the American culture. For one example, a highly interesting and original examination of the importance of the Supreme Court’s decision in Cooper v. Aaron, where the justices took on resistance to desegregation in Arkansas, is contained in John Harrison, Judicial Interpretive Finality and the Constitutional Text, 23 Const. Comm. 33 (2006). 10. See, for example, United States v. Virginia, 518 U.S. 515 (1996), which required that Virginia permit women to attend VMI (the Virginia Military Institute), and J.E.B. v. Alabama, 511 U.S. 127 (1994), which held that lawyers cannot strike a woman from a jury simply on account of her gender. See also Roberts v. United States Jaycees, 468 U.S. 609 (1984), which upheld a statute the required formerly all-male clubs to accept women. 11. See State v. Griswold, 200 A.2d 470 (Conn. 1964). 12. The Alabama judge was Roy Moore. As shameful as his action was, the governor of Alabama acted with equal disgrace when he said he would call out the National Guard to defend the lawless judge. For a contemporary account, see http:// query.nytimes.com/gst/fullpage.html?res=9C0CE2D61430F936A35750C0A9619 58260. 13. McDaniel v. Paty, 435 U.S. 618 (1978). The vote was eight to zero, because Justice Harry Blackmun did not participate. It is worth noting that the Court’s two most liberal Justices, William Brennan and Thurgood Marshall, had the most expansive views of why the Tennessee law was unconstitutional, while the views of the more conservative justices, including Justice Rehnquist, were much more narrow. 14. I have in mind Senator Sam Brownback’s op-ed, titled “What I Think About Evolution,” which appeared in the New York Times on May 31, 2007. See http://www.nytimes.com/2007/05/31/opinion/31brownback.html?_r=1&oref= slogin. 15. He made the accusation in Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia, J., dissenting), a case I discuss in greater detail in Chapter 6. 16. The finest discussion remains the late Robert Cover’s examination of abolitionist judges. See his Justice Accused: Antislavery and the Judicial Process (Yale 1984). In a more contemporary context, Justice Scalia once suggested that Supreme Court justices who oppose the death penalty ought to resign rather than permit their personal views to vitiate their judgments in capital cases. His speech, called “God’s Justice and Ours,” can be found at http://www.firstthings.com/article.php3?id_ article=2022. 17. Texas v. Johnson, 491 U.S. 397 (1989). 18. Cohen v. California, 403 U.S. 15 (1971). 19. 347 U.S. 483 (1954). 20. 369 U.S. 186 (1962). 21. 372 U.S. 335 (1963). 22. 381 U.S. 479 (1965). 23. 388 U.S. 1 (1967). 24. 476 U.S. 79 (1986). 25. 518 U.S. 515 (1996). 26. 539 U.S. 558 (2003). 27. For reasons beyond the scope of this book, I accept the viability of this assumption, even though it is manifestly wrong is many instances. For discussions of

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the hazards of supposing that legislative action accurately represents majoritarian sentiment, see, for example, Ian Shapiro, Democracy’s Place (1996); David Mayhew, The Electoral Connection (1974). A perceptive analysis that shows how the potency of the countermajoritarian difficulty is diluted by the failure of legislatures to reflect majority will is contained in Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty, 89 Iowa L. Rev. 1287 (2004). Obviously, insofar as this assumption is flawed, then the countermajoritarian problem ceases to be problematic in that the judiciary’s action is often not countermajoritarian at all. 28. Gen. 20:7. This passage is the first in the Bible to use the word prophet: na-ve. The translation in the text is not quite literal. The literal Hebrew is perhaps a bit clumsy in English: “he will pray for you, and you will live.” 29. The contrast between rite and right is emphasized in the article “Prophets and Prophecy,” Encyclopedia Judaica, vol. 13 (corrected edition). 30. The Prophets, supra, at xix. 31. See, for example, Douglas L. Wilson, Jefferson’s Books (1996) (discussing contents of Jefferson’s library). 32. The statement, sometimes attributed to the prophet Isaiah, appears in Proverbs 29:18.

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Chapter 2

A SHORT HISTORY OF “ACTIVIST” JUDGES Do we want judges in America who will “strictly interpret” the Constitution? Although this question has occupied legal theorists for two generations, it surged into the public consciousness only when President Reagan nominated Robert Bork to the Supreme Court in 1987, and it has dominated confirmation hearings ever since. The Bork nomination focused attention on the Ninth Amendment to the Constitution, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”1 That language certainly sounds like the framers were saying that the people of the United States possess rights in addition to those identified in the Constitution. But if that is so, someone must be able to say what those rights are. Should it be judges? That prospect did not sit well with Judge Bork. When asked at his confirmation hearings what the Ninth Amendment means, Judge Bork replied that it is an “ink blot.”2 It means nothing—or, perhaps more precisely, it means whatever one sees in it. Judge Bork saw a jurisprudence based on the Ninth Amendment as incompatible with his philosophy of “strict construction.” If the meaning of the text comes from the sensitivity of the eyes of the beholder, then it is not law; it is personal taste. In every confirmation hearing for Supreme Court justices since, the issue of judicial methodology (or temperament) has occupied center stage. Thus, in 2006 Harriet Miers withdrew from consideration after President Bush had nominated her to succeed Sandra Day O’Connor on the Court because conservatives were not convinced she would “strictly interpret” the text.3 In contrast, Bush’s nomination of John Roberts to serve as chief justice of the United States and his nomination of Samuel Alito as associate justice provoked

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no conservative opposition because the credentials of these two men as strict interpretivists were impeccable. It is safe to predict that the question of whether a judicial nominee believes in “strict construction” will come up again during every confirmation hearing into the indefinite future, and whether presidential candidates favor such nominees will be a central campaign issue for years to come. So we should perhaps pause to address a seemingly important matter: What does this question even mean? The answer is that it means nothing. I would therefore like to begin by examining why this is so. Judges do three different things. At times, they decide facts; that is, they decide what happened. For example, suppose a fired employee sues her employer for wrongful termination. She says she was fired because she wore a button protesting against the war. The company says she was fired for missing too many days of work and not performing well. When the judge decides why she was fired, the judge is deciding a factual question: Was it the button or poor performance (or both or neither)? For our purposes, resolution of factual issues plays little (if any) role in the question of how judges ought to decide cases. The next thing judges do is to decide which legal principle applies to the dispute. Suppose, for example, that the judge determines that the company did in fact terminate the employee because she wore an antiwar protest button. The employee argues that she has a right under the First Amendment to engage in free speech, and that the employer interfered with that right by firing her for expressing her views. The company, in contrast, says that it is permitted to fire a worker for any reason it chooses, under something known as the “at will” employment doctrine. The judge has to decide which principle governs the dispute. If the employer is correct about the relevant legal rule, then it does not matter why he elected to fire the employee. In many cases, the choice of which principle to apply is the decisive judgment in resolving the dispute. Accordingly, a robust theory of judicial review will have some bearing on which principle a judge ought to employ when resolving a dispute to which two or more principles are relevant. Once they have decided the facts, and once they have identified the pertinent legal principles, the judge must apply the principles to the facts. This is the third aspect of their function: Judges interpret. Suppose, for example, that in our employer–employee dispute, the employer is the state prison system, which, as a state agency, will be covered by the First Amendment. Suppose as well that the employee’s protest button is a vulgarity, something along the lines of “F**k the president and his murderous war.” Let’s also imagine that there is no debate about why the employee was fired; the prison spokesperson concedes that the employee was fired for wearing the button. Finally, let’s assume that the employer agrees that the employee does indeed enjoy rights under the First Amendment to freedom

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of speech, but, argues the prison, what the employee said is outside the universe of statements protected by the Constitution. In this scenario, the parties do not disagree about the facts, nor do they disagree about the relevant legal principle. But they do have different understandings of how the First Amendment applies to this set of facts. To decide who wins, the judge must interpret the free speech clause of the First Amendment. That is what every judge who confronts this scenario must do: interpret the meaning of the constitutional language. In this case, the judge must decide whether a state employee can wear such an incendiary button to the office and be protected against termination by the First Amendment. It is with respect to this third aspect of the judicial function—interpreting the meaning of a legal principle— that the debate over judicial activism pivots. So what do critics of judicial activism mean when they advocate “strict” interpretation of the Constitution? The critic means simply that the judge has understood the legal principle as extending constitutional protection to conduct that the critic does not believe the principle should cover. The reason why the judge believes that the principle extends to the conduct is typically irrelevant to the critic. Hence, when the critic says that a judge has not “strictly” interpreted the Constitution, what the critic is really saying is that the judge’s understanding of the legal principle is broader than that of the critic. The critic is not saying that the judge misunderstood the facts (or arrived at an erroneous factual conclusion), nor is the critic saying that the judge chose to apply the wrong principle. Rather, the source of the criticism relates to the third thing judges do: the act of interpretation. The critic is saying that the judge has understood the legal principle as applying to certain facts that the critic, for some reason, believes (or wishes) the principle should not reach. The disagreement relates to a legal conclusion, not the method used to reach that conclusion. People disagree about the scope of principles all the time, though. Take the principle that condemns cruelty to animals. Presumably, we would all agree that this principle prohibits gratuitously kicking a dog. Not everyone agrees, however, that the same principle forbids force-feeding a goose so as to fatten its liver, which will then be enjoyed by diners in fancy restaurants. On the other hand, some people believe that the principle forbids killing animals for food at all. Someone who embraces vegetarianism as compelled by this principle understands the prohibition against cruelty to animals far more broadly than does someone who accepts the validity of the principle yet continues to dine on foie gras and hamburgers. Like the principle that prohibits cruelty to animals, legal principles that judges must interpret can be understood less or more broadly. In contemporary political discourse, however, a strict, or narrow, interpretation of a constitutional principle is often said to be the correct one, while a judge who accepts a broader interpretation is accused of doing something wrong.

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For example, when he condemned the decision of the Massachusetts Supreme Court that upheld the right of gays and lesbians to marry one another, President Bush asserted that the judges who understood the constitutional principles relating to marriage as extending to same-sex unions were imposing their own values on the rest of us, rather than strictly interpreting the law. But is this what the majority of Massachusetts judges was doing? How could we be any more certain that the “lenient” judges were doing this while the “strict” judges were not? Perhaps those who strictly interpreted the Constitution and ruled against gay marriage did so not for sound analytical reasons, but because they are homophobic. How do we know which judges privilege their own biases when interpreting legal texts, or even whether there are any such judges? To answer that question, and even understand the need to ask it, we need to consider briefly two historical moments. The first occurred in 1803. John Marshall was the chief justice of the Supreme Court. Appointed in 1801, he was the fourth man to hold that position. Two years into his thirty-four-year tenure as chief justice, he wrote the opinion for the Court in the case of Marbury v. Madison.4 The facts of the case are less interesting than Marshall’s opinion, so I do not belabor them. Briefly, following the election of Thomas Jefferson, elected to be the third president of the United States, John Adams, the outgoing second president, appointed a number of judges. Then as now, political ideology influenced a president’s decision regarding judicial nominees. Adams was a Federalist, whereas Jefferson was a Republican, so the judges Adams appointed were not all agreeable to Jefferson. By the time Jefferson took office, not all the judges named by Adams had had their commissions delivered to them, meaning that they did not have authority to act as judges. Jefferson ordered his Secretary of State, James Madison, not to deliver the remaining commissions. One of the men named by Adams, whose commission had not been delivered, was William Marbury. He sued Madison for not delivering the commission, and the case eventually reached the Supreme Court. The Constitution provides for the creation of the Supreme Court. It says that the judicial power of the United States “shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”5 The Constitution further provides that federal judges are appointed for life (so long as they maintain “good behavior”) and that Congress cannot reduce their salaries. Both the lifetime tenure feature and the protection of their paychecks suggest powerfully that the framers wanted judges to be immune from political or transitory influences. They wanted federal judges to be able to decide cases without being influenced by popular opinion or what others thought. There are, therefore, apparent constitutional provisions underscoring the need for judicial independence. At the same time, the Constitution does not say that the Supreme Court’s interpretation of the Constitution is superior to that of the president or the

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Congress. Why, then, does the Supreme Court get to decide what the Constitution means? All federal officials, including the president and members of Congress, take an oath to uphold the Constitution. It follows, therefore, that when members of Congress vote to enact a law, they believe that law comports with the Constitution. Likewise, when the president takes some action, he certainly believes that the action he is taking is consistent with and perhaps mandated by the Constitution.6 Consider, for example, the famous case of United States v. Nixon.7 In this confrontation, a federal judge (Judge John Sirica) had ordered President Nixon to hand over audio tapes to Leon Jaworski, the special prosecutor investigating the Watergate break-in. President Nixon insisted that the federal courts had no authority to order him to do so. The case eventually reached the Supreme Court, which held, by a unanimous vote, that President Nixon had to hand over the tapes. (The vote was eight to zero, with then-Justice Rehnquist not participating.) President Nixon complied, but what if he had not done so? He might have said, “I respect the decision of the Supreme Court, but I disagree with it, and my interpretation of the meaning of the Constitution is not inferior to the Court’s understanding. Accordingly, I will not hand over the tapes.” If President Nixon had said that the Constitution does not explicitly confer on the federal courts the final authority to say what the Constitution means, he would have been correct, but that argument had long since been foreclosed. Although the Constitution does not expressly say that judges get to second-guess the judgment of elected officials, it had been obvious to Chief Justice Marshall that there could be no other sensible rule. Somebody’s interpretation must be final; somebody’s understanding must be authoritative. In Marbury v. Madison,8 when the Supreme Court was asked by a man who wanted to be a judge to force President Jefferson’s secretary of State to deliver to him his judicial commission, the Supreme Court refused to do so. It declined to force the president to act. Yet ironically, as it declined to exercise one power, the Court reserved for itself a far more potent power. The Supreme Court, in one of Chief Justice Marshall’s most famous opinions, said that federal courts have the final say. Despite the fact that the framers of the Constitution had explicitly rejected a proposal that would have created a Council of Revision, made up of judges who would have reviewed the legality of legislation, Chief Justice Marshall articulated the principle of judicial supremacy: If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

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AMERICA’S PROPHETS It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.9

Courts, not the Congress and not the president, are the final arbiters of what the Constitution means. The authoritative interpretation is the judicial one. Congress had enacted a law that purported to give to the Supreme Court the power to issue the very relief that Marbury had requested. However, because Congress lacked the authority to enact the measure, the congressional enactment was void, legally ineffective. By disclaiming the very power with which Congress had sought to vest it, the Court shunned something small while staking its claim to something much greater: the authority to have the final say as to whether a challenged law is unconstitutional. In Marbury, the Court articulated the idea of “judicial review”: the idea that the judicial branch can review acts of the legislature and the executive to assess their constitutionality. This idea may seem obvious to us, but even if it is obvious, it is an illustration of an apparent and yet inexplicit command. Crucially, although the decision was only loosely tethered to the language of the Constitution,10 it is nevertheless deeply rooted in American law. For a legal principle can be unwritten and highly elusive, yet unmistakably present. Thus, virtually no serious scholar or public official today—not even the strongest critics of judges who supposedly foist their own wills on the people— would argue that judicial review is something that ought to be done away with altogether.11 Even the most fervent critics, for example, of the Supreme Court’s decision in Bush v. Gore—as epitomized by Al Gore himself—concede that the Court’s action was constitutional. It may have been profoundly unwise, it may have been intellectually dishonest, it may have been flat-out wrong, but it was not unlawful. Hence, although scholars and laypersons will continue to debate how judges ought to decide particular cases, and whether they should strike down an act of Congress or overrule an action of the president, virtually no one rejects the idea that the Court may do so, that it has the power to overrule actions taken by popularly elected officials. Judicial review is, as we shall see in greater detail in the following pages, the mode of governmental activity that is more responsible for the shape and content of American law and culture than any other. As much as presidents, senators, representatives, or other elected officials, judges have given concrete content to America’s lofty ideals. They have done so by exercising their power of judicial review. This judicial activity has but a single objective: to

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compel elected officials to conform their activities to the Constitution. And yet the Constitution does not even mention it. Marbury v. Madison thereby makes it possible for our judges to be prophets. The essence of the Court’s decision is that it permits judges to say: You thought that your action was constitutional, but you were mistaken. The second historical moment I want to turn to is the moment when this obvious point became emphatic. The Thirteenth Amendment became part of the Constitution in 1865; it abolished slavery in the United States, declaring that “neither slavery nor involuntary servitude . . . shall exist within the United States.” The Fourteenth Amendment, ratified in 1868, guaranteed that all citizens, including the newly freed slaves, would receive the equal protection of the laws: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Yet despite the ratification of these two so-called Civil War amendments (the third was the Fifteenth Amendment), the Supreme Court in the infamous 1896 case of Plessy v. Ferguson,12 upheld the constitutionality of a Louisiana law that required blacks and whites to ride in separate railroad cars. The case established the legal doctrine known as “separate but equal”: According to the Court, the equal protection clause of the Fourteenth Amendment was not offended by state laws that kept blacks and whites separate, so long as the separate facilities were “equal.” If the railroad cars were the same size, had the same number of seats and windows, had equally good ventilation, and so forth, then the state could mandate racial separation if it wanted to. The Court’s decision revealed the absurdity of adhering to a sort of linguistic formalism. In his dissenting opinion, Justice John Marshall Harlan stressed the importance of going beyond or beneath the words to divine the Constitution’s meaning. According to Justice Harlan, the effect of the Louisiana law was to pin a “badge of servitude” on blacks in Louisiana. Moreover, he observed, the appearance of formal equality was misleading, for the objective of the law was not to prevent whites from riding in black cars; the purpose was to keep blacks away from the whites. According to Justice Harlan: It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.13

Justice Harlan understood that when judges exercise their judgment in interpreting and applying constitutional principles, they should take into account

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the purpose and effect of challenged laws; sensitivity to this reality is part of the judicial function. Consequently, the Louisiana law’s intended meaning and the law’s actual effect made it unconstitutional, because it violated a constitutional ideal, even if the Constitution’s mere words could accommodate it. Justice Harlan’s dissent was eloquent, yet it was also precisely that—a dissent. The majority of the Court refused to thwart the will of the Louisiana majority. The separate but equal doctrine led to social practices that are difficult, in the early twenty-first century, to fathom. This doctrine permitted states to enforce laws that required blacks and whites to swim in separate pools, to golf on separate courses, to drink from separate fountains, to relieve themselves in separate bathrooms, to eat lunch at separate counters, and to learn at separate schools. Blacks and whites played baseball in separate leagues and served in segregated units in World War II. All of these measures supposedly satisfied the Constitution. The Supreme Court in the Plessy decision suggested that God Himself had created the races separately, and the states could legally keep them separate, as long as the government did not treat one worse than it treated the other. Law, the Supreme Court declared, is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.14

As much as slavery itself, the decision in Plessy and the separate-but-equal doctrine it created led to the formation of two Americas, one white, the other black. For more than half a century, the understanding of the Constitution put forward in Plessy persevered. At last, in 1954, nearly a century after the Civil War had ended, the Supreme Court drove a dagger through the heart of this scandalous period in American history. In Brown v. Board of Education,15 the Court explicitly overruled the so-called separate but equal doctrine. Rejecting the premise implicit in Plessy—that the races were “naturally” separate— the Court suggested that the government simply cannot use race as a criterion in legislation; it suggested that race is irrelevant to governing. According to the Court, the government does not comply with the equal protection clause merely by giving blacks as comfortable a place to sit in the classroom as it gives whites. Instead, the Court essentially acknowledged in Brown that Justice Harlan had been correct in Plessy when he insisted that the government violates the Constitution when it uses race as a criterion to keep the races separate.

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It is difficult to exaggerate just how radical Brown was. The ruling challenged a practice that was deeply rooted in American history and was assumed by many to be perfectly legal. Racial separation had been part of the fabric of American society since before such a thing as the United State of America existed. In the wake of the Court’s ruling, some people took to the streets in celebration, but thousands across the South, including elected officials, took to the streets in protest. As the principle identified in Brown spread beyond the context of separate schools and expanded to cover every area of stateimposed separation, the federal courts remade society (or tried to). Without question, the Supreme Court (and the lower federal courts, as well) were repeatedly thwarting the will of hundreds of thousands—perhaps millions—of Americans who wanted to maintain racial separation and who, more important, believed that such separation was permitted by the Constitution. Were these judges doing nothing more than imposing their own wills on a recalcitrant populace? Or had they identified a principle that others had overlooked? Whose understanding of the equal protection clause was correct, that of nine white unelected justices, or that of millions of citizens in the Southern states? If we are to understand phrases like “judicial activism,” “judicial restraint,” “strict construction,” “legislating from the bench,” and the like, we should pause to underscore the fact that the origins of the concept of judicial “activism” lie in this era. Although courts had interfered with the will of the majority on many prior occasions, the interference that commenced in 1954 led to an unprecedented degree of judicially driven social change. Courts told political majorities in more than a dozen states that vast dimensions of their way of life were constitutionally impermissible. In case after case, the courts rejected the will of the political majorities in the many states where those majorities had voted to keep blacks and whites separate. The Supreme Court said to the people: You might think this system of racial separation is constitutional, but you are mistaken, and you must dismantle it. One great constitutional theorist living in the midst of this upheaval saw not the implementation of fundamental constitutional ideal, but judicial supremacy, and his vision was not celebratory. Eight years after the Supreme Court decided Brown, a Yale law professor named Alexander Bickel laid bare what the Court had done in Brown and other cases like it. The Court had interfered directly with the political process. For Bickel, this interference was deeply problematic. As he put it: The root difficulty is that judicial review is a counter-majoritarian force in our system. . . . [W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of here and now; it exercises control, not in behalf of the prevailing majority, but against it.16

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With this passage in his book, The Least Dangerous Branch, Bickel coined the phrase “countermajoritarian difficulty.” The phrase is a perfectly apt one. Countermajoritarian means contrary to the majority. When it strikes down something that the majority has done, the Court is acting contrary to that majority. What makes the practice problematic—what makes it a “difficulty”—is that America is based on the idea of “majority rules.” We drive on the right side of the road rather than the left because that is what the majority has decided. We put certain murderers to death because that is what the majority has decided. With certain exceptions, the majority decides what is right. Bickel himself did not question the correctness of the Court’s decision in Brown,17 but others did, invoking the same type of considerations that Bickel had identified. For example, Judge Learned Hand, often said to be the greatest judge never to have been on the Supreme Court,18 suggested that the Court’s decision in Brown represented an illegitimate coup.19 The famous constitutional law theorist Herbert Wechsler, while unquestionably opposed to racial segregation, struggled to identify a principled basis for the Court’s decision.20 These and other scholars started with the idea that America is based on the idea of majority rules, and they were therefore confounded by the Supreme Court’s action, because the Court had repudiated the majority will in an utterly unprecedented way. Because they placed such emphasis on democracy—on the decisions made by the people and their popularly elected representatives—these scholars could not comprehend how a judicial decision at variance with the popular will could be legitimate. As we will see in Chapter 5, the failure of constitutional scholars like Bickel was that they understood the importance of democracy, but they did not pay heed to either of the other two central values in the American legal culture: liberty and equality. These two values are as deeply rooted in the Constitution as is majoritarianism (perhaps even more so), yet they are more difficult to understand. The myopia of scholars like Bickel was widespread, and the vehement criticism of Brown was not limited to academics. On the contrary, protest spilled into the streets. In scenes reminiscent of the reaction to the Supreme Court’s decision in Roe v. Wade, or to its decision upholding the right of an antiwar critic to burn an American flag, throngs of protestors condemned as an outrageous usurpation the decision in Brown—arguably the most important judicial decision in American history. Thus, for example, in 1956, less than two years after the Court began the process of dismantling racial segregation in America, nineteen senators and eighty-two members of the House of Representatives signed the so-called Southern Manifesto,21 which impugned the decision in Brown as illegitimate and advocated resistance to the decision. As fate would have it, six months after the Court decided Brown, Supreme Court Justice Robert Jackson died. President Eisenhower nominated John Marshall Harlan to fill the vacancy. Eisenhower’s nominee was the grandson of another justice who had the same name; he was

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the grandson of the Justice Harlan who had been on the Court when it decided Plessy v. Ferguson. As we have discussed, the first Justice Harlan had been Plessy’s lone dissenter when the Court articulated the infamous “separate but equal” doctrine. The first Justice Harlan had said that formal equality alone did not satisfy the Constitution’s equal protection clause. In his view, the Constitution prohibited the state from enacting laws that placed a “badge of servitude” on blacks. Alone among his colleagues, the first Justice Harlan had understood the value underlying the equal protection clause in a deep, nonliteral way. It took more than half a century, but eventually the rest of the Court (and, in time, the rest of the nation) caught up with him. In 1955, however, the Harlan name was not exactly beloved in the South. Nine southern Senators voted against his confirmation.22 Seen with historical perspective, neither Roe v. Wade nor Terri Schiavo, neither flag-burning nor same-sex marriage, neither assisted suicide nor prayer in school, represents anything new. Like Brown itself, these more recent decisions provoke joy in some quarters and despair or anger in others, but one particular calumny they invite—that judges are imposing their will on the will of masses—is a criticism that has been heard many times in American history. For example, when the Supreme Court established the principle of one person, one vote in the early 1960s, and thereby prevented the Southern states from diluting the electoral strength of black voters, thirty-two states called for a constitutional convention to overrule the Court’s intervention.23 Thus, politicians who condemn a judge for protecting the right of two men to marry, for instance, or who lambaste a judge for refusing to prohibit the removal of Terri Schiavo’s feeding tube, are engaged in a familiar dialectic. They are reacting angrily to the fact that the Supreme Court has flexed its muscle by exercising the power of judicial review—something the Court has been doing since Chief Justice John Marshall wrote the opinion for the Court in Marbury v. Madison—and they are reacting further to the fact that they do not share the Court’s legal interpretation. They complain that the Court has exercised its antidemocratic power to stymie the will of the majority. They are reacting, in short, to the simple fact that the Supreme Court has told us no.

•

•

•

An educated, thoughtful observer of the debate over how judges ought to decide cases might reasonably assume that the phrase “judicial activism” is a term that describes a specific manner of deciding cases, a method of analysis. Critics of judicial decisions who use the phrase “judicial activism” certainly act as if they are describing a distinctive methodology, a particular way of deciding cases, rather than the mere fact of making a decision. Moreover, they buttress this suggestion when, in addition to decrying a decision as

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“activist,” they append to their criticism a statement that they favor judges who will “strictly interpret” the Constitution, rather than imposing their own values. The implication is that “activist” = “imposing one’s own values,” whereas “strictly interpret” = “applying constitutional values.” Because everyone agrees that judges are supposed to be value-neutral when they do their jobs, whereas legislators are supposed to make decisions based precisely on their own values, when these critics assert that judicial activists “legislate” from the bench, they are arguing that judges are abdicating their role and usurping another. But is the criticism in fact inspired by the method the judge employed to arrive at the answer to the legal question before her, or is it inspired simply by the answer itself? We can get at the answer to this question by considering a botched pizza order. Suppose that my wife asks me to pick up a pizza with no jalapeños on my way home from the office. I agree to do so, even though I would prefer a pie with extra jalapeños. I arrive at our house with a pizza teeming with extra jalapeños. She is obviously unhappy. There are many possible explanations for this mishap, but let’s identify just two: inadvertence and intentionality. The former mistake is better, in the sense of more forgivable and less significant. It is better if the explanation for the jalapeño-laden pizza is that I misheard my wife on the phone, rather than that I heard her correctly but decided that she was not sufficiently in tune with her tastebuds to know what she really wanted for dinner. In the former case, I have used the right approach— getting her what she wants—but have simply misunderstood what she wanted; in the latter scenario, I have used an approach for deciding what pizza to get her other than respecting her own culinary wishes. In the latter example, my method was wrong, because instead of respecting her preferences, which is what I ought to have done, I overrode them. An activist husband is someone who disregards his wife’s culinary preferences and imposes an external preference. Are there judicial decisions that demonstrate this same methodological conceit? The answer is that, in all of constitutional history, there is not even a single decision that exhibits this phenomenon. A critic who characterizes a judge as a judicial activist is therefore purporting to attack the judge’s method of analysis but is, in actuality, saying only that he or she disagrees with the judge’s decision. All judges do the same thing. They start with a question—such as, “Is it constitutional to require blacks and whites to attend separate schools?” or “Is it constitutional to prohibit adults from engaging in consensual sexual activity?”—and they then proceed to answer the question. They do so by evaluating the facts, deciding which principles are relevant to the case, and then applying the principles, as they understand them, to the facts. They answer the question by interpreting. To be sure, the materials that various judges consult in order to construct an answer to the question may vary. Some judges, for example, believe that international opinion is relevant to

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deciding certain constitutional questions; others do not. Some judges believe that the Constitution means exactly what James Madison believed it meant, and that we are capable of ascertaining what Madison thought it meant; others think that Madison’s opinion is unknowable, or that it would not be binding even if it could be known. Some judges believe that the meaning of certain constitutional provisions changes over time (or evolves); others believe that meaning is fixed. There are many issues like these about which judges may disagree, and I propose a correct answer to each of these questions in Chapter 5. The present point, however, is that even though judges disagree on these issues, it remains the case that all judges do the same thing. They confront a question, they next consult a body of material they believe to be germane to the issue, and finally they provide an answer, based on their understanding of the pertinent materials. There is, however, one very important difference between judges—perhaps the most important difference of all—that can be measured. Judges differ in terms of how deferential they are. A deferential judge is one who defers to what the majority has done. Bickel coined the phrase countermajoritarian difficulty because he was troubled by the antidemocratic nature of judicial review. The problem Bickel named, and that led to the contemporary obsession with judicial activism and strict construction, can in fact be measured. We can calculate any judge’s “deference” score. A judge who defers routinely to the legislative body that enacted whatever law is being challenged will have a high deference score; a judge who rules frequently for individuals or interest groups who challenge these laws will have a low deference score. The more highly one values majoritarianism, the more highly will one value deference. Suppose, for example, that a legislature enacted three laws. One prohibited newspapers from criticizing the mayor’s husband’s wardrobe; one prohibited doctors from prescribing marijuana for medical use to sick patients; and one required that video stores provide to law enforcement officials information about the type of movies that certain individuals are renting. Now imagine that a newspaper sues to invalidate the first law; a doctor and a sick patient sue to invalidate the second; and a video renter sues to invalidate the third. A judge who voted to uphold all three laws would have a perfect deference score; a judge who voted to strike all three down would have a zero deference score; and there are obviously two possibilities in between (voting to uphold one law and strike down two; and voting to uphold two and strike down one). We might not know how or why the various judges reached the results they did, but we will have a way to make some general observations about them relative to one another. If “judicial activism” means a higher than average willingness to thwart the will of the majority, then we would expect to find a rough equivalence between judges with a low deference score and those whom critics characterize as “judicial activists.” The facts, however, belie that conclusion. A study

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of the last ten years of the Rehnquist Court reveals that a justice’s deference score depends on something besides a judge’s simple belief that the majority should be free to do as it sees fit.24 For example, the same justices who are most willing to tell the majority no when Congress intrudes on individual liberty (i.e., Justices Stevens and Souter in the aforementioned study) are least willing to tell the majority no when Congress intrudes on the states. Conversely, the justices most protective of the states, and therefore most willing to tell Congress no when it interferes with state power (i.e., Justices Scalia and Thomas), are least willing to tell Congress no when it interferes with individual rights. On the other hand, the least deferential justices on the subject of gun control are the current Court’s so-called conservatives, while the most deferential are the Court’s so-called liberals. If “activism” means nondeferential (i.e., a willingness to say no to the majority), it does not coincide with either “conservative” or “liberal.” Rather, a given justice’s commitment to deference depends intimately on the issue being addressed. Some judges apparently believe that the majority’s decision is entitled to great weight when it concerns a matter of sexual behavior, but not entitled to much weight when it pertains to environmental regulations. Others have exactly the opposite view. Is there a way to make sense of this apparent paradox? Thinking and talking in terms of “judicial deference” rather than “judicial activism” gets us to the very heart of the question: When should judges be saying no to the majority? Exactly how deferential should our judges be, and when should they exercise that deference? I propose answers to these questions in Chapter 5. Before doing so, however, I examine two case-studies: one where the Supreme Court told us no, and one where a biblical prophet said no to the Hebrews. In these specific instances, general rules will begin to emerge. NOTES 1. U.S. Const. amend. IX. 2. The transcript of the confirmation hearings is widely available. One location is http://www.law.du.edu/chen/Constitutional%20Law%20II/ConLawIISupp4a .htm. For scholarship that establishes that the Ninth Amendment is no mere Rorschach test, see, for example, Dan Farber, Retained by the People (2007); Randy E. Barnett, The Rights Retained by the People (1989). 3. Jan Crawford Greenburg, Supreme Conflict (Penguin 2007). 4. 5 U.S. 137 (1803). 5. U.S. Const. art. III, § 1. 6. I am assuming, of course, fidelity to the rule of law by both the president and members of Congress. That assumption may, in some instances, be infirm. Insofar as the assumption is unsound, then judicial action that overrules the decision of the legislature or the executive is sustainable on other grounds, as well. 7. 418 U.S. 683 (1974).

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8. There are many fine overviews of the case and the historical background. Two superb examples are Melvin Urofsky’s, which can be found at http://www.jmu .edu/madison/center/main_pages/madison_archives/era/judicial/bkgrnd.htm, and William W. Van Alstyne’s discussion, contained in A Critical Guide to Marbury v. Madison, 1 Duke L.J. (1969). 9. Marbury v. Madison, 5 U.S. 137, 177 (1803). 10. Scholars have demonstrated that in point of fact, judicial review was an accepted idea in the country even prior to Marbury. See, for example, William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455 (2005); Randy E. Barnett, The Original Meaning of the Judicial Power, 12 Supreme Court Economic Review 115 (2004). See also Schlomo Slonim, Federalist No. 78 and Brutus’ Neglected Thesis on Judicial Supremacy, 23 Const. Comm. 7 (2006). 11. There are, however, several eminent scholars, Mark Tushnet among them, who have argued for a much more subdued role for the judicial branch in matters of contemporary controversy. See, for example, Mark V. Tushnet, Taking the Constitution Away from the Courts (Princeton 1999). I discuss the work of these scholars at somewhat greater length in the notes to Chapter 5. 12. 163 U.S. 537 (1896). 13. 163 U.S. at 556–57 (Harlan, J., dissenting) (emphasis added). 14. 163 U.S. at 551–52. 15. 347 U.S. 483 (1954). 16. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–17 (1962). 17. Bickel defended the decision in Brown by arguing that it correctly reflected the intentions of the framers of the Fourteenth Amendment. See Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1959). 18. The modern candidate for this high appellation must surely be the prolific, but unfortunately (for his career advancement) nonideological (or at least insufficiently ideological), Judge Richard Posner. 19. See Hand’s book, The Bill of Rights 53–56 (1958). 20. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). 21. 102 Cong Rec. 4515–16 (1956). As Brad Snyder has pointed out, only three Southern senators refused to sign the manifesto: Lyndon Johnson of Texas, and Al Gore (Sr.) and Estes Kefauver of Tennessee. See Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 Rutgers l. Rev. 383 (2000). 22. See Snyder, 52 Rutgers L. Rev. at 403–404. 23. The major cases were Baker v. Carr, 369 U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533 (1964). On the political reaction, see Note, The Unconstitutionality of Voter Initiative Applications for Federal Constitutional Conventions, 85 Colum. L. Rev. 1525 n. 1 (1985). 24. The study was conducted by me and two colleagues, Cassandra Jeu and Anthony Coveny. See Judicial Activism on the Rehnquist Court: An Empirical Analysis, 23 St. John’s Journal of Legal Commentary 35 (2008); see also Lori A. Ringhand, Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Court, 24 Const. Comm. 43 (2007).

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Chapter 3

GRISWOLD v. CONNECTICUT AND THE RISE OF JUDICIAL PROPHECY Many educated Americans and first-time readers of the Constitution learn to their surprise that neither the Bill of Rights nor any other constitutional provision guarantees Americans a right to privacy. Indeed, the very word privacy does not appear anywhere in the Constitution. (A variation of the word privacy, the cognate private, does appear once, in the Fifth Amendment, to modify the word property.) Yet it seems obvious that there are certain things the government cannot do to us, and that those things have something to do with the concept of privacy. The government, for example, cannot say that it is worried about my health and therefore insist that I eat bran flakes instead of cold pizza for breakfast. Or can it? If the government can mandate that I wear a seatbelt when I drive, why can it not also regulate my diet? Law professors often tell their students that they should not “leave their instincts at the door,” by which they mean that one’s intuitive answer is often right. The difficult part is figuring out why it is right, identifying the principle that leads to the answer. Of course we can eat ice cream and pizza for breakfast if we want to, but why is that the case? Why can the government force me to wear a seatbelt but not force me to exercise? The answer to these questions has to do with what privacy means in our culture at this precise historical moment. Yet insofar as the Constitution does not say anything about “privacy,” how can the Constitution guarantee us anything? We can obviously draw one of two conclusions from the fact that the Constitution omits the word privacy. One possibility is that we actually have no

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such right at all. If this conclusion is the proper one, then, despite our intuition to the contrary, we are in fact subject to a wide range of coercive measures. The second possibility is that it is so obvious that we do enjoy a right to privacy that even mentioning it in the Constitution would be superfluous. This second option is the correct one, but it took an act of judicial prophecy to realize it. As recounted in Chapter 1, the case of Griswold v. Connecticut involved a challenge to a Connecticut law that made it a crime for anyone to use contraception.1 The law also applied to doctors, by making it unlawful to assist someone in violating the anticontraception statute. Originally enacted in 1879, the statute applied to men and women alike, married and not. It did not discriminate on the basis of wealth or race, or any other characteristic. It was, in other words, an “equal” law. Unlike statutes that distinctively penalize blacks or women or gays or other minorities, this law threatened everyone equally. No one was singled out. As I argue in Chapter 5, one of America’s founding ideals is the idea of equality,2 yet this law (and others like it) represented no violation of that foundational principle. Although not enforced with great frequency, the law nonetheless had unmistakable consequences. The threat of jail time and monetary fines created a substantial deterrent to doctors and others. Even so, a hearty few persisted in challenging the law. The most famous, perhaps, were Estelle Griswold, the executive director of Planned Parenthood of Connecticut, and Dr. Charles Buxton, chairman of the Department of Obstetrics and Gynecology at the Yale School of Medicine, who initiated a challenge to the Connecticut law in 1961. But they were not the first to undertake the effort. In 1943, in the case of Tileston v. Ullman,3 Wilder Tileston, a physician, sought a declaratory judgment in federal court seeking to have that court declare that the Connecticut law was unconstitutional. Tileston had three patients, all of whose health would have been endangered had they become pregnant. Tileston asked the federal court to declare that the state would not be able to use to law to prosecute him and other doctors if they provided contraception to their patients whose medical needs required it. The Connecticut Supreme Court ruled that the statute contained no exception for doctors. Tileston appealed to the U.S. Supreme Court. Although Tileston was to some degree asserting his own right to practice medicine without running the risk of being fined or put in jail, the major claim in his lawsuit invoked the rights of his patients to receive necessary medical treatment. The fact that Tileston was principally asserting the rights of his patients (as distinguished from his own constitutional rights) created a procedural complexity that ultimately permitted the Supreme Court to avoid deciding the constitutionality of the Connecticut law.4 Instead, the Court concluded that Tileston lacked “standing” to bring the suit, meaning, in short, that he was not an appropriate party to initiate the litigation. (His patients would have had standing and could have brought the suit on their own behalves.)

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But the Court would not avoid the confrontation for long. The justices in the Tileston case seemed to want to hear directly from the patients themselves, not just their physician. Indeed, the notes of the conference at which the justices discussed the case reveal no discussion at all concerning the legality of the Connecticut law.5 Justices Stone, Roberts, Black, and Reed all indicated that the Court lacked the power to rule in the case. Justice Frankfurter went even further, arguing that the Court had a duty to go out of its way to avoid deciding the issue. Frankfurter searched for ways to—in his own words—side-step divisive constitutional questions. There are many ways for the Court to avoid being nondeferential, and one of those ways is to avoid confronting the issue. Tileston lost, therefore, not because the Court believed that the Connecticut law was permissible but because it concluded that it lacked the power to decide the legality of the anticontraception measure. So the intrusive law remained in effect. Connecticut citizens with sufficient means could travel to nearby states and purchase contraceptives, but they still risked prosecution for using them in the state. Intuitively, the law seems to intrude on an area reserved to individual decision making. But Bickel’s reservations about judicial second-guessing of the legislature—his preference for permitting elected officials to determine these private matters—had seeped into the judicial branch. The justices on the Supreme Court itself lacked a vocabulary in 1943 to explain why a law that was so extravagantly intrusive was also—and was therefore—unconstitutional. There may have been an instinct that this law was wrong, but there was no principle for saying so. Nearly two decades went by. Then, in 1959, Dr. Charles Lee Buxton, a physician at the Yale Medical School, asked the courts to declare the Connecticut law unconstitutional. By this time, the law had been in force for more than eighty years. In all that time, there had been only one known prosecution under the law, and in that single case, the charges were ultimately dropped. Nevertheless, despite the remoteness of the likelihood of being charged for violating the law, Buxton asked the Court to rule that the law violated what is known as the due process clause of the Fourteenth Amendment. The Fourteenth Amendment contains various substantive provisions.6 The relevant portion of the text reads as follows: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The first clause is known as the privileges or immunities clause, the second is the due process clause, and the third is the equal protection clause. Whereas the equal protection clause is the provision that permitted the courts to dismantle racial segregation in the United States, the attack on the anticontraception law invoked the due process clause.

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On its face, the due process clause does not absolutely or categorically prevent the government from doing anything; it provides only that any deprivation be accompanied by “due process of law.” The language of the Fourteenth Amendment hints, if it does not declare outright, that a major purpose of this provision is to ensure that the government act in accordance with specified procedures. A great deal of law, after all, is nothing more than adherence to the rules. Rules matter because they prevent elected officials from acting arbitrarily, on the basis of some mere whim. John Adams wrote the Massachusetts state constitution in 1780. Like the U.S. Constitution, which was written seven years later, the Massachusetts document distributed governmental power among three coequal branches, the legislative, the executive, and the judicial. In a provision of the constitution summarizing the basis for this separation of powers, Adams wrote, “to the end it may be a government of laws and not of men.”7 This well-worn expression—a government of laws, not of men—captures one aspect of the due process clause: the government must play by the rules. Thus, for example, when the government wishes to confiscate private property, or terminate a welfare recipient’s benefits,8 or divest an American of his citizenship, or deport a lawfully resident alien,9 or just put an ordinary criminal in jail, it must adhere to certain rules. This requirement is the essence of what is known as the procedural due process clause. The essence of the procedural due process clause is that, in America, the ends do not justify the means. Rules matter. Some scholars have argued that the due process clause creates only procedural rights.10 Under this view, the government can do anything it wants as long as it adheres to correct procedures. If this view is correct, then we are wrong to think that the government cannot force us to change our eating habits, or our television viewing practices, for the government would be able to do these things—it would be able to do anything that the Constitution does not expressly forbid—so long as it followed the rules. However, the view that the due process clause is purely procedural—that it does not place any substantive constraints whatsoever on the government—is extreme and not widely shared. The far more common view, subscribed to by judges and scholars on the right as well as the left, is that the due process clause also has some substantive content. This means that there are certain things the government may not do regardless of the procedures it follows. What precisely this content is is subject to significant debate, but that there is some such content is, relatively speaking, uncontroversial. Of course, absence of controversy can be a fickle basis for truth. Scientists once believed that the sun revolves around the Earth. Their unanimity did not make it so. In the case of the due process clause, however, as we will see in more depth in Chapter 5, the consensus view—that the clause does have substantive content—happens to be correct. Consequently, because the due process clause has substantive content, there are certain things that the government simply may not do

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regardless of what the procedures are or how assiduously they are followed. It cannot make me eat bran cereal for breakfast, no matter how many members of the legislature think that would be a good idea. This conclusion accords with our strong intuition that there are some decisions that are up to the individual. The trick is in identifying those things. Most everyone agrees, for example, that I can eat whatever I want to for breakfast, but most people would not agree that I can use whatever narcotics I want to. What is the difference between these two things? What principle distinguishes these two categories? The body of law known as “substantive due process” deals with this very issue. As a result, when judges decide cases involving substantive due process, the first issue they must address is the question of whether someone even has a certain right. Consider several mundane examples. Many states have enacted laws that prohibit smoking in restaurants and bars. Some bar owners welcome these laws, but others feel that these laws intrude on their personal freedom to run their businesses as they wish. Some bar owners would like to operate taverns where their patrons may light up. Do bar owners have a right to permit smoking in their bars if they want to? Are laws that prevent them from doing so an unconstitutional violation of their substantive due process rights? Recently in Houston, a city that has many strip clubs, the city council enacted new regulations that restrict the type of dancing that can occur at these clubs. Women must wear certain clothes and maintain a certain distance from the patrons. The owners of these establishment, as well as the women who work there, as well as the largely male clientele that frequents these haunts, all object to the laws regulating nude dancing. Are they right when they say that these laws infringe on their privacy? States also prohibit people below a certain age from purchasing alcohol or tobacco products. Does a nineteen-year-old have a right to drink beer, such that a state law that prevents him from purchasing beer violates his right? What about a sixteen-year-old? Most states also prohibit prostitution. Do such laws interfere with the rights of certain people to pursue a profession of their choosing? For many years, most states had laws forbidding fornication— consensual sexual intercourse between a man and a woman who were not married to one another. Were these laws constitutional? Different people might give different answers to these specific examples, but they are all versions of the same question: namely, whether the due process clause gives individuals the right to do something particular. If we have any rights in addition to those expressly identified in the constitution (like the right to be free from cruel and unusual punishments, as provided by the Eighth Amendment, or the right to freedom of speech, as provided by the First Amendment), which rights are they? In the following chapter we see how these questions have been historically answered. For now, to understand the magnitude of the problem that those challenging the Connecticut

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anticontraception law confronted, we should pause briefly to discuss what is known in constitutional law as Lochnerizing.

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The late nineteenth and early twentieth centuries in America witnessed the emergence of political movements dedicated to improving the lots of the nation’s poorest and least fortunate. In 1892, for example, the Populist Party held its first national convention. The Populist platform signaled the party’s orientation; it inveighed: “From the same prolific womb of governmental injustice we breed the two great classes—tramps and millionaires.” The Democrats nominated William Jennings Bryan for president (he was also endorsed by the Populists), and Bryan famously pleaded with the nation not to “crucify mankind on a cross of gold.” In this context of emerging concern for the nation’s underclass,11 the state of Massachusetts, in 1874, enacted the nation’s first law that limited the number of hours that women and children could work each week (the limit was ten hours per day). The federal government did not become actively involved in protecting common workers for another generation, but several states followed the lead of Massachusetts. One of them was New York. State legislators in Massachusetts, New York, and elsewhere acknowledged the reality that employers and employees did not possess equal bargaining strength. Contracts are honored in the United States, but a principal reason that these agreements have historically been enforced is that they are thought to be voluntary. A voluntary agreement presupposes that both parties have the power to say no, that neither is so desperate that the other party can essentially coerce the weaker party to enter an agreement in spite of his or her will. Of course, in many contexts, this vision of equal back-and-forth bargaining is a charade. When one enters an agreement with a bank to get a credit card, for example, there is no back-and-forth. If the individual does not sign the preprinted form that the bank provides, the bank will not give him or her a credit card. But still we regard this agreement as voluntary, despite the lack of equal bargaining strength, because of the possibility that the person applying for the credit card can just say no. Nobody, after all, needs a credit card. A job is different from a credit card, however. The New York legislature in the early twentieth century recognized that some employment agreements are like the credit card example in that one party has the power to force another to do whatever the stronger party desires. But the fact that we might accept this inequality in one context does not require that we accept it everywhere. We draw lines. The fact that not everyone lives in a mansion does not mean that poor people should not have access to health care.

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As values and principles shifted somewhat, the New York legislature reacted. It sought to place some limits on what stronger parties could compel weaker parties to do in employment negotiations. The legislature unanimously passed and the governor signed into law the so-called Bakeshop Act. Prior to the enactment of this law, some bakery employees worked more than 100 hours per week. The Bakeshop Act mandated that employees work a maximum of ten hours per day, or sixty hours a week. Perhaps needless to say, many bakery owners were displeased that they had their negotiating strength limited by a legislative act. One, Joseph Lochner, refused to go along, and he hired an employee to work more than the statutory maximum allowed. In 1902, Lochner was fined for violating the law and having a worker work for more than sixty hours in a week. After the highest state court upheld the conviction and the constitutionality of the law by a vote of four to three, Lochner appealed to the Supreme Court of the United States. In the years leading up to the Supreme Court’s decision in Lochner v. New York,12 a number of state supreme courts had developed the idea that the due process clause of the Fourteenth Amendment protected the liberty to enter into contractual agreements, free of governmental interference.13 In other words, many state courts had concluded that the due process clause does contain substantive content: that it does more than regulate procedures. In particular, these state courts had held that people have a right to enter into whatever agreements they choose, and that laws that interfere with this right will therefore be constitutionally suspect. The Supreme Court of the United States, however, had embraced this theory on only a single occasion, in a case that was nearly a decade old by the time of Lochner.14 Then in Lochner, in an opinion that had major impact across America for a full generation, the Court, by a vote of five to four, ruled that the due process clause of the Fourteenth Amendment protected liberty of contract, and this liberty meant that citizens had the right to enter into virtually any contracts they wanted, free of government interference, unless the state could justify the exercise of its power that intruded on this right. The bakery owner won. He could hire a baker to work as many hours as he wanted. Lochner severely limited the ability of legislatures to pass laws that would protect the economically disadvantaged. Although not all legislation designed to regulate workplace conditions and hours failed in the years immediately following Lochner, many of the progressive reforms did. Beyond its effect on a particular category of legislative reform efforts, the decision in Lochner had a far more significant and lasting consequence: namely, the decision authorized the courts, and the Supreme Court especially, to oversee regulatory legislation. Lochner was anathema to Bickel’s idea that judges should generally defer to legislative judgments. Under Lochner, state legislatures would not have the final word on what would be best for society; the courts would. In time, state laws designed to do away with child labor; to regulate the banking,

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insurance, and transportation industries; and to ensure minimum wages were all struck down on the authority of Lochner. The decision represented supreme judicial nondeference. Indeed, it was the Supreme Court’s active and constant invalidation of social reform legislation that motivated President Franklin Roosevelt, who had become exasperated with the Court’s interference with his New Deal legislation, to propose his “court-packing” scheme. Under this plan, President Roosevelt would have added to the Supreme Court a new justice for every justice who was seventy years old (or older), up to six new justices. Although the plan provoked outrage among conservatives and liberals alike, it showed just how potent the Lochner doctrine had become. FDR could not fully remedy the Great Depression and implement massive economic reform because the courts kept getting in the way. “Lochnerizing” had become synonymous with judicial usurpation of the legislative role. Under the banner of Lochner, the Court was thwarting the will of the majority and imposing its own will on Congress and the president—and, indeed, the entire nation. The nondeferential Court was interfering with democracy. Roosevelt had been elected, in part, to implement precisely the type of remedial economic legislation he was signing into law, yet the Court kept striking it down. At last, however, in 1937,15 the Court repudiated the rationale of Lochner, and for the following generation, government regulation of the economy was largely immune from judicial oversight. In describing Lochner and its aftermath, I have used the expression “government regulation of the economy.” But there is nothing that is obviously special about economic regulation. If the government can force employers to pay a minimum wage, for example, all on the theory that workers cannot fend for themselves and that minimum wage legislation has broad societal benefits, why can’t the government also regulate what we eat for breakfast and watch on TV? If the reason that the Court’s decision in Lochner was misguided is that the justices did not understand that the legislature acts legitimately when it enacts a law that prevents a baker from working more than sixty hours a week, then is it not also permissible for the government to insist that I get more sleep or that I not permit my son to eat chocolate for dinner? If the legislature can prevent bakers from agreeing to work themselves to death, why can’t it prevent us from eating ourselves to death? Or can it? Put differently, is it possible to say that the Court was wrong in Lochner but that we are correct in believing that there are still certain individual decisions that the government may not intrude upon? If it is possible to say that, how do we know which is which? When the Supreme Court finally rejected the rationale of Lochner, it confronted these very questions. The Court in 1937 at last conceded that decisions of social policy belong in the legislative sphere. The problem, though, is that everything a legislature does can be characterized as pertaining to

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social policy. Why is not a legislative policy decision that contraception is immoral subject to the same judicial deference as would be a law setting the minimum wage? When a legislature limits the number of hours that an employer can compel an employee to work in a week, it does so because permitting the employer to extract any bargain that he can from the less powerful employee is wrong. Why can’t the Connecticut legislature say that contraception is also wrong? That question may have struck the Court as a difficult one, and when the Court confronts hard questions, it often deploys what Bickel referred to as the “passive virtues,” meaning that the justices find a way to avoid answering the hard question, putting it off for another day. Recall that when Buxton’s challenge first came before them in the case of Poe v. Ullman,16 that is exactly what they did. The Court avoided a decision on the merits (as it had two decades before) by ruling that the case was not yet ripe for review, meaning the case should be brought later, because the plaintiff in Poe—Buxton—had not yet been prosecuted. The justices might well have been thinking that, given the infrequency of prosecutions under the statute, there was a good chance that neither Buxton nor anyone else would ever be prosecuted; and if the state never took legal action against anyone, then the Supreme Court could eternally avoid confronting the hard question. In this context at least, it would never have to be nondeferential. Despite the absence of prosecutions, Connecticut’s anticontraception law was by far the strongest measure in the United States. When the law was originally enacted in 1879, it had strong backing from the state’s Protestant community17 as well as the Catholic Church, which had long opposed contraception.18 For many years, neither the anticontraception law nor the statute that made it a crime to assist someone in violating the law inspired efforts at repeal. In 1917, however, a measure to repeal the laws was introduced. It went nowhere. Six years later, in 1923, the Birth Control League of Connecticut began systematically to pressure lawmakers to repeal these statutes. Over the next forty or so years, up until the Supreme Court’s decision in the Griswold case, at least twenty-nine different bills attempted to repeal or modify Connecticut’s law. They all failed. It seems fair to say, in view of this history, that the people of Connecticut supported this law; the proof being the spurning of all legislative efforts to do away with it. Consequently, for the courts to strike it down would be to thwart the will of the majority. A dozen years into the failed legislative attempts at repeal, the Birth Control League opened the state’s first birth control clinic. The clinic, located in Hartford, began providing services in 1935 to women who could not afford private physicians. In the next four years, additional clinics opened in eight other cities (Greenwich, New Haven, Stamford, Danbury, Westport, Norwalk, Bridgeport, and Waterbury). In 1939, authorities raided the clinic in Waterbury. Prosecutors charged two doctors and one nurse with assisting a

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woman in using a spermicidal cream and a contraceptive device. Following their conviction, the doctors and nurse challenged the legality of the statute. The Connecticut Supreme Court upheld the constitutionality of the law.19 In a three-to-two decision, Connecticut’s highest court concluded that if the law was unwise, solution must be sought in the legislature, rather than the courts—the very legislature where, of course, efforts to obtain relief had been failing for two decades. Following the decision, the Birth Control League closed all the remaining clinics and returned to its legislative strategy. Between 1941 and 1952, lawmakers introduced sixteen bills; most were exceedingly timid and proposed nothing other than that doctors be permitted to prescribe contraception when necessary to save the life or health of the woman. All the bills failed. A major reason—not the only reason, perhaps, but the principal one—was the concerted opposition of the Catholic Church and the Catholic voters to any change, even minor change.20 In this context, Estelle Griswold and Buxton opened a clinic in 1961 in downtown New Haven, Connecticut. Buxton’s goal was to get arrested, so that the Court would not be able to dismiss his case once again. He got what he wanted. Nine days after the clinic began doing business, authorities arrested Griswold and Buxton for dispensing contraceptives to a married couple. One month later the two were convicted and fined $100 each. After the Connecticut Supreme Court upheld the convictions of Griswold and Buxton, the case reached the Supreme Court. Recall that when Buxton’s first challenge to the Connecticut law reached the Supreme Court, he had not been prosecuted, and for that reason, the Court was able to sidestep the constitutional question he raised. Now that Buxton had been convicted, however, the procedural device that the Court had used to avoid addressing merits of his first challenge was no longer available. In addition, the solution that had years earlier been suggested by the Connecticut Supreme Court—legislative reform—was also not an option. When it upheld the convictions of Griswold and Buxton, the Connecticut Supreme Court blinked at reality by hopefully suggesting that the political process could address the problem. It would not be possible for the Supreme Court of the United States to subscribe to that same fantasy and pretend that a political solution, or even compromise, was possible. The numerous attempts at a legislative solution, coupled with the persistent and repeated failures of those efforts, allow us to say one thing with certainty: The people of Connecticut, as represented by their elected officials, wanted to keep this law that Buxton sought to challenge. Whether out of religiosity or inertia, the people supported the anticontraceptive law. As a result, if parties seeking the right to use or dispense contraception were to prevail, it would have to be because the Constitution guaranteed them the right to do so, irrespective of what a legislature might say—indeed, in spite of what the legislature might say.

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Ninety-nine percent of the Connecticut population, many inspired by the teaching of the Catholic Church, might have believed that birth control is morally wrong, but if the other 1 percent had the right to use contraception, the constitutional right, and if Dr. Buxton had a right to prescribe it, then the opinion of 99 percent of the voters was of no moment. Having a right to do something means that one has the right to do it, regardless of what the public thinks. If that right existed, and if it was to be recognized and enforced, it would require the Supreme Court to be nondeferential and thwart the will of the majority. By a vote of seven to two, the Supreme Court struck down the Connecticut law. Justice Douglas, regarded as one of the most liberal justices in the history of the Court, wrote the majority opinion in Griswold. A leading encyclopedia entry on Douglas says that the justice, who sat on the Court for thirty-seven years, left very little of a theoretical legacy.21 If that is true, his opinion in Griswold is a dramatic exception, for contained within that opinion is a radical reconception of how to approach the Constitution of the United States.

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At the time that Griswold reached the Court, as remains true today, the discredited Lochner decision still cast a long shadow. If it had been wrong for the Court to strike down a law that regulated the relationship between a bakery owner and his employees, why was it not equally wrong for the Court to tinker with a statute that regulated married couples and prevented them from using contraception? If the Court had acted illegitimately when it persisted in striking down laws like the one challenged in Lochner, then wouldn’t it be acting in a similarly illegitimate fashion if it struck down the law being challenged in Griswold? This is the most important question in all of constitutional law, and Justice Douglas was entirely cognizant of it. Most scholars have regarded Justice Harlan’s opinion in Griswold as the most worthy of attention. Harlan eschewed both the proposition that judges are free to draw on their own “merely personal and private notions” of what the Constitution means, as well as the suggestion that the due process clause contains no substantive content that acts as a restraint on the majority.22 Indeed, when the Supreme Court ruled that the Constitution does not guarantee terminally ill citizens a right to assisted suicide, Justice Souter expressly embraced the theory of due process articulated by Justice Harlan in Griswold.23 By focusing on Douglas’s opinion, I do not mean to understate the importance of Harlan’s, which also possessed, in certain respects, what I later characterize as prophetic historical vision. Nevertheless, Harlan’s theory, while seeming to reject “any formula” for defining what the majority may not

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do, and granting that the balance between individual rights and majority rule is “a living thing,” nevertheless embraced a vigorously rationalistic approach to the problem. In Harlan’s view, the rights that Americans enjoy against the majority can be plotted on a curve; they comprise what he described as a “rational continuum.”24 His theory, therefore, does not allow for the judicial branch to protect rights that are discontinuous. Justice Harlan understood the obligation of the judicial branch to say no to the majority, but only where the broad parameters of the right that the courts are called on to protect had already been visualized. Only Justice Douglas showed how a right could be visualized in the first instance. Like many brilliant breakthroughs, Douglas’s opinion in Griswold was exceedingly brief. (Einstein’s special theory of relativity, for example, was but thirty pages long.25) The majority opinion in Roe v. Wade,26 which held that a woman has a constitutional right to obtain an abortion, ran to fifty-three pages. The opinion in Lawrence v. Texas,27 which held that homosexuals have a constitutional right to engage in private, consensual, sexual activity, was more than twenty pages. Douglas’s opinion in Griswold is a scant seven pages long. It is the first modern example in American constitutional law of what I describe in the following chapters as prophetic adjudication. I therefore propose to parse it deeply. Douglas clearly apprehended the haunting ghost of Lochner, and he dealt with it directly. “We do not sit,” wrote Justice Douglas, “as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.”28 He was cognizant of Bickel’s so-called countermajoritarian difficulty. Implying that the mistake of the Lochner Court had been that it second-guessed the legislature, Douglas began by reiterating that the Court will not second-guess the legislature’s judgment as to the “wisdom, need, and propriety” of certain kinds of laws. But which laws are those? Which laws are largely immune from judicial review? Which decisions must be left to the will of the masses? The judiciary will defer, said Justice Douglas, to those laws that touch on “economic problems, business affairs, or social conditions.” Justice Douglas’s first step was a rhetorical one, but an important rhetorical one. He said, in effect, “We justices understand that Lochner was wrong, that in Lochner the Court had, without any justification, substituted its will for the will of the majority. We understand the normative value of majoritarianism, and why counter-majoritarianism is therefore problematic.” Lochnerizing represents judicial tyranny. It represents impermissible nondeference. It was entirely illegitimate at the time it was decided, and it continues to epitomize illegitimacy. Yet some judicial review, some judicial negation of majority will, is required. Deference is not always appropriate. America’s most important framer, James Madison, and its most perceptive observer, de Tocqueville, both perceived

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the threat of a “tyranny of the majority.”29 Although Madison expected that ordinary politics would be able to prevent majoritarian tyranny, that hope proved overly sanguine. Ordinary political checks sometimes fail, and majoritarian actions can therefore be tyrannical. When the majority is tyrannical, its actions must perforce be illegitimate. Here, then, is the beginning of the answer to the Lochner dilemma: If the statute enacted by the majority is tyrannical, it is illegitimate. (In this context, “tyrannical” means that the majority has purported to invade a sphere it is not permitted to enter.) If the act enacted by the majority is illegitimate, then it is not illegitimate for the judicial branch to say so. Furthermore, not only is it not illegitimate for the judicial branch to intervene in such circumstances, but the judicial branch must do so. Where the majority action is tyrannical, then remaining silent, or permitting the unlawful statute to stand, would itself be illegitimate. In these cases, the judicial branch is required to act. Whereas Bickel and other proponents of the so-called passive virtues had argued that the Supreme Court should avoid thwarting the will of the majority by using arcane legal devices to avoid confrontation with the political branches of government, Justice Douglas saw little room for such escape hatches to operate. In the vision he was describing, the Court typically had only two choices: Either it could not legitimately act, or legitimacy required it to act. These were ordinarily the only two alternatives; avoidance was not an option. Consequently, Justice Douglas sought to draw the line between the “illegitimate” decisions and the “required” (or mandatory) decisions by dividing the universe of legislative enactments into two categories: those that, on one hand, touch on economic, business, or social affairs, versus those that, on the other hand, touch on none of these things. Justice Douglas still has not justified that line, nor has he rigorously defined it. Further, his proposed line is more easily stated than applied, for everything a legislature does obviously has some impact on social conditions. Laws that force me and others to eat healthier, for example, will almost certainly affect aggregate social spending on medical care. Laws that require parents to raise their children according to certain rules will affect society’s future adults. Laws that prohibit contraceptive use will increase the society’s population. All laws have some social consequence. The fact that everything on Earth is connected, however, does not mean that there are not separate things. You are connected to your children, but you are not your children. That something has an effect on society does not mean that it is society. Justice Douglas perceives this fact of interconnectedness coupled with distinctiveness. Whereas the statute in Lochner regulated merely the relationship between an employer and employee, the law being challenged in Griswold “operates directly on an intimate relation of husband and wife.”30 It was not merely that the law touched the marital relationship; rather, it was that the law intruded on an intimate aspect of that relationship.

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How married couples construct their relationship—whether one spouse or both hold jobs, whether they have children, whether they raise their children as religious or as atheists, and so on—in turn affects the society as a whole, yet the fact that the marital relationship has an impact on society does not mean that it is not also a distinct relationship. A married couple is part of society, yet it is also distinct. In addition, Justice Douglas also knew that the fact that the marital relationship is distinct does not immunize it entirely from governmental control. Though certain aspects of this relationship may lie beyond governmental control, surely the government may regulate some aspects of the marital relationship. The government can establish criteria for obtaining a divorce; it can prohibit domestic violence; it can punish men who rape their wives; it can compel husbands to testify against their wives, and vice versa, in criminal proceedings; it can prevent a man from having two wives or a woman from taking two husbands. It would therefore be false to say that the marital relationship is entirely beyond state regulation. Hence, Justice Douglas could not distinguish Griswold from Lochner simply by pointing to the fact that Buxton had provided contraception to a married couple. He needed something besides the marital relationship to make the Griswold case different from Lochner. He needed, in other words, not only to divide the universe of relationships into various categories (e.g., economic versus personal); he further needed to make divisions within the categories themselves. Justice Douglas looked for guidance to the many cases where the Court had not been constrained by literalism. In the more than half century that elapsed between Lochner and Griswold, the Court had often pointed to rights not explicitly mentioned in the Constitution. For example, the Court had held that parents are entitled to have their children educated in a school of their own choosing, regardless of whether the school is public, private, or parochial.31 This, despite the fact that the Constitution contains no language expressly safeguarding this freedom. Similarly, the Court had reasoned that the free speech component of the First Amendment guarantees not only the right to speak but also the right to receive information and to read what one chooses.32 Again, this is so despite the fact that the First Amendment does not specifically protect the right to read or receive. Douglas accepted the correctness of these decisions that rested on unenumerated rights, but he also accepted that Lochner was wrong—that is, that it was wrong for the Court to have vested the right to freedom of contract with such potency as to invalidate laws that aimed at protecting the less powerful. His objective in Griswold was to make sense of this, to show how it was possible that the Court had erred when it decided the Lochner case, yet had decided correctly when the justices identified certain other rights not explicitly mentioned in the Constitution. It was at this point in his analysis that the idea of intimacy began to do the heavy lifting.

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Justice Douglas’s analysis in Griswold contained a radical insight that was entirely without precedent in American constitutional law. He visualized the relationship between human beings, on the one hand, and the government (or the state), on the other, in three dimensions. Up until Griswold, the Court addressed questions of individual rights and government power in two dimensions. It was as if there was a line down the middle of a piece of paper, and one side contained the things that government could do, while the other identified the things it could not do. The major factor that dictated where the line was drawn was what kind of relationship the government was seeking to control. So, for example, it could regulate the relationship between a vendor and a consumer, but not between a husband and wife; it could regulate a relationship between employer and employee, but not between parent and child. Douglas began with this established wisdom. There are different types of relationships among human beings—business, economic, social, and marital— and the type of relationship involved dictates the amount of permissible governmental regulation. But to Justice Douglas, this typology could not explain many decisions that were manifestly correct. For example, as early as the midnineteenth century, the Court had held that Americans enjoy a right to travel from one place to another, despite the fact that no such right is expressly protected.33 Douglas understood that if this decision was correct, it could not be entirely the result of the fact that there are different kinds of relationships. Douglas therefore articulated what others had perhaps known but not said: Specific rights often presuppose others that are not explicitly identified.34 Douglas was by no means the first justice to invoke the idea of unenumerated rights. In NAACP v. Button,35 for example, one of the cases Justice Douglas cited in Griswold, the Court noted that the rights protected by the First Amendment are not limited to those literally within the text’s language but also include those necessary to the full enjoyment of the expressly protected freedoms. Here, “necessary” does not mean “logically” necessary, but something closer to “conceptually important.” The right to speak, for example, is largely meaningless unless others have a right to listen, a right to hear. If a political opponent can say whatever she wishes to say, but anyone who listens to her can be punished, then the effect is the same as prohibiting the speech in the first place. Thus, the right to listen is not logically requisite to the right to speak, but it is conceptually important, because without it, the right to speak is largely empty. Again, in NAACP v. State of Alabama,36 the Supreme Court held that Alabama could not force the NAACP to reveal its membership list. The Court reasoned that the First Amendment presupposes a right to associate with like-minded people, despite the fact that the language of the Constitution contains no such express guarantee, and the Court further held that this implicit right—the right to associate—would itself be threatened if the government could coerce groups to divulge their membership lists.

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Thus, it would be wrong to say that Justice Douglas was the first person to apprehend the variety and, indeed, the commonality, of unenumerated rights. He was, however, the first person to see that the existence of these unenumerated rights dictated that constitutional law be viewed in a radically new way. Thus, after reviewing a variety of cases where the Court affirmed a right that was not expressly mentioned in the constitutional text—like the right of a former member of the Communist Party to obtain a license to practice law, the right to attend a political meeting, and the right to study a particular language—Justice Douglas summarized the lesson he drew from this survey of constitutional history. “The foregoing cases,” wrote Douglas, “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”37 This sentence from Griswold is one of the most frequently quoted sentences in constitutional law. Not infrequently, the person who quotes it says immediately after, “But what does it mean?” Justice Douglas had an answer to that question. Unless what can be called “peripheral” rights are protected, “the specific rights would be less secure.”38 The Court is not permitted to invent rights. It is, however, in Justice Douglas’s view, obligated to protect a right, even an unwritten right, if it deems that right to be crucial to the enjoyment of others that are written down. Now we have landed on treacherous ground. Perhaps many would agree that the Court must protect rights, even unwritten rights, if those unwritten rights are necessary to the enjoyment of expressly enumerated freedoms. But how do the justices know that one right is necessary to the enjoyment of another? How do they know which unenumerated rights we actually enjoy? The answer to this question lurks in the language of Justice Douglas’s most famous sentence—that the specific rights have “emanations,” which in turn have “penumbras.” Douglas’s use of penumbra here was highly unusual, but his choice of emanation followed Justice Harlan’s opinion in Poe v. Ullman, where Harlan had observed that the concept of liberty “sometimes gains content from the emanations of other specific guarantees.”39Emanation is a word often used in a theological or spiritual sense. Paradoxically, it is also used in formal logic (to describe a logical deduction from premises), and it can evoke the idea of evolution. Finally, it can mean a beam or ray of light, and here it leads to penumbra, a word used by astronomers to describe a particular shadow. Justice Douglas began with Harlan’s logical term, emanation, and he transformed it into something else, something more humanistic than pure logic. This rich and complex sentence marks the Griswold opinion as prophetic. It reveals that Justice Douglas does not see the issue as a straightforward exercise in formal logic. He was not simply making a modus ponens argument. (Modus ponens is the form “If p, then q,” where if p is true, then so is q.) Douglas is not saying, “If there is a right to free speech, then there is a right to associate.” Or perhaps, more precisely, that is not all he is saying.

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His language—“penumbras,” “emanations,” “life and substance”—does not suggest cold, hard logic so much as it hints at architecture, dimensions. Articulating a relationship—father–son, husband–wife, employer–employee— partakes of a two-dimensional exercise. Douglas sees these relationships as multifaceted, so the first analytical step is to describe the relationship, but the next, more important step, is to examine which aspect of the relationship the government is seeking to regulate. This idea is in the language: “Emanations” implies physicality. Three-dimensional physical objects, not abstractions, cast shadows (or penumbras). Justice Douglas sees the shadows, and he therefore conceives of constitutional rights—as well as the relationships to which they pertain—in three dimensions. Justice Douglas envisioned that the Constitution has structure. Ideas and concepts are built on others. The Constitution is a building. Justice Douglas, instead of just reading the words, has stepped inside the building. He sees structure all around him. When you buy a car, you do not stop to wonder whether it includes a steering wheel, a gas pedal, and a brake. It must, because that is what car means. Douglas sees the Constitution in the same way. It is not just a two-dimensional piece of paper. It is a three-dimensional structure that must contain certain things. Knowing what it does contain depends on having an accurate understanding of the relationships that are protected by it. This concept of constitutional architecture is important for several reasons. Most obviously, it evokes the idea of space, physical space as well as metaphysical space. There are certain places where the government may not go, and there are certain ideas that the government cannot disturb. Physical boundaries include barriers like kitchens, marital bedrooms, and your very body. The government cannot walk into your kitchen to see what you are eating for breakfast. It cannot enter your bedroom to police your sexual activity. It can prevent you from obtaining a certain drug, but it cannot reach down into your belly to see whether you have recently consumed it. All these restrictions suggest a physical or geographical limitation on what the government may do. But in addition to this physical barrier, there is also a metaphysical dimension to constitutional architecture. You can read whatever you want, think whatever you want, believe whatever you want, regardless of where you are. Obviously, neither the physical nor the metaphysical aspect of constitutional rights is absolute. For example, although the physical space of the marital bedroom is generally impervious to governmental intrusion, that does not mean that a couple can safely commit murder there or cook up a batch of illegal narcotics. Similarly, that you can say whatever you want does not mean you can shout obscenities on the sidewalk outside an elementary school. The important point for now is simply that Justice Douglas in Griswold sees that understanding the meaning of constitutional provisions demands that one understand both physical and metaphysical limitations on

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the exercise of government power. He anticipated what William H. Gass and Mary Gass would write in their essay, “The Architecture of the Sentence,” three decades later: When one writes, one is constructing not only a set of sentences, but a complex set of spaces (logical, grammatical, rhetorical, referential, musical, social and so on) in which and through which the feelings, ideas and energies of the sentences can express themselves. This is the architecture of the sentence.40

I want to be clear that I am interpreting Justice Douglas’s opinion. He does not say directly what I am suggesting he says. His argument is subtle and oblique. Yet I think it is clear, from his language especially, that Justice Douglas’s opinion in Griswold approaches the Constitution as if it is a three-dimensional object, as if it has space. He begins with the small, with the particular, the individual pieces; from these, he assembles the whole. Thus, the Third Amendment says that the government cannot compel people to quarter soldiers in their homes. The physical space here is the home, the familiar idea that one’s home is one’s castle, immune from governmental intrusion. As Justice Scalia has recently said, a core constitutional concept is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”41 Justice Douglas also invoked the Fourth Amendment, which says that the government cannot subject people to unreasonable searches and seizures, as well as the Fifth Amendment, which says that the government cannot force people to testify against themselves. With these two provisions, Justice Douglas is viewing the human body itself as a space that the government cannot intrude on. When Douglas looks at all these things—the home as one’s castle, coupled with bodily integrity—he sees, I believe, an area where the government may not go; he sees, in his words, a “zone of privacy created by several fundamental constitutional guarantees.”42 There is a powerful sense of physicality here. The government cannot stash soldiers in your home because it is your home; the government cannot coerce you to testify because it cannot force you to use your own words, your own tongue and mouth, to incriminate yourself; the government cannot search through your things because they are your things. There is a sense in which a certain domain belongs to the individual, not the state. In this domain, the individual, not the government, remains sovereign. This domain—in part physical, in part metaphysical—is immune from state control. In it, the individual may do whatever she wishes. Defining this domain with rigor and precision is not Douglas’s objective in Griswold. His goal is simply to establish that it exists. Just as a high-rise building has a foundation buried beneath the ground and tresses and studs hidden behind walls, the rights identified in the Constitution hide similarly complex structures. That is the concept that Douglas’s language of penumbras and emanations apprehended and sought to convey.

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Having concluded that this domain does exist, however, Douglas did have to decide whether the Connecticut law unconstitutionally intruded on it. Although, as we will see, some cases are hard, this one was not. Douglas asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”43 The issue is so simple that Douglas resolves it with a rhetorical question. No one could answer that question affirmatively, at least no one who is deeply familiar with American legal culture. And because that is so, because surely the police cannot search the bedsheets of a married couple engaged in consensual intercourse, it was obvious to Justice Douglas, and to nearly all the justices, that this law was illegitimate, despite the fact that it had been in place for nearly a century. Longevity does not equal legality. The stark and shocking image that Douglas uses to construct the rhetorical question that he uses to decide the case—state agents rummaging through the bedroom of a married couple—does not operate entirely as a metaphor. Rather, the power of this image is that it is a natural outgrowth of Justice Douglas’s unique vision of constitutional rights as existing in three dimensions and as applying to three-dimensional space. Judges might disagree among themselves when they begin to peer deeply into those spaces, but there is something there.44 If there is a single constitutional provision that supports the notion that there is indeed something there in addition to that which is written, it would be the Ninth Amendment, which Judge Bork famously described as an ink blot. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This provision has spawned a vast literature,45 and Justice Goldberg seized on it in Griswold to reach the same result that Justice Douglas reached. But there were two dissenting justices in Griswold, Justices Black and Stewart, who shunned both the Douglas and Goldberg approaches. Both began by expressing their personal opposition to the statute. Justice Stewart characterized it as “an uncommonly silly law”;46 Justice Black insisted that the law “is every bit as offensive to me as it is to my Brethren.”47 But Justice Black then explained at some length why he was unwilling to look for rights in the Constitution’s penumbras and emanations. The Court talks about a constitutional “right of privacy” as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the “privacy” of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. . . . I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.48

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When Justice Black said that “government has a right,” what he really meant is that the majority has the power. His dissent was animated by deference, by the value he placed on majoritarianism. He viewed his job of interpreting as accomplished simply (and finally) by reading what the majority had wrought. There is no general right of privacy mentioned in the text, and therefore, said Black, there is no general right of privacy. For Justice Black, the judicial inquiry was over once he failed to locate the right expressly or explicitly mentioned. If the framers did not write it, the people do not enjoy it. For Justice Douglas, there was still a deeper question that required an answer. Douglas’s opinion reveals his awareness of the basic idea that the framers of our Constitution, brilliant though they were, did not invent the idea of rights. They— Madison, in particular—were participating in a process. To some extent they were making history, but they were also made by history. Douglas closed not by envisioning the future but by invoking the past. In his concluding paragraph in Griswold, he reminded the reader that the “right of privacy [is] older than the Bill of Rights—older than our political parties, older than our school system.”49 As I discuss in the following chapters, a distinctive quality of the prophets is their vision of the future, but it is also true that the prophets remain tethered to the past.

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Legislators are not necessarily students of history. Before members of the Connecticut legislature enacted the measure that ultimately led to the decision in Griswold, representatives in the U.S. Congress had enacted a similar measure. The Comstock Law of 1873 was a puritanical and intrusive measure that, among other things, characterized contraceptives as obscene devices. In creating these statutes, neither the Connecticut nor the federal lawmakers did anything especially surprising. Madison and his colleagues—and, for that matter, we contemporary Americans—did not expect all elected representatives to be statesmen and stateswomen, even if we might hope that some of them will turn out to be. We expect that legislators will be barometers of popular sentiment. If there is a surge of puritanical sentiment, we expect that our elected officials will enact puritanical measures. But we ask something different of our judges. In Griswold, they did what the framers, and we, need them to do. Instead of deferring to popular sentiment just because it was popular, they searched more deeply into the bedrock of our constitutional values to measure what the populace had enacted against those very values. They announced that Americans do enjoy a right of privacy, despite the fact that the Constitution does not even contain that word. This was a radical pronouncement, only because it was new. Yet Justice

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Douglas’s closing lines revealed how entirely dependent the conclusion was on a keen perception of the past. I said a few paragraphs ago that Justice Douglas’s opinion is not an exercise in formal logic. Neither he nor anyone else can acquire an understanding of what the Constitution means merely by applying logical rules. Logic is not irrelevant, but it is no substitute for learning. Where logic is enough, understanding is irrelevant. If you know that all bachelors are men and that Socrates is a bachelor, then you know that Socrates is a man—even if you do not know what bachelor means, and even if you have never heard of Socrates. On the other hand, if you tell me that you bought a new house, I can infer that you own a building with a bedroom and a bathroom, but I do not know how many, or whether the kitchen is large or small, or whether you have a library. You would know, though, not because you are a better logician than I am, or much smarter, but because you are more knowledgeable. You have seen the inside. Knowledge and experience, not cold logic, is how you know. The Constitution is a house, our house. That is what Justice Douglas understood. It has structure. Logic reveals some of its content, but not all. In Griswold, he was willing to say no to the majority because he understood that the state’s effort to regulate the intimate aspect of the marital relationship was different from the state’s effort to regulate the relationship between employer and employee, and he understood further that the Constitution forbids the state from entering the marital bedroom to regulate sexual intimacy. That insight rested partly on logic, but mostly it rested on education and understanding. By seeing the Constitution in three dimensions, Justice Douglas saw that the distinction between what the government may and may not do is not logical. It is historical. We twenty-first-century Americans have no doubt that we have a right of privacy, that there are certain decisions that we get to make for ourselves, free from government intrusion. But when Justice Douglas said simply that nearly half a century ago, it was a radical development. Radical pronouncements, however, can turn out to be obvious, even though it might take us a few years or decades to appreciate that fact. But Justice Douglas’s opinion was not merely radical; it was also prophetic. Like Justice Douglas, the biblical prophets were sometimes radical, but their radicalism was always deeply rooted in the culture where they resided. They did not invent new rights. They did not impose their preferences or their will. Rather, they saw what was already there. They identified what others had overlooked or ignored. That is exactly what Justice Douglas accomplished in Griswold. By envisioning the Constitution in a new way, and by looking backward, Douglas saw how deeply buried in our legal culture is the concept of privacy. For all the newness of Griswold, what ultimately lay at the core of the Court’s opinion was a deep respect for our forebears and an appreciation of the past.

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NOTES 1. My discussion of Griswold in this chapter is informed by Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (Oxford University Press 1992), and by Del Dickson, ed., The Supreme Court in Conference (1940– 1985) (Oxford University Press 2001). I also profited, in this and especially the following chapter, from Stephen Kanter, The Griswold Diagrams, 28 Cardozo L. Rev. 623 (2006). 2. Unlike the word privacy, the word equal does appear in the Constitution, in the so-called equal protection clause of the Fourteenth Amendment, which generally prohibits the government from treating similarly situated individuals unequally. I discuss the fundamental, foundational idea of the U.S. Constitution in Chapter 5. For differing views as to the meaning of equality that do not disagree on its centrality in our legal culture, compare Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1 (1976), with Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. and Pub. Affairs, 107 (1976). 3. 318 U.S. 44 (1943). 4. In law, the concept of standing addresses which person is the proper party to bring a lawsuit. If I get run over by a negligent truck driver, I can sue the driver, but you cannot. You are not the proper party; you therefore lack standing to bring the case. In constitutional law, there are certain instances where a party can sue and assert interests of others; this is known as third-party standing (or jus tertii). Tileston attempted to use third-party standing to challenge the Connecticut law, but he failed. 5. See Dickson, supra, at 796–97. 6. The Fourteenth Amendment, proposed to the states in 1866, was ratified in 1868. 7. The document is available at http://www.mass.gov/courts/sjc/johnadams-b.html. 8. See Goldberg v. Kelly, 397 U.S. 254 (1970). 9. See, for example, Reno v. Flores, 507 U.S. 292 (1993); Vance v. Terrazas, 444 U.S. 252 (1980). 10. The leading proponent of this view was John Hart Ely, whose book Democracy and Distrust (Harvard 1980), is perhaps the most influential book of constitutional theory ever written. Ely espoused what I characterize here as a priestly approach to constitutional interpretation. His theory pays great homage to the American value of majoritarian democracy, but is almost completely inattentive to the equally central value of liberty and only slightly more attentive to the value of equality. The theory was (and remains) the subject of vast amounts of legal scholarship. An early favorable review can be found in Archibald Cox, Democracy and Distrust: A Theory of Judicial Review, 94 Harv. L. Rev. 700 (1981). For a comprehensive review of the literature, pro and con, in historical hindsight, see Note, Democracy and Distrust After Twenty Years, 53 Stan. L. Rev. 397 (2000). A powerful criticism remains Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L. J. 1063 (1980). 11. A useful overview of this period of American history can be found in Henry Tam, ed., Progressive Politics in the Global Age (Polity 2002); Richard R. John, ed., Ruling Passions (Penn State 2006). There is also a concise and reliable summary on the web, located at http://usinfo.state.gov/products/pubs/histryotln/reform.htm.

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12. 198 U.S. 45 (1905). 13. The proposition that the due process clause of the Fourteenth Amendment protected the liberty to enter contracts was probably first advanced by Justice Stephen Field in his dissenting opinion in the Slaughterhouse Cases, a cluster of cases in which the Supreme Court had held that the Fourteenth Amendment—including the privileges and immunities clause—was enacted principally to protect blacks, rather than to protect the rights of whites. See Slaughterhouse Cases, 83 U.S. 36 (1873). 14. The case was Allgeyer v. Louisiana, 165 U.S. 578 (1897), in which the Court ruled unconstitutional a Louisiana law that prohibited citizens from entering insurance contracts by mail with companies that had no physical operations in Louisiana. 15. The case in which the Court repudiated the doctrine of Lochner was West Coast Hotel v. Parish, 300 U.S. 379 (1937). 16. 367 U.S. 497 (1961). 17. The discussion of the history of the Connecticut law draws on the thorough article by Peter Smith, The History and Future of the Legal Battle Over Birth Control, 49 Cornell L. Q. 245 (1963–64). 18. The Church’s official position was articulated in an encyclical issued by Pope Pius XI in 1930. 19. The case was State v. Nelson, 11 A.2d 856 (Conn. 1940). 20. On the role of the Church in the anticontraceptive legislation, see Mary L. Dudziak, Just Say No: Birth Control in the Connecticut Supreme Court Before Griswold v. Connecticut, 75 Iowa L. Rev. 915, 927–32 (1990). 21. The entry was written by Dennis J. Hutchinson. It can be found in The Oxford Companion to the Supreme Court of the United States (Kermit L. Hall, ed. 1992). 22. Poe v. Ullman, 367 U.S. 497, 541, 544 (1961) (Harlan, J., dissenting). (In Griswold, Justice Harlan relied on his dissenting opinion from Poe.) 23. I discuss the case, Washington v. Glucksberg, 521 U.S. 702 (1991), at greater length in Chapter 6. 24. 367 U.S. at 543. 25. “Zur Elektrodynamik bewegter Körper” (On the Electrodynamics of Moving Bodies), Annalen der Physik 17:891–921 (June 30, 1905); the paper can be downloaded from or viewed at http://www.phys.lsu.edu/mog/100/elecmovbodeng.pdf. 26. 410 U.S. 113–66 (1973). 27. 539 U.S. 558–78 (2003). 28. 381 U.S. at 482. 29. Madison’s view is represented in Federalist no. 10; Federalist no. 51 is also pertinent. De Tocqueville’s view can be found especially in chapters 7 and 15 of his Democracy in America. 30. Id. 31. The cases Douglas refers to are Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923). 32. Douglas refers to cases including Martin v. City of Struthers, 319 U.S. 141 (1943), and Wieman v. Updegraff, 344 U.S. 183 (1952). 33. Crandall v. State of Nevada, 73 U.S. 35, 48 (1868); see also United States v. Guest, 383 U.S. 745, 758 (1966).

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34. In the Slaugherhouse Cases, for example, the Court construed the substance of the Fourteenth Amendment narrowly, but nonetheless reasoned that the rights enjoyed by citizens are not limited to those explicitly identified in the text of the Constitution but also include those rights “which owe their existence to the Federal government, its National character, its Constitution, or its Laws.” 83 U.S. 36, 79 (1872). 35. 371 U.S. 415 (1963). 36. 357 U.S. 449 (1958). 37. 381 U.S. at 484 (emphasis added). 38. Id. 39. 367 U.S. at 517. 40. Williams H. Gass and Mary Gass, The Architecture of the Sentence, #32 Conjunctions, p. 97 (1999). 41. Kyllo v. United States, 533 U.S. 27, 31 (2001). 42. 381 U.S. at 485. 43. 381 U.S. at 485. 44. In a classic article, Laurence Tribe engaged in a similarly prophetic analysis of a range of issues that arise under the due process clause. See his The Curvature of Constitutional Space, 103 Harv. L. Rev. (1989). 45. A useful overview is Randy E. Barnett, ed., The Rights Retained by the People: The History and Meaning of the Ninth Amendment (George Mason 1989). 46. 381 U.S. at 527 (Stewart, J., dissenting). 47. 381 U.S. at 507 (Black, J., dissenting). 48. 381 U.S. at 508–10 (Black, J., dissenting). 49. 381 U.S. at 486. I should mention here that in many respects, the dual aspect of privacy that Douglas apprehended—the physical as well as the metaphysical— was anticipated by Louis Brandeis, in the famous article he wrote with Samuel Warren, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Brandeis and Warren were primarily interested, however, in tort law—how the right of privacy in the common law tradition gave individuals a private cause of action against other private parties who injured or invaded their privacy.

Chapter 4

PROPHETIC INTERPRETATION OF BIBLICAL LAW Two different approaches to legal rules coexist in the Hebrew Bible. I refer to them as “priestly” and “prophetic.” The basic difference is this: The prophetic literature distinguishes between the written rules, on one hand, and the basic idea of the legal system on the other. Where these conflicted, then, for the prophets, the idea prevailed, despite the fact that the idea was unwritten. For the priests, on the contrary, the idea was the written rules; there was no distinction between the two.1 Although we may not be conversant with their method of interpretation, we are quite familiar with their names. Isaiah, Jeremiah, and Ezekiel, the socalled major prophets; and twelve minor prophets, beginning with Hosea, Joel, and Amos, and ending with Haggai, Zechariah, and Malachi.2 The prophets exhibited a method of interpretation based on the central insight that behind the legal system’s written injunctions reside equally enforceable unwritten commands. Like Justice Douglas in Griswold, the prophets viewed the written laws in three dimensions, understanding that those laws are but the surface, while beneath the surface reside the values that define the culture. Collectively, the prophets represented a distinctive method of legal interpretation that presaged the approach to legal analysis employed by Justice Douglas in his opinion in Griswold. In this chapter I generalize. Like all generalizations, mine is subject to exception and counterexample. The prophets were not all alike, and the distinction between priests and prophets is not absolute. My objective in this chapter, however, is heuristic, not historical or theological. I am interested in

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showing that the method of interpretation revealed in the prophets has resonance and pertinence for contemporary legal interpretation. What we call “judicial activism” has biblical roots, and the biblical exemplars of this method are held in high esteem. The priests, who were the foils or counterparts to the prophets, were champions of judicial restraint. Yet today we know that the prophets were the legal interpreters who got the right answers. They got the right answers because they used the right method.

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Priests held the power in ancient Hebrew society. Yet despite the fact that they were powerful and important, you probably cannot identify very many of them. The names of Jehoiada, Hilkiah, and Seraiah are obscure, unfamiliar to us.3 We do not remember them for the same reason we do not remember Bushrod Washington, who served as an associate justice on the Supreme Court for thirty years, or James Wayne, who served for thirty-two.4 They said nothing enduring. Priests enforced rules, as literally written,5 because their principal function was to preserve what we can call ritualistic behavior (or what is known among biblical scholars as cultic functions). We do not remember them because the practices they safeguarded and deemed central to the definition of their culture—like carrying the ark or sprinkling blood on sacrifices—have little contemporary relevance. In contrast, the prophets believed that the essence of the culture was not cultic ritual but an idea. To some degree, of course, I am overstating the case. The prophets were not indifferent to the written words of biblical law, just as the priests were not uninterested in principles. The difference may have been one of degree, but it was a large degree. The prophets understood that the specific and easily understood biblical commands (to refrain from work on the Sabbath, for example)6 were but part of a system (or structure) of law that was far less specific. In addition, and more important, they understood that slavish adherence to the written words did not justify or excuse departure from the less specific framework from which those written injunctions emerged. In identifying the rights and obligations of the people, the prophets consulted the written legal texts, but not only those texts. They looked as well to the very moral framework from which their culture had emerged. In this respect, the prophets represent a distinctive method of legal interpretation.7

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Some three thousand years ago, under King Jeroboam II (who ruled from 786 to 746 BCE), ancient Israel reached a zenith of power and prosperity.8

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In many ways, it resembled the contemporary United States in which we live. The book of Amos reports that the wealthy had separate summer and winter homes; that these homes were elegantly adorned with fine furniture, expensive ivory, and lush vineyards; that the rich sated themselves with sumptuous feasts. Like contemporary America, ancient Israel was rich and powerful, yet dire poverty coexisted amidst the ostentatious wealth. Also like contemporary America, ancient Israel was a society based on the rule of law. Born during this period, in the village of Tekoa, located not far from Bethlehem, city of Jesus’s birth, was a shepherd by the name of Amos. Amos would in time describe himself as a mere herdsman, neither a prophet nor a prophet’s son,9 yet he possessed the prophet’s understanding of what law required, and the prophet’s courage to say so, and he is therefore, in the Judeo-Christian tradition, a prophet of the first order. His prophecies come to us in the book that bears his name, the book of Amos, which reveals a method of legal interpretation that begins (but does not end) with the written laws.10 I refer to the method exemplified in the book of Amos as “prophetic,” and the essence of prophetic interpretation is this: Prophetic interpretation distinguishes between the written rules, on the one hand, and the basic idea of the legal system, on the other, and, where these conflicted, the idea prevailed. Three millennia ago, the distinction between priestly and prophetic interpretation was exemplified by the conflict between the prophet Amos and the high priest Amaziah. When the rich and powerful subjects of King Jeroboam said that they were adhering to the rituals as directed by Amaziah and were therefore holy, Amos replied that their claims to holiness were a fraud. God, according to Amos, said: I loathe, I spurn your festivals, I am not appeased by your solemn assemblies. If you offer Me burnt offerings—or your meal offerings – I will not accept them; I will pay no heed To your gifts of fatlings. Spare Me the sound of your hymns, And let Me not hear the music of your lutes. But let justice well up like water, Righteousness like an unfailing stream.11 The message is not subtle: God is not appeased by this mere ritual observance. Michael Walzer points out in his brilliant examination of Amos’s prophecies that these oppressors of the poor whom Amos condemned were scrupulously orthodox. From afar, they appeared to be religious; they appeared to be living as they were commanded to live, in accordance with the written

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law and the word of God. They made ritual sacrifices, they celebrated the appearance of the new moon, they attended religious assemblies, they kept the Sabbath.12 But, said Amos, this ritual observance did not make the Israelites godly. The critical insight in Amos was his claim that there can indeed be injustice even when the letter of the law appears to be satisfied. Someone who exploits the poor is not living in accordance with the law, regardless of his ritual purity. The priest, in contrast, focuses on literal commands. If the crops and beasts are sacrificed on the altar, as Leviticus directs, then, the priest concludes, God is satisfied. The prophet says “no”; all the burnt offerings in the world do not atone for injustice.13 But what is injustice? The priest has an advantage here in his dispute with the prophet, for the demands of law to which he points are certain and clear. We know what it means to sacrifice a ram, to tithe, to refrain from work on the Sabbath. But how do we understand the prophet when he speaks of injustice? What is this concept of “right” that the prophet says God demands?14 Judge Bork, one of the most well-known proponents of judicial restraint, said that the Ninth Amendment was an ink blot because he feared that anyone could find in its vague language any rights that he or she chose. The priests in ancient times had the same fear. Yet as we will see, Amos identified a principle for imbuing these elusive phrases with specific content. The starting point, however, is simply to acknowledge that Amos was correct when he asserted that adherence to ritual is not equivalent to justice or righteousness. From this observation it follows that values or norms can be violated even when all the laws are followed. Someone who follows all the written laws, for example, but also tramples on the poor,15 is not living justly. Someone who does these things is not living in accordance with the law. If the prophet is right about this single point, then the syllogism on which the authority of the priesthood rests is doomed. If the prophet’s conception of law is sound, then the priest is mistaken when he says that adherence to ritual law is enough to constitute a good and lawful life. In making this radical claim, Amos could have been saying one of two quite different things. He could have been saying that the rules of conduct that formed the basis for the Israelite society were themselves deficient or infirm. When, for example, in modern times, Western societies criticize governments like that of the Taliban in Afghanistan or the theocracy in Iran, the very essence of the criticism is that a society built on the foundation of fundamentalist Islam is an infirm society, insufficiently respectful of the rights of women and of the inherent liberty of all people. The Taliban might well be following the rule of law, but that very rule is defective in our eyes. Amos could have been saying precisely that about ancient Judaism. Or he could have been saying something different. He might have been saying that the rich and powerful, the social elite, were not living in accordance with their society’s own mores even though they thought they were. He might have

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been saying, in other words, not that the laws were deficient or infirm but that the people’s understanding of them was. What makes Amos a prophet rather than a revolutionary is that he was not attacking the rules that constituted the society. Like Moses before him and Jesus after, Amos interpreted existing law. He did not argue that the law needed replacement; he urged that it be followed. To be sure, Amos challenged the rich and the powerful, the king and the priest; his target unmistakably was society’s leadership, yet he spoke not as an outsider but in the name of the values the leaders were supposed to safeguard. Amos’s challenge was not a challenge to the moral values that defined the ancient Hebrews’ society; it was a challenge based on those very values. It is an oversimplification, and a misleading one, to say that the clash between the priest and the prophet is simply a clash between a literalist and a nonliteralist. In truth, it is a clash between a legal interpreter who believes that literal adherence to specified laws is sufficient, and a legal interpreter who insists that the framework of the laws, the three-dimensional structure of law, is as important, if not more so, than the individuated injunctions. The conflict, however, is not a clash between a reactionary and a revolutionary. Amos, as much as Amaziah, was an insider. Indeed, the prophets often prophesied from within the walls of the temple itself.16 Although they criticized the behavior of the majority, and of the kings and the priests, society’s powerful, they were not outsiders. In a real sense, they were part of the establishment itself, even as they railed against it.17 The first point to notice about the Hebrew prophets, therefore, as epitomized by the prophesy of Amos, is that, to borrow Walzer’s terminology, their criticism was internal. They were part of the society they criticized. They were not aspiring to overthrow the legal order. Rather, their goal was to uphold it, to enforce its ideals, to compel the leaders to act as the existing rules of society required. They did not want to replace one set of legal norms with another. They wanted the powerful to honor the existing rules. Most important, they wanted those rules to be understood in the light of the idea that gave rise to them. There is a second point to note about the Hebrew prophets, also illustrated in the book of Amos. That point has to do with how the powerful responded to them. Amos’s proximate target was Amaziah, the priest of Bethel, the leader of the society (along with his ally the king) that Amos saw as wayward, and the symbol of a ritual observance that was ungrounded in deeper moral values. Amos told the priest that God had grown impatient with the injustice that was occurring behind the veneer of ritual orthodoxy. Amos reported that God had told him that He would smash the houses of the oppressors.18 Amaziah’s response was notable. One might expect him to defend the conduct of the powerful, or to engage Amos and debate their respective interpretations of the law, or to tell Amos that the people were

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living faithfully in accordance with the word of God and that those actions were sufficient. But Amaziah did none of those things. Instead he moved to silence the critic. Thus Amaziah said to the king: “Amos is conspiring against you within the House of Israel. The country cannot endure the things he is saying.” Then, speaking directly to Amos himself, Amaziah delivered an ultimatum: “Do not ever prophesy again [here] at Bethel; for it is a king’s sanctuary and a royal palace.”19 Amos was not alone. All the prophets confronted the same response. The powerful, instead of engaging the prophets and their commitment to an idea, chose to dismiss them. Instead of debate, the powerful preferred to silence dissent, which they achieved by threat or coercion. They did not call the prophets “activists,” but the charge was essentially the same. Defenders of the established order characterized the prophets as revolutionaries, as men whose actions undermined society and its rules.

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If it is true that the critique of the prophets is internal, if it is true, in other words, that they aspire to enforce existing norms rather than to replace one set of values with another, then it must be possible to trace their argument back to rules that even the rich and powerful acknowledge to be legitimate—to the “text,” so to speak. Justice Douglas in Griswold traced his argument back to an ancient right of privacy which, he said, is contained within the structure of the Constitution, even if it is not literally enumerated. When we examine Justice Blackmun’s opinion in Roe v. Wade in Chapter 6, we will see a similar approach. Amos also employed this method, grounding his critiques and interpretation of written law in the central idea of the Bible. The identification of that central legal idea begins with this language: They recline by every altar On garments taken in pledge, And drink in the House of their God Wine bought with fines they imposed.20 This description has a powerful moral tone. While the rich relaxed, drinking fine wine, the poor were without clothes. Not everything that is immoral, however, is also unlawful, as Abu Ghraib has powerfully reminded us. But Amos was not saying merely that biblical law does not adequately protect the poor and less fortunate. He was saying that the wealthy Hebrews, by ignoring the plight of the poor, were being lawless—that they were disregarding a core requirement of the written law, even if that requirement was not itself written. To make this claim effectively, Amos had to link his critique to an

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explicit injunction, to something that manifested the idea he was espousing. We find it in the book of Exodus:21 If thou lend money to any of My people . . . thou shalt not be to him as a creditor; neither shall ye lay upon him interest. If thou at all take thy neighbor’s garment to pledge, thou shalt restore it to him by that the sun goeth down; for that is his only covering, it is his garment for his skin; wherein shall he sleep?22

Just as Justice Douglas in Griswold tied his identification of a constitutional right of privacy to a variety of specific constitutional provisions, Amos’s critique of the Hebrews is tethered to the norms we now find in Exodus, so much so that, to borrow Walzer’s phrase, the essence of Amos’s prophesy “makes no sense” without these verses from Exodus. The difficulty is that the competing legal interpreters often read the same texts or know the same set of explicit commands. Justice Black, for example, read the same constitutional provisions that Justice Douglas did, but he could not see how they supported a right of privacy. Similarly the rich and powerful in Jeroboam’s court, including the priest Amaziah, knew the book of Exodus (or its contents) as well as Amos did, but they did not believe they were violating the word of God. The difference between Amos and Amaziah, therefore, which is more or less the same as the difference between Justice Douglas and Justice Black, is that Amos extracted from Exodus 22 an evolving principle, a living idea. He had a different understanding from Amaziah of what law is. Law is a collection of rules that govern human conduct. Some rules have inherent moral force, like the rule not to murder. Other rules do not have inherent moral force, like the rule to stop on red and go on green, but even these rules aim to avert harm (car crashes, in this example), and that aim does have moral force.23 Not all moral values, however, are equally weighty; they reside in a hierarchy. The rule not to murder, for example, is more important than the rule not to speak ill of someone. Amos understood all this: that law is instrumental, in that it aims at achieving various ends, and that not all ends are equally compelling. Individual cultures define how compelling various objectives are. For example, one of the reasons that Americans deplore strict Islamic law is because it permits men to inflict physical injury on women who are said to have defiled themselves and thereby elevates preservation of “purity” over avoidance of violence—a preference our culture does not share. Amos had a vision of biblical law based on his membership in ancient Hebrew society. He was not saying what he thought the law ought to be. He was saying what he believed the law was. He was saying that the value being ignored (the value of nonoppression of the poor) was already a value of society.24 It is not merely that the rich were doing something that Amos personally found offensive and wrong; it is that they were violating the society’s existing moral code.

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Amos perceived that biblical law rested in large part on the value of taking care of society’s neediest. He realized that many particular legal requirements (for example, tithing, not harvesting all of one’s fields, not picking up what one drops while reaping) aim instrumentally at aiding the poor. From these particulars he inferred a general value, and he also understood that this moral objective was weightier than most. To understand Amos’s method of interpretation is to understand how he drew these inferences and reached these conclusions, how he got from point A to point B. Very few people would say, for example, that the Supreme Court’s vision was impaired when it ruled in Griswold that married couples may use contraceptives, or when it ruled in Brown v. Board of Education (a case I consider in detail later) that the state cannot compel blacks and whites to attend separate schools. What people wonder, though, is how the Court reached these conclusions, especially in view of the fact that people who regarded themselves as law-abiding were doing precisely the opposite of what the Court’s rulings required. The same issue arises in the context of Amos’s prophecy. How did he locate in the explicit commands now contained in the book of Exodus an idea that condemned a broad swath of the very way of life of the people of this era? At his confirmation hearings, Chief Justice John Roberts said that judges are like umpires who call balls and strikes.25 The chief justice’s metaphor evoked the biblical priests, for whom life’s rules were like the rules of baseball. When a batter hits a ground ball to the shortstop and reaches first base before the shortstop’s throw gets to the first baseman, the batter is safe; if the ball beats the runner, the batter is out. The umpire does not make up the rules. He does not care whether the runner is safe or out. We saw earlier that one thing judges do is decide facts. The first base umpire’s only job in this context is to decide a fact: Who won the race, the batter, or the ball thrown by the shortstop? Umpires are priests. Of course, if it were really so simple as that, then confirmation hearings would not last nearly so long as they do. Senators would not inquire as to a nominee’s beliefs, if all the judge does is call balls and strikes. Probably no judge truly believes that that is all she does. Where the prophet differs from the priest is that the prophet believes that the judge is almost never just an umpire. Amos’s method of legal interpretation differed from that of Amaziah because he understood that the rules of society are fundamentally unlike the rules of baseball, and that it is therefore a mistake for society’s interpreters of the rules to view themselves as like baseball umpires (even if, every now and again, that is the role they play). He understood something important about law that was not apparent to even the educated in the time of Jeroboam and either not apparent or not important to a priest like Amaziah. Essentially, he understood that the covenant between God and the children of Israel was based on certain assumptions, and that those assumptions became as important a strand in the legal fabric of society as the individual commands that God issued.

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A covenant is a contract. The Israelites agreed to do certain things, and God agreed, as consideration, to do certain things in return. The Bible is full of “if you do this I will do this” exchanges. The priests saw these quid pro quos as the very definition of right and wrong. As Deuteronomy puts it: “Thou shalt not depart from the word which they [the priests] shall tell thee, to the right nor to the left.”26 Amos had a different understanding. Not only did he not regard the quid pro quos as exhausting the universe of legal rules, he also understood that the very idea of an enforceable agreement depended on a preexisting distinction between right and wrong. The covenant between God and the Hebrews was coherent only if there was already an existing norm that made it wrong to breach an agreement.27 The written agreement, in other words, incorporates certain norms that already existed prior to its formation. It is crucial to stress here that Amos was not embracing a universal conception of ethics. He was not saying that the children of Israel had to behave in a certain way because that behavior was appropriate everywhere and for all eternity. Rather, according to Amos, the moral values he championed resided in the written law itself, in the covenant between God and the Israelites.28 For Justice Douglas in Griswold, the right of privacy preexisted and was incorporated into the law (the Constitution); for Amos, certain preexisting duties became incorporated into the covenant between God and the Israelites. But, for Amos as for Justice Douglas, this was the easy part. Every system, including every legal system, has certain presuppositions. Even most critics of so-called judicial activism will concede that point.29 The more difficult aspect of Amos’s accomplishment has to do with how he identified those presuppositions.

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Biblical prophets condemned society’s practices because they believed those practices were unlawful, yet those very practices were clothed with a patina of legality. There are some parallels, therefore, between the prophetic critique and the refusal of Rosa Parks to surrender her bus seat, or Martin Luther King Jr.’s defiance of Southern racist authorities. Parks and King were, in their own ways, telling the masses that they were wrong. But the masses could point to written laws that said exactly the opposite. The bus drivers in Alabama could cite statutes that required blacks to ride at the rear. The masses in biblical times could similarly cite legal support for their errant behavior. The people whom the prophets skewered could rightfully say that they were living in accordance with the law, as that law was expounded by the priests. What the prophets did, therefore, was to undermine the priestly vision of the law. They did so with a competing theory. While recognizing the validity of the rules the priests enforced, the prophetic theory of law viewed those

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rules as subordinate to other parts of a legal structure. The metaphor of God’s “house” appears often in the Bible, and while it at times refers literally to the temple, in other instances it evokes more generally the entire legal regime inside which the Hebrew people lived.30 The metaphor adumbrates the prophets’ three-dimensional vision of law. The priestly rituals were a part of that structure, but they were only a part. Other components of the legal structure were harder to envision. The priests pointed to injunctions that were easy to see, and hence undeniable, and demanded that the people follow them. The prophets turned right around and condemned that very same behavior. The prophetic criticism, therefore, which was based on the perception that the written commands concealed other injunctions, reflected a radically new approach to law. Isaiah, for example, said to society’s powerful: “It is you who have ravaged the vineyard.” Speaking for God he continued: “How dare you crush my people and grind the faces of the poor?”31 Isaiah was addressing Israelites who, by engaging in ritual sacrifice, were heeding the instructions of the priests, yet he condemned them all the same, characterizing them as wrongdoers “who chase liquor from early in the morning . . . but who never give a thought to the plan of the Lord.”32 Isaiah told the people that adherence to the literal rules does not make them holy because God’s plan is more important than God’s literal commands. Further, the consequence of not knowing that there is such a plan, or of being indifferent to it, is a sinful life. Because they elevated ritual above God’s plan, the priests and the kings, “call evil good and good evil”; they “present darkness as light and light as darkness.” Judges who stress cultic commands at the cost of the legal culture’s unwritten aspirations “are so wise in their own opinion, so clever in their own judgment” and all the while “vindicate him who is in the wrong” and “withhold vindication from him who is in the right.”33 For Isaiah, the priestly version of the law was not merely wrong. It was unjust. It was unjust because it was inattentive to big ideas and overarching themes. Jeremiah repeated many of Isaiah’s charges. He told the wealthy that they had grown rich on guile, and he dismissed their claim to holiness, because he saw that they had ignored the plight of the poor and the pleas of the needy. Although the actions of the majority found legal justification from the imprimatur of the priesthood, Jeremiah said that the masses’ conduct was “beyond the bounds of wickedness.”34 Like Amos, Jeremiah saw the law as a structure where the people live. The people are not free to transgress the moral law and then seek refuge with ritualistic acts of purification.35 Strict adherence to the priestly law does not excuse violations of the higher law. Living righteously requires adherence to the hidden principles as much as the apparent commands. We see in Isaiah and Jeremiah, as we saw in Amos, two themes. One is substantive; it is the radical and moving concern for the poor or the powerless.

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The second is what I call jurisprudential; it is the notion that the written law is not all there is. Without this second theme—in the absence of the jurisprudential claim that the written law is incomplete—the substantive theme in the prophets would be inconceivable. Both themes recur throughout the prophets, so I note just two more examples. Hosea lambastes both the priest and the people, reporting that God does not want their sacrifices and burnt offerings while they continue to ignore what He wants most, which is justice.36 God, reports Hosea, desires “goodness, not sacrifice,”37and it is the priests themselves, and other leaders, too, who have led the people astray.38 Finally, Micah goes still further. Whereas Isaiah, Jeremiah, and even Hosea can be read as arguing that the priests misunderstand law, Micah charges them with an intentional misreading. They assert that they are enforcing the will of God when in truth their motive is to enrich themselves, to hold onto power. These leaders “detest justice and make crooked all that is straight,”39 even as they protest that God is in their midst. It would be a mistake to conclude, as an earlier generation of biblical scholars suggested, that the prophets were hostile to ritual and religious rite.40 They were not. Rather, they were hostile to the prevalent priestly notion that adherence to ritual was sufficient, and they were appalled by the idea that compliance with priestly rites overshadowed what they believed to be grievous wrongs. In contrast to the then dominant theory of law, the prophets developed the idea that worship and ritual are means to an end, not an end in themselves, and the end toward which they aim is justice. The conflict between Amos and Amaziah, repeated with near identicality in the conflict between Jeremiah and Pashtur and again between Jeremiah and Zephaniah (son of Maaseiah),41 is the clash between “rite” and “right.”42

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Neither one of the prophetic themes—the substantive theme, concern for the poor and powerless; or the jurisprudential theme, that there are unwritten legal commands—is obvious. Nevertheless, the second theme is less controversial than the first. In a word, it is easier to accept that there are unwritten commands than to agree as to what those commands require. A careful reading of the prophets, however, reveals a method for resolving this harder question. As we saw in our discussion of Griswold, the most urgent question in contemporary constitutional law is: What are the unwritten rules? A version of this question is at stake whenever we discuss whether gays should be permitted to marry one another, or whether women should be permitted to terminate unwanted pregnancies, or whether we should have the right to terminate

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our own lives. Despite its contemporary importance, however, the question is far from contemporary in origin. The difficulty is rooted in the biblical clash between priest and prophet, for both the priests and the prophets knew the same set of legal rules. Just as Justice Douglas and Justice Black read the same Constitution, Amos and Amaziah shared the same Bible. They regarded as authoritative the same texts (or rules). They were members of the same legal culture. This is not always the case when two people disagree. When, for example, a Muslim and a Jew disagree as to what God requires in a specific situation, the reason may well be that they are consulting, as it were, different rulebooks. The Jew may be looking to the Talmud for guidance, whereas the Muslim consults the Koran. Where the disputants in a controversy consult different books or different authorities, explaining the disagreement between them does not require any great imagination. Moreover, when two people do not agree on who or what is the relevant authority, then, if their respective authorities generate different answers, it is impossible for them to agree. If your God says one thing, and my God says another, and we are both committed to following the edicts of our respective Gods, then we are doomed to disagree. But that is not what happened in Griswold or Roe v. Wade, and that is not what happened in the disputes between prophets and priests. In many respects, Amos and Amaziah were not so different. Both accepted the divine authority of the same set of legal rules. Both equated the law with the word of God. Yet they disagreed about what the law required because they disagreed about the existence and the content of the unwritten (or inexplicit) law. To appreciate the significance of this difference, I want to return briefly to the essential task that all judges perform: the task of interpreting. As I said previously, the prophets did not actually resolve disputes. Nevertheless, because they did apply legal principles to sets of facts—the essential feature of adjudication—we can compare their method of doing so with that of the priests. The comparison reveals several similarities. First, both priest and prophet cared about conduct, not just belief, and in deciding what conduct was required, both looked initially to the specific rules. Second, both generalized from the specific rule with which they began. It would be quite wrong to say that the difference between the priest and the prophet is that the priest is a literalist while only the prophet generalizes. For example, in Leviticus 18:20, God says “thou shalt not lie carnally with thy neighbor’s wife.” The priests understood this rule to prohibit all adultery, even where the adulterers were not literally neighbors. Yet despite these similarities, the priests and the prophets differed. The principal manifestation of this difference is that the prophets identified requirements that bore no obvious connection to the specific rule. When the priest generalizes from the stricture now contained in Leviticus 18:20 and infers that all adultery is prohibited, we can follow the logical syllogism with

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ease. The prophetic inferences were less transparent. In the exhortations of Isaiah and Jeremiah, and in the pleadings of Amos and Hosea, the prophets articulated a message that was not always closely or obviously tethered to a sentence or a clause in the written law. For example, Leviticus 25:35 requires the Israelites to care for their fellow citizens who are lacking in means. Likewise, Deuteronomy 15:7–8 commands the Hebrews to take care of the material needs of their poor brothers. A proponent of judicial restraint would read these requirements as permitting the Israelites to ignore the hardships of, say, the Hittites. But the prophets looked at these same requirements and inferred more general normative propositions. Thus, in the prophecies of Amos, the tribal or familial concern for the poor expressed in the five books of Moses became universal. Amos identified a value, and then pushed it beyond its prior boundary.43 Isaiah went still further. He said, Woe to those who enact evil statutes and record unjust decisions.44 Again, a proponent of judicial restraint typically accepts the legitimacy of a law as long as it is legitimately enacted; the prophets did not concede the legitimacy of any law unless its content comported with the culture’s norms. For them, even a properly enacted law is wrong if it is unjust. When God threatened to kill all the inhabitants of Sodom, the righteous along with the evil-doers, Abraham famously rebuked Him, saying, “Shall not the judge of the earth act justly?”45 Even the will of God is circumscribed by moral commands. These nuncupative norms are the commands that the prophets wield. Compared to the priestly message, the prophets’ moral outrage cannot be easily rooted in a particular biblical verse or a specific legal rule. It instead grows out of the ineffable commands, the big words like justice and righteousness—the kind of words Judge Bork thinks of as ink blots. The priestly interpretation is authoritative because it is obvious. The prophetic view is, if nothing else, not obvious. What, then, imbues the prophet’s message with legal authority? Put differently and more trenchantly: If the written text or specific command does not clearly and obviously support the message of the prophet (as it does the message of the priest), how do we know that it is sound? How do we know that the prophets were articulating God’s law and not simply indulging their own personal moral preferences? The answer to this question has to do with something I am going to call prophetic vision, with what the priests and the prophets “see” when they examine the law. In both cases, their analysis of what the law requires (or forbids) represents an interpretation. For example, if an erstwhile rich man asks whether he must sacrifice an ox in a financially difficult year, the priest’s decision constitutes a legal interpretation. Figure 4.1 represents priestly interpretation. The priest examines the holy book, the authoritative text of Hebrew society, and, on that basis, provides an interpretation. He does so by reflecting the answer located in the text onto the specific facts before him. The diagram illustrates that the priests are like

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Figure 4.1

mirrors reflecting a two-dimensional object. Their methodology does not require that they examine anything outside the text. That is, once they have parsed the text to identify the applicable rule, their hard work is over. In Figure 4.1, the text labeled G is the Bible given to Moses by God at Mount Sinai. As we know, however, the biblical narrative that the priest consults has a history. When God destroyed the Earth and its inhabitants, saving only Noah and those on his ark, He acted because the Earth’s inhabitants were acting immorally. At that time, however, there was no Bible. There were no Ten Commandments. So what were the people in Noah’s time doing that warranted their annihilation? The answer, of course, is that human society included ethical norms and moral obligations even before Mount Sinai. To biblical scholars, these are known as the Noahide laws. They were unwritten, yet binding nonetheless. Similarly, the Hebrew people originated as a people when Abraham abandoned his own father’s polytheistic religion and embraced a single God. This transpired before the Jews were slaves in Egypt, before they spent forty years wandering in the desert, before the revelation at Mount Sinai. Consequently, the people of Abraham, Isaac, and Jacob were a people, with binding moral and ritualistic law, even prior to receiving the text that came to define their culture. The evolution of law from Noah, through Abraham, Isaac, and Jacob, and finally culminating at Mount Sinai, is reflected in Figure 4.2. The diagram illustrates the important fact that, as cultures spawn successive cultures, there is both continuity as well as discontinuity. The solid arrows show that some norms pass from one legal culture to its successor; they are absorbed, so to speak, into the new culture (although they may of course be modified). For example, it was wrong to murder under Noahide law. This norm persisted in Abrahamic law, and murder continued to be wrong under

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Figure 4.2

biblical law. Other norms, however, die when the culture that gave rise to them dies. These norms are reflected in Figure 4.2 by the curved lines. For example, Abraham began the practice of circumcision as a practice that defined his culture and, following Mount Sinai, the Hebrew people began to live in accordance with specific dietary norms. Neither of these norms survived into Christianity when it arose two thousand years after Abraham. Prophetic interpretation differs from priestly interpretation in that it is especially attentive to the development or evolution of norms. The prophets are concerned with the solid and curved lines. They are interested in how, as a norm or idea passes through the various layers of law, it changes (or does not)—in how the norm is refracted. Thus, rules of conduct may change, as they are continually refracted, but what remains constant is the idea behind the rules. Whereas the priest reflects the rule from the text onto the facts, the prophet’s interpretation rests on a broader vision because it is sensitive to this process of refraction. The prophetic vision can be represented in Figure 4.3.

Figure 4.3

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As part of this process that I call refraction, a culture takes a value and shapes it. Prophetic interpretation is based on this process, whereas priestly interpretation is not. Put somewhat differently, priests see the rules as the word of God; therefore, enforcing the rules as written is enforcing the will of God. For the prophets, the rules are part of a process, and the development of that process reveals the centrality of a certain idea. For the prophets, it is that idea that represents the will of God. Importantly, the idea that forms the core of the prophet’s interpretation is not something the prophet invents. Walzer puts it this way: “The prophetic message depends on previous messages. It is not something radically new; the prophet is not the first to find, nor does he make, the morality he expounds.”46 Consider two examples. First, the priest and prophet disagreed about the breadth of certain moral obligations. They both acknowledged, for example, that the rich Israelite had some obligation to care for the poor, but they disagreed over how far that obligation reached. The reason is that the priest interpreted these requirements strictly (or narrowly); that is, the priest demand that the rich Israelite take care of his poor “brother,” because that is what the word of God required. The prophet made the same demand, but he went further, because the prophet interpreted “brother” more broadly. By viewing the development (or evolution) of this principle over time and across various cultures, the prophet perceived that the universe of poor people for whom the rich must care has been continually expanding: first one’s immediate family, then one’s physical neighbor, then one’s tribal relatives. Viewed through this lens, the principle of taking care of the poor became for Amos a universal command, rather than a communal or tribal one. The prophet apprehends that certain normative ideas have historical direction; they grow (or shrink) over time. Consequently, part of understanding that idea is to be aware of where one is located on the culture’s historical continuum. Second, consider the rule of lex talionis from the book of Exodus: “But if any harm follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”47 This rule has an apparent simplicity, and when a priest is called on to apply this text, he reflects it: If you do this, then your punishment is that. The prophet’s interpretation is different because it rests on a broader vision—not a deeper vision, but a broader one. Consequently, whereas the priest sees the enumeration of punishments in Exodus as God’s penal code, the prophet sees God’s penal code as the relationship between this enumeration and what transpired previously. The priest said, for example, that if you attack someone and cause him to lose an eye, your punishment is that you must lose an eye. In contrast, the prophet interpreted the lex talionis language by comparing it to what it replaced, and because it replaced a system that was disproportionately severe, the prophet concluded that function of the biblical enumeration of punishments was to limit the severity of certain punishments, not to dictate a quid pro quo. For a prophet,

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therefore, the most you can lose is an eye, but it may be permissible to punish the attacker with a less severe sanction. (This prophetic vision persuaded St. Augustine, who reiterated that the verses in Exodus are an upper limit on what society can inflict, not a literal requirement.48)

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The prophet was a social critic who told the powerful priests and the obedient masses that they were wrong. In this respect, the prophet embodied the countermajoritarian difficulty in biblical times. As the great religious scholar Abraham Joshua Heschel put it, the prophet was compelled to say no to his society; the reason he said no is that, while the masses grew complacent, believing that they were doing God’s will by attending the temple, honoring the priests, and performing the required rites, “the prophet [felt] the blast from heaven.”49 It is true, of course, that ancient Hebrew society did not value democracy as we do in modern America, and in that sense, the prophet’s willingness to insist that the masses did not understand the Idea of God’s law does not create the identical dilemma that we confront in modern times. Nevertheless, the clash between prophet and priest, the prophet’s dismissal of mere ritual observance, and his further willingness to say no presage a problem that we continue to confront in contemporary America, namely, when judges tell the people that they have gotten it wrong, how do we know that the judges are right? How do we know we are not dealing with a false prophet? The prophet Jeremiah addressed this very question. Like all the prophets, he stood against the masses. “Woe unto me,” said Jeremiah, as he was spurned and rejected by nearly all, including his family, for the message he pronounced. He was a lone voice in the figurative wilderness, someone who, in castigating the majority, “sat alone.”50 He was sensitive to the jurisprudential difficulty that lurks in this image of the prophet as loner. When someone insists that the masses are wrong, how can the masses know whether that person is right? Did Amos, for example, truly articulate God’s Idea, or was he merely indulging his own preferences and will? How do we know whether the person reproaching us is a prophet or a lunatic? The solution to this problem, Jeremiah teaches, is to pay attention to the character of the man who claims to speak as a prophet.51 He must be someone who insists on telling the people what they ought (rather than what they want) to hear. He cannot pander. He must be “intoxicated” by God, in the sense of having true insight into God’s intentions.52 He must have access to the “spirit” of God’s law, as well as its letter. He must have the vision to apprehend the structure of society’s laws, and he must understand that sound interpretation presupposes such vision. In contemporary terms, he must have the broad understanding of the culture

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and its place in history that is the hallmark of prophetic refraction. He must have merit. In Hebrew, the word for prophet is navi, which means someone who has been called. Abraham is the first person mentioned in the Bible to merit this appellation. God calls Abraham, and Abraham’s calling thereafter is not to propound his own ideas, but to serve as the voice of God, to propound the idea of ethical monotheism.53 The meaning of the word has further significance. When the people depart from the path they are commanded to follow, the prophet will not defer to them because of their numerical might, even if they constitute the majority. He must call them back. The etymology is revealing. The English word prophet is related to the Greek noun prophetes, which means forward-looking. The priest, as a reflector, looked only backward. The prophet, as a refractor, must look forward as well as back. Indeed, even as he refracts an idea forward, the prophet’s authority, Jeremiah tells us, comes from his intimate familiarity, his complete grasp, of the past. The prophet can therefore tell the people no not because he is better than the people to whom he reports, but because his understanding of the law is superior. Further, the people know this; they acknowledge that the prophet’s understanding of the Idea of the law is superior to their own. Inherent in this concession is that the majority can be wrong. As we know, the meaning of words like justice and righteousness is culturespecific. The prophets of the Old Testament gave voice to their culture’s specific demands of justice by apprehending the Idea that was the essence of ancient Israel’s law. For Amos, this Idea was concern for the powerless, or, perhaps more precisely, concern for the poor. Based on his understanding of how the rules relating to this idea had been refracted over time, Amos condemned the people for their lack of sympathy, for drawing distinctions among themselves while ignoring the “covenant of brotherhood.” It would be overreading the Old Testament to see in Amos the emergence of a norm identical to the one embodied in the equal protection clause of the Fourteenth Amendment to the U.S. Constitution (a clause we discuss in the following chapter), but it is not putting words in Amos’s mouth to read him as apprehending in biblical law an incipient value of equality. His prophecies condemn society’s powerful for their act of constructing differences among people that in reality have no salience. The powerful “defraud the poor” and “rob the needy” and then, seeking to atone, “present [their] sacrifices the next morning.”54 Amos did not see something in the law that the priest Amaziah was oblivious to entirely. Amaziah was no caricature; he, too, apprehended the value of not oppressing the poor. The difference between them was that what the priest regarded as secondary and less important, Amos understood as essential and paramount.55 Where Amaziah saw a narrow duty, Amos perceived a broad one. In Amaziah’s view, the Israelites existed as a culture, and adherence to particular rules (the cultic rites) defined and preserved that culture.

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Amos saw something prior. He saw an Idea that antedated the rites and that was superior to them. The Idea, not just the people, comprised the culture, and the rules were irrelevant except insofar as they served that Idea. This is the difference between priest and prophet. Of course, the fact that the priest and the prophet viewed law quite differently could mean that the prophetic view was, as it were, a mere “dissenting” opinion, a vocal protest to which no one in power paid any heed. In truth, the very opposite was the case. From the earliest formation of the Hebrew Bible, the prophetic interpretation of the law was authoritative.56 The prophets were understood, even during their own time, as interpreting existing rules, rather than inventing new rules.57 They, not the priests, correctly identified the content of Hebrew law. We know their names, and not the names of the priestly foils, because the prophets were right and the priests were wrong. They got the right answer, moreover, because they employed a new method, based on the premise that values evolve and that the Idea of a culture cannot be known without seeing not only the current content of a value but also how that content has changed over time. Power in ancient times resided in the king. In the United States, of course, power is held by the majority. Yet wherever it is located, power is not equivalent to right. The proper understanding of law has nothing to do with what the masses think. This is the prophets’ starting insight. Jeremiah said, “Their might is not right.”58 Amos was undaunted when his vision of law collided with the understanding of the powerful. The prophets in ancient Israel said no to the masses, just as judges in modern America must at times say no to us. Of course, the particular idea that Amos identified as central to the legal regime of the ancient Hebrews is, despite its appeal, not the same idea that resides at the core of modern American legal culture. There is, however, an Idea of American law that is distinctive to our culture. By using the prophetic approach, modern judges can define that Idea, and they will then be able to uphold it. NOTES 1. I want to be explicit at the outset that in this chapter, I am a law professor reading the Hebrew Bible for illumination of contemporary problems of jurisprudence. I make no claim to being a theologian or biblical authority. The principal objective of this chapter is to show that the debate between proponents of judicial activism and proponents of judicial restraint has roots that run at least as deep as the biblical period and, further, that the prophets engaged in a mode of interpretation that evokes what is now known as judicial activism. There are a number of books that have had some impact on my thinking about the relationship between biblical hermeneutics and legal interpretation. They include: Vincent Crapanzano, Serving the Word: Literalism in America from the Pulpit to the

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Bench (2001); James Hancock, The Supreme Court and Religion in American Life (Princeton 2004); Jaroslav Pelikan, Interpreting the Bible and the Constitution (Yale 2004). 2. The fifteen prophets in the canon differed in prolixity. In fact, the distinction between major and minor is based entirely on the length of their respective books. The book of Isaiah, for example, comprises 66 chapters, totaling nearly 150 pages, while the book of Obadiah is but a single chapter, just 21 verses long, all contained in 3 pages. 3. Others are perhaps more familiar, priests like Zadok, Uriah, and, later, Joshua b. Gamala. But even these names ring far fewer bells than do even the most obscure prophets. 4. For a complete listing, many of whom you have probably never heard of, see http://www.supremecourtus.gov/about/members.pdf. 5. The rules are written in the Torah, that is, the five books of Moses, primarily in Deuteronomy and Leviticus. 6. Exod. 20:8–11. Of course, what qualifies as “work” for purposes of this biblical prohibition is complicated and not especially coherent. See Mishnah Shabbat 7:2. 7. At this point I should mention Sandy Levinson’s book, Constitutional Faith (Princeton 1988), which caused me to start thinking seriously about the concept of civil religion, with the Constitution as our culture’s central text. Levinson distinguishes between Catholic and Protestant interpretation, where the Protestant approach pivots on the concept of sola scriptura, whereas the Catholic tradition includes an authoritative oral tradition. Although his typology differs from the distinction I draw between priest and prophet, Levinson does observe, in a crucial observation I share, that a culture is defined by its authoritative legal texts, as well as by the authoritative interpreters of those texts. 8. See Abraham J. Heschel, The Prophets 27 (1962). 9. Amos 7:14. 10. By the word written, here and throughout this chapter, I must stress that I do not mean to be employing the word literally. That is, my discussion of Amos does not turn on whether all or part of the five books of Moses were already redacted at the time of the prophets, or whether, as current scholarly consensus holds, these books were reduced to writing only well after the prophets. (It does bear mention, perhaps, that the legal texts I am especially interested in below, including, most especially Exodus 22, may well have been written already during Amos’s lifetime. But that issue, as I say, is beside the point.) The critical point for purposes of my analysis, and the sense in which I use the word written, is that the prophets understood certain explicit commands in a nonliteral manner. Biblical scholars may feel more comfortable reading the word explicit in the text in those places where I use the word written. For accessible discussion to the issue over dating various components of the Hebrew Bible, see, for example, Ernest W. Nicholson, God and His People (Oxford 1986) (discussing, inter alia, Julius Wellhausen’s work); Jon D. Levenson, The Hebrew Bible, the Old Testament, and Historical Criticism (1993). See also Jaroslav Pelikan, Whose Bible Is It? (2006). 11. Amos 5:21–24. Unless otherwise noted, the English translation of the original Hebrew text is the new Jewish Publication Society version, originally published in 1985.

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12. Walzer, “The Prophet as Social Critic,” in Interpretation and Social Criticism, 86–87 (Harvard 1987). 13. Cf. Zech. 7:8–10; Isa. 58:6–7. As Blenkinsopp notes, “fasting is worse than useless” if unaccompanied by active concern for others. See Joseph Blenkinsopp, A History of Prophecy in Israel, p. 203 (Louisville and London: Westminster John Knox Press, rev. ed. 1996). 14. As Heschel says, Amos presupposes a distinction between right and wrong that itself underlies the covenant between God and the children of Israel. Heschel, supra, at 32. 15. My discussion of Amos and his prophecies, and indeed the general theme of this chapter, relies on and borrows heavily from Michael Walzer’s magnificent treatment in Interpretation and Social Criticism (esp. chap. 3, “The Prophet as Social Critic”) (Harvard 1987). 16. Blenkinsopp, supra. esp. ch 6. 17. Blenkinsopp, supra, pp. 16–39. Max Weber’s classic analysis of the prophets is arguably inconsistent with the proposition that they were establishment figures. See his Ancient Judaism (New York: Free Press 1952). Walzer, however, rejects Weber’s characterization of the prophets as demagogues, preferring the term “social critics.” Walzer, Interpretation, 70–71. It is worth noting, though, that demagogues are ordinarily insiders. The quintessential illustrations here are McCarthy on the right or Farrakhan on the left. In the case of Amos, Walzer might prefer that he be characterized as “connected” rather than as an insider. I am thankful to my brother Leon for this distinction. 18. Amos 6:11, 7:9. 19. Amos 7:10–13. 20. Amos 2:8. Walzer cites part of this passage, translating it somewhat differently. 21. Walzer says that Amos is invoking Exod. 22:26–27. See Walzer, Interpretation, supra, at 82. I think the more evocative passages from Exodus are verses 24–26, and it is those I quote. As for whether these verses were already written, see supra note 10. 22. Exod. 22:24–26. English translations of passages from the five books of Moses are from the second edition of the Soncino Press publication (1992). 23. Because laws fall into these two categories, we can evaluate the force of any law by asking whether the moral objective to which it aspires is a legitimate objective, and, if so, whether it seeks to achieve that objective in a permissible way. We return to these two distinct questions in the following chapter. 24. In his A History of Prophecy in Israel (Louisville and London: Westminster John Knox Press, rev. ed. 1996), Joseph Blenkinsopp points out that the prophet Micah leveled the same critique, with even greater ferocity. Id. at 94. As Micah says: You who hate good and love evil, Who tear the skin from off my people, and their flesh from off their bones who eat the flesh of my people, and flay their skin off them, break their bones to pieces,

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.php. 26. Deut. 17:11. Sandy Levinson points out that Rashi, the great eleventhcentury rabbi, insisted that the obligation to adhere to the interpretation of the priest was absolute, even if “he tells you of the right that it is the left, or about the left that it is the right.” The thirteenth-century sage Nachmanides argued, as Levinson further points out, that the law requirement of absolute obedience was essential precisely because of the diversity of interpretations. See Constitutional Faith, at 23. 27. I draw in this paragraph on Walzer and (especially) Heschel; see his The Prophets, supra, at 32. 28. See supra note 10 on the issue of historicity. 29. Article III of the Constitution, for example, says that judges decide “cases and controversies,” but not every dispute between (or among) individuals is susceptible of judicial resolution. Which disputes are “cases,” such that judges can adjudicate them, and which are not? If I and my son or wife have a disagreement about what movie to see, is that “controversy” one that a judge may decide? The answer is that the word case in the Constitution derived its meaning from what “case” meant in common law adjudication prior to the writing of the Constitution, and all judges, of whatever ideological inclination, understand “case” in just this way. 30. See, for example, Ezra 3:8, 2 Kings 22:8–11, 2 Chronicles 24:21, and perhaps most famously, Psalm 23 (“I will dwell in the House of the Lord.”). 31. Isaiah 3:14–15. 32. Isaiah 5:11–12 (emphasis added). 33. Isaiah 5:20–23. 34. Jer. 5:25–31. Jeremiah’s observation that “the people” raise no voice in protest is a concession that this behavior commands community support. 35. Jer. 7:9–11. 36. Hosea 4:3–15. 37. Hosea 6:6. 38. Hosea 6:9, 7:3. 39. Micah 3:3–12. 40. My discussion of the prophets’ views toward ritual and the moral themes that bound them in this and the following paragraphs draws heavily from the magisterial entry in the Encyclopedia Judaica, vol. 13, “Prophets and Prophecy,” pp. 1150– 1182 (corrected ed.). 41. Jer. 20, 29. 42. Of course, just as it would be a mistake to say that the prophets were entirely indifferent to ritual, it would be equally an error to say that the priests were altogether uninterested in moral rules. Murder and incest, for example, as well as other sexual transgressions, had long been denounced in the culture where the prophets resided, and the priests were among those who did the denouncing. The prophets, however, identified a greatly expanded universe of moral norms that the people were required to obey, and they elevated the significance of these norms over cultic practice.

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Whereas the priest insisted that God was served when the people performed the rites demanded by the cult, the prophet’s message was ethical monotheism, with the emphasis on ethics, and the list of ethical rules was substantially longer than anything the priests had recognized. 43. For example, Amos 4:1. 44. Isaiah 10:1. 45. Genesis 18:25. 46. Walzer, supra, Interpretation, at 71. 47. This is the so-called rule of lex talionis. Exod. 21:23–24. 48. St. Augustine, along with Grotius and other formative legal theorists, are cited in the Soncino Press edition of the Hebrew Bible, supra, at 405. 49. Abraham Joshua Heschel, The Prophets xix, 11–16 (JPS 1962). 50. Jer. 15:17; see generally Jer. 9–20. 51. Jer. 28; Encyclopedia Judaica, supra, at 1170. 52. Jer. 23:9. 53. Indeed, Abraham left his father and his community because they did not share his commitment. Several subsequent Jewish commentators were embarrassed that Abraham abandoned his own family; indeed, the biblical text tells the story of Abraham out of historical order—reporting his father’s death before reporting that he left his hometown, even though these events transpired in the reverse order—to obscure the fact that Abraham left his family behind. 54. Amos 4:1–5. 55. Walzer, supra, Interpretation, at 83. 56. In the language of Chapman, the prophets were “on a par with the law.” Steven B. Chapman, The Law and the Prophets (2001), reviewed in the Journal of Religion, p. 618. 57. Walzer, supra, Interpretation, at 60. 58. Jer. 23:10.

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Chapter 5

THE IDEA OF AMERICAN LAW Amos, like Jesus after him, identified a central idea in the rich tapestry of biblical law that was not itself written. This idea does not supersede the individual written laws. Rather, it provides a framework for understanding and applying those laws. Like ancient Israel, every culture has certain ideals or values that define it. In America, one of these values is democracy, the idea that the people are sovereign, that the majority rules. The American Revolution was founded on this very value. But as we will see, democracy is only one of America’s central values. There are two others, equally important. Critics of judicial activism base their criticism primarily on the value of majoritarianism, on the notion that when unelected judges strike down laws enacted by the people, they are interfering with popular sovereignty by thwarting the will of the majority. This criticism has superficial appeal because it is undeniably true that the rules we live by in our society are, generally speaking, whatever 50 percent plus one of our fellow citizens say they are. Ironically, despite the prevalence of the concept that the majority rules, the idea of majoritarianism does not itself have a particularly robust constitutional foundation. The framers themselves were notably wary of excessive democracy, and the Constitution reflects that wariness. Thus, for example, neither the president nor the Senate, in the original Constitution, was elected by popular vote. In many contexts, the Constitution deems simple majorities insufficient to effect change. Overriding presidential vetoes requires twothirds of Congress; ratifying constitutional amendments requires three-fourths of the states. Nevertheless, despite exceptions, and despite its being largely unwritten, the idea of majority rules plays a central role in our legal culture.

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Indeed, it is the very prevalence of majoritarianism in our legal culture that gives the charge of judicial activism its bite. Majoritarianism, however, is but a part of our legal culture. It is only one of the stool’s three legs. The other two are liberty and equality. Moreover, over the course of American history, the concepts of liberty and equality have become increasingly expansive. This expansion has not resulted solely from actions undertaken by political majorities. On the contrary, the content of these terms is not subject to the principle of majority rule. Just as Amos apprehended the evolving and dynamic nature of the value of concern for the poor, American judges must identify and safeguard the dynamic content of the norms of equality and liberty. Majoritarianism is important, yet the Idea of American law emerges from the interplay of these three concepts. Liberty and equality are reflected in many constitutional provisions. Consider the following illustrations:1 We the people of the United States, in order to form a more perfect Union, establish justice, . . and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In addition to these mentions in the Constitution, we should not overlook the magisterial language in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” As Lincoln phrased it in the Gettysburg Address, our nation was “conceived in liberty and dedicated to the proposition that all men are created equal.” The meaning of these three concepts—majoritarianism, liberty, and equality—is elusive and dynamic. I suggest later in this chapter that, like the universe itself, all these concepts are continually expanding, by which I mean that the concepts have become more potent or robust over time. This expansion

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is perhaps most obvious in the context of majoritarianism. At the time our nation was born, 50 percent plus one meant 50 percent plus one of white males aged twenty-one or older who owned property. In time, it meant 50 percent plus one of white males aged twenty-one or older. Subsequently, it included black males, twenty-one or older. Then women aged twenty-one or older were added. Finally, the age was lowered to eighteen. The concept of majority rules did not change, but the definition of who counts as participating in this norm has steadily evolved, in the direction of greater and greater inclusion. I point to a similar phenomenon in the context of both liberty and equality. Let’s begin, however, with an uncontroversial proposition: Even the harshest and most vociferous critics of so-called activist judges would not deny that judges must at times say no to the majority. The contemporary debate, therefore, is not truly about whether; it is about how and when and why. General Dwight Eisenhower, before being elected president, said that if you cannot solve a problem, make it bigger. This approach works well in physics, but not in law. Legal problems are easier to solve when we make them smaller. So, instead of asking what judges should be doing all the time, I am going to focus on what judges should be doing in certain types of cases. Generally speaking, cases that raise constitutional questions fall into one of three categories. First, some cases involve conflicts between (or among) the three branches of the federal government (the executive, legislative, and judicial branches). Second, some involve conflicts between the federal government, on the one hand, and one or more state governments, on the other. Finally, some involve conflicts between individual citizens, on the one hand, and the government, either the state or federal (or an even smaller governmental unit), on the other. The first category of cases raise what are known as separation-of-powers (SOP) issues. SOP cases implicate the concept of checks and balances—the idea that the legislative branch exerts a check on the executive and judicial branches, the executive checks the judicial and legislative branches, and the judicial checks the legislative and executive branches. By virtue of these checks, no individual branch can acquire too much power, and the dispersion of power preserves our liberty. SOP cases are interesting and important, but I am not primarily interested in them, because they do not necessarily raise countermajoritarian concerns.2 Therefore, to make our problem of what judges ought to do smaller, we do not take these cases into account. The second cluster of cases comprises what are known as federalism issues. Federalism involves the relative allocation of power between the federal and state governments. At the time the Constitution was ratified, state governments were far more potent than the federal government. But in two major historical moments, power shifted significantly from the states to the federal government. The first moment was in the aftermath of the Civil War; the second was during the New Deal era.3 Whereas the original thirteen states

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were robust while the federal government was comparatively small, by the middle of the twentieth century, the federal government was comparatively massive.4 Like SOP cases, federalism cases are also deeply significant, but they too do not necessarily raise countermajoritarian concerns. To make our problem smaller still, we do not take these federalism cases into account, either.5 Finally, the third area comprises what I will refer to as “rights model” cases.6 A rights model case arises when the government (either the state government or federal government, or a smaller government entity)7 acts in a way that injures an individual, and the individual claims that he or she has a right to be free from such an injury. For example, in the Griswold case, the government prohibition on the distribution and use of contraceptive devices injured doctors who wanted to prescribe these devices as well as individuals who wanted to use them. The doctor and individuals asserted that they had a right to prescribe and use contraceptives and that the government law interfered with this right. Griswold was therefore a rights model case. Such cases are highly familiar. When Jane Roe sued to legalize abortion, she initiated a rights model case. When a young black girl named Linda Brown sued to be able to attend a white school, she initiated a rights model case. When the government punishes someone who burns a flag in protest of American military policy, and that individual argues that the state is not permitted to interfere with his act of burning a flag, he has initiated rights model litigation. Name a hot legal topic—abortion, euthanasia and assisted suicide, gun control, medical marijuana use, school prayer, same-sex marriage—and you have probably named a rights model cases. In each of these contexts, the government enacts a law, and an individual (or group of individuals) says, “The government cannot do that; it is unconstitutionally interfering with my rights.” In every rights model case, therefore, the party who sues the government is saying the same thing. Someone who initiates a rights model case is saying that he has a right to be free from what the government is doing to him. The form of all rights model cases is identical. In every case, the majority has acted, and a minority, perhaps even a minority of one, has argued that the majority’s action is unconstitutional and therefore invalid. Accordingly, in any rights model case, a judge must examine two general issues. The first is whether the individual actually does have a constitutional right to be free from the type of government action that he or she is complaining about, and if so, how weighty that right is. (Do married couples have a right to use contraception? If so, how central is that right?) The second is whether the government is permitted to act in the area that it has, and if so, how broad the government’s authority is. (Can the government regulate the relationship of marriage? If so, does that authority reach into the marital bedroom and include matters of intimacy?8) My focus in this chapter is limited to rights model cases because it is in this context that the problem of deference is most acute.9 Typically, the charge of judicial activism arises in the rights model

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context. The reason for this is that all rights model cases compel the Court to resolve a dispute between the majority and the minority. (If a majority of people had wanted to protect abortion, then measures prohibiting it would not have been enacted.) Rights model challenges, therefore, always raise the specter of the countermajoritarian difficulty because whenever the courts rule for the person or people who bring the challenge—when they rule for Brown in Brown v. Board of Education, or for Griswold in Griswold v. Connecticut— they are telling the majority that its act offends the Constitution. They are thwarting the majority’s will. Are such judges merely imposing their own will, or are they upholding the Idea of American law? Because people who criticize judicial activism are criticizing judges for thwarting the will of the majority, this criticism rests squarely on the core American value of majoritarianism. Majoritarianism has both pragmatic and ethical dimensions. Practically, we use this method for arriving at decisions because it works well. Ethically, it comports with our moral view that people ought to control their own destinies; they should make their own decisions and not be subject to the will of a dictator or a king. Majoritarianism is therefore a method for making social decisions that has normative force. Iraq might have operated better (more efficiently, at any rate) under a brutal tyrant, but that method of government was not right. The just way for a nation to operate is by popular sovereignty, by having the people rule.10 The idea that the people should rule—the idea of democracy, of popular sovereignty, of majoritarianism—is a powerful value that played a critical role in the very formation of our nation. The revolutionary rallying cry—no taxation without representation—is a cry of democracy. Consequently, when critics of so-called judicial activism say that a judge’s decision is anathema because it is antidemocratic, they are saying that the judges are acting in a way that is antithetical to a core, and even formative, American value. And that criticism, so far as it goes, is truthful, but it is still invalid. The reason lies in those two other American values that are equally central to the definition of what America is: the values of liberty and equality.11 At times, these three values tug in different directions. Racial segregation in the United States was defeated by employing the value of equality in litigation that lasted decades, but the triumph of opponents of segregation meant that white Southern racists who wanted to discriminate had their own liberty constrained. Nevertheless, while these central legal values do not always point in the same direction, they share one notable feature: All three ideas expand over time. I illustrate this expansion by identifying competing judicial approaches to a recent case.

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Suppose that Mike and Mary are a childless married couple, living in California.12 Several years into the marriage, Mary begins to have a clandestine affair

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with Alan, an unmarried man. Mary becomes pregnant and gives birth to a daughter, Clarice. Alan is the biological father of Clarice. We know this with certainty. Mary and Alan end their affair, and Mary and Mike reconcile and pledge to remain loyal to one another. For several years thereafter, Alan spends several days a week with Clarice. She calls him “dad”; they love each other as father and daughter and enjoy spending time with one another. In time, however, Mike and Mary decide that Alan’s relationship with Clarice is interfering with their own relationship and their ability to put the affair behind them. Hence, Mike and Mary decide they want to terminate Alan’s relationship with Clarice. As it happens, California has a law that is pertinent to this matter. The law creates a presumption that any child born to a married woman is the child of that woman and her husband. Under this law, therefore, the “father” of any child born to a married couple is the husband, and the “mother” is the wife. The law permits only two people to challenge this legal presumption: the husband or the wife. Consequently, either Mike or Mary could challenge this presumption, if either wanted to, but Alan cannot. Under this law, Mike is Clarice’s father, while Mary is her mother, and there is nothing Alan or Clarice can do about it. We can easily identify sound reasons for a law like this one. It would make sense, for example, for a state to prevent any man who has had a sexual relationship with a married woman from intruding into that woman’s marital relationship and claiming that he is the father of one (or more) of the woman’s children. Adultery may be bad for society, but even worse (or so the majority might believe) is permitting an unmarried person who has had a sexual relationship with a married person to claim, perhaps years later, that he is the father of one or more of her children. California’s law aims to prevent this disruption or intrusion, and to make sure, as well, that children are regarded as “legitimate” by the law when they are born to a married woman even if, in actual fact, they are not.13 But I am not presently interested in debating the pros and cons of a law like California’s. Obviously there are sound reasons for it, which is why the majority voted to enact it. Nevertheless, irrespective of good reasons for having the law, it also has an impact on Alan. As a result of the law, and in defiance of biology, Clarice has become the daughter of Mike and Mary, not Alan and Mary, and Alan’s right to see Clarice is entirely dependent on the willingness of Mike and Mary to permit him to. When Mike and Mary decide that they no longer want Clarice to have any relationship with Alan, is there anything that Alan can do about it? Clarice wants to have a relationship with the man she calls “dad,” and Alan wants to maintain the relationship he has with his daughter. So Alan sues. But what is the basis of this suit? And how should a judge evaluate its merits? This suit is an example of a rights model case. The judge, therefore, as we discussed previously, will confront two issues. One is whether the state has

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the authority to act in the manner it has; the second is whether Alan has any recognized right with which the state’s action interferes. Of course, if the judge rules for Alan, he will be thwarting the will of the majority. The answer to the first question is not difficult. The state insists that it can legitimately act to prevent outsiders from intruding in a marital relationship and to protect the legal legitimacy of children. That claim certainly seems plausible. Among the obligations of the state is to help citizens be free of trespasses, intrusions, and the like, and this law clearly falls into that general category. Alan, on the other hand, argues that he has a constitutional right to maintain a relationship with his daughter.14 But does he? The Constitution does not say anything about parental rights. The second question, then, regarding whether Alan has any right here, is much more difficult to answer. Whether Alan and Clarice have a right to maintain a relationship with one another highlights an issue that was also pertinent when the Supreme Court confronted the question of whether the married couple in the Griswold case had a right to obtain and use contraceptives. In both instances, the parties asserting an individual right were claiming that the Constitution protects a certain principle, and that the particular behavior they wanted to engage in is protected by that principle. The party asserting a right points to a general principle and then argues that the specific conduct in which she wants to engage is protected by that principle. In Griswold the principle was privacy; in our present case the principle is parenthood. In both cases, the Constitution does not protect the principle expressly, yet the individuals insist that it is protected anyway because it is implicit. Claiming that the Constitution includes unwritten principles, and that these principles protect certain specific conduct (like the right of married couples to use contraception), is well accepted. But whether a particular principle (e.g., the right of privacy) exists and whether the specific conduct in which the individual wishes to engage is protected by that general principle are controversial. For example, is the right to use contraception protected by the right to marital privacy? Is the right to assisted suicide protected by the principle that individuals own their bodies? In Alan’s lawsuit, the general question was whether the Constitution protects rights of parents, and the more specific question was whether it protects the right of a parent like Alan (i.e., one who conceives a child outside of marriage).15 Because legislators who vote to enact laws will almost never vote for a measure that they know to be at odds with an explicit constitutional provision, when lawmakers do enact an unconstitutional law, it is ordinarily because they do not believe that the Constitution contains the general principle in question or because they do not believe that the principle protects the specific conduct. Almost all rights model cases will pivot on the issue of whether the specific behavior in which someone wishes to engage is protected by more general constitutional language. Like the Bible, the Constitution contains a multitude of specific

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injunctions, but those injunctions largely aim instrumentally at achieving unwritten principles. The task for the judge in a rights model case is to identify and interpret those principles. All the textual provisions I quoted, for example, are famously imprecise. What exactly does it mean to “establish justice,” as the Preamble says? What are the “privileges and immunities” referred to in Article IV and the Fourteenth Amendment? What “other rights” retained by the people is the Ninth Amendment contemplating? Or consider the Eighth Amendment, which prohibits the government from inflicting cruel and unusual punishment: If the CIA agents torture a prisoner who is suspected of terrorism by sliding sterile needles under his fingernails, have they violated the Eighth Amendment even though the text does not specifically prohibit the government from torturing a prisoner in this precise fashion? If this torture is indeed unlawful, it is because the Constitution identifies a general prohibition against cruel and unusual punishment, and that general prohibition includes a prohibition on more specific forms of cruelty, including sticking prisoners with needles. As Griswold exemplified, when judges decide rights model cases, they must determine which specific rules are contained in more general principles.16 When Alan sues to maintain his relationship with Clarice, the threshold question is whether the Constitution guarantees him such a right. If it does not, then nothing the state does that interferes with Alan’s desires matters. If it does, then, if the right is sufficiently important or central, the state’s law cannot stand. In the mid-1980s, the Supreme Court confronted a case like this one. By a vote of five to four, the majority ruled against Alan, concluding that he had no fundamental right to maintain a relationship with a daughter whom he had conceived adulterously. Justice Scalia wrote the majority opinion, and Justice Brennan wrote a dissent. The two justices disagreed not only about whether Alan had such a right but also about how to go about determining the answer to that question. Their disagreement will seem familiar, because it mirrored the difference between Amaziah and Amos in biblical times and between Justice Douglas and Justice Black in Griswold. Moreover, their opinions are notable because the two justices discussed expressly the appropriate method for resolving the issue. To show how there are both prophetic and priestly approaches to constitutional questions, just as there are to biblical ones, I begin by representing graphically the essence of Alan’s claim. He is saying that the decision of whether to maintain a relationship with his biological daughter is a decision that belongs to him and his daughter alone, not to the state. A more general statement of Alan’s position is that there are certain decisions that are entirely up to the individual. Figure 5.1 represents the individual who resides in our legal culture. The outer solid boundary represents the universe of decisions that are, in some

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Figure 5.1

sense, up to the individual. As we move closer and closer to the center of the I circle, we identify decisions of greater and greater individual control. Once we get inside the dotted inner circle, we are inside the domain of decisions that are basic to an individual’s identity. The closer we get to the center of the circle, the greater the individual’s control and the lesser the state’s power to intrude or intervene. The matters and concerns that are inside the dotted boundary are what can be characterized as “fundamental” rights.17 Thus, for example, the decision of what kind of car to drive is probably inside the outer boundary of the I circle, but it is also almost certainly not so close to the center of that circle as, say, the decision of whom to marry or whether to have children. An individual therefore has a right to decide what kind of car to drive as well as whom to marry, but only the latter decision is a fundamental right. Of course, we need a method for ascertaining precisely where in the circle a given right resides. In the case of Alan and Clarice, the Supreme Court justices must decide, first, whether the right Alan claims is inside the I circle at all and, second, if it is, how closely it is located to the center. Justice Scalia concluded that the right is simply not in the circle at all. Addressing this issue, he said: What counts is whether the States in fact award substantive parental rights to the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child. We are not aware of a single case, old or new, that has done so. This is not the stuff of which fundamental rights qualifying as liberty interests are made.18

Figure 5.2 illustrates Justice Scalia’s argument. The G circle represents the government’s traditional powers, and the actions it has taken pursuant to those powers. It encompasses all three branches of government, federal as well as state. In Justice Scalia’s view, if the government has not done something to inject the right that the individual is claiming into the I circle, then that right is not in the I circle.

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Figure 5.2

There is an obvious circularity to Justice Scalia’s analysis. Under his view, Alan has no constitutional right because California has not done anything that results in the right’s being located within the I circle. Biological fathers have no constitutional rights, because the states have not chosen to grant them rights. Justice Scalia’s vision is priest-like in that he reflects the existing law and concludes that the existing majoritarian enactments provide no solace for men like Alan. Under this approach, rights consist of nothing more than what the majority says they are. What is missing from this vision is consideration of whether the Constitution itself creates a right in Alan’s I circle. In contrast, Justice Brennan focused most closely on the very issue that Justice Scalia was least interested in. Where Justice Scalia asked whether the right Alan was asserting had already been embraced by state legislatures, Justice Brennan responded: The better approach—indeed, the one commanded by our prior cases and by common sense—is to ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected to be deemed an aspect of “liberty” as well.19

Figure 5.3 represents Justice Brennan’s vision, and the italicized language— “close enough”—emphasizes the focal point of that vision. The threedimensional C box is the Constitution. The I circle is located within and protected by the Constitution. The i’s to the right of the box represent

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Figure 5.3

judicial interpretations of any given constitutional provision—in this case, interpretations of the content of the I circle. Justice Brennan views these interpretations on a historical continuum. Like Justice Scalia, he is interested in what (if anything) the G has done that might place something inside the I circle, but unlike Justice Scalia, that is not what he is primarily interested in. Rather, the key question Justice Brennan asks is whether the “right” that Alan is claiming is “close enough” to what has previously (in “i”-1 and “i”-2) been deemed a protected right. For example, Griswold identified a right of privacy and then represented the “i”-1 interpretation of that general provision when it held that married couples had a right to use contraception. In “i”-2, the Court addressed a challenge to anticontraception laws brought by an unmarried couple.20 According to Justice Brennan: If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.21

Justice Douglas’s opinion in Griswold dealt specifically with the privacy of the marital bedroom. For Justice Brennan, who offered his interpretation at “i”-2, the right of a nonmarried couple to use contraception was “close enough” to the right identified at “i”-1 as to be normatively indistinguishable; for him, therefore, nonmarried couples also possessed within their I circles the right to use contraception. Justice Scalia, on the other hand, is not interested in whether something is close to something else; he simply asks

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whether the majority has protected this. Justice Brennan does not believe that the content of the I circle depends on what the majority has done, so he asks a different question entirely. These two competing approaches place different relative weight on one of America’s three foundational values. Justice Scalia’s approach demonstrates a deep commitment to majoritarianism. In contrast, Justice Brennan’s vision demonstrates a belief that the I circle can acquire content in ways not instituted or controlled by the majority. Justice Scalia asks, “What has the majority done?” Justice Brennan asks, “What have the interpreters perceived?” What matters to Justice Brennan is not whether the specific relationship between Alan and Clarice has already been protected by majoritarian enactments—it obviously has not, or there would be no need for Alan to sue. What matters to Justice Brennan is how the right asserted by Alan fits into the concept of parental rights in our legal culture—a concept that Justice Brennan sees as continually evolving. But who is right, Brennan or Scalia? When Amos refracted biblical law and criticized the Jews for living unjustly despite their adherence to ritual law, he did so because he understood the essential idea of biblical law. He understood, moreover, that that idea had grown over time in a manner that made the norm more potent than it had previously been. For American judges similarly to refract, they must understand the analogous principles of American law. Justice Brennan’s refraction in the adulterous father case is sound only insofar as his apprehension of the basic Idea of American law is itself sound.

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Every human society or culture has certain texts that are authoritative. (These texts need not literally be written. Even before the Sumerians invented writing some 5,000 years ago, there were distinct human societies and cultures with authoritative “texts.”) The texts contain the norms and practices that define the society. It is possible to define a culture genetically, by blood or DNA, but it is also possible to define it practically. Under this view, a culture is a group with shared values and practices.22 The ancient Hebrews, for example, were the people who adhered to the rituals and practices included in the five books of Moses. In addition, every human society or culture has certain authoritative interpreters of those texts.23 I, for example, might disagree with the Supreme Court’s interpretation of the free speech clause of the First Amendment, but in American legal culture, the Court’s interpretation (not mine, alas) is authoritative. It might even be said that the major factors that distinguish one society or culture from another are the texts and the interpreters that the respective societies deem to be authoritative.

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For the ancient Hebrews, the authoritative text, the holy book, was the Bible, which contained their written legal code. Many Americans, those who are deeply religious, also regard the Bible as authoritative. Even so, though it may play an important, even central, role in the lives of many individual Americans, it is not the Bible that defines our legal culture. Our authoritative text is the Constitution of the United States, and our authoritative interpreters are the justices who sit on the Supreme Court. Earlier we saw that authoritative interpreters are needed to resolve disputes in three different circumstances: When the parties to the dispute do not agree on the facts, when they do not agree as to which of competing principles governs the dispute, or when they do not agree on how a given principle applies to the facts. Consequently, some disagreements arise despite the fact that there is agreement as to which sources or texts are authoritative, because there is no unanimity on how to interpret the language of those texts. The priest and the prophet agreed as to which texts were authoritative, for example, but their interpretations diverged dramatically because their understanding of the written commands differed. Similarly, the competing approaches to parental rights reflected by Justice Scalia and Justice Brennan reveal a nearly identical dichotomy in America law. The critical factor distinguishing priestly from prophetic interpretation is breadth of vision. The priest focuses narrowly on the written or explicit commands. The prophet views those commands as part of an historical continuum. Just as ancient Hebrew society was influenced by antecedent cultures, the American legal culture has been the product of historical development. The major aspects of this historical arc are represented in Figure 5.4. The historical timeline reflected in Figure 5.4 identifies six major texts or traditions that played significant roles in shaping the values and ideas that underlie the American Constitution and the American legal culture. The first is the Bible itself,24 followed by the Magna Carta, then the Protestant Reformation, the English common law tradition, the European Enlightenment, and the Declaration of Independence. Each one of these texts or eras was influenced deeply by its predecessor, and the framers of the U.S. Constitution

Figure 5.4

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were educated men who were knowledgeable of this entire historical arc.25 Each succeeding era borrowed some ideas from its ancestor, while discarding others. (Like the previous depiction of biblical law, the solid lines connecting one box to the next symbolize ideas that made a transition from one culture to the successor, while the curved lines symbolize concepts that the succeeding era did not absorb.) Consequently, embedded within the Constitution itself are ideas whose roots are in the Bible, as well as ideas with roots in the five other preconstitutional periods identified on the timeline in Figure 5.4. Consider, for example, the idea of equality. The book of Deuteronomy insists on equal justice, for the wealthy as well as the poor.26 The same idea— equal treatment regardless of wealth or status—persists, with some variation, through each successive era,27 culminating in Thomas Jefferson’s bold language in the Declaration of Independence: “We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” To be sure, judged by contemporary standards, there was no equality when the United States was formed. Blacks were enslaved, women could not vote, and neither could some men. The idea of equality had not finished developing when the nation was born (and probably still hasn’t). At the same time, the idea was already present at the nation’s founding, and by the time the Constitution was ratified, it had been evolving for two millennia. Of course, none of these preconstitutional texts, with the possible exception of the Declaration of Independence, is authoritative in our legal culture. The only authoritative text is the Constitution. Nevertheless, in understanding the content of the central Idea of American law, prophetic interpretation takes heed of the manner in which the essential principles of our legal culture have developed over the course of two thousand years.

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When Justice Brennan concluded that Alan should prevail in his effort to maintain a relationship with his daughter Clarice, he reasoned that Alan had what is known as a “liberty” interest in that relationship. This is another way of saying that the right the person is claiming falls within the I circle. Justice Brennan reached this conclusion because he viewed the meaning of liberty as dynamic—as growing over time. It was precisely this concept of dynamism, or evolution, that Justice Scalia rejected. Entire library shelves are filled with books that address the meaning of equality or the meaning of liberty. Unlike majoritarianism, which, as we have seen, is simply a method for making decisions, equality and liberty are different. They are not methods for arriving at decisions, but rather limitations on the kinds of decisions that the majority is

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Figure 5.5

permitted to make. Equality means that when the government acts, it must act in a certain way. Liberty means that there are certain areas where the government may not act at all. Figure 5.5 represents the universe of legitimate government action. Whereas Figure 5.1 illustrates where government may not go, Figure 5.5 represents the universe of things that the majority may do (in that the government is the majority). Further, just as the most important individual rights are located closest to the center of the I circle in Figure 5.1, the most critical government powers are located closest to the center of the G circle. If there were no G circle, the I circle would be infinite in size. We would be able to do whatever we wanted whenever we wanted. Without an organized government, our individual sovereignty, our control over our own lives, would be absolute and unfettered. The G circle, therefore, represents a limitation on our individual power to do whatever we please. So why do we create a government? Why do human beings surrender a portion of their individual sovereignty to the will of the majority? The answer is that we need the government. From biblical times to the present, social commentators have observed that without a government, our sovereignty would be unlimited, but our security would be vulnerable. The English philosopher Thomas Hobbes said it most famously: that without government, our lives would be “solitary, poor, nasty, brutish, and short.”28 Some men steal, some rape, some pillage, some kill. Without government, such men would be unchecked, and our lives would be precarious. Although our freedom would be absolute, our ability to enjoy that freedom would be continually at risk. Government’s very reason for existence, said Hobbes, is to protect us. Hobbes may have expressed this idea most memorably, but he did not invent it. In the Talmud, the rabbinic commentary on the Hebrew Bible, Rabbi Chanina said: “Pray for the integrity of the government; for were it not for the fear of its authority, a man would swallow his neighbor alive.”29

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This same idea has found expression in scores of decisions of the Supreme Court. According to the justices, protecting “the general welfare of the people is the chief end of government.”30 Since 9/11, we have heard a great deal about the trade-off between liberty and security, but the trade-off is actually present at the very formation of government. There are two edges to this concept, however. The function of the government is to protect the health and safety of its citizens, but that is the totality of its function. Put differently, if an exercise of government power aims to protect the health or welfare of the people, then it will fall within the G circle; otherwise, it will not.31 The debate over the best balance between the size of the G circle and the size of the I circle is probably perennial, but unless the government action can be fairly characterized as furthering our health or safety, it is not within the G circle at all. Moreover, the mere fact that some exercise of government power does indeed fall within the G circle does not, in and of itself, mean that the government’s action is permissible. Government action can fall within the G circle yet still be impermissible for two distinct reasons. First, the government action might abridge a specific constitutional prohibition. For example, if the government were to require me to attend church, it may be doing so to improve society’s general welfare, but it would still be violating the provision in the First Amendment that prohibits the government from making laws that respect the establishment of religion. Similarly, if the government were summarily to arrest and then draw and quarter all suspected terrorists, our society might be, on balance, safer, but that tactic would violate express constitutional provisions, including the Fifth, Sixth, and Eighth Amendments. Second, even if the government action does not offend any specific constitutional provision, it might still be in conflict with general concepts or values, including either of the two principles that underlie a myriad of express provisions, the principle of equality or the principle of liberty. The value of equality is often associated with the equal protection clause of the Fourteenth Amendment. That clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The equal protection clause does indeed exemplify the value of equality, but it is not the only constitutional provision that does so. Thus, for example, when the Sixth Amendment guarantees criminal defendants a right to be represented by counsel, the Constitution is thereby requiring that the state treat defendants equally, regardless of whether they are rich or poor. When the First Amendment says that the government may not abridge speech or favor a religion by establishing it, the Constitution is demanding that the government treat various points of view and differing religious beliefs equally. Supreme Court decisions that prevent the government from denying Nazis a parade permit, while granting such permits to other groups, or that prevent the government from prohibiting certain obscure religious groups from engaging in

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animal sacrifice, are decisions that grow out of the broader constitutional principle of equality.32 But not everyone is equal, and the government is certainly not forbidden from taking account of differences and inequalities when it enacts legislation. We previously discussed the Supreme Court’s infamous Lochner decision. That case grew out of a recognition by the state of New York that employers and employees are, at times, unequal when it comes to bargaining power. The law that placed an upper limit on the number of hours that employers could ask employees to work responded to that very inequality. Minimum wage legislation reflects acknowledgment of similar inequality, as does the progressive income tax. The equality norm, in other words, does not mean that there are no relevant differences among human beings that are germane to government action. It means simply that there are certain differences the government is not permitted to take into account, and historically, the list of such “irrelevant” differences has been growing. The government may take heed of relevant differences, and relevant differences are not limited to the economic sphere. Consequently, the government may deprive felons of the right to vote, on the theory that felons and nonfelons are not equal when it comes to the entitlement to vote. The government may deny driver’s licenses to people whose vision is poor and uncorrectable, on the theory that people who cannot see are not equal to people who can when it comes to obtaining a driver’s permit. The government may grant a parade permit to a group of veterans who want to march in uniform in a July 4th parade while denying a parade permit to a group of nudists who want to march nude in the parade on the theory that clothed marchers are not equal to naked marchers, and that this inequality is relevant for purposes of determining who should be allowed to march down Main Street. Saying that the government must treat people equally is therefore not exactly a correct or proper statement of the equality value, for the government is permitted to draw distinctions, and thereby treat people unequally, in a wide variety of contexts. At the same time, the value of equality is constitutionally rooted, which means that reach of the equality norm cannot be left to the political process alone. How, then, should a judge decide whether the equality norm is violated in a particular case? In Figure 5.6, the G circle is the same G circle we saw in Figure 5.5; it represents the totality of government power. If something falls inside the circle, the government may do it; if it falls outside, the government may not. Figure 5.6 represents the effect of the equality principle (abbreviated EQ) on the size of the G circle. Over the course of American history, the EQ value has continually influenced the magnitude of the G circle; moreover, as the figure suggests, that influence has been in the direction of consistently diminishing the magnitude of the G circle. We could illustrate this historical process with any number of examples. Suppose, for example, that we are interested in the

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Figure 5.6

relationship between the EQ value and government restrictions on the right to vote. In the eighteenth century, the G circle included the power to limit the franchise to white males who owned property. In time, the EQ value eroded the salience of property ownership, so that the government could no longer take that criterion into account in deciding who would be permitted to vote. More time passed, and the EQ value eroded the relevance of skin color; after that, the EQ value made gender irrelevant. Next, the EQ value pushed the age for voting lower. Over time, therefore, the effect of the EQ value was to shrink the universe of criteria the government was permitted to take into account in distributing the franchise. The most famous illustration of this influence of the EQ principle is in the area of race. At the time of the nation’s founding, blacks were, in many states, entitled to no rights at all, as they were treated as chattel. At the end of the Civil War, the ratification of the Thirteenth Amendment did away with slavery as a formal matter, and the Fourteenth Amendment constitutionalized the value of equality in the context of race. This development represented the influence of the EQ principle, but that value still had much work to do in the area of race. Well into the 1950s, many states treated black and white schoolchildren differently, and well into the 1960s, many states still had separate public facilities (like bathrooms, golf courses, and swimming pools) for blacks and whites. States denied blacks free access to the political process by use of poll taxes, literacy tests, and the like. States diluted black voting strength by gerrymandering. The EQ principle steadily ate away at all these distinctions, making race a relevant or permissible factor in fewer and fewer circumstances. Consequently, the G circle got smaller and smaller with respect to the government’s power to take race into account in enacting legislation or implementing social policy.

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A similar shrinkage of the G circle has occurred with respect to the government’s power to take gender or sexual orientation into account. Women were denied the right to vote until less than a century ago.33 Until the end of the nineteenth century, some states denied women the right to practice law.34 Until quite recently, women could not serve in combat in the U.S. military; until just over a decade ago, women could be kept out of prestigious state schools.35 In virtually any circumstance where a characteristic used to be deemed relevant or germane but is no longer regarded as such, the equality principle has been at work. Gays and lesbians were not permitted to adopt children, and gays were excluded from the military. These prohibitions fell, all as a result of the ineluctable expansion of the equality principle. Over the course of American history, the equality principle has consistently shrunk the universe of distinctions among people that the government is allowed to take into account. Equality as a constitutional ideal means that the government must treat people the same. Yet as is true of perhaps all values, and certainly all constitutional values, this norm of equality is not absolute. When it comes to the right to vote, for example, the government can still treat felons differently from the way it treats law-abiding citizens. The government may no longer prohibit people with mental retardation from getting married or having children, but it can bar the mentally retarded from serving as police officers. While not prohibiting all discrimination or distinctions, the centrality of the equality norm means precisely that any deviations from equal treatment must be justified. A citizen is entitled under the Constitution to be treated equally unless the government can justify unequal treatment. Jefferson’s assertion in the Declaration of Independence that “all men are created equal” is not a fact; it is an aspiration. The equality norm pushes us toward that ideal. Although the precise content of the equality norm is uncertain and inconstant, the norm always dictates that the state must justify unequal treatment whenever it classifies its citizens into two or more groups. The state classifies whenever it distributes some privilege or good unequally. For example, when the state distributes authorization to drive on its streets by handing out licenses, it classifies on the basis of age (e.g., one must be age sixteen or older to drive), vision (e.g., one must have 20:40 vision or better), and prior driving record (e.g., one cannot have been convicted of driving while intoxicated). Similarly, when the state hires police officers, it classifies on the basis of age (e.g., one must be thirty-five or younger), fitness (one must be able to run a mile and do twenty-five push-ups), and criminal history (one cannot have been convicted of a felony). These classifications represent criteria that the majority has deemed relevant in the particular context where they are employed. The equality value does not typically raise the question of whether the state (i.e., the majority) can employ some classification; that is, the equality value assumes that the state can insist on some criteria when deciding who

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gets drivers’ licenses or who gets to be a peace officer. The equality value forces us to examine whether the state can insist on these criteria—not whether it can classify, but whether it can classify in this way. Because the equality norm is dynamic and continually evolving, because it exerts persistent pressure on the G circle, it will inevitably invalidate certain distinctions or discriminations that were once deemed acceptable and that the political majority might wish to preserve. During World War II, for example, the majority believed blacks and whites should be in separate military units. More recently still, a substantial majority believed that gender could be used as a classifying trait in deciding who could serve in combat forces. But the equality norm undermined the legitimacy of both race and gender as classifying traits in the military context. The political majority continues to hew to sexual orientation as a relevant trait in many circumstances, but the equality norm has already begun to erode its legitimacy as well. The immediate point is that this norm, whatever it means at any given moment, is not defined by the actions of the majority. On the contrary, it is a continually developing limitation on the majority that judges must apprehend and then apply.

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“Liberty” literally means freedom. As a limitation on the exercise of government power, the liberty principle protects our individual freedom to act in certain ways without any government interference at all. It is a much more robust limit on the government than is the equality principle, for whereas the equality value affects how the state regulates, the liberty value prevents the state from regulating. Like the principle of equality, the concept of liberty is anchored in Jefferson’s famous phrase concerning “self-evident” truths. The equality norm means that the government cannot create inequality where there was none before. The liberty value means that the government cannot intrude into our personal lives. In our legal culture, individuals have an absolute right to make certain decisions without any government constraint. Liberty means that as Americans, we get to choose how to live our lives, and any government action that interferes with that choosing must be justified. Consider Figure 5.7.Whereas Figure 5.6 reflects that the equality norm causes the G circle to shrink, Figure 5.7 shows how the liberty value causes the I circle to grow. In essence, the effect of this difference is not terribly significant, but it does illuminate an important conceptual point. The I circle represents the universe of decisions that are left up to the individual, where the government may not intrude or intervene. The I circle represents personal decisions, what we can call the realm of individual sovereignty. Under the influence of the LB value, the universe of these decisions steadily grows.

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Figure 5.7

No man or woman is an island. This platitude means that virtually everything that anyone does affects others, in ways small or large. If I quit my job, my family will suffer, and if they require social services for survival, all of you will pay for my lassitude. If I ride a motorcycle without a helmet and have an accident that causes traumatic brain injury, the cost will be spread across society, which means that you will pay (even if only a little) for my foolishness. Yet despite our interconnectedness, I still get to make certain decisions for myself. I can eat cold pizza for breakfast, even though it might increase my risk of coronary artery disease. But my freedom is not infinite or absolute. I can be punished if I ride my motorcycle without a helmet. In every state besides New Hampshire, I can be punished if I drive without a seatbelt. What explains these distinctions? Why can the government (i.e., the majority) barge into my vehicle, but not my bedroom or my kitchen? The answers to these questions are not universal. The power that we have over our own lives, the right we have to make our own decisions, is neither inevitable nor shared across all cultures. Under biblical law, for example, the Hebrews could not eat whatever they wanted for breakfast. Under Islamic law, women cannot wear whatever they want. Under Catholic law, married couples are not free to use contraception. The size and content of the I circle are highly culture-specific. Consequently, the answer to the question of why the government can compel me to wear a seatbelt but cannot force me to abstain from cold pizza will not be found in a book of logic; it will be found in the particular history of our own legal culture. In our legal culture, the value of liberty, like the value of equality, is rooted in our higher law. Also like the value of equality, the meaning of liberty has grown more and more robust over time. Often the growth occurs in advance of the majority’s support for or recognition of this development. Yet it is

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recognized by judicial action. The impetus for the growth of both of these values is revealed in the same phrase of the Declaration of Independence where the values themselves are rooted. The value of equality, as we saw, is the engine that pushes our legal culture toward the aspiration that “all [people] are created equal.” The liberty value operates similarly, continually diminishing the power that the government has to regulate our private lives. And while the equality value shrinks government power in furtherance of our legal culture’s premise that we are all equal, the liberty value causes the I circle steadily to grow because of our cultural ideal that we are all entitled to pursue our own happiness. But in every society, including ours, there are limits to individual freedom. The difficult problem is to identify them. When can the majority prevent an individual from pursuing his or her own happiness? When can the government say, “You might want to do that, but in the interest of the general welfare, you are not permitted to do so?” Conversely, when is the government’s effort to restrict liberty constitutionally forbidden? This is the fundamental question for the culture’s authoritative interpreters, and the method for answering that critical question is illustrated by the well-known case of Wisconsin v. Yoder.36 Jonas Yoder was a member of the Amish Mennonite Church. He lived in Pennsylvania with his school-aged children. Pennsylvania’s mandatory attendance law required children, like Yoder’s, to attend school until they were sixteen years old. Yoder defied the law and kept his children home. He argued that he had a right (contained within the I circle) to raise his children in accordance with the Amish faith, and that his children’s attendance at public school would undermine his ability to raise them in the tradition he chose. Experts agreed with him, opining that the secular values taught in the public schools would increase the likelihood that the children would leave the faith. The Supreme Court ruled for Yoder. The vote was eight to one, but all nine justices agreed on the critical point. Initially, the Court conceded that the government had a powerful stake in the issue; that is, the G circle includes the power of the majority to force citizens to become educated, for the welfare of the entire society depends on such education. At the same time, the history of our culture reveals that the I circle contains the right of the parents to raise their children in a faith of the parents’ choosing, and that right is more potent than the government’s power. Yoder won because the I circle had grown in such a way as to prevent the government from, in effect, entering Yoder’s home and taking his children off to school. Even though the majority had not yet recognized this fact, the Court did. Justice Douglas wrote an interesting dissent, but not because he thought the balance between the government and Yoder tipped in the government’s favor. Rather, Justice Douglas viewed the case as involving not one I circle

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but two: Mr. Yoder’s and the Yoder children’s. In Justice Douglas’s opinion, the fact that Yoder’s I circle contained the right to raise his children as he believed was best did not necessarily outweigh the children’s right to receive an education that would allow them to make a decision for themselves. In other words, Douglas saw the G circle as including the power not only to educate children for the sake of society as a whole but also to educate them for their own sake, so that they would be enabled to make decisions about their own welfare and happiness. Douglas saw the government’s action as intruding on Yoder’s I circle for a good reason: because it wanted to safeguard the I circle of the children. (This highly provocative opinion touches on the sensitive topic of how our society often treats children as property of their parents. But this is an issue for future discussion.) The Yoder Court’s analysis reveals the appropriate method of analysis when an asserted government power lies within the G circle and an asserted right falls inside the I circle. Indeed, the Yoder case is a hard case precisely because it involves a clash between a legitimate exercise of government power and a legitimate claim of individual liberty. Such hard cases force the justices to address how the balance ought to be struck. The key to understanding the appropriate balance is to examine why some conduct falls outside the I circle. In general, actions do not fall inside the I circle when engaging in those acts directly coerces or injures a bystander or third party. If I am a sadist who gets pleasure from inflicting pain on others, I am nevertheless not at liberty to pursue my own form of happiness precisely because it may involve nonvoluntary participation from others. Or, if I am Robin Hood, who gets pleasure from stealing from the rich and redistributing to the poor, I am still not at liberty to pursue what would make me happy—despite the possible social value of such activity—because it involves the nonvolitional participation of the rich. There are people in prisons all over the United States who get pleasure from committing crimes, yet they are legitimately in prison. The majority can criminalize these activities and can deprive the people who engage in them of their most precious form of liberty by sending them to prison. These simple examples involve instances where someone pursues his own pleasure with the direct, immediate, and inevitable consequence that someone else will be injured. Such activities fall outside the I circle. What, though, if someone’s pursuit of happiness does not involve a direct, immediate, and inevitable injury to someone else? Mencken once quipped that a Puritan is someone who is deathly afraid that someone somewhere is having a good time. If our polity is made up of a majority of Puritans, may they prohibit nonprocreative sexual activity on the basis that their sensibilities are offended (i.e., injured) by the very knowledge that such activity might be occurring? Earlier, in Figure 5.7, I suggested that the influence of LB on the I circle is roughly analogous to the effect of EQ on the G circle; Figures 5.6 and 5.7 reflect that EQ has steadily shrunk the size of the G circle, while LB

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Figure 5.8

has steadily increased the size of the I circle. In point of fact, however, although it is true that the G circle has shrunk inexorably and consistently under the pressure of EQ, the history of the L circle is more nuanced. Consider Figure 5.8. Figure 5.8 captures the fact that, viewed over time, the I circle proceeds in a sort of “two steps forward, one step back” pattern. The I circle increases; the majority reacts to this increase by enacting measures that restrict liberty, thereby reducing some of the circle’s growth; that restriction is in turn disavowed, and the circle expands again. This pattern persists. For example, in 1919, the majority (a supermajority, actually) prohibited the sale of liquor by ratifying the Eighteenth Amendment. This prohibition obviously represented an infringement on an individual’s liberty to obtain alcohol. Fourteen years later, in 1933, the I circle expanded when the Twenty-First Amendment, which repealed Prohibition, was ratified. The reason for this up-and-down phenomenon in the case of the I circle is that, unlike the EQ value, LB involves a trade-off: the more liberty that people have to do whatever they please, the greater the potential cost (or perceived cost) to society as a whole. When the legislature enacts laws, it believes that its actions increase the public welfare. And insofar as the majority supports these enactments, the majority shares the same perception. All of the following laws, for example, are believed now, or were believed at some point in the recent past, to make society better: laws that mandate seatbelt usage, that require school attendance, that prohibit public cigarette smoking, that forbid usury, that set minimum wages, that outlaw contraception, that forbid interracial marriage, that require religious school attendance, that prevent women from being lawyers, that mandate dietary restrictions. All these laws share a common justification: The majority that enacts them believes that, in so doing, it is protecting the health and welfare of the citizens. Yet despite this common rationale, we can divide the laws into two different categories, as reflected on the following chart.

THE IDEA OF AMERICAN LAW A. Laws that: • make seatbelt use mandatory • require school attendance • prohibit cigarette smoking in restaurants • forbid usurious interest • establish minimum wages

105 B. Laws that: • criminalize the use of contraception • forbid interracial marriage • require religious school attendance • prohibit consumption of cold pizza for breakfast • preclude women from being lawyers

Column A contains those laws that seem intuitively acceptable; column B contains those laws that seem to be impermissible intrusions on the I circle. Because our liberty is not absolute, and because the G circle contains the power of the majority to enact measures that the majority believes will protect the health and welfare of society’s members, some of these measures are permissible. But is there a principle or reason that underlies our intuition as to which intrusions are allowed? If the majority supports all these measures, is there a principled way for a prophetic judge to disavow only some of them? The answer is that there is. In determining whether an exercise of government power, even one that appears to be within the G circle, impermissibly intrudes into the I circle, a judge enforcing the norms that define our legal culture should ask three questions: • First, does the law violate the equality principle? • Second, is the law a pretext for injuring or discriminating against a historically disfavored group? • Third, does the law intrude on a decision that is, in our culture, part of the essence of what it is to be human?

These questions—not personal feelings or ideology—are the guide for the prophetic judge. The first question grows out of the centrality of the equality principle in our legal culture. If the majority were to enact a law, for instance, that permitted white couples to use contraception but prohibited blacks from doing so, the infringement of liberty would be unequal and would therefore be unconstitutional. The second question reflects that people at times attempt to camouflage discrimination with a veneer of legitimacy, yet courts are experts at uncovering such subterfuge. If the majority were to enact a law that prohibited women from practicing law, citing the fact that women are less argumentative and confrontational and therefore unsuited to legal practice,37 a court, by subjecting this rationale to intense scrutiny in legal proceedings, would expose this justification as a mere pretext for keeping women out of the workforce and compelling them to remain in jobs traditionally held by females. What about laws restricting cold pizza consumption? The example may seem trivial, but in point of fact, such a law would implicate (and run afoul

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of) the third question, which is perhaps the most important and difficult of the three. Because this third question is the most elusive, I want to say a few words about what it means. In Lawrence v. Texas,38 a case I discuss in greater detail in the following chapter, the Supreme Court struck down a Texas law that criminalized consensual homosexual conduct. The Court ruled that the law unconstitutionally intruded into the I circle. Justice Kennedy began his opinion with these words: Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.39

In this prophetic paragraph, Justice Kennedy captured the basic idea that what it means to be a human being in our culture is to be able to make certain decisions for oneself. This freedom is partly physical (or geographical)—as captured by the expression that a man’s home is his castle—but it is also partly metaphysical, or what Justice Kennedy calls “transcendent.” The liberty value extends into both these domains. Justice Kennedy was interested in the historical development of this value. Beginning with Griswold, Justice Kennedy apprehended a general idea in the line of cases that protected intimate decisions from governmental intrusion. Obviously, many of these cases involved sexual relationships, especially between heterosexual spouses, yet it would demean those decisions, Kennedy said, to infer that “marriage is simply about the right to have sexual intercourse.” He perceived a broader principle at work: that adults may choose to enter upon [a personal] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.40

Justice Kennedy views these cases as involving intimacy, not just sex, and he sees further that in our legal culture, intimate decisions are immune from governmental interference. Mencken’s Puritan cannot insist that others adhere to his morality because others have the constitutional right to make their own decisions about intimate matters.

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Justice Scalia dissented. His approach to the question of whether gay men have a right to engage in consensual sexual activity was presaged by his approach in the parental rights case. He asked whether the majority had protected the specific right that the individual claimed.41 Because the majority had consistently not protected the conduct in question, then, in Justice Scalia’s view, it could not be within the I circle. His opinion in Lawrence openly mocked Justice Kennedy and concluded that Today’s opinion is the product of a Court, which is the product of a lawprofession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. . . . It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their businesses, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.42

Justice Scalia’s language here certainly seems to be in some tension with his earlier insistence that “I have nothing against homosexuals,”43 but I want to call especial attention to the powerful invocation of majoritarianism. The Court’s function, in Scalia’s view, is to enforce the democratic will. Indeed, Justice Scalia recognized that norms relating to sexuality have changed, but that dynamic is, in his view, simply irrelevant to the judge’s role as interpreter. Justice Kennedy reached the conclusion he did because he viewed liberty as evolving and as weightier than any other value implicated in the case; Justice Scalia reached the conclusion he did because he viewed majoritarianism as the decisive constitutional value.

•

•

•

In biblical times, Amos looked beneath the specific rules and located an idea: nonoppression of the poor. Jesus generalized this idea still further, with his articulation of the Golden Rule, which applied to the poor as well as the rich. In American legal history, judicial prophets look beneath the words of the constitutional text and see robust and evolving ideas of liberty and equality, and they judge the permissibility of the majority’s actions against these two dynamic norms. In contrast, priestly judges value majoritarianism so highly that they elevate popular action over liberty or equality. In Griswold, for example, Justices Black and Stewart believed the law to be permissible because the majority had properly enacted it, and the measure did not violate any

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Figure 5.9

specific constitutional language. In contrast, by viewing the Constitution in broad historical terms (see Figure 5.4), Justice Douglas took into account three different concepts—majoritarianism, equality, and liberty—not just one. For the prophetic judge, moreover, the Court’s decision in Griswold itself became part of development of the meaning of liberty. Thus, when the Court extended the right recognized in Griswold to include unmarried couples, Justice Brennan viewed the decision in Griswold as not only recognizing but also contributing to the diminution of the G circle. His vision is captured in Figure 5.9. For Justice Brennan, when the Supreme Court interpreted the content of the I circle in the Griswold decision, that very interpretation became part of the history and development of the American legal culture. Consequently, when the Court years later confronted the case involving an unmarried couple, Justice Brennan saw in that case what Justice Douglas had previously seen in Griswold, but he saw something more as well: He saw Griswold itself. In all the cases we have discussed, and as a general proposition, the priestly judge and the prophetic judge are doing the same thing. They are answering a specific question. In so doing, they are interpreting. They are deciding whether someone has a right to do something, notwithstanding that the majority has declared that she (or he) does not. Both kinds of judges examine texts in order to answer a particular question that the parties to the dispute cannot agree on among themselves. Neither the priest nor the prophet says, “The answer to the question is such-and-so because that is the answer I prefer.” Rather, both the priest and the prophet say, “The answer to the question is such-and-so because that is the answer I believe the Constitution requires.”

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They arrive at different answers to the question precisely because they disagree about what the Constitution commands; and they reach different conclusions about what the Constitution commands because they do not attach the same weight or value to the Constitution’s sometimes conflicting ideals. The priest, haunted by the ghost of Alexander Bickel, and primarily concerned with offending the value of majoritarianism, tolerates nearly any intrusion into the I circle, as long as that intrusion represents the majority will. The prophet, on the contrary, while mindful of the normative force of majoritarianism, believes that the values of equality and liberty are as important to our legal culture as the concept that the majority rules. Insofar as the prophet’s belief is sound—insofar as liberty and equality are indeed on a par in our culture with majoritarianism—the solution to the countermajoritarian difficulty is the recognition that countermajoritarianism is not a normative problem. The actions of the majority are wrongful when they abridge the dynamic values of equality or liberty. Although there is no algorithm that can tell us when the majority has so transgressed, judges, exercising judgment, can. Excessive deference, however, or elevating majoritarianism over liberty or equality, is not the exercise of judgment. Rather, excessive deference is judgment’s surrender.44

NOTES 1. The passages come, respectively, from the Preamble, Article IV § 2, Amendment IV, Amendment IX, Amendment X, and Amendment XIV. 2. My major reason for avoiding a discussion of SOP issues here is that they do not necessarily create a countermajoritarian problem. SOP conflicts often pit the executive branch against the legislative branch. The perennial dispute between Congress and the president over the legality of the War Powers Resolution, which purports to place limits on the president’s ability to fight an undeclared war, is one example. The most famous example involved President Truman’s seizure of the steel mills during the midst of the Korean War, and whether Congress had disallowed Truman the power to exercise that seizure. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In these types of cases—where the president does or says one thing, and Congress does or says another—there is no obvious answer to the question of what the majority is saying or doing, because (in theory, at any rate) both the president and the Congress presumably represent the will of the majority. Consequently, when the Court rules for one of these branches against the other, the judicial branch is not necessarily thwarting the will of the majority. 3. The leading theorist of this period, and among the leading constitutional theorists of the past century, is Bruce A. Ackerman. See, for example, his The Storrs Lectures: Discovering the Constitution, 93 Yale L. J. 1013 (1984). 4. As many scholars have observed, the most significant legal development in the era of the Rehnquist Court was that the relative power of the federal government vis-à-vis the state governments shrunk dramatically. Under the Rehnquist Court, the

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federal government lost powers that it had held for decades. How lasting this effect will be is uncertain. 5. Elsewhere I have argued that the Supreme Court should not decide federalism cases at all, that these cases should almost always be left to the political branches for resolution. See Dow et al., Judicial Activism on the Rehnquist Court, 23 St. John’s J. Legal Comm. 35 (2008). One reason is that, unlike the typical SOP case, where it is difficult to say whether the judicial branch is siding with or against the majority, most federalism cases do replicate the countermajoritarian difficulty. The reason is that in most federalism cases, the states and the federal government are on the same side—that is, the states want the federal government to do what it is doing. To be sure, there are a small handful of cases where the states sue the federal government, invoking principles of federalism. Most federalism cases, however, arise not when one or more states sue the federal government but when some individual, who is not authorized to speak on behalf of any state, files suit. See, for example, U.S. v. Morrison, 529 U.S. 598 (2000), in which an individual prosecuted under the federal Violence Against Women Act sued to invalidate the act. In these cases, the Court’s decision to rule for the individual, and against the joint position urged by the federal and state governments, raises precisely the same concerns of judicial activism that arise in other contexts. 6. These three models are not entirely discrete. Some cases may involve both a rights model dimension and an SOP or a federalism dimension. When a given case implicates more than one model of adjudication, there may be no clear answer as to how a judge ought to act. The present focus, however, is exclusively on rights model cases, and there are many such cases. Choper has also argued that judicial review is appropriate in rights model cases, but not others (though he uses a different nomenclature). See Jesse H. Choper, Judicial Review and the Rational Political Process (1980). 7. I use the terms government and state interchangeably in this discussion of rights model adjudication. The issues and analysis are unaffected by whether the agency that is attempting to exercise power over an individual is the federal government or a state government. 8. Neither of these issues is logically prior to the other. In some cases, a judge might resolve the case by addressing solely the state’s authority to act; in others, she might resolve the case by focusing entirely on the individual’s right. In most cases, the question of government power is easier than the question of individual right. 9. Indeed, it is not clear that the concept of deference has any applicability at all outside the rights model context. In SOP cases, the Court is mediating a dispute between other branches of government. In federalism cases, the Court is ruling in a circumstance that pits one government (the federal) against another (the states). Hence, it is by no means clear that judicial action striking down a law in either of these contexts is countermajoritarian. 10. For a full discussion of the meaning of popular sovereignty, and the role it plays in American legal culture, see David R. Dow, When Words Mean What We Believe They Say, 76 Iowa L. Rev. 1 (1990), and sources cited therein. 11. The best discussion of the role that liberty plays in what I call the Idea of American law is Randy Barnett’s fine book, Restoring the Lost Constitution (Princeton 2005). For a broader, more sweeping view of what he refers to as liberation

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struggles from the sixteenth century forward, see A. C. Grayling, Toward the Light of Liberty (2007). The classic analysis of equality is probably Sidney Verba and Gary Orren, Equality in America (Harvard 2002). For a more skeptical analysis, a classic work is Peter Westin’s The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982). It should be added that Westin does not argue precisely that equality is unimportant, but instead that it is tautological, and that decisions that purportedly rest on this value in point of fact rest on some other value. A well-respected textbook that pivots on both these themes is Emily Rosenberg et al., Liberty, Equality, Power (Wadsworth 2004). Robert Dahl’s recent book, On Political Equality (Yale 2007), discusses equality in the United States in broad historical terms. Also invaluable is the collection of essays assembled by Neal Devins and Davison M. Douglas, Redefining Equality (Oxford 1998). I have also been educated by Larry S. Temkin’s magnificent book, Inequality (Oxford 1996). 12. The facts here are based essentially on those in Michael H. v. Gerald D., 491 U.S. 110 (1981). 13. Illegitimacy in modern times does not create the social stigma or the legal disabilities that it once did. At one time, however, illegitimate children—that is, children born to parents who were not married to one another—suffered significant legal and social repercussions. See, for example, Pickett v. Brown, 462 U.S. 1 (1982). 14. His daughter might also be a party to the suit and might argue that she has a right to have or maintain a relationship with her biological father. For the sake of simplicity, however, I analyze the issue as if Alan alone is suing. The daughter’s willingness or reluctance to sue could be a factor in evaluating the strength of Alan’s claim, but I set that factor to the side in the discussion that follows. 15. There is a wide variety of ways that one might define a more specific iteration of a general right, and there is no universal principle for conducting this exercise. For a lucid examination of this issue, see Laurence H. Tribe and Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057 (1990); Laurence H. Tribe and Michael C. Dorf, On Reading the Constitution (Harvard 2006). 16. Notably, the vision of constitutional architecture that Justice Douglas used to explain in Griswold why Americans enjoy a right of privacy (see Chapter 3) was the inverse of the way constitutional analysis ordinarily proceeds. For ordinarily, an individual insists that he has a right—say, a right to maintain a relationship with his daughter—and the role of the courts is to determine whether that specific right is contained in a more general constitutional principle. Justice Douglas realized that even the more general constitutional principles may themselves be subsets of still more general, yet unwritten, legal ideals. 17. As I have suggested, and will discuss further, there is both a physical as well as metaphysical aspect to determining which decisions lie inside the dotted line. 18. 491 U.S. at 127. 19. 491 U.S. at 142 (Brennan, J., dissenting) (emphasis added). 20. Eisenstadt v. Baird , 405 U.S. 438 (1972). 21. 405 U.S. at 453. 22. I discuss this point at greater length in David R. Dow, When Words Mean What We Believe They Say, 76 Iowa L. Rev. 1 (1990). The classic citation, of course, is Clifford Geertz, The Interpretation of Cultures (new ed. 1977). I have also found

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very useful Benedict Anderson, Imagined Communities (rev. ed. 2006), and Roy A. Rappaport, Ritual and Religion in the Making of Humanity (Cambridge 1999). 23. By “text” here I do not necessarily mean a written text; the “text” may be oral; in a preverbal society it might comprise pictures or drawings. 24. By recognizing that the Bible has played some role in the development of the American legal tradition, and therefore the Idea of American law, I do not want to minimize the difficulty of ascertaining precisely what that role is. A spate of scholarship in recent years, as well as more polemical arguments, are part of this analysis. For scholarly contributions, see, for example, Karen Armstrong, The Great Transformation (2006); Harold J. Berman, Law and Revolution (Harvard 2003); and Charles Freeman, The Closing of the Western Mind (2004). For more polemical but no less valuable works, see, for example, Sam Harris, The End of Faith (2004), Christopher Hitchens, God Is Not Great (2007), and Mark Lilla, The Stillborn God (2007). 25. Classic historical works that seek to understand the views of the framers as part of a historical process include Bernard Bailyn, The Ideological Origins of the American Revolution (Belknap 1967); Gordon S. Wood, The Creation of the American Republic (North Carolina 1969); Garry Wills, Inventing America (Doubleday 1978); Garry Wills, Explaining America (Doubleday 1981); Pauline Maier, American Scripture (Knopf 1997). 26. For example, Deut. 1:16–17, 10:18–19, 14:28–29, 15:1–18, 24:14–15, 25:13–16. 27. An excellent examination of the values in the Magna Carta, including the value of equality, can be found in Peter Linebaugh’s essay in the Boston Review, The Secret History of the Magna Carta, located at http://bostonreview.net/BR28.3/ linebaugh.html. 28. The famous phrase appears in chapter 13 of The Leviathan. 29. Pirke Avot 3:2. 30. For example, Leisy v. Hardin, 135 U.S. 100 (1880). 31. This idea is expressed, for example, in Moore v. City of East Cleveland, 431 U.S. 494 (1977). In many cases, the verbal formula used to describe legitimate state action includes protection of morals. I think that language is imprecise, and that the government does not have the authority to impose a moral orthodoxy. I discuss this concept to some extent in Chapter 6. My views are set out at length in How Many Spouses Does the Constitution Allow One to Have?, 20 Const. Comm. 571 (2004). 32. The decision protecting the right of the Nazis to march is National Socialist Party of America v. Skokie, 432 U.S. 43 (1977) (the case primarily involved a jurisdictional question, as well as an order staying a state court order that enjoined the Nazis from marching, but the free speech issue was central); the decision involving animal sacrifice is Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993). 33. The Nineteenth Amendment, which guarantees women the right to vote, was not ratified until 1920. 34. See Bradwell v. State, 83 U.S. 130 (1872), which I discuss in greater detail in the following chapter. 35. The famous end to this erstwhile form of discrimination came with the Supreme Court’s decision in U.S. v. Virginia, 518 U.S. 515 (1996), which upheld a female’s right to attend the prestigious Virginia Military Institute (VMI).

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36. 406 U.S. 205 (1972). 37. One reason many feminists were critical of Carol Gilligan’s classic work, In A Different Voice, is because of the perception that its thesis supported this very claim. 38. 539 U.S. 558 (2003). 39. 539 U.S. at 562. 40. 539 U.S. at 567. 41. In point of fact, the phrase “specific right” signals a controversial aspect of Justice Scalia’s approach, for the question of which iteration of a right is the most specific is controversial. Laurence Tribe and Michael Dorf have shown that there are various, equally specific, iterations of any given right, and identifying one of them as the appropriate focus in a particular case is not value-neutral. See Tribe and Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057 (1990). 42. 539 U.S. at 602 (Scalia, J., dissenting). 43. 539 U.S. at 603. 44. In this extended note, I want to identify the strongest counterargument to the thesis developed in this chapter. I also mention a wide variety of books and articles that I have found powerful, even if not always ultimately persuasive. There are three types of arguments against my defense of progressive judicial activism, two of which are more interesting and sophisticated than the third. The least interesting, and one I will not say very much about in this note, is an academic argument that rests primarily on the value of majoritarianism. There are many exemplars of this approach, some more sophisticated than others, but one need go no further than Justice Black’s opinion in Griswold or Justice Scalia’s in Lawrence to be completely familiar with it. Perhaps the most recent scholarly exposition of this view is Larry Kramer, The People Themselves (Oxford 2005). A recent symposium, with some positive but mostly negative assessments of Kramer’s work, is Symposium: Theories of Taking the Constitution Seriously Outside the Courts, 73 Fordham L. Rev. 1341 (2005) (with essays by Lawrence G. Sager, James E. Fleming, Abner S. Greene, Robert J. Kaczorowski, Aaron Jay Saiger, and Benjamin C. Zipursky). Judge Richard Posner has explicitly rejected the notion that judges are or can be our nation’s prophets. See Posner, The Problems of Jurisprudence 193 (Harvard 1990). In making this claim, Judge Posner claims to be disagreeing with Michael Perry’s claim that judges should be prophets. I do not think that Perry actually makes such a claim. Perry does talk about prophecy, as well as moral evolution, and he argues that, at least in human rights cases, prophetic review is required. In that sense, there are similarities between my argument and Perry’s, and Judge Posner’s critique could therefore be seen to apply to my argument as well. However, neither Perry nor Posner discusses specifically how the equality or liberty values counterbalance majoritarianism. See Michael J. Perry, The Constitution, the Courts, and Human Rights 97–110 (1982). Posner does indicate his awareness of Michael Walzer’s view of prophets of social critics, and he distinguishes that role from the role of judges. See Posner, The Problems of Jurisprudence, at 193. Only obliquely related to my thesis is Judge Posner’s argument that philosophy is irrelevant to adjudication. He developed this view in Richard A. Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637 (1998). An able rebuttal is Charles Fried, Philosophy Matters, 111 Harv. L. Rev. 1739 (1998). Fried’s own

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approach to constitutional law stresses coherence. See, for example, Fried, Saying What the Law Is (Harvard 2004). His approach recognizes the centrality of both liberty and equality, even if his understanding of these concepts differs from mine. See id. at 182–240. Of course, judicial activism involves interpretation, and among the most illuminating scholars of interpretation in the legal academy is Dennis Patterson. A nice overview is Dennis Patterson, Interpretation in Law, 42 San Diego L. Rev. 685 (2005). His discussions of Dworkin and Wittgenstein are also highly valuable. For example, Dworkin on the Semantics of Legal and Political Concepts, 26 Oxford J. Legal Studies 545 (2006), and Wittgenstein on Understanding and Interpretation, 29 Philosophical Investigations 129 (2006). An analysis more focused on interpretation in what I call rights model adjudication is Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. Rev. 63 (2006), and Matthew D. Adler, Rights Against Rules, 97 Mich. L. Rev. 1 (1998). Of the remaining two arguments, one is empirical, and the other is more conceptual. The empirical argument is that, historically, the Supreme Court has followed popular opinion, not led it. Under this view, the Court has not really even been prophetic for any sustained period of years. For example, the Court that repudiated Lochner and permitted the progressive politics of the New Deal was a Court that was well behind popular sentiment. More recently, the Court that protected state rights, and that found an individual right to gun ownership protected by the Second Amendment, has again been a Court that seems to be following, rather than leading, popular opinion. A thorough and nonideological historical view can be found in Kenneth D. Ward and Cecillia R. Castillo, The Judiciary in American History (SUNY 2005). In his superb historical treatment, The Myth of the Imperial Judiciary (NYU 2003), Mark Koslowski shows that the federal courts in America have been protecting individual rights—to use my terminology, policing the development of the LB and EQ values—throughout all of American history. On the other hand, Jeffrey Rosen, in The Most Democratic Branch (Oxford 2006), argues that in fact, most of the judicial “expansions” of the I circle have reflected what the majority already believed. There is much to be said for this view, and I do not entirely disagree with it. It is enough for me that the Court is at time prophetic, and that it has been prophetic at critical junctures in U.S. history. A nontendentious historical analysis can be found in Akhil Reed Amar, America’s Constitution: A Biography (Random House 2005). One who views the Court as an institutional follower, rather than a prophetic leader, is naturally less drawn to an activist Court. The most interesting and provocative defender of the view that the Constitution should be left for protection to political institutions other than the Supreme Court is perhaps Mark Tushnet. Representative work includes: Foreword: The New Constitutional Order, 113 Harv. L. Rev. 29 (1999); Tushnet, Taking the Constitution Away from the Courts (Princeton 2000); Tushnet, The New Constitutional Order (2003); Tushnet, Weak Courts Strong Rights (Princeton 2007). The conceptual argument against my position has been developed most forcefully in recent years by Jeremy Waldron, particularly in his provocative article, The Core of the Case Against Judicial Review, 115 Yale L. J. 1346 (2006). See also Waldron, Law and Disagreement (Oxford 2001). Waldron rejects the idea that the Supreme Court has any significant institutionally superior competence to identifying

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and protecting what I refer to as the values that comprise the Idea of American law. A recent and sophisticated counter to Waldron’s argument can be found in Richard H. Fallon, An Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693 (2008). Fallon’s defense is highly nuanced, but in my judgment, insufficiently vigorous, partly because Fallon seems reluctant to embrace two propositions, at least one of which is essential to a powerful defense of judicial activism. The essential proposition is that liberty and equality are at least as normatively weighty as majoritarianism. I do not sense from his defense that Fallon has accepted this claim. See, for example, 121 Harv. L. Rev. at 1698. The second proposition, perhaps not essential, is that a defense of judicial review may be irreducibly elitist. Fallon is certainly not ready to accept an elitist defense of judicial review. See 121 Harv. L. Rev. at 1697. I myself am comfortable with Jeremiah’s view, that some people have deeper insight into core legal values than others, and if that view is elitist, I am not uncomfortable with elitism. A weaker version of the Waldron thesis, developed most prominently by Cass Sunstein, is a contemporary embrace of Bickel’s passive virtues. This approach advocates narrow decisions and is motivated, it seems to me, by the same normative concerns that underlay Bickel’s approach. Much of his recent work revolves around this approach; it is illustrated by, for example, Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996). Like Bickel and Waldron, I think Sunstein overvalues democracy, or majoritarianism, at the expense of equality and especially liberty. Other recent and powerful work that also seems to me to suffer from this misweighing of the core values of American law includes Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. Am. Hist. 81 (1994); Michael J. Klarman, Civil Rights Law: Who Made It and How Much Did It Matter?, 83 Geo. L. J. 433 (1994); William N. Eskridge Jr., Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions, 64 Alb. L. Rev. 853 (2001); William N. Eskridge Jr., No Promo Homo: The Sedimentation of Anti-Gay Discourse and the Channeling Effect of Judicial Review, 75 NYU L. Rev. 1327 (2000); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996); Cass R. Sunstein, One Case at a Time (1999). Klarman has argued, correctly I think, that all modern constitutional theory is a response to the countermajoritarian difficulty. See Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747 (1991). Klarman’s title is a play on the title of a wonderful article by Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L. J. 1063 (1980). Klarman’s view is shared by Barry Friedman. See, for example, Friedman, The Politics of Judicial Review, 84 Tex. L. Rev. 2357 (2005), in which Friedman argues that the major failure of normative constitutional theory is that it is inattentive to what he refers to as “political” arguments, which are largely based outside the legal academy. Robert Post and Reva Siegel have analyzed the work of each of the three preceding theorists in their superb article, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007). Ironically, I think that Post and Siegel also overvalue democracy. A theorist who does not overvalue democracy, but who also does not, in my judgment, place sufficient weight on the historical growth of the liberty value is Jed Rubenfed. See, for example, Freedom and Time (2001). A superb collection of essays discussing many of these questions can be found in Larry Alexander, Constitutionalism (Oxford 2001). Although I do not share Ronald Dworkin’s approach to many constitutional questions, it is fair to say that he is the most sophisticated theorist of what can be

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called activist review. The one area where I think Dworkin fails is in his inattentiveness to the historical direction of basic constitutional values. He also, in my view, overvalues coherence. Representative work of his includes Taking Rights Seriously (new ed. Harvard 2007), Freedom’s Law (Harvard 1997), and Law’s Empire (Hart 2003). A recent tour de force that builds on Dworkin’s work is Sotirios A. Barber and James E. Fleming, Constitutional Interpretation (Oxford 2007). Also illuminating, and sensitive to the liberty value especially, is James E. Fleming, Securing Constitutional Democracy (2006). A defense of so-called activism that rests of the (elusive) idea of public welfare is articulated in Larry Yackle’s Regulatory Rights (Chicago 2008). If Dworkin is the leading proponent of the view that philosophy plays a crucial role in constitutional adjudication, one of the leading expositors of the content of that philosophy is Michael J. Sandel. See, for example, his Public Philosophy (Harvard 2005). I would also place Frederick Schauer in this category, though I suspect he would resist being so pigeon-holed. His recent analysis of the role that courts play in so-called policy making is a tour de force. Schauer, Foreword: The Court’s Agenda— and the Nation’s, 120 Harv. L. Rev. 1 (2005). I would also place Jed Rubenfeld in the “coherence” school of constitutional theory, and I learned a great deal from his Revolution by Judiciary (Harvard 2005) as well as Freedom and Time (2001). For an illuminating if mixed review of the former, see Brannon P. Denning, Brother, Can You Paradigm, 23 Const. Comm. 81 (2006). There are many sophisticated defenses of approaches to constitutional adjudication that I would characterize as priestly that are not entirely inattentive to liberty and equality, even if they fail to stress the role of the prophet is safeguarding these values. The most famous, aside from Bickel’s, of course, is John Hart Ely’s classic, Democracy and Distrust (Harvard 1980). More recent and especially noteworthy, in my judgment, are Paul O. Carrese, The Cloaking of Power (Chicago 2003), which looks to Montesquieu for a sort of judicial prudence. Adrian Vermeule’s Judging Under Uncertainty (Harvard 2006), which develops a theory of constitutional interpretation closely tethered to statutory construction. Akhil Amar’s theory of intratextualism, especially his fine book The Bill of Rights (Yale 2000), stresses majoritarianism over liberty. Also worthwhile are Cass R. Sunstein, The Second Bill of Rights (Perseus 2006), which locates critical constitutional content in the New Deal era; Lawrence G. Sager’s Justice in Plainclothes (Yale 2006); Frederick Schauer’s Playing by the Rules (Oxford 1993); almost anything by Richard A. Posner, including especially The Problems of Jurisprudence (Harvard 2007), and The Problematics of Moral and Legal Theory (Belknap 2002); and Philip Bobbitt’s classic, Constitutional Fate (Oxford 1984).

Chapter 6

CONTEMPORARY PROBLEMS FOR THE ACTIVIST JUDGE: RACE, RELIGION, SAME-SEX MARRIAGE, ABORTION, AND EUTHANASIA When I moved back to Texas from Connecticut in 1985, I got a dog, a sixweek-old female Doberman. I named her Whitney. I left her ears floppy. She grew to seventy-five pounds. We were together constantly. She went with me to the office during the day. She slept on the bed at night. For exercise she would run next to me while I rode my bike. When I grilled hamburgers for dinner, I’d grill a couple for her. One day, after she had just turned nine, she couldn’t stand up. I learned there was such a thing as canine oncologists, and Houston had a good one. He showed me on the x-ray a tumor on Whitney’s spine, right where the backbone was joined to the hips. Radiation therapy shrunk the mass, but it came back, and it came back even faster between the second round and the third. After the third round of treatment, the oncologist said there was no point to any more. The side effects—hourly vomiting, persistent diarrhea, recurring infections, constant dehydration—outweighed the benefits, which were less than zero. I started to wonder every day whether it would be the last, and when a dozen or so days had come and gone, I started to wonder how I would know whether it was the last. I talked to our veterinarian.

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He put his hand on my arm and said to me, “You will know when it is time.” I did not believe him. How would I know? What are the signs? But he was right. I did. She was eating almost nothing. One morning, after I helped her stand up to go outside in the morning, we came back in, and she could not sit down. She could not fold her back legs. I picked her up and placed her on her side, on a pillow on the couch. I held some food next to her mouth—leftover roasted chicken, her favorite—and she turned her head away. She slid off the sofa, struggled to get to her feet, and again could not lie down. She looked at me, and it was time. There was no doubt. If you have never had to do this, you’re lucky, and it means you might or might not understand what I am saying here. If you have, you know exactly what I mean. When she died, I was with her, along with my wife, who was not yet my wife. We stroked her head as the doctor inserted the IV and pressed the plunger. I looked into her eyes, my cheek against her cheek, until those eyes had no life left. My wife’s right hand rested on my shoulder, her left rubbed Whitney’s ear. The moment was crushingly sad and oddly beautiful, all at once. We were ending the suffering of a being that could not end it herself. It was three months to the day before Whitney would have been ten years old. Three years later my father-in-law died from melanoma that had metastasized to his liver, lungs, and brain. Peter suffered through three rounds of chemotherapy, surgery to remove 65 percent of his liver, and two more operations to slice out tumors from his brain. He was an avid outdoorsman who had hiked, camped, and kayaked all over the world. Eight months before he died, not yet sixty years old, he could not walk a hundred meters without resting. Then he could not walk at all. For the last three weeks of his life, he could not speak. He lay all day and all night on a hospital bed that the hospice had provided. We rolled it into his living room so he could look out the window at the lake, if he was aware of the lake. His wife would feed him soup, which would dribble down his chin. We played Mozart or Bach on the stereo. I read him Rilke poems and Wallace Stevens. His daughter, my wife, talked to him about things they had done together twenty years before. His wife mostly sat next to him and held his hand. I have no idea whether he understood a word we said. His eyes were distant and blank. He neither smiled nor frowned. He had lost control of his bowels, so he wore adult diapers. One day, he seemed embarrassed when I had to help his wife change one, but it might have just been the way the light reflected off his vacant eye. He had never talked to a doctor about dying with dignity or asked us to help him die, because in Texas that is against the law, and while he was cognizant, he was a law-fearing man. John Stuart Mill said somewhere that it’s better to be an unhappy Socrates than a satisfied pig. That might be true, but it still would have been better for my father-in-law to have had the option for himself that I had for Whitney.

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The question I am interested in here, among others, is whether the better option is safeguarded by the Constitution. If we may euthanize our pets, don’t we have a right, a liberty interest, in ending our own lives? Isn’t our power over our own bodies at the very center of the I circle? With all our current medical knowledge, hasn’t the L circle grown to encompass end-oflife decisions? Or may the majority enact restrictions that limit our freedom to die with dignity? I am interested in identifying the prophetic approach to questions like these. My argument will be based on three premises: first, that the Idea of American law emerges from a conjunction of majoritarianism, the liberty value, and the equality norm; second, that all these values have consistently expanded over the course of American history (and that this expansion is itself part of the Idea of American law); and third, that the role of prophets is to see before others do how these values have expanded into realms of life and conduct from which they were previously absent. I examine the prophetic approach to five contemporary issues that provoke significant controversy: religion, same-sex marriage, abortion, assisted suicide, and affirmative action.

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It is a fact of some irony that I am arguing that Supreme Court justices ought to act as prophets while also maintaining that they ought not to base their judgments on religious texts.1 This particular irony pervades the Supreme Court’s religion jurisprudence. In a memorable line, Justice William O. Douglas, author of the Court’s opinion in Griswold, wrote: “We are a religious people whose institutions presuppose a Supreme Being.”2 This is a peculiar claim. Atheists can believe in democracy as much as Christians. Nevertheless, the line has proven popular. The Supreme Court quoted it when it upheld the legality of a public display of the Ten Commandments in Texas,3 when it ruled that state legislatures could legally open their sessions with a prayer,4 and when it upheld the granting of tax exemptions to religious institutions.5 At the same time, the Court also quoted it when the Justices struck down mandatory prayer in the public schools,6 and Justice Scalia quoted it when the Court struck down the public display of the Ten Commandments in Kentucky.7 When the Court upheld a law that required businesses to close on Sundays, Justice Douglas quoted his own line in dissent.8 He later elaborated: The Constitution permits religion to be “an active force in our lives,” but if it is to occupy such a role, the impetus for its presence must be “done by individuals and groups, not by the Government.”9 How could so simple and straightforward a sentence be put to such competing uses? If Justice Douglas’s assertion supports the public display of the

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Ten Commandments in Texas, how can it simultaneously preclude a similar display in Kentucky? The answer is that the liberty value and the equality norm can at times tug in opposite directions. To some extent, this tension can be minimized, but only if the justices address it directly. Yet the Supreme Court’s cases in the area of religion are incoherent because the Court has not taken care to ameliorate the tension; the Court has not yet stated that the liberty value prevents the government from intruding on our private decision making, while the equality norm prevents the government from treating us differentially. One of the Court’s most famous religion cases reveals this confusion starkly. In the early 1980s, Stephen Brown was the executive director of the Rhode Island affiliate of the ACLU.10 One day he received an anonymous phone call from a woman who lived in Pawtucket, Rhode Island. She was offended by the nativity scene in a Christmas display that the city of Pawtucket had erected. Brown approached Daniel Donnelly, another Pawtucket resident and a member of the ACLU, and asked him to consider being the plaintiff who filed the suit challenging the legality of the display. Eight days before Christmas he did. He, along with several other co-plaintiffs, asked a federal court to order that the city take the display down. One of the defendants, Pawtucket mayor Dennis Lynch, reacted to the lawsuit by saying, “Every Christmas needs a Scrooge, and the ACLU is the Scrooge this year.” Eventually the case of Lynch v. Donnelly11 reached the Supreme Court. Quoting Justice Douglas’s line from Zorach—that we are a religious people— the Court, by a vote of five to four, ruled that the city could maintain the display. The majority referred to the views of the framers of the Constitution, and to actions of presidents, proclaiming Thanksgiving, for example, as a national holiday. For the majority, the government for centuries had engaged in conduct that was akin to the erection of a crèche scene; therefore, Pawtucket’s conduct was permissible. The syllogism was simple: Because such things had long been done, they could still be done. Justice Sandra Day O’Connor agreed that the crèche could stay, but she approached the issue differently. Her answer to the question, in my judgment, was wrong, but her approach to the question was prophetic. She understood that the world had changed and that change had to be assessed through developing values of liberty and equality. There is more religious diversity in the United States today than in any other nation in human history. But it has not always been so. In 1789, when the Constitution was ratified, there were only a comparative handful of recognized religious groups in the United States. Protestants comprised more than 90 percent of the population. Catholics made up less than 2 percent. Jews and others made up the rest.12 Beginning in the second half of the twentieth century, however, the number of religious groups exploded. By the beginning of the twenty-first century, there were more than 2,300 religious

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groups in the United States that could claim at least 2,000 members.13 To be sure, more than 80 percent of religious Americans identify themselves as Christian, but there are more than three million Jews, more than a million Muslims, more than a million Buddhists, and nearly a million Hindus. Combined, there are two million atheists and agnostics, and thirty million who identify themselves as secular.14 In a typical American city, therefore, a Christmas display will mark a holiday that plays no part in the religious traditions of more than two out of ten citizens and that many more do not observe. Confronting Pawtucket’s Christmas display, Justice O’Connor said: “What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.”15 This sentence contains two important ideas, one explicit, the other less so. The explicit claim is that government actions communicate messages; therefore, assessing the permissibility of conduct demands that the content of the messages also be examined. Second, and less explicitly, Justice O’Connor understands that the legal issue in the case does not involve liberty; instead, it involves equality. The question is not whether the 80 percent of the population in Pawtucket who celebrate Christmas may do so. Of course they may. The question is whether the government treats its citizens unequally when it endorses a religion that many, but not all, observe. Justice O’Connor realized that when the government engages in religious ritual or builds a religious display, it “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”16 In short, it treats nonadherents unequally. In dissent, Justice Brennan made the same claim: When a city so openly promotes the religious meaning of one religion’s holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status.17

Even though they did not expressly treat the case as involving the equality norm, both Justice O’Connor and Justice Brennan (as well as Justices Marshall, Blackmun, and Stevens, who joined his dissent), understood that the legality of the Christmas display implicated the equality value. This was a critical and important insight that is often unappreciated in contemporary debates over the role of religion is our society. Opponents of overt religious displays—such as those who seek to prevent the public display of the Ten Commandments, or those who seek to prevent public prayer—are not interfering with anyone’s liberty to do as he or she believes in his own personal

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space. Anyone can say a prayer at any time in any place. Anyone can display a crèche in her front yard. Cases like Lynch v. Donnelly, therefore, or cases challenging the inscription “In God We Trust” on coins, do not involve the liberty strand of the Idea of American law. They deal with equality. The critical observation that lies at the heart of challenges to public expenditures on religious enterprises or religious displays is that not everyone shares the majority’s religious sensibilities, and it therefore violates the equality principle for the government to spend money participating in the majority’s rituals, or to communicate the message that it shares the majority’s beliefs. Religious Americans have a liberty right to practice their religion, free from government interference. At the same time, nonreligious Americans, or Americans who practice a minority religion, have a right to be treated equally, and the right to equal treatment means that the government cannot take steps that appear to endorse the majority’s religious preferences. This restriction is less potent than it might appear. It means the government cannot build holiday displays, or begin government sessions by offering a prayer in Jesus’s name, or give financial support to religious institutions, but it does not prevent the majority from making moral choices. The majority can choose to retain capital punishment, which is obviously a moral choice. It can choose not to pay for abortions for poor people overseas. It can refuse to fund stem cell research. All of these positions reflect moral choices, but the embrace of any one of these moral viewpoints is not distinctively tethered to a particular religion, or, indeed, to religion at all. There are Jews, Catholics, Protestants, Muslims, Hindus, and atheists who support capital punishment, for example. To be sure, certain moral choices may infringe on an individual’s right to be free from government restraint—that is, certain morally inspired laws may unconstitutionally intrude into the I circle. As we discuss shortly, laws prohibiting assisted suicide may fall into this category. But laws are not inherently unconstitutional simply because they reflect a moral point of view. The equality circle prohibits only some moral choices. If the majority chooses to characterize proponents of stem cell research as murderers, it may do so, however unwise that choice. But it cannot make Jews or Muslims feel like outsiders, simply because they do not celebrate Christmas. So is it a fair criticism to call the minority members who are made to feel like outsiders “Scrooges,” as Mayor Lynch of Pawtucket called them? The answer, I suggest, is no. These people might be crazy. They are certainly outliers. But they aren’t Scrooge. In fact, the Idea of American law could not survive without them.

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Daniel Donnelly was undoubtedly peculiar. He was willing to suffer the calumny that would predictably follow his lawsuit to force the removal of a

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holiday display. Yet it is important to recognize that many people who challenge the status quo are peculiar. Take, for example, Myra Bradwell. Bradwell wanted to be a lawyer. Unfortunately for her, she lived in Illinois at the time when Illinois did not permit women to be lawyers. The majority in her state had decided that drivers should stop on red lights and go on green, that children under the age of sixteen must attend school, and that women should be schoolteachers or stay at home and raise the children—under no circumstances, should they defile themselves in the rough-and-tumble world of the practice of law. But Myra Bradwell marched to the beat of her own drummer. She wanted to be a lawyer, and she believed that the majority was interfering with her liberty—her freedom to do as she pleased—in a manner that was morally offensive and, perhaps more important, unconstitutional. So she sued. The law that Bradwell challenged could be viewed as violating either the liberty or equality value. All laws that violate either of these norms have a common feature: Either the majority supports the infringement, or the majority simply does not notice it. In Bradwell’s case, most citizens of Illinois either believed that women should be kept from practicing law, or they were unaware of this restriction, or they did not think of the issue as terribly important. We should pause to take notice of this critically important fact: Laws that violate the equality or liberty principles are, at least initially, supported by the majority; that is why they are enacted. Even if, over time, people change their minds, so that a majority no longer supports the offensive law, most people will still not care enough about the infringement do anything about it. In addition, most people are simply not affected by the infringement, and so it is understandable that they do not notice it. Regardless of whether Myra Bradwell prevailed, most people in Illinois, including most women, would go about their lives as they had before. They might celebrate her victory (if she won), a few might apply to law school, but most would do the same things the day after her win as they had done the day before. Major constitutional developments matter a great deal, but not in a way that we necessarily notice on a day-to-day basis, because most profound legal developments do not directly and immediately affect the lives of most people. The direct impact of most major constitutional decisions on any given individual is trivially small. Roe v. Wade is one of the most talked about decisions in legal history, but the number of women directly affected by that decision is small.18 Any case involving freedom of speech, such as the decision in Johnson v. Texas to permit flag-burning, or any case involving freedom of religion, such as the Court’s decision in 1993 to permit live animal sacrifice,19 directly and immediately influences the lives of only a small number of Americans. But we cannot judge the importance of these decisions simply by that criterion. Americans have a constitutional right to watch pornography, but most Americans won’t regularly do so, and many never will. We have a constitutional right to engage in homosexual sodomy, to have an abortion, to burn a flag, to be represented by a lawyer in a criminal proceeding even if we cannot

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afford one. Most of us will take advantage of none of these protections. But the distinguishing feature of our legal culture is that we can. You might not care about gay marriage or abortion, but there is probably something you would want to be able to keep doing—going to church, reading People magazine, watching the History channel—regardless of whether the majority thinks you ought to. The relationship among these issues is indirect, but powerful. That is, whether two gay men have a right to marry one another will influence whether you have a right to watch the History channel because the method used to answer the former question will be the same method used to answer the latter. In both cases, the question is whether the control you want to exert over your own life is within the I circle that is part of the core of the Idea of American law. When the Supreme Court identifies a new right, or (more precisely) a new example of conduct that is protected by an existing right, some people’s lives will change. To them, these developments matter profoundly, directly, and immediately. To the rest of us, they matter, but somewhat more abstractly. Understanding why a rule or principle matters, therefore, often requires an act of imagination. It was precisely at this point in her opinion in Lynch v. Donnelly that Justice O’Connor failed. She had framed the constitutional inquiry as focusing on whether the city’s erection of a crèche communicated the message to non-Christians—or even to Christians who opposed the public display—that they were outsiders. She wrote: The central issue in this case is whether Pawtucket has endorsed Christianity by its display of the crèche. To answer that question, we must examine both what Pawtucket intended to communicate in displaying the crèche and what message the City’s display actually conveyed.20

She then concluded that the city had not intended to endorse Christianity, and that conclusion is probably sound. But she also insisted that the display did not in fact convey an impermissible message. Analogizing to statements like “God Save this Honorable Court,” Justice O’Connor reasoned: “The display of the crèche likewise serves a secular purpose-celebration of a public holiday with traditional symbols. It cannot fairly be understood to convey a message of government endorsement of religion.”21 In this passage, Justice O’Connor confused intent with effect. The city almost certainly did not intend to make anyone feel like an outside, but Christmas is not a “public holiday.” Non-Christians do not celebrate it. To be sure, the ubiquity of its symbols can cause one not to notice their religious significance, just as the ubiquity of race discrimination or the ubiquity of restrictions on the professional opportunities for women can cause people not to notice the presence of these laws. That is precisely why the judge as prophet must step outside herself, and Justice O’Connor did not do that. Judges are invariably part of

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the majority. They achieve their position because they are part of the mainstream. No judge would ever burn a flag or a draft card. Like priests, they are drawn from the ranks of the powerful. Their most difficult job, therefore, is to engage in an act of the imagination and try to understand how someone very different from them is affected by an intrusive law. One fact of importance to keep in mind, therefore, as we consider types of conduct that you might have no intention of engaging in, is that most important legal developments do not directly and immediately affect most people, so understanding why they matter requires that we engage in a leap of imagination. There is another fact worth noting: Law develops because of oddballs and radicals. Many women before Myra Bradwell might have wanted to be lawyers, but none assertively tried to do something about it. Many blacks before Rosa Parks might have chafed at having to sit at the back of the bus, but none sat down in the first available seat. It takes an unusual combination of courage and idiosyncrasy to instigate legal change. The Chinese who stood in front of tanks in Tiananmen Square were radical. So were America’s founders. To initiate legal change, you have to be different, you have to care deeply about that difference, and you have to be willing to endure ostracism and abuse as you seek to defend that difference. Few people possess all three of those characteristics, but constitutional law develops at their instigation. Liberty and equality have grown over time, but these boundaries did not move by themselves. People pushed them. And pushing was necessary because the majority had enacted restrictions that only some few found wrong or that only some few noticed. If your parents were born before 1954, they lived in a society where it was legal to separate blacks and whites, and they probably did not take to the streets in protest, even though, if pressed, they might well have agreed that such racist laws were wrong. Our legal history shows that the liberty and equality circles have expanded over time, but our cultural history reveals that, for long periods, well-meaning citizens have accepted as normal laws and policies that we later understand to be appalling constitutional violations once someone finally says, “I have a right to be free from what the majority is doing to me,” and that simple declaration sets in motion profound constitutional change.

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Every generation has its central civil rights struggle. Two generations ago, the issue was race. Last generation, the issue was gender. We have not eradicated either race or sex discrimination in our society, and the struggles of our parents and grandparents go on. Yet whereas neither race nor sex discrimination is fashionable any longer, whereas no one could get elected to high office, for example, by saying that blacks should ride in separate railroad cars

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or that women should stay home and mind the children, discrimination against gays and lesbians is still commonplace. It is still socially acceptable. Politicians do not lose many votes—they may actually win votes—when they say that homosexuality is a sin or an abomination, or when they assert that permitting two men (or two women) to marry is immoral or somehow erodes the social order, or that gays should not be permitted to adopt. The gay rights movement is the civil rights issue of the current generation. Both the equality norm and the liberty norm compel equal treatment for gays and lesbians. Laws prohibiting same-sex marriage, policies permitting discrimination in the armed forces, and all other vestiges of discrimination based on sexual orientation are unconstitutional. This issue is the most important civil rights issue we face today. Priestly judges ignore history, and because they do, history treats them unkindly. Joseph Bradley is a case in point. He wrote the opinion when the Supreme Court upheld the Illinois law that Myra Bradwell had the courage to challenge. Appointed to the Court by President Ulysses Grant in 1870, Justice Bradley wrote an opinion in the Bradwell case that generations of law students have mocked. Defending the proposition that the I circle did not encompass the right of a woman to practice law, this is what Justice Bradley said: The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . . It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.22

Like the quintessential priest, Justice Bradley reflected existing norms and assumed that the way things have been is the way things are. He decided whether someone has a right by asking whether the majority had already recognized that right, rather than acknowledging that the core values that define our legal culture are dynamic and may expand faster than the majority recognizes. Although it is easy to mock Bradley’s quaint language, it would be a mistake to conclude that the Justice Bradleys of our society were confined to a

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prior era. The signature feature of his opinion in Bradwell—that a contemporary restriction on individual liberty is constitutionally tolerable for the mere reason that the majority has long imposed the very restriction—is the same trope that is used to deny gays and lesbians equality and prevent terminally ill individuals from taking control over their final days. In 1986, for example, the Supreme Court decided Bowers v. Hardwick,23 one of the most discussed cases of the past fifty years.24 Michael Hardwick was a bartender at a gay bar in Atlanta. He had gotten a ticket for consuming alcohol in public, a crime in Georgia, and had not appeared for his court date. Authorities showed up at his home to serve a warrant, and found Hardwick having sex with another man. Police arrested both men. Though the prosecutor dropped the charges, Hardwick sued anyway, arguing that the very threat of prosecution interfered with his rights within the I circle to control his own body. Griswold had been decided nearly twenty-five years before. Griswold’s recognition that the Constitution (and the I circle in particular) contain a right of privacy had generated a long line of decisions, including Roe v. Wade; these decisions certainly seemed to suggest that the very core of the I circle contains the rights to control one’s own body, and to decide how and with whom to have consensual sexual activity. The first thing the Court had to do, therefore, if it was to uphold the Georgia law was to redefine the meaning of the liberty value and the content of the I circle. And that is exactly what the Court did. Justice Byron White’s majority opinion began by rejecting the proposition that the line of cases beginning with Griswold had placed decisions relating to private sexual conduct within the core of the I circle, thereby making them immune from majoritarian regulation. Instead, according to the Court, Griswold and its progeny dealt with “family, marriage, [and] procreation.”25 Like Justice Bradley in Bradwell, who vested with decisive legal significance the fact that gender roles had extremely deep roots, the Court in Hardwick upheld the law that criminalized homosexual sodomy precisely because criminal prohibitions on homosexual activity had been in place for hundred of years. Proscriptions against that conduct have ancient roots. . . . Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.26

Hardwick claimed that he had a right of privacy that allowed him to have consensual sexual activity with another person, even when that person happened

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to be, like him, a male, and the Supreme Court majority characterized this claim as “facetious.” Rather than seeing liberty as an expanding concept, capable of protecting conduct and personal decisions that the political majority was not yet ready to protect, the Court in Hardwick saw its job as mirroring the beliefs of the people. Whereas a prophet like Amos would tell the people that their conduct was not in accordance with the values that defined their culture, the priestly justices in Hardwick lacked Amos’s vocabulary. The justices could not tell the people of Georgia that they were betraying the fundamental Idea of American law, because, in their view, that Idea, if it existed at all, was defined by the people themselves. Hardwick elevates majoritarianism above all other values. As Chief Justice Burger’s concurring opinion concluded: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”27 Bradwell and Hardwick differ in an important way. Bradwell centered primarily around the equality principle, while Hardwick dealt mostly with the liberty value. In both cases, however, the Court denied an individual’s claim of constitutional right because popular opposition to that right was deep and broad. The Court reasoned that neither Myra Bradwell nor Michael Hardwick had a constitutional right to engage in the conduct that she or he wanted to, because the majority’s denial of the existence of that right had extremely deep roots. In Bradwell’s case, gender divisions were deeply entrenched; in Hardwick’s case, enmity toward homosexual conduct was consistent and strong. The Court made no effort in either case to see whether the Idea of American law had developed in such a way as to preclude majoritarian action that had formerly been permissible. Quite the contrary: The Court concluded that the consistency of the majority’s conduct negated the possibility that either Bradwell or Hardwick had a right to be free from that conduct. In both cases, the Court delineated the content of the I circle by asking what content the majority had placed there. The Court was not interested in how the liberty value had grown, or in how that growth had packed more and more individual decisions into the core of the I circle. In contrast, although the prophetic judge would have begun by asking the same questions—Does Michael Hardwick have a right under the liberty clause, or pursuant to the equality norm, to engage in homosexual sodomy? Does Myra Bradwell have a right under the liberty clause, or pursuant to the equality norm, to practice law?—that judge would have consulted different sources in search of the answer. Cognizant of the historical growth of the I circle, prophetic judges examine whether the definition of liberty has sufficiently expanded such that the law enacted by the majority is no longer valid. By the time of Bradwell’s suit, women could no longer be viewed as property of their husbands. By the time of Hardwick’s suit, proscriptions against homosexual conduct had already been unmasked as naked moral preferences.

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An approach that overvalued majoritarianism had no alternative but to uphold these forms of discrimination, but the prophetic method permitted the conclusion that even a practice with the deepest possible roots had become impermissible. Had the Court approached constitutional questions in the 1950s in the same way it did in the Bradwell and Hardwick decisions, blacks and whites would still be eating lunch at separate counters. Indeed, contemporary arguments against same-sex marriage mirror arguments against racial intermarriage put forward less than half a century ago.

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We accept uncontroversially the proposition that the government may place restrictions on an individual’s right to marry. If my wife and I had wanted to get married for a period of, say, ten years, instead of making a lifetime commitment, we would not have been permitted to get married on our preferred terms; the state of Texas (like all other states) said to us: It’s all or nothing. States also restrict whether cousins can marry one another, and they place limits on how young one may be before agreeing to betrothal. In 1967, there were sixteen states that enforced another limitation as well: They prohibited whites from marrying nonwhites, and vice versa. In Virginia, legal restraints on miscegenation were as old as the state itself. Black slaves were imported into Virginia in 1619, twelve years after the first settlement at Jamestown. Legal records reveal that, beginning around a decade later, whites were punished for having sex with black women. In 1630, a Virginian named Hugh Davis was “to be soundly whipped . . . for abusing himself to the dishonor of God and shame of Christians by defiling his body in lying with a Negro.” Davis confessed to the “sin” on the following Sabbath. By 1691, the colony had enacted a statutory prohibition on racial intermarriage.28 If a practice gains legitimacy from mere longevity, the practice of prohibiting racial intermarriage was well inured by the middle of the twentieth century. Mildred Jeter, who was of black and Indian ancestry, and Richard Loving, who was white, fell in love in 1958 and wanted to marry. To evade Virginia’s Racial Integrity Act, the two drove to Washington, D.C., where they wed. When they returned to their home in Virginia, they were arrested for violating the act. They were convicted and sentenced to a year in prison, with the opportunity to have the sentence suspended if they agreed to leave the state. Judge Leon Bazile offered a defense of the act that was reminiscent of Justice Bradley’s defense of the Illinois law that kept women from the bar. According to Judge Bazile: Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his

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arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.29

Defenders of the law said two things on its behalf. First, the statute did not discriminate against any group; it treated whites and nonwhites alike. White people could not marry black people, but neither could black people marry white people. Hence, because the law treated everyone the same, it did not violate the equality norm. Second, the law rested on and reflected a fact of nature: that blacks and whites are different. The law did not create this difference; it simply took it into account. Some seventy years before, a similar argument came forth from Louisiana. The state had a law that required blacks to ride in separate train cars from whites. Like Virginia’s antimiscegenation law, the Louisiana statute had a formal symmetry: Blacks had to ride in cars reserved for blacks, while whites had to ride in cars reserved for whites. Everyone was treated the same. The Supreme Court, in one of its more infamous decisions, accepted this argument and upheld this statute. Justice Henry Brown wrote the majority opinion in Plessy v. Ferguson. According to Justice Brown, the law did not violate the equality principle because it treated blacks and whites equally: Members of both groups could ride in their own car, and only their own car. There was a certain logic to the majority’s argument, but it was obviously wrong. The law’s symmetry made it appear to be consistent with the equality value, but we intuitively understand that it wasn’t. Why? As we saw previously, a single dissenting justice, John Marshall Harlan, knew the answer. Justice Harlan did not dispute that as a formal matter, the law placed restrictions on both blacks and whites. At the same time, he took notice of the obvious. Everyone knows, Justice Harlan said, that the purpose of the law was to keep blacks out of the white cars, and not vice versa. Like Justice O’Connor in Lynch, Justice Harlan was interested in the meaning or idea that is communicated by a law. The message that lurked behind the law’s formal symmetry was that blacks should be kept in their own car, out of that in which the whites were riding. Justice Harlan was right, of course, but his opinion was a dissent, and the doctrine of “separate but equal” was established. Fifty-eight years later, in Brown v. Board of Education,30 the Supreme Court repudiated this doctrine. Oliver Brown worked as a welder for the Santa Fe Railroad. He lived with his family in Topeka, Kansas. Kansas, like sixteen other states, allowed local school boards to assign pupils to schools on the basis of their race.31 A religious man (he was an assistant pastor at his church), Brown filed a lawsuit on behalf of his elementary-school-aged daughter, Linda. Brown’s suit, along with similar suits from four other states, argued that the educational opportunities provided to black students were not equal to the opportunities provided for whites. In fact, the data from segregated

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states supported that claim. Per pupil expenditures in Clarendon County, South Carolina, for example, were four times as great for white students as for blacks ($179 versus $43).32 It would have been possible, therefore, for the Supreme Court to have clung to Plessy’s concept of formal symmetry and simply to have ruled that segregated states had to spend roughly equal amounts of money on black schools and whites schools. Instead, the Court made a radical break with history. It held that the mere use of race as an assignment criterion inherently violated the equality norm. Although the roots of discrimination were deep, and although the practice of race discrimination remained broadly in effect at the time of Brown, the justices dismissed the argument that formal equality would satisfy the equality norm or that the depth of discrimination’s roots insulated it from constitutional attack. They understood that the purpose of the Kansas law (and laws like it) was not to keep whites out of the black schools; it was to keep black students away from the white schoolchildren. The purpose of all segregation was to keep the blacks away and subordinate, and that purpose had legal significance. Such laws embodied the majority’s animus toward blacks; they implied that blacks were inferior; these laws inflicted stigma. Formal equality could do nothing to eliminate the message of inequality inherent in these laws. A more extreme historical example can underscore the soundness of the Supreme Court’s attention to the unspoken message inherent in the written law. Nazi Germany required that Jews wear a yellow Star of David on their clothing. This law, which exemplified Nazi anti-Semitism, would not have been less anti-Semitic had the Nazis also required Aryans to wear a swastika. Formal equality does not neutralize insidious or hateful notions. The Justices in Brown finally caught up with what Justice Harlan had known decades before: that formal equality matters, but so, too, do the messages and subtexts of legal requirements. The concept of equality that forms part of the Idea of American law means that the government is not allowed to communicate certain ideas. It cannot say that blacks and whites should be separated. Virginia’s law prohibiting racial intermarriage was therefore unconstitutional for the same reason that the Kansas law sending blacks and whites to separate schools was unconstitutional: because both statutes communicated the same message that blacks ought not to mix with whites. And it was precisely this message that offended the equality norm.

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As legal concepts, equality and liberty overlap significantly, but they are distinct, and at times, they are in conflict. Equality applies primarily to groups. Liberty applies primarily to individuals. Someone who makes an equality-based

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claim says, “I am a member of this group, and the state is not permitted to treat this group differently from how it treats that group.” A woman who wants to be a lawyer, for example, might say, “The majority cannot treat men differently from how it treats women when it comes to dispensing license to practice law.” In contrast, liberty claims do not depend on differential treatment of various groups. Generally, when the state invades liberty, it invades many people’s liberty, even though only some people will mind. Someone who makes a liberty-based claim says, “The state is not permitted to restrict an individual’s freedom, including mine, in this way.” This difference between the group-based nature of the equality value and the more individual-rooted liberty value signals a difference in how the majority responds to claims based on these discrete values. When someone charges the majority with violating the equality norm, the majority is apt to say, “But the groups are in fact different, and that difference warrants the differential treatment.” Justice Bradley’s opinion in Bradwell epitomized this appeal to “real” differences. Women, he said, are different from men, and that difference means that the majority’s decision prohibiting women from practicing law is permissible. In contrast, when someone charges the majority with violating the liberty value, the majority will say, “But the activity being regulated is harmful, and the government can legitimately prohibit harmful conduct.” Laws that criminalize homosexual activity or prohibit same-sex marriage exemplify this justification, and the Supreme Court’s review of such limitations was typified in the case of Michael H. v. Gerald D., where the justices accepted the majority’s ostensible belief that safeguarding an adulterous father’s right to maintain a relationship with his biological daughter would injure the family unit and, therefore, society as a whole. Obviously, many constitutional rights implicate both the equality and liberty values. Myra Bradwell could object to the differential treatment of men and women in Illinois, or she could simply assert that she had an individual right, located at the very core of the I circle, to pursue a calling of her choosing. A gay couple who wants to marry might say that the state is violating the equality norm by permitting heterosexual couples to marry but forbidding same-sex couples from doing so, or the couple might argue that the state is interfering with their liberty interest to exercise control over the intimate details of their lives. State laws that restrict individual freedom can violate the equality norms and liberty norms simultaneously, but the state’s justifications for interfering with these norms will differ. When it violates the equality norm, the state insists that its laws are simply acknowledging or reflecting real differences; when it interferes with liberty, the state insists that the conduct it is regulating or prohibiting is harmful. Prejudice and animus, however, find convenient refuge in both these forms of response. When the majority says that real differences—between (for example) women and men, or between whites and blacks—justify laws that

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take these characteristics into account, or when the majority says that certain actions—a relationship (for example) between an adulterous father and his biological daughter, or consensual sexual activity between two men—create social harm, the majority may be doing nothing more than dressing up its biases with a patina of rationality. To be sure, some differences are real; some conduct is harmful. The role of the judge is to hold the majority’s explanation up to scrutiny, and this can require telling the majority that it is being dishonest. It can require telling the majority that beneath the veneer of rational justification, there is naked prejudice. Over the past several years, much has been made of the similarities, and differences, between laws that prohibited racial intermarriage a generation ago and the contemporary prohibitions on same-sex marriage. Commentators have discussed whether discrimination against homosexuals is like discrimination against blacks and women, or whether it is different. Opponents of same-sex marriage have suggested that if such unions are legalized, polygamy will come next, while proponents of same-sex marriage have sought to draw a distinction.33 These are big questions. I am more interested in identifying three smaller issues. The first is that at each moment in American history, when the concepts of equality and liberty that together make up the Idea of American law have expanded noticeably, people who opposed the expansion have dug in their heels and struggled to build walls so as to create areas into which that expansion could not encroach. The second is that same-sex couples are not treated equally when there is only formal equality, just as blacks were not treated equally under the regime of Plessy. Third, the claim that unequal treatment is justified in order to protect against moral decay is a bogus claim that seeks to clothe mere prejudice with a veneer of reason. First: Resistance is the norm. Mildred Jeter and Richard Loving prevailed in their suit in 1968, but Virginia did not cease requiring people to identify their race on divorce decrees until 1975. Delaware and Arkansas, which had antimiscegenation laws of their own, continued to enforce them even after the Loving decision until federal courts intervened.34 When the Florida Supreme Court issued an order to the Dade County clerk, directing him, following the decision in Loving, to issue a marriage certificate to an interracial couple, two of the seven justices on the state court dissented—defying the authority of the Supreme Court and clinging to their racist view that laws prohibiting interracial couples were fine. Ten years after Loving, voters in Tennessee finally voted to repeal that state’s antimiscegenation statute—by the scandalously close vote of 199,000 to 191,000. Historically, as the concepts of liberty and equality have become more robust, thereby constraining the extent to which the majority can impose its will on others, the majority has resisted. A generation after the Supreme Court’s decision in Brown, for example, Bob Jones University continued to exclude blacks. When the university

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finally modified its admissions policies to permit black students, it nonetheless forbade interracial marriage and dating.35 Bob Jones is not an isolated instance. Three years after the Supreme Court issued its ruling in Brown, President Eisenhower had to send members of the 101st Airborne division to Little Rock, Arkansas, to escort black high school students into Central High School. Three weeks earlier, on September 4, 1957, nine black students had shown up for classes at Central High, after the Little Rock School Board had ordered that the formerly all-white school be integrated. These facts are well known, and I repeat them because they illustrate what happens as the equality value expands. An angry mob met the nine black students at the door. Arkansas’s governor, Orval Faubus, had announced that blood would run in the streets—those were his exact words—if blacks were to try to enter the school. Yet still, on that late summer day, when classes were scheduled to begin, the Little Rock nine showed up, ready to go to school. So Governor Faubus called out the Arkansas National Guard. Uniformed men carrying weapons confronted schoolchildren and turned the Little Rock nine away. For a brief while longer, Central High remained allwhite. Two weeks later, acting at President Eisenhower’s directive, federal troops escorted five black boys and four black girls into Central High. By week’s end, the school has been integrated. White resisters in Arkansas did not regard themselves as hateful. They believed they were defending an ideal. They believed that blacks and whites were different, intended by nature to be separate, and that this fact made it appropriate that they attend separate schools. They believed it would injure society if blacks and whites were to intermingle. In all these respects, they were exactly like contemporary opponents of equal rights for gays and lesbians. Like defenders of racial separation, those who oppose expansion of the equality norm to encompass sexual orientation believe they have identified a fact that the state may legitimately take into account. In the early 1990s, the people of Aspen, Boulder, and Denver, Colorado, enacted progressive antidiscrimination measures that added sexual orientation to the list of characteristics that employers and landlords could not take into account. Thus, for example, an apartment owner could not refuse to rent a unit to a Muslim, nor could she refuse to rent to a gay. In November 1992, to countermand these ordinances, 53 percent of the voters in Colorado voted to amend the state constitution to nullify laws that prohibited discrimination on the basis of sexual orientation and to prevent gays and lesbians from mounting constitutional challenges to discrimination that they encountered. The resistance was perhaps less violent than the resistance to racial integration had been, but it was still violent enough, and it was motivated by the same belief that “real” difference warranted inequality. Four years later, the case reached the Supreme Court. By a vote of six to three, the Court ruled that Colorado’s constitutional amendment violated

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the U.S. Constitution and therefore could not stand.36 Whereas most of the justices saw the Colorado measure as stark discrimination, Justice Scalia viewed it as nothing more than “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”37 Justice Scalia relied heavily on the Supreme Court’s decision in Bowers v. Hardwick,38 a decision that would be reversed by the Court seven years later in Lawrence v. Texas,39 when the Court held that homosexuals, like heterosexuals, have an individual right to engage in private, consensual sexual activity. Yet the Court’s decision in Romer, the harbinger of Lawrence, was followed by violent expressions that proved that not everyone was ready to embrace the expansion of the equality value that the Supreme Court had seen. Thus, shortly after midnight, on October 7, 1998, two men drove Matthew Shepard, a student at the University of Wyoming, to a remote area east of Laramie. They beat him, sodomized him, tied him to a fence, and left him there. Eighteen hours later, a cyclist passing by thought Shepard was a scarecrow, before he realized he was looking at a lifeless young man. Five days later, Matthew Shepard died, having never left the hospital. The hateful incident was not an aberration. Seven years before, on July 4, 1991, eleven hundred miles from Laramie, Paul Broussard left a nightclub in the gay-friendly Montrose area of Houston. Ten young men from the Woodlands suburb north of Houston—the Woodland Ten, as they came to be known—attacked Broussard and two of his friends. All three ran, but only Broussard turned down a dead-end street. The Woodland Ten beat him with steel-toed boots and nailstudded clubs. Broussard had graduated from Texas A&M. He was a banker in Houston. As the Woodland Ten sped north on Interstate 45, emergency medical workers took Broussard to the hospital, where he bled to death later that day.40 Second: Formal equality does not satisfy the constitutional command. Marriage is an institution that has both religious and civil dimensions. However, the question of whether a given religious movement will bless or recognize same-sex marriages is irrelevant to the constitutional question.41 Similarly, although many rabbis, pastors, imams, and priests refuse to perform marriage ceremonies for interfaith couples, the state may not refuse to issue a marriage certificate to a couple solely on the ground that the woman is Muslim and the man is a Jew. Marriage has a sacred aspect, but it is also an ordinary contract, and the state has to have a good reason for refusing to permit two willing individuals to enter into a contract between themselves. No one doubts that Plessy’s reliance on formal equality was wrong. It is therefore peculiar, even jarring, to see this discredited rationale invoked in the context of gay marriage. The principal illustration of formal equality is the institution of so-called civil unions. But civil unions are not truly equal to marriage, because marriage, as a social institution, has both economic and

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noneconomic value. Consequently, laws that grant a gay couple the same economic benefits enjoyed by a heterosexual married couple do not satisfy the equality norm precisely because marriage has noneconomic dimensions. Heterosexual couples get married, at least in part, to announce that they are married; husbands and wives wear wedding bands to advertise their status as a married couple. Marriage is a more serious commitment than nonmarital cohabitation, if only because a married couple must legally end their relationship through divorce if they no longer wish to be regarded as husband and wife. To be sure, there are concrete benefits to being married. If I am in a terrible car crash and taken to the emergency room, my wife can come to the hospital and learn my condition. If we were merely living together, she could not. Because we are married, we can file a joint tax return, if it is economically advantageous to do so. Not all benefits of marriage are so concrete, however. As most any couple who has lived together for a substantial time before getting married can tell you, there is something different about being married. Perhaps this difference is truly spiritual. Perhaps it is simply an artifact of the fact that the state confers certain benefits on marriage. The cause is of no moment. What it important from the perspective of equality is that the state itself recognizes the salience of this status. Consequently, when the state offers it to some couples, but not to others, it is violating the equality norm. Third: Bogus claims of rationality always accompany denials of equality. As discussed in the last chapter, the state can intrude on liberty, or violate the equality norm, when it has sufficient justification for doing so—but only when it has sufficient justification for doing so. In the context of same-sex marriage, the state’s refusal to treat same-sex couples as it treats opposite-sex couples is said to be warranted on two grounds. The first is a purely moral claim: that same-sex relationships are “wrong”; the second is that recognizing same-sex marriage will cause a broad social injury—perhaps by eroding the traditional family unit, and thereby leading to additional consequences, or by dictating that all unconventional relationships (including polygamy) receive constitutional protection. Let me begin with the second claim. The suggestion that recognizing same-sex marriage would cause a substantial injury is the sort of justification that could in fact warrant a prohibition on same-sex marriage—if it were actually true. In point of fact, the argument precisely mirrors the defense that was offered of bans on racial intermarriage. Yet no reasonable person would seriously maintain that permitting racial intermarriage has caused any social harm. In any event, I am not interested in rehashing the infirmity of the argument that recognizing same-sex marriage would cause the collapse of society. There are many other sources that reveal the absurdity of that contention.42 The present point is simply that when the state offers up defenses of this violation of the equality norm, the responsibility of the courts is to hold those arguments up to intense scrutiny.

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Oliver Wendell Holmes once said that a page of history is worth a volume of logic. American legal history teaches us that ostensibly logical arguments often mask sheer prejudice and bigotry. Every violation of the equality principle in American history—from slavery, to restrictions on the jobs women could hold, to laws forbidding racial intermarriage—has been defended on grounds similar to the justification that is given for refusing to treat same-sex couples equally. The Bible, moreover, has been offered up as a prooftext in support of all these instances of discrimination. Whether the Bible condemns same-sex marriage is a matter for theologians, and individual churches may go their separate ways. But the state has no legitimate interest in interfering with the desire of a gay couple to announce the magnitude of their commitment to one another by entering the covenant, the contract, of marriage. The other justification for prohibiting same-sex marriage, the straightforward moral claim, raises the broad question of the legitimacy of any government law that rests on nothing more than a naked moral preference. A law rests on a naked moral preference when the state seeks to control the behavior or activity of a moral agent, without there being any immediate connection between the behavior of that agent and any consequence to anyone other than that agent. For example, a law that prohibited individuals from masturbating or having recreational sex would fall into this category. All such laws are unconstitutional, because they seek to control behavior without any legitimate justification.43 When judges are called on to determine whether the liberty or equality value has expanded in such a way as to nullify something that the majority has done, they must at times distinguish between norms in other, preexisting cultures that have become part of the fabric of American law, and norms from other, preexisting cultures that our own culture has not absorbed. We noted previously, for example, that biblical law formed one of the preexisting legal cultures that influenced the formation of American law. Nevertheless, it is clear that not all biblical laws have been absorbed into our own legal fabric. Dietary laws, tithing requirements, obligations of animal sacrifice, and the requirement of rest on the Sabbath are all examples of legal restrictions that do not form part of the discrete American legal culture. Indeed, legal systems rooted in religion do not include either of the two core values of our own legal system, for legal regimes built on a premise of obedience to God have little room for claims of liberty, nor do they accept the democratic value of equality. A Muslim or Jew who does something that makes her or him ritually unclean cannot assert a liberty right to engage in that conduct anyway. A Catholic cannot claim a liberty right to use contraception. A gay couple cannot insist that a church’s refusal to sanctify their marriage violates the equality norm. In the context of religion or a religious legal system, the concept of holiness occupies a central role. Religious adherents aspire to holiness, and religious

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rituals and legal requirements define what holy means. This concept is foreign to the secular state; it has no place in our legal system. The state has no legitimate interest in its citizens’ holiness. A religious leader can tell his congregants that they must do this or that if they want to be holy in the eyes of God. The state can say no such things. Even if the majority believes, based on their religious tradition, that certain action is wrong or immoral, that belief, no matter how sincerely held, does not warrant laws that prohibit the action, unless the action causes an injury that the majority can legitimately seek to prevent—that is, an injury to innocent bystanders. A religious person can believe that two men who marry one another will never be admitted to heaven, but the government has no legitimate interest in treating that couple differently from the way it treats a couple made up of a woman and a man.

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Unlike the question of same-sex marriage, the abortion debate is not a debate about naked moral preferences. Although the debate does pivot on profoundly incompatible moral visions, the moral premise that underlies opposition to abortion undoubtedly authorizes government action. Opponents of abortion view the procedure as homicide. From this vantage point, laws restricting abortion are no different from laws that punish murder. I confess that I have nothing new to say about the ethics of abortion. But in this regard I am not alone, for no one has had anything new to say for the past twenty years. I will, however, take issue with the one piece of conventional wisdom that nearly all participants in the abortion debate share. I argue that Justice Blackmun’s opinion in Roe v. Wade was profoundly prophetic. The opinion has been frequently impugned as an embarrassingly bad exercise in constitutional law. That assessment is entirely wrong. The opinion is built on deep insights into our legal culture. It represents exactly how Supreme Court justices ought to reason. Justice Blackmun recognized that although the abortion debate does not involve a naked moral preference, our legal culture has historically recognized that the moral issue becomes a matter subject to majoritarian control only at some point in the middle of the pregnancy—not at the pregnancy’s very outset. The Fourteenth Amendment says that the states cannot deprive “any person” of due process or equal protection. Supporters of abortion rights insist that a fetus is not a person within the meaning of this provision, and that claim is historically sound. Yet the debate over the meaning of “persons” in the Fourteenth Amendment is a legal question, not a moral one, and the legal question is utterly irrelevant to abortion opponents. For them, the fetus is a human being—and it is therefore murder to extinguish its life, regardless of whether the framers believed that the fetus enjoyed enforceable legal

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rights. From this point of view, the state may prohibit abortion just as it may prohibit animal cruelty; the fact that a dog is not a “person” within the meaning of the Fourteenth Amendment does not mean that pit bull fighting is constitutionally protected. Supporters of abortion rights embrace one of two competing positions. Some accept that the fetus is a human being, but deem abortion an exception to the ordinary proscription against murder. Most abortion supporters, however, dispute the proposition that the fetus already possesses the qualities of being a human being at the moment of conception, or even shortly thereafter. Consequently, most advocates of the right to choose do not defend abortion as a legitimate form of homicide; rather, they disagree with the claim that it is murder. This debate is undoubtedly a moral one. It is also undoubtedly an ancient one, having raged since biblical times—without, so far as I can determine, much progress. When so much ink has been spilled on a topic without producing a solution, it is perhaps time to address a somewhat different issue. So that is what I propose to do. Instead of addressing whether the fetus has human worth or is a “person” for constitutional purposes, I explain why Justice Blackmun’s opinion is a brilliant example of prophetic adjudication. My starting point is a lengthy excerpt from an essay by the writer David Foster Wallace. Wallace explains, better than any lawyer or law professor, why the abortion debate is a moral stalemate. In this reviewer’s opinion, the only really coherent position on the abortion issue is one that is both Pro-Life and Pro-Choice. Argument: As of 4 March 1999, the question of defining human life in utero is hopelessly vexed. That is, given our best present medical and philosophical understandings of what makes something not just a living organism but a person, there is no way to establish at just what point during gestation a fertilized ovum becomes a human being. This conundrum, together with the basically inarguable soundness of the principle “When in irresolvable doubt about whether something is a human being or not, it is better not to kill it,” appears to me to require any reasonable American to be Pro-Life. At the same time, however, the principle “When in irresolvable doubt about something, I have neither the legal nor the moral right to tell another person what to do about it, especially if that person feels that s/he is not in doubt” is an unassailable part of the Democratic pact we Americans all make with one another, a pact in which each adult citizen gets to be an autonomous moral agent; and this principle appears to me to require any reasonable American to be Pro-Choice. This reviewer is thus, as a private citizen and an autonomous agent, both Pro-Life and Pro-Choice. It is not an easy or comfortable position to maintain. Every time someone I know decides to terminate a pregnancy, I am required to believe simultaneously that she is doing the wrong thing and that she has every right to do it. Plus, of course, I have both to believe that a Pro-Life + ProChoice stance is the only really coherent one and to restrain myself from trying

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to force that position on other people whose ideological or religious convictions seem (to me) to override reason and yield a (in my opinion) wacko dogmatic position.44

In our legal culture—what Wallace calls the democratic pact—the liberty value means that individuals get to choose how to control their bodies. That control is absolute unless the exercise of individual autonomy creates consequences that the government has a legitimate interest in preventing. Justice Blackmun understood exactly the same thing, and his opinion in Roe v. Wade pivots on that very insight. The question he examined in great detail was whether, in our legal culture, the majority has historically been thought to have a legitimate interest in prohibiting all abortion. In Bowers, Justice White looked to majoritarian enactments to determine whether gay couples have a right to sexual intimacy. In Michael H., Justice Scalia looked to majoritarian enactments to determine whether biological fathers have a right to maintain a relationship with their children born out of wedlock. In Roe, Justice Blackmun looked to history not to see whether the individual has a right but instead to determine whether the government possessed a certain power. As we have seen, when an individual challenges a state law, arguing that she has a right protected by the I circle to engage in certain conduct that the government is restricting, the first question is whether in fact the liberty value places certain behavior inside the I circle. If it does, then a judge must weigh the state’s reasons for intruding into the I circle against the centrality of the individual right; accordingly, in order to determine whether such a weighing would be necessary, Justice Blackmun initially elaborated on the nature of the individual right.45 Unlike Justice White, who, in Bowers v. Hardwick saw the Griswold opinion as supporting nothing more than a right related to marital intimacy and child-bearing, Justice Blackmun viewed Griswold as part of the historical progression of the liberty value; he saw it as recognizing a robust right of privacy that individuals have to control their own bodies and their own lives. Because it touches on bodily control, a decision whether to terminate a pregnancy resides inside the I circle, just as does the decision to become pregnant in the first place. To be sure, the state may well have a legitimate interest in interfering with one decision but not the other; the initial issue, however, is simply whether the decision is inside the I circle at all. Justice Blackmun concluded that it was, and he therefore weighed the state’s ostensible interest for interfering with the right against the potency of that very right.46 Most Americans would agree with Justice Blackmun that the answer to the first question—“Do individuals have a right to control their own bodies?”—is “yes.” It is his treatment of the relationship between this individual right and government laws restricting the exercise of that right that generated both legal and moral fusillades. Justice Blackmun reached the conclusion he did,

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however, by observing in our legal culture precisely the conflict that David Foster Wallace captured so succinctly. As opinions go, Justice Blackmun’s in Roe was not especially long—barely fifty pages. More than a third of it consists of a survey of the history of laws restricting abortion, beginning with ancient Greece and Rome, and proceeding through the twentieth century.47 Just as the prophets decide cases by studying and understanding how an idea has developed over time, Justice Blackmun wanted to understand whether our legal culture has presumed that women possess the authority to control their own bodies or whether, in contrast, that decision had been subject to majority vote. He wanted to understand what restrictions, if any, the majority could place on the woman’s sovereignty over her body and whether the fetus was regarded as a being such that the state’s legitimate interest in prohibiting homicide could be extended to forbid abortion. And he wanted to know whether there were new facts—facts relating to the threat to maternal health presented by abortion, or moral facts relating to the fetus—that necessitated new answers to these questions. For example, if women had historically been free to obtain a wide range of medical procedures, but new facts revealed that a certain medical procedure employed in late second trimester abortions presented grave risks to the woman in a significant percentage of cases, then the state’s interest in regulating or even prohibiting that procedure would rise. Similarly, if new facts revealed that a zygote has come to be widely regarded in moral discourse as a human being, then that fact would warrant more rigorous restrictions on the availability of abortion. On the other hand, if Justice Blackmun had discovered that women had never in the history of our legal culture had the authority to decide whether to terminate a pregnancy, then the range of restrictions that the majority could place on the exercise of that power would be substantially more robust. Constitutional law is not ahistorical, and Justice Blackmun in Roe sought to be in command of the relevant history. Critics of the trimester framework—including both pro-choice and prolife advocates—have condemned Justice Blackmun’s opinion as more like legislation than judicial reasoning.48 But that criticism is unsound and reflects a blindness to the very historical pattern that Justice Blackmun identified. The trimester framework itself rests on a deep understanding of the relationship between individual right and government power over time. In particular, Justice Blackmun’s survey of two millennia of legal history revealed that in our culture there is a critical moment during pregnancy at which the moral issue ceases being a purely individual one and instead becomes a matter for the state. Prior to that moment, the woman has substantial authority to act as she sees fit. Subsequent to that moment, the majority can impose significant restrictions. Although there is a critical moment during pregnancy, however, the precise location of that moment has changed over time. For example, in ancient

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Greece, abortions were freely performed until the late stages of pregnancy; there was virtually no protection for the unborn. Yet by the early seventeenth century, a variety of philosophical and theological traditions had converged such that the common law permitted a woman freely to obtain an abortion prior to “quickening,” but not thereafter. (Quickening is the first recognizable movement of the fetus, usually taking place between the sixteenth and eighteenth week of pregnancy.) In turn, English statutory law regarded quickening as the distinctive legal moment, and so too did American states in the early nineteenth century. Justice Blackmun concluded: It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century.49

In the second half of the nineteenth century, however, this ostensible compromising approach shifted, and the moment of quickening lost legal relevance. There was a spike in laws restricting abortion. Justice Blackmun needed to understand why. What had happened in this ancient debate? Did quickening become irrelevant because of some new moral fact about the fetus that obliterated the woman’s authority to decide? Or did quickening become irrelevant because of some other new fact? Or was the development simply inexplicable?50 Justice Blackmun identified a scholarly consensus that held that the surge of laws restricting abortion in the latter half of the nineteenth century reflected a concern for maternal health, not a momentous shift regarding the balance between a woman’s personal liberty and fetal life. Stripped to its essence, the issue in Roe was whether the majority could altogether prohibit a woman from terminating a pregnancy on the basis that abortion was a form of murder. After surveying two thousand years of Western culture in search of an answer, Justice Blackmun concluded that American legal culture had not absorbed the idea present in some antecedent cultures that ending the life of the fetus was tantamount to murder. Instead, American legal culture had absorbed a competing notion, also present in some antecedent cultures, that saw the fetus’s acquisition of moral worth as gradual. The Stoics, for example, held that the fetus became a “human” life for moral purposes at the moment of birth. The Protestant and Jewish traditions, in large part, agreed. The Catholic Church for many centuries embraced the Aristotelian view of “mediate animation,” which viewed the fetus as coming to possess a soul at forty days for a male and eighty days for a female.

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(At the time of Roe, of course, Catholic doctrine had come to see the fetus as a human being at conception.) At common law, the key moment was quickening. Justice Blackmun apprehended one other critical moment, the moment regarded as key by physicians. That moment is viability: the time when the fetus can live outside the womb (which, at the time of Roe, was at around twenty-eight weeks, but in some instances as early as twenty-four). The Court ruled in Roe that during the first trimester, the state cannot interfere with the woman’s right to control her body; she may obtain an abortion freely and without restriction. During the second trimester, the state can impose abortion restrictions that are related to the health of the mother. During the third trimester, it may prohibit abortion altogether. It is this very trimester framework that has caused critics of the opinion in Roe to be so withering, yet in fact, the framework is based on a perceptive and subtle view of history. A normal pregnancy is forty weeks. Quickening, the moment in the pregnancy deemed significant at common law, marks roughly the boundary between the first and second trimesters; viability marks roughly the boundary between the second and the third. Justice Blackmun did not invent the salience of these moments; he recognized that the culture had done so. In our culture, the fetus acquires the status that makes abortion tantamount to murder at viability—the start of the third trimester. Earlier regulations— those that operate during the period before viability—must therefore further some other interest, namely, the interest in maternal health. It is true, of course, that Justice Blackmun’s analysis also revealed that the moment in pregnancy during which the fetus is regarded as a human being, such that pregnancy is tantamount to murder, has varied over time. It is possible, even likely, that this moment is still unfixed. In our culture, however, it has not yet changed. Twenty years after Roe, the Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey.51 Justices O’Connor, Kennedy, and Souter pointed out that although the moment of viability may have moved somewhat since Roe, the concept of viability was still the critical cultural and legal fact. Like David Foster Wallace, an individual can believe that it is murder to abort a fetus prior to viability, but the majority cannot impose that view on others who disagree. With a prophet’s broad vision, Justice Blackmun’s opinion in Roe grounded that same conclusion in the constitutional values that define our culture.

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Justice Blackmun’s opinion in Roe and Justice White’s opinion in Bowers possess a superficial similarity that hides a radical difference. In Roe, the Court examined the history of laws regulating abortion in order to understand how those laws bear on the proposition that the I circle entitles all citizens to

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control their own bodies. In Bowers, the Court examined the history of laws regulating sexual activity and concluded that simply because there were laws prohibiting the conduct (i.e., consensual sexual activity between men), the activity was perforce not within the I circle. The topic of assisted suicide bears similarities to the Court’s approach to abortion and same-sex marriage. In discussing it, I want to focus primarily on the liberty dimension of the issue, even though the greater availability of palliative health care to the wealthy also introduces the matter of equality to the problem. I am interested in exploring whether the I circle includes the power for individuals to decide to end their own lives and to obtain assistance in doing so if they are unable to complete the deed themselves. A priestly or Bowers-like analysis of the question would conclude that because the majority has refused to condone assisted suicide for centuries, the asserted right is therefore beyond constitutional protection. I want to explore whether a prophetic approach would yield a contrary answer. Nancy Cruzan lost control of her car in rural Missouri in 1983. When paramedics got to her, she had not been breathing for twelve or fourteen minutes. She remained in a coma for three weeks, and then fell into what is known as a persistent vegetative state. She had motor reflexes, but no cognitive functions. A feeding tube kept her alive. Her parents wanted it removed, but the hospital refused. The parents sued, asserting on behalf of their daughter her right to be free from the steps that the state was taking to keep her alive. The case reached the Supreme Court. The justices concluded that a conscious, competent person could refuse life-saving treatment, but that Nancy Cruzan’s parents could not assert the right on her behalf, because they had not proved by that Nancy would have wanted that result.52 The case stands for the proposition that the I circle contains the right to refuse life-saving measures, so long as there is sufficient evidence to prove that the individual desires that result. The question that remained open after Cruzan was whether the I circle also contains the right to obtain life-ending measures. Seven years after Cruzan, the Supreme Court addressed that open question. In Washington v. Glucksberg,53 the Court upheld a Washington state law that prevents terminally ill patients from obtaining drugs that would help them hasten their deaths. The first three sentences of Chief Justice Rehnquist’s opinion adumbrated the result: The question presented in this case is whether Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington.54

Writing for the majority, Chief Justice Rehnquist made the same legal move that the Court made in Plessy, when the justices stressed that the races have

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always been naturally separate, and that the Court made in Bradwell, when the justices insisted that women have always had a divinely given social role, and that the Court made yet again in Bowers, when the justices stated that homosexuality has always been condemned. Rehnquist continued: We begin . . . by examining our Nation’s history, legal traditions, and practices. . . . In almost every state—indeed, in almost every western democracy—it is a crime to assist a suicide. The States’ assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.55

The “longstanding expressions” language is reminiscent of Justice White’s opinion in Bowers, where the Court framed the question as follows: The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.56

Yet there is an important difference between the two cases. The prohibition at issue in Bowers exhibited a naked moral preference. In contrast, as Chief Justice Rehnquist saw in Glucksberg, laws that prohibit assisted suicide grow out of the state’s very raison d’être: protecting and preserving human life. What makes the assisted suicide issue so challenging is that the state is exercising a power that resides at the very center of the G circle, yet it is doing so in a way that intrudes into the very center of the I circle. How does a prophetic judge proceed? The vote in Glucksberg was nine to nothing, but the number of opinions belied the simplicity of the issue. In addition to Chief Justice Rehnquist’s majority opinion, Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer each wrote separately. One explanation for the diversity of opinions lies in the wide array of reasons offered in support of the Washington law. In general, laws prohibiting assisted suicide reflect one of three motivations. First, they may be religiously inspired. When voters in Washington defeated by a vote of 54 percent to 46 percent the referendum that would have permitted assisted suicide, the Catholic Church was the primary financial backer of the opponents. Second, such laws may communicate the message that life is valuable and ought to be preserved. The state cannot compel non-Catholics to live in accordance with the tenets of the Catholic faith, but there are moral values that are not uniquely tethered to any particular religion, and the state may certainly express its support of those values. Third, these laws may seek to protect individuals from making a bad decision.57 This third rationale is especially complex—and potentially insidious. When the Supreme Court upheld the federal law prohibiting a medical procedure

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that is sometimes known as “partial birth abortion,” Justice Kennedy’s majority opinion relied in part on the government’s argument that some women would regret having such a procedure.58 (Somewhat astonishingly, the majority accepted this assertion despite the absence of any evidence to support it.) As Justice Kennedy put it: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”59 Under any circumstances, this is a perverse justification for intruding into the I circle, but it is especially perverse in the context of assisted suicide. We saw previously that the state’s basis for intruding into the I circle is strongest when the majority can demonstrate that an individual’s exercise of liberty will injure an innocent bystander, and this is precisely the justification that is most frequently put forward in the abortion context. Yet that justification has no application where the issue is assisted suicide. The majority’s only argument is that it is protecting someone from him- or herself. To be sure, the consequences of a poor decision are incomparably severe and permanent, and there are undoubtedly some people who will make bad decisions. Scholars have argued, for example, that many women in our society have been conditioned to view their lives as less valuable than men and might therefore, as a result of that conditioning, be too quick to choose death if they become ill, because they view their roles as caregivers rather than care receivers. Others have argued that physicians might put pressure on those without medical insurance or familial support networks to choose death. Still others have argued that although doctors often project an air of certainty in their predictions as to how long someone has to live, they are often in fact wrong, and people might therefore choose death on the basis of poor information.60 Further, in an era in which the human genome is being speedily decoded, and people can learn well before they have any symptoms of certain conditions or diseases that they will eventually develop them, the prospect of too many people choosing death too quickly is certainly a legitimate concern. Yet people do suffer. Booth Gardner, the former governor of Washington, has Parkinson’s disease. Once vigorous, he now tires easily and forgets in midsentence what he is talking about. Worst of all, he is aware of his decline. A leading advocate of the right to die, his slogan and his philosophy are captured in six words: my life, my death, my control. Governor Gardner characterizes his own logic as “impeccable,” and that would seem to be true. If I can kill myself with a bad diet, or by drinking too much, then isn’t Governor Gardner right that the Constitution permits terminally ill patients to end their suffering with a doctor’s assistance? The political majority in nearly all states obviously does not think so. In addition to the vote in Washington, voters in California, Michigan, and Maine have rejected proposals that would have permitted physician-assisted

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suicide. Much of the opposition does come from traditional religious groups, but majorities of women and blacks also oppose legalization, highlighting the nonreligious bases for opposition. Not all of these nonreligious bases are equivalent, however. A naked moral claim—one where the state cannot identify any harm that will befall third parties if the individual is permitted to do as she pleases—is never a good enough reason to permit the majority to interfere with an individual’s liberty.61 The fact that someone sincerely believes that any life is better than no life, even if the life is accompanied by ceaseless and excruciating pain, does not permit her to impose that preference on someone else. But what if the majority acts not to impose its own moral preference but to prevent regret or simply prevent decisions that rest on infirm grounds? The simple fact of the matter is that the rationale identified by opponents of assisted suicide is not rooted in the American legal culture. Rather, the prohibition almost certainly reflects the remnants of religious law and the orthodox religious notion that one’s body belongs to God.62 Religious law as such, however, did not become part of our legal culture. Moreover, we do not have a cultural norm that permits the state to act to save people from their own bad decisions. Indeed, exactly the opposite is true. As A. C. Grayling has pointed out, the immediate trigger for the American Revolution may have been captured in the expression “No taxation without representation,” but the more fundamental revolutionary impetus was the colonists’ commitment to the notion that human beings have an inherent right to pursue their own happiness, to do as they please, and no government can deprive them or their posterity of that freedom.63 Furthermore, even if we were to assume that in some circumstances, the government does have the power to save us from making mistakes, that rationale would still not warrant laws against assisted suicide, because an individual’s control over her own body lies at the very center of the I circle. Griswold, Roe, and Lawrence make no sense without this premise. In part for that reason, although traditional religious cultures do forbid suicide, no state any longer does so. We all have the right to end our lives (even though not everyone has the ability). This fact tells us that from the point of view of the state, prohibiting assistance is different from prohibiting the act itself. If the majority were simply worried about regret, it would make more sense to prohibit the act, not just the assistance. By focusing on assistance, the majority reveals that it is suspicious of those who are doing the assisting. The relevant question, therefore, is this: Is there a good reason to believe that doctors would use their power to encourage people to choose death too quickly, or would persuade the weak and powerless to commit suicide while persuading the wealthy and powerful to hang on and fight? The limited data from Oregon, the only state where assisted suicide is legal, and the Netherlands, the only Western nation where the practice is allowed, do not bear out those concerns. As important, the majority could accomplish

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the compelling objective of ensuring that decisions are willful without depriving a suffering terminal patient of the power to end her life. The government can regulate doctors, insist on second opinions, impose a waiting period, and require a psychological consultation. It can take any number of steps to ensure that decisions are volitional and intelligent. To be sure, even with these safeguards, some individuals will still fall through the cracks and kill themselves on the basis of erroneous data or unsound analysis. Some will act too hastily. Yet liberty has a price. When a legal culture is based on the elemental proposition that human beings are entitled to pursue their own happiness, some people will make bad, lamentable choices. We can try to minimize those occurrences with education and regulation, but the truth that Justice Kennedy refused to acknowledge is that a legal culture that prizes liberty must also tolerate regret.

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When he dissented in Plessy Justice Harlan insisted that the Constitution is “color blind.”64 Yet when the Court in Brown repudiated the doctrine of separate but equal, the justices did not repeat that phrase. I want to examine the significance of that silence. Did the Court in Brown not repeat Justice Harlan’s phrase because it was obvious, or because Brown rested on some different principle? If the latter, what exactly was the principle that the Brown Court adopted to replace Plessy’s discredited formulation? Recently, the Supreme Court had an opportunity to answer these very questions. In the Seattle School District case,65 the Court addressed the constitutionality of a method used by the Seattle school district to assign students to schools. The district divided students into two categories, white and nonwhite, and then sought to achieve some measure of racial or ethnic diversity in its schools.66 Formally, the lawsuit challenging the Seattle plan was symmetrical to the legal action in Brown. Parents of schoolchildren who were not permitted to attend the school of their choice filed a suit, arguing that the use of race as an assignment criterion violated the equality norm. By a vote of five to four, with Chief Justice Roberts writing the principal opinion, the Court sided with the parents and struck down the Seattle plan. Whereas the Court in Brown did not quote Justice Harlan’s famous phrase from Plessy, the majority in the Seattle School District case did. Perversely, though, the sentiment was deployed by the Court’s more conservative justices. Thus, quoting Justice Harlan, Chief Justice Roberts stated that the Constitution “neither knows nor tolerates classes among citizens.”67 The Constitution is color blind, and therefore, because the school district took account of race, its methodology was unconstitutional. While the lower court—and the dissenting justices—tolerated the school district’s use of race as a relevant factor

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because that use of race was “far from the original evils at which the Fourteenth Amendment was addressed,”68 the majority embraced symmetry. As Justice Thomas put it, “What was wrong in 1954 cannot be right today.”69 If it was wrong to use race in 1954, it is wrong for Seattle to use it in 2007. But of course, in 1954, states used race to keep the races separate. Seattle had exactly the opposite motivation. If Justice Harlan was right when he said that formal symmetry is inadequate to satisfy the Constitution’s equality norm because the purpose of such symmetry is to maintain segregation, then it does not follow from his argument that the use of race is wrong when its purpose is different. Suppose, for example, that a state requires all people who are going to marry to have blood tests, but only requires that blood from blacks be screened for the sickle-cell trait. That use of race would not offend Justice Harlan’s notion of what the Constitution requires because such a law would not communicate any message that blacks are inferior, or that blacks should be kept separate from whites. It is therefore an elementary mistake to conclude that either Justice Harlan, or the Court in Brown, said that the state can never take race into account. Yet the fact that race may be a factor does not mean that it ought to be. The issue of using race is complex, and complexity eschews certainty. It is difficult to be certain as to what the best approach is to combating the de facto segregation that continues to characterize broad swaths of modern society. At the same time, it is perverse to separate Justice Harlan’s conclusion in Plessy from his deep insight, the same insight that Justice O’Connor expressed in Lynch: Laws communicate ideas, and those ideas are not irrelevant when the constitutionality of a law is at issue. When the defenders of the Louisiana law insisted that blacks and whites were treated with formal equality, Justice Harlan skewered that bit of disingenuousness: It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.70

No one would be so insincere, said Harlan, as to deny that the purpose of the law was to keep blacks away from whites. No one would divorce the law’s consequence from its intention. No one would decide whether the law was constitutional without taking into account its animating message.

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But that, of course, is precisely what the priestly majority did in the Seattle School District case.71 For the majority, the rule established by Brown was that the government cannot use race, period. That categorical rule is uninfluenced by issues such as why the majority might want to use race, or whether the majority is black or white. If whites make up the majority, and they decide among themselves not to allow blacks into a public law school, then the majority has violated the equality principle. On the other hand, if whites make up the majority, and they decide among themselves to reserve a certain number of seats in the entering class to black applicants, then they have not violated the equality principle, because they have not communicated the message that blacks do not belong. Laws that tell blacks that they cannot ride in white cars, or that prevent black couples from adopting white children, or that require blacks to go to separate schools communicate a message of inferiority. Laws that require black couples, but not whites, to get tested for sickle-cell disease before they get married do not. To be sure, reserving a certain number of spaces in the entering class for black applicants might be a terribly bad idea. Reasonable people can disagree about whether these socalled affirmative action (or race-conscious) admissions programs are sound. But a government action can be unwise without thereby being unconstitutional. (Regulations that preclude government funding of stem cell research fall into this category.) Under the principle that Justice Harlan articulated in Plessy and Justice O’Connor embraced in Lynch, and pursuant to the basic idea that constitutional rights protect minority members from actions of the majority, the Court got exactly the wrong answer in Seattle because, like priests, they focused on a rule and not an idea.72 In dissent, Justice Breyer emphasized that the constitutional rule ought to take into account the purpose behind the use of the racial classification. Where race is being used not to communicate a message of inferiority and not to injure a minority group, the constitutional principle of equality is not implicated. Chief Justice Roberts was dismissive. The defenders of the use of racial criteria, he said, have “repeatedly pressed in the past” the idea that motivation matters; that argument has “been repeatedly rejected”; therefore, we must reject it again.73 In the first place, the chief justice was quite wrong as a historical matter. Motivation does matter, and the Court has recognized that it matters time and time again.74 Even if he had been correct about the past, however, he would still have been wrong about the present. Copernicus was right that the Earth revolves around the sun, rather than vice versa, even though astronomers had been saying the opposite for nearly fifteen hundred years. That Copernicus’s idea had been “repeatedly rejected” was scarcely proof that it was wrong. The priestly Roberts Court hid behind the banner of Justice Harlan’s grandiloquent phrase—a color-blind Constitution—but the effect

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of its ruling was to embrace the very formal equality that Justice Harlan found so odious.

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Judicial prophets and biblical prophets have this in common: Both possess a deep, radical insight into the core Idea that forms the essence of the legal system in which they reside. Amos identified the animating Idea of the Old Testament as concern for the downtrodden. Every prophecy he offered, every legal interpretation he gave, had this central idea as its backdrop. American law has at its core a rather different idea, yet it has an idea, too. The central Idea of American law, as we have seen, comes from an intersection of the norms of majoritarianism, equality, and liberty. There is a critical difference, however, between the legal regime that gave us Amos, on the one hand, and the legal regime that gave us John Marshall, on the other. Amos and his fellow legal interpreters could not acknowledge that law evolves. Like Moses before and Jesus after, Amos and the other great prophets—Isaiah, Jeremiah, Ezekiel, and the rest—were interpreting the word of God. If one is a believer, and the prophets surely were, God’s edicts do not require human improvement or contemporary modification. God is infallible, and, further, God chooses His interpreters. Hence, because the prophets give voice to God’s breath, their interpretations, too, must be right. For that reason, the prophetic texts embody a nearly palpable sense of certainty. The prophets did not doubt the soundness of their words; they did not doubt that they were right. It is therefore not so surprising that we do not find in any of the prophets a hint of equivocation or a change of mind. Despite the fact that many prophecies do not come true,75 no prophet ever says, “In my previous observation, I was wrong.” If God is whispering in your ear, you are not liable to be mistaken. Here, however, we must confront a paradox: Biblical law does change. It is rife with fictions that permit evasions to be characterized as compliance, and, more to the present point, the interpreters acquire authority that is tantamount to God’s own. The contemporary followers of Jesus, for example, treated Jesus’s interpretations as “equal in authority to the words of scripture itself.”76 In some cases, these interpretations seem rather clearly to expand the universe of conduct forbidden by the biblical text. For example, Deuteronomy forbids adultery. Expositing on this passage, Jesus says: “But I say to you, Whoever looks at a woman to lust after her in his heart has already committed adultery with her.” In other instances, Jesus’s gloss seems actually to contradict the biblical rule. For example, Deuteronomy prescribes the rules for divorce, yet Jesus says: “But I say to you that everyone who divorces his

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wife for reason other than sexual immorality makes her commit adultery, and whoever marries a divorced woman commits adultery.”77 Jesus was not alone. Moses, Hillel, and dozens of rabbis in the Jewish tradition articulated interpretations that went far beyond—if not against—the literal requirements of God’s text. Biblical interpretation is active. It adapts law to the present. If Amos or Jesus can shape God’s word by refracting those words through the lens of God’s purpose, then contemporary judges can surely do the same with the words of Madison. Justice, said Heraclitus, is strife: “The harmonious city is not one in which everyone lives in peace but one among whose citizens there is constant activity and debate.”78 This was true in biblical times, as it is true today. In a heterogeneous culture where the majority rules, debate and strife will be constant. Debate and strife are not signs of omen. They signal reason and health. Most of these debates will not involve our judges. They are matters for elected officials, and the people they represent, to resolve. Whether we fight a war in Afghanistan or Iraq, whether we have health insurance for all Americans, whether we tax the wealthy more heavily, whether we elect a Democrat or a Republican, are all critical questions that involve neither priests nor prophets. For most decisions in our legal culture, majoritarianism is the decisive value. But not for all. Some questions do involve one or both of our mediating norms, liberty and equality. When they do, we need judges who are prophets: women and men who are willing to tell us that the majority has departed too far from norms we must honor, men and women who are willing to tell us no. NOTES 1. Kent Greenawalt has written widely on the complex issue of whether and how deeply religious policy makers may rely on their religious sensibilities in enacting secular policy. See, for example, Religious Convictions and Political Choice (Oxford 1987). I have also found quite illuminating David Novak’s lecture on religion and law. See his Law: Religious or Secular, 86 Va. L. Rev. 569 (2000). On the influence of theology on the development of secular law, see Harold J. Berman, Law and Revolution (Harvard 2003). See also Charles Freeman, The Closing of the Western Mind (2004). In contrast (to some extent), a thorough treatment of the role of secularism in the development of what I call the Idea of American law is Susan Jacoby’s Freethinkers: A History of American Secularism (2004). 2. Zorach v. Clauson, 343 U.S. 306, 313 (1952). 3. Van Orden v. Perry, 545 U.S. 677, 683 n.2 (2005). 4. Marsh v. Chambers, 463 U.S. 783, 792 (1983). 5. Walz. v. Tax Commission, 397 U.S. 664, 672 (1970). 6. School Dist. of Abington v. Schempp, 347 U.S. 203, 213 (1963). 7. McCreary Co. v. ACLU, 545 U.S. 844, 889 (2005) (Scalia, J., dissenting). 8. McGowan v. Maryland, 366 U.S. 420, 564 (1961) (Douglas, J., dissenting).

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9. Engel v. Vitale, 370 U.S. 421, 442-43 (1962). 10. The facts are taken from the Supreme Court’s decision in Lynch v. Donnelly, as well as from Wayne R. Swanson, The Christ Child Goes to Court (Temple Univ. Press 1992). 11. 465 U.S. 668 (1984). 12. References are collected in my article, How Many Spouses Does the Constitution Allow One to Have?, 20 Const. Comm. 571, 579 & nn. 22, 24 (2003– 2004). 13. See Timothy Miller, Religious Movements in the United States, available at http://religiousmovements.lib.virginia.edu/essays/miller2003.htm. 14. The data come from the American Religious Identity Survey, conducted by Barry Kosman, Seymour Lachman, and their colleagues at the Graduate School at the City University of New York (CUNY). A summary can be found at http://www .adherents.com/rel_USA.html. 15. 465 U.S. at 692 (O’Connor, J., concurring). 16. 465 U.S. at 688 (O’Connor, J., concurring). 17. 465 U.S. at 702 n. 7 (Brennan, J., dissenting) (quoting Fox v. City of Los Angeles, 587 P2d 663, 670 (Cal. 1978)). 18. In the generation since Roe was decided, there have been around a million abortions a year performed in the United States. See http://www.nrlc.org/ abortion/facts/abortionstats.html. The data on the number of illegal abortions performed prior to Roe are unreliable. Nevertheless, at least one study places the impact of Roe itself at nearly a million abortions a year. http://www.accessmylibrary.com/ coms2/summary_0286-10490717_ITM. 19. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 20. 465 U.S. at 690 (O’Connor. J., concurring). 21. 465 U.S. at 693 (O’Connor, J., concurring) (emphasis added). 22. Bradwell v. Illinois, 83 U.S. 130, 141 (1872). 23. 478 U.S. 186 (1986). A discussion of the case, and the facts underlying it, can be found in Jay Michaelson, On Listening to the Kulterkampf, or, How America Overruled Bowers v. Hardwick, Even Though Romer v. Evans Didn’t, 49 Duke L. J. 1559 (2000). 24. The vast literature is comprehensively collected in Spindelman, Reorienting Bowers v. Hardwick, 79 N.C. L. Rev. 359 (2001). 25. 478 U.S. at 190–91. 26. 478 U.S. at 193–94. 27. 478 U.S. at 197 (Burger, C.J., concurring). 28. The history of legal sanctions is examined in Walter Wadlington, The Loving Case, 52 Va. L. Rev. 1189 (1966). 29. Quoted in Loving, 388 U.S. at 3. 30. 347 U.S. 483 (1954). 31. A useful overview of the various legal challenges to racial segregation in public schools, including data on spending per student, can be found at http://www .nea.org/brownvboard/index2.html#lead. 32. The figure comes from the Department of State. See http://usinfo.state .gov/scv/history_geography_and_population/civil_rights/african_american_rights/ brown_v_board_education.html. The literature on Brown is, of course, deservedly

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vast. Especially comprehensive or insightful resources include: Richard Kluger, Simple Justice (Knopf, rev. ed. 2004), Derrick Bell, Silent Covenants (Oxford 2005); Michael J. Klarman, Brown v. Board of Education and the Civil Rights Movement (Oxford 2007). The definitive treatment of the Hispanic version of Brown is Michael A. Olivas, ed., Colored Men and Hombres Aqui (Arte Publico 2006). 33. Though it is difficult to single out any one book or article that addresses the multiple themes raised in the debate over same-sex marriage, an unusually clear and accessible analysis is Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev. 1155 (2005). Volokh is a more or less conservative law professor who supports legalization of same-sex marriage but understands, and takes seriously, the more common objections raised by opponents. 34. Examples of resistance to the decision in Loving are discussed in Phyl Newbeck, Virginia Hasn’t Always Been for Lovers (Southern Illinois Univ. 2004). 35. Bob Jones University v. U.S. 461 U.S. 574 (1983). In a not terribly persuasive opinion, the Supreme Court ruled that under laws enacted by Congress, Bob Jones was not entitled to tax-exempt status because the university engaged in racial discrimination. The university, apparently to preserve its tax exemption, subsequently modified its racial policy. Discrimination continues unabated with greatest frequency in religious institutions. A discussion of the tradition of discrimination against women in the JudeoChristian religious tradition, and how that discrimination has been not redressed by the Bill of Rights, can be found in Mary E. Becker, The Politics of Women’s Wrongs and the Bill of “Rights,” 59 U. Chi. L. Rev. 453 (1992). 36. The case was Romer v. Evans, 517 U.S. 620 (1996). 37. 517 U.S. at 636. 38. 478 U.S. 186 (1986). 39. 539 U.S.558 (2003). 40. One of the attackers was Jon Buice. Buice was in the seventh year of his forty-five-year sentence when he heard the news about Matthew Shepard. He wrote an open letter to the gay and lesbian population of Houston, apologizing for participating in what he finally admitted to himself was a vicious hate crime. Excerpts from the letter can be found at http://www.aliciapatterson.org/APF2001/Bull/Bull .html. 41. We have at the moment, for better or worse, a culture where religious institutions can, in large part, do what they please. General laws forbid large corporations from discriminating against blacks, women, or homosexuals, but churches are permitted to engage in many forms of discrimination. 42. See Evan Wolfson, Why Marriage Matters (Simon & Schuster 2005). More balanced collections are Robert M. Baird and Stuart E. Rosenbaum, eds., Same-Sex Marriage (Prometheus, rev. ed. 2004), and Andrew Sullivan, Same-Sex Marriage: Pro and Con (Vintage, rev. ed. 2004). 43. I elaborate at length on why naked moral laws are unconstitutional in How Many Spouses Does the Constitution Allow One to Have?, 20 Const. Comm. 571 (2004–2005). 44. “Authority and American Usage,” in Consider the Lobster, supra, at 82–83. 45. This part of the analysis occurs in Section VIII of the opinion.

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46. This weighing occurs in Sections IX and X. 47. This survey is in section VI of the opinion, which takes up around eighteen pages. It is the longest section of the opinion. 48. The classic citation here is John Hart Ely, The Wages of Crying Wolf, 82 Yale L. J. 920 (1973). But the theme is repeated in most if not all of the articles in a recent symposium in Constitutional Commentary that focused on Roe. 24 Const. Comm. 291 (2007) (with contributions from Jack Balkin, Ethan Lieb, John McGinnis and Michael Rappoport, Mitchell Berman, Randy Barnett, and Dawn Johnson). 49. 410 U.S. at 140–41. 50. The opinion explored these possibilities in Section VII. 51. 505 U.S. 833 (1992). 52. Cruzan v. Director, Mo. Dept of Public Health, 497 U.S. 261, 281 (1990). More precisely, the majority held that Cruzan’s parents had not met the burden of showing by “clear and convincing evidence” that their daughter would have wanted the feeding tube removed. Four justices would have ruled for Cruzan’s parents and permitted them to remove the feeding tube. In any event, six months after the Court’s decision, Cruzan’s parents returned to state court, citing additional evidence that proved their daughter would have wanted the tube removed. The state court sided with them, the tube was removed, and Nancy died twelve days later. 53. 521 U.S. 702 (1997). 54. 521 U.S. at 705–706 (emphasis added). 55. 521 U.S. at 710 (emphasis added). 56. 478 U.S. at 190. Justice Blackmun, of course, disagreed. As he saw it: This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, than Stanley v. Georgia (which held that the states could not criminalize private possession of so-called obscene movies, i.e., those that appeal primarily to the “prurient interest”). . . . Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” 478 U.S. at 199 (Blackmun, J., dissenting) (citations omitted). The “right to be let alone” language comes from Justice Brandeis. See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). In the Stanley case, to which Justice Blackmun referred, the state of Georgia had asserted that it had a legitimate interest in “protect[ing] the individual’s mind from the effects of obscenity”—an interest that the Court found to be tantamount to an “assertion that the State has the right to control the moral content of a person’s thoughts.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). 57. This rationale has been most persuasively developed outside the legal literature. See, for example, Daniel Bergner, Death in the Family, New York Times Magazine (December 2, 2007). Bergner cites studies showing the opposition among blacks and women to laws permitting assisted suicide, and he highlights the work of Silvia Canetto, suggesting that women are injured by assisted suicide because of the social undervaluing of their work. 58. Gonzales v. Carhart, 127 S.Ct. 1610 (2007). 59. Carhart, 127 S.Ct. at 1634.

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60. Chief Justice Rehnquist’s identified each of these bases for the state’s action. The argument relating to the tendency of women to choose death too readily was also discussed in the superb article by Daniel Bergner, Death in the Family, in New York Times Magazine, December 2, 2007. Bergner reported the research of Susan Wolf, a medical ethicist at the University of Minnesota, who has been a leading proponent of the view that assisted suicide laws “discriminate” against women, in the sense that more women than men choose to end their lives. In point of fact, the data do not clearly support Wolf’s position, but even if they did, it is not clear that that fact is adequate to justify the state’s intrusion into the I circle. 61. A naked moral claim is one where the state acts for an ostensible moral basis that is something other than protecting innocent third parties. I have elsewhere argued that this kind of naked legislation is never legitimate. See Dow and Maldonado, How Many Spouses Does the Constitution Allow One to Have?, 20 Const. Comm. 571 (2004). 62. I cite the relevant Jewish sources in David R. Dow, The Establishment Clause Argument for Choice, 20 Golden Gate L. Rev. 479, 486–87 & n. 38 (1990). 63. See A. C. Grayling, Toward the Light of Liberty 140–46 (Walker 2007). 64. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). 65. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S. Ct. 2738 (2007). The case also involved a challenge to the method of pupil assignment used in Jefferson County, which defined students as “black” or “other.” 66. The permissibility of using race in this manner was first upheld in the famous Bakke decision, and was addressed immediately prior to the Seattle case in two cases involving the University of Michigan. See Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003) (involving Michigan law school’s use of race); Gratz v. Bollinger, 539 U.S. 244 (2003) (involving the University of Michigan’s use of race in undergraduate admissions). 67. 127 S. Ct. at 2758 n. 14. 68. See 127 S.Ct. at 2774 (quoting Chief Judge Boudin and Judge Kozinski). 69. 127 S. Ct. at 2786 (Thomas, J., concurring). 70. 163 U.S. at 556–57 (emphasis added). 71. My friend and colleague Ronald Turner has recently written a superb analysis of the Court’s opinion in Seattle that reveals the Court’s inattentiveness to history, as well as its apparent indifference to any robust concept of racial justice. See Ronald Turner, Plessy 2.0 (forthcoming 2009). 72. Moreover, constitutional rights protect minorities. Majorities do not need constitutional rights to protect their interests precisely because they are the majority; they can protect their interests by virtue of that fact. If the white majority of a small Southern town decides to try to create an all-white town and, to accomplish that objective, votes to take away the property from all resident blacks, the black minority cannot do anything to protect itself, other than invoke constitutional protections. On the other hand, if the white residents of an historically racist town decide to try to attract blacks to their town, and therefore vote to set aside a certain number of home sites and offer them to black purchasers for a discount not available to whites, the majority has not done anything that requires or permits judicial intervention. 73. 127 S.Ct. at 2764–65.

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74. Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). 75. I suppose I have to say that some fundamentalists will certainly disagree with this proposition. Nevertheless, it’s true. For a nonscholarly but entertaining compendium, see Tim Callahan, Biblical Prophecy: Failure or Fulfillment (Millennium Press 1997). 76. I draw heavily on Bart D. Ehrman, Misquoting Jesus (2005). The quoted language in the text can be found on p. 30. 77. The passages can be found in id. at 30–31. 78. Quoted in Charles Freeman, The Closing of the Western Mind 12 (Knopf 2004).

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INDEX Abortion, “partial-birth,” 145–46 Abortion debate, 138–43; why it is a moral stalemate, 139–40. See also Roe v. Wade Abraham (Old Testament), 9, 69, 74, 79n.53 Abrahamic law, 70–71 “Activist” decisions, 27–28 “Activist” judges: history, 17–30. See also Judicial activists Activist review, 116n.44 Adams, John, 20, 36 Adjudication, 68 Affirmative action, 150 Ahitub, xii Alito, Samuel, 3, 17 Amaziah, 59, 61–64, 68, 74 American Civil Liberties Union (ACLU), 120 American Revolution, 81, 147 Amos, 60–62, 64, 65, 74; vs. Amaziah, 59, 61–62, 64, 68, 74–75; book of Exodus and, 63; on central idea of biblical law, 69, 73, 75, 81, 151; as interpreting existing law, 61; method of legal interpretation, 64; prophecies, 59–60; as prophet vs. revolutionary, 61; on ritual

adherence (vs. justice/ righteousness), 59–60; understanding of law, 63 Amos, book of, 59, 61 Arkansas, 134 Assisted suicide, 7, 144–48; motivations for prohibiting, 145–46 Baker v. Carr, 8 Bakeshop Act, 39 Batson v. Kentucky, 8 Bazile, Leon, 129–30 Bergner, Daniel, 156n.60 Bible: quid pro quos in, 65. See also Prophets of Bible Biblical hermeneutics and legal interpretation, 75n.1 Biblical law: as changing, 151; prophetic interpretation of, 57–75. See also Prophets of Bible Bickel, Alexander, xi–xii, 25–26, 41, 115n.44 Bill of Rights, 48, 50. See also Constitution; specific amendments Birth control. See Contraception Birth Control League of Connecticut, 41, 42

160 Black, Hugo, 5, 51–52, 63, 107 Blackmun, Justice, 138–43 Bob Jones University, 133–34 Bob Jones University v. U.S., 154n.35 Bork, Robert, 17, 60 Bowers v. Hardwick, 127–28, 135, 140, 143–45 Bradley, Joseph, 126–27, 129, 132 Bradwell, Myra, 123, 126, 128, 132 Bradwell v. State, 126–29, 132 Brennan, William, 11, 88, 90–91, 94, 108, 121 Brest, Paul, xv Breyer, Justice, 150 Broussard, Paul, 135 Brown, Henry, 130 Brown, Oliver, 130 Brown, Stephen, 120 Brown v. Board of Education, 24–26, 64, 130–31; forced people to change their behavior, 8; as new and radical decision, 25, 27; Plessy, Justice Harlan, and, 24, 148–50; Seattle School District case and, 148–50 Bryan, William Jennings, 38 Buice, Jon, 154n.40 Burger, Warren, 128 Bush, George W., 3, 6, 20 Bush v. Gore, 2, 3 Button. See NAACP v. Button Buxton, Charles Lee, 4, 34, 41–43 Carr. See Baker v. Carr Casey. See Planned Parenthood of Southeastern Pennsylvania v. Casey Catholic Church, 41, 42, 145 Catholic presidents, 6 Chanina, Rabbi, 95 Children, legitimacy of, 85–88 Christmas displays, 120–22, 124 Civil rights struggles, 125–26. See also specific topics Comstock Law of 1873, 52 Connecticut Supreme Court, 4, 34

INDEX Conservatism vs. liberalism: deference and, 30; priests vs. prophets and, 12–13 Constitution, U.S., 87–88; central values, 26; drawing on “merely personal and private notions” of what it means, 43; and preconstitutional texts, 93–94; as three-dimensional structure, 49–51, 53; unwritten principles, 87–88; upholding, 4–5, 7, 21. See also specific topics Constitutional architecture, 49–51, 53 Constitutional decisions, impact on individuals, 123–24 Constitutional Faith (Levinson), 76 Constitutional interpretation: who should interpret Constitution, 20–21. See also Priestly vs. prophetic interpretation; “Strictly interpreting” Constitution Constitutional language, interpreting the meaning of, 19 Constitutional questions, types of cases that raise, 83–85 Contraception, 4–5, 34, 35, 52. See also Griswold v. Connecticut Contractual agreements, liberty to enter into, 38–40 Council of Revision, 21 Countermajoritarian concerns, 83, 84. See also Majoritarianism/ “majority rules” Countermajoritarian difficulty, xv, 15n.27, 29, 44, 115n.44; Bicke’s coining of the term, xi–xii, 26, 29; Justice Douglas and, 44; prophets and, 73; rights model challenges and, 85; solution to, 109 Countermajoritarianism, 109 Covenants, 65 Cruzan, Nancy, 144 Cruzan v. Director, Mo. Dept. of Public Health, 144, 155n.52

INDEX Davis, Hugh, 129 de Tocqueville, Alexis, 3, 44–45 Declaration of Independence, 82, 93–94, 102 Deference, 29–30, 84–85; excessive, 109 Democracy, 11–12, 81; vs. judicial activism, 85. See also Majoritarianism/“majority rules” Democratic pact, 140 Desegregation, 134. See also Brown v. Board of Education; Plessy v. Ferguson Donnelly, Daniel, 120, 122–23. See also Lynch v. Donnelly Douglas, William O., 43; Bill of Rights and, 48, 50; Constitution as seen by, 49, 50, 53; enumerated rights and, 46–50; Griswold and, 43, 44, 46–53, 57, 62, 63, 65, 88, 91, 108, 111n.16; language/terminology used by, 49, 50; Lochner and, 44, 46; logic and, 48–49, 53; most famous sentence, 48; right of privacy and, 65; on rights as having emanations, 48–50; on types of human relationships, 47; on visualizing rights, 44; Yoder and, 102–3; Zorach and, 119, 120 Due process clause, 35–36; as creating only procedural rights, 36; as having substantive content, 36–37, 39 Dworkin, Ronald, 115n.44 Economic legislation to help the disadvantaged, 38–40 Eisenhower, Dwight D., 83 Ely, John Hart, 54n.10 Emanations, 48–51 Employment agreements and negotiations, 38–39 Employment discrimination, 134–35

161 Equal bargaining strength, 38 Equal protection clause of Fourteenth Amendment, 96 Equality, 26, 34, 54n.2, 82, 94, 101, 131; as constitutional ideal, 99; formal, vs. constitutional command, 135; growth of, 125; meanings of, 96–100 Equality principle (EQ), 97–100, 122, 128; centrality, 105; violations of, 105, 122, 123, 130, 137, 150 Equality value, 96, 99–100, 121, 123; as constitutionally rooted, 97, 98; expansion, 134, 135, 137; as group-based, 131–32; liberty value and, 101, 102, 107, 119, 120, 128, 131–32 Euthanasia, 117–19, 144 Evans. See Romer v. Evans Exodus, book of, 63 Ezekiel, xiii Fallon, Richard H., 115n.44 Faubus, Orval, 134 Federalism issues, cases involving, 83–84, 110n.5 Ferguson. See Plessy v. Ferguson First Amendment, 18–19, 46, 47 Fourteenth Amendment, 23, 35, 55n.13, 98. See also Due process clause Frankfurter, Justice, 35 Free speech, 46 Freedom, 100; limits to individual, 102–6; “transcendent,” 106. See also Liberty; specific freedoms Freedoms, 37 Fried, Charles, 113n.44 Friedman, Barry, xiv Fundamental rights, 89 Fundamentalism, 60 Gardner, Booth, 146 Gay and lesbian marriage, 20, 133, 135–38; justifications for prohibiting, 136–37

162 Gay and lesbian rights, 99, 106–7, 127–29, 133–35 Gerald D. See Michael H. v. Gerald D. Gideon v. Wainwright, 8 Glucksberg. See Washington v. Glucksberg God, 72, 73. See also Biblical law God’s “house,” metaphor of, 66 Goldberg, Justice, 51 Golden Rule, 107 Gore, Al, 22. See also Bush v. Gore Government: conflicts between branches of federal, 83; conflicts between individual citizens and, 83–85; conflicts between state and federal (see Rights model cases) Government action: abridging constitutional prohibitions, 96; illustration of legitimate, 95–96 Grant, Ulysses S., 126 Grayling, A. C., 147 Griswold, Estelle, 4, 34, 42 Griswold v. Connecticut, 8, 84, 85, 87, 88, 147; Justice Black and, 5, 88, 107; Justice Blackmun and, 140; Justice Brennan and, 91, 108; Justice Douglas and, 43, 44, 46–53, 57, 62, 63, 65, 88, 91, 108, 111n.16; Justice Kennedy and, 106; Justice Stewart and, 107; privacy and, 91; and the rise of judicial prophecy, 34–35, 41–53; what the judges were doing in, 5 Hand, Learned, 26 Hardwick, Michael, 127–28. See also Bowers v. Hardwick Harlan, John Marshall I, 23–24, 43–44, 130, 131, 149; on color-blind Constitution, 150–51; on Constitution’s equal protection clause, 27; Plessy v. Ferguson and, 23, 27, 131, 148–50 Harlan, John Marshall II, 26–27

INDEX Heraclitus, 152 Heschel, Abraham Joshua, 73 Higher law, 9 Hobbes, Thomas, 95 Holiday displays, 120–22, 124 Holmes, Oliver Wendell, 137 Hosea, 67, 69 Housing discrimination, 134–35 Individual rights, 140; fundamental rights and, 89; vs. majoritarianism, 44, 123; vs. majority rule, 44. See also specific topics Interconnectedness vs. distinctiveness, 45–46 Isaac (Old Testament), 9, 10 Isaiah (Old Testament), 66–67, 69 Jackson, Robert, 26 Jefferson, Thomas, 20. See also Declaration of Independence Jeremiah (Old Testament), 9, 10, 66–67, 69, 73, 75 Jesus, 1–2, 107, 151–52 Jeter, Mildred, 129, 133 Johnson v. Texas, 123 Jotham, xii Judaism, 1–2. See also Biblical law Judges: compared with umpires, 64; functions, 18; “imposing their own values,” 5–8 (see also “Legislating from the bench”); as part of the majority, 124–25; as prophets, 113n.44, 119, 124, 151 (see also Priestly vs. prophetic judges); variation in how deferential they are, 29–30 (see also Deference) Judicial activism: arguments against the defense of, 113n.44; biblical roots (see Biblical law); critics of, 7–10, 19, 22, 27–29, 65, 81, 83, 85; debate over, xi–xii; definitions and meanings, 1, 10, 27, 29; and imposing one’s values, 28; vs. judicial deference,

INDEX 30; problem presented by, xi–xii. See also “Activist” judges Judicial activists, xi; as seeing truths that others do not, 2. See also “Activist” judges Judicial prophecy. See Prophecy, judicial Judicial restraint, 25, 58, 60, 69 Judicial review, 22–23, 27; defined, 22 Judicial supremacy, principle of, 21 Judicial unaccountability, 10 Jurisprudential (prophetic) theme, 67 Kennedy, Anthony, 106, 107, 146 Kennedy, John F., 6 Kentucky. See Batson v. Kentucky Kerry, John F., 6 Lawrence v. Texas, 8, 106, 107, 135, 147 Law(s): adherence to ritual (see Amos); categories of, 104–5; development of, 93–94, 125; higher, 9; as instrumental, 63; justification for, 104; nature of, 63; purpose and effect of, 23–24; vs. science, 13n.4 Legal principles: deciding which ones apply to a dispute, 18; interpreting the meaning of, 19 “Legislating from the bench,” 3, 4, 8, 25. See also Judges, “imposing their own values” Legislature, second-guessing the, 44 Levinson, Sandy, 76n.7, 78n.26 Lex talionis, rule of, 72 Liberalism. See Conservatism vs. liberalism Liberty, 26, 82, 100–101; growth of, 125; meaning of, 100, 108, 140; trade-off between security and, 95, 96. See also Freedom Liberty interests, 94 Liberty value, 100, 102, 106, 123, 127, 140; equality value and, 101, 102, 107, 119, 120, 128, 131–32; as individually rooted,

163 131, 132; as root in higher law, 101 Literalism, cases where Supreme Court was not confined by, 46 Little Rock, Arkansas, 134 Lochner, Joseph, 39 Lochner v. New York, 39–40, 43–46, 97 “Lochnerizing,” 40 Louisiana, 130, 149. See also Plessy v. Ferguson Loving, Richard, 133 Loving v. Virginia, 8, 133 Lynch v. Donnelly, 120, 122, 124, 149, 150 Madison, James, 20, 44–45. See also Marbury v. Madison Majoritarian enactments, 90, 92, 140 Majoritarian tyranny, 3, 45 Majoritarianism/“majority rules,” xi–xiii, 8, 26, 52, 81–83; America as based on, 26, 81, 85, 92; and antimajoritarian exercises of judicial power, xii; as causing debate and strife, 152; as decisive value in our legal culture, 152; defined, xiii; as defining feature of democracy, xiv, 85; equality, liberty, and, 82, 109, 116n.44, 119, 123, 151; vs. individual rights, 44, 123; overvaluation, 128, 129; pragmatic and ethical dimensions, 85; priests, prophets, and, 12. See also Countermajoritarian difficulty Marbury v. Madison, 20–23, 27 Marital privacy, 45–46, 51, 135; and the right to marry, 129–30, 133. See also Gay and lesbian marriage; Griswold v. Connecticut; Parenthood and parental rights Marriage, same-sex, 20 Marshall, John, 20–22, 27, 151 Micah, 67, 77n.24

164 Michael H. v. Gerald D., 132, 140 Miers, Harriet, 17 NAACP v. Button, 47 NAACP v. State of Alabama, 47 New Deal, 40 Ninth Amendment, 51, 60 Nixon, Richard M., 21 Nixon, United States v., 21 Noahide laws, 70–71 O’Connor, Sandra Day, 120, 121, 124, 149 Parenthood and parental rights, 85–88, 102–3, 107; priestly vs. prophetic approaches to questions of, 88–92, 94 Parks, Rosa, 65 Passive virtues, 41, 45 Penumbras, 48–51 Perry, Michael, xv, 113n.44 Physician-assisted suicide. See Assisted suicide Planned Parenthood of Southeastern Pennsylvania v. Casey, 143 Plessy v. Ferguson, 24, 27, 131, 135; Brown v. Board of Education and, 148–50; Justice Brown and, 130; Justice Harlan and, 23, 27, 131, 148–50; ramifications, 23, 24; ruling in, 23; understanding of Constitution put forward in, 24 Poe v. Ullman, 41, 48 Popular sovereignty, 85. See also Majoritarianism/“majority rules” Populist Party, 38 Posner, Richard A., xv, 113n.44 Presidential election of 2000, 2, 3 Priestly vs. prophetic approaches to constitutional questions, 88–92 Priestly vs. prophetic interpretation, xii–xiii, 54n.10, 57, 59–60, 71–72, 75; critical factor

INDEX distinguishing, 93; illustrated, 69–71. See also Priests and prophets Priestly vs. prophetic judges, 11, 125 Priests and prophets: and conservatism vs. liberalism, 12–13; contrasted, xii–xiii, 11–13, 58, 60, 61, 65, 68–69; similarities, 68. See also Prophets of Bible Privacy rights, 33–34, 37, 51–53, 127–28; in home, 50. See also Gay and lesbian rights; Griswold v. Connecticut; Marital privacy; Parenthood and parental rights Prohibition, 104 Prophecy, judicial: Griswold and the rise of, 34–35, 41–53 “Prophet,” etymology of the term, 74 Prophetic interpretation. See Priestly vs. prophetic interpretation Prophetic judges, 5, 11, 12 Prophets of Bible, xii, xiii, xiv, 9–10, 61; how the powerful respond to, 61; internal criticism, 61; judicial prophets and, 151 (see also under Judges); preclassical vs. classical, 9–10; as social critics, 73. See also Biblical law; specific prophets Quickening (pregnancy), 142, 143 Racial classification, 148–51 Racial discrimination, 133–34. See also Brown v. Board of Education; Plessy v. Ferguson Racial intermarriage, 129–30, 133–34, 137 Refraction, 72 Rehnquist, Justice, 144–45, 156n.60 Religion and law, 5–6, 119–22, 124, 137–38 Religious disagreements, 68 Religious displays, 120–22, 124 Religious diversity, 120–21 Religious people, U.S. as a, 119–20

INDEX Religious texts, 119; authoritative, 92–93 Revision, Council of, 21 Right: to control one’s body, 140–41, 143–44; to die, 7, 146 (see also Assisted suicide; Euthanasia) Rights, 52; as having emanations, 48 (see also Emanations); as protecting minorities, 156n.72. See also individual rights; specific topics Rights model cases, 83–87 Roberts, John, 3, 17, 64, 148 Roe v. Wade, 138, 140, 141, 143, 147 Romer v. Evans, 135 Romney, Mitt, 6 Roosevelt, Franklin Delano, 40 Rosen, Jeffrey, 13n.9 Rubenfield, Jeb, 13n.9 Rules, as part of a process, 72 Same-sex unions. See Gay and lesbian marriage Scalia, Antonin, 11, 50, 88–92, 94; accusation of fellow justices, 7; Bowers v. Hardwick and, 135; George W. Bush and, 3; Lawrence and, 107; Michael H. and, 140; Ten Commandments, religion, and, 119 Schiavo, Terri, 6, 10, 27 Science vs. law, 13n.4 Seattle School District case, 148–50 Security and liberty, trade-off between, 95, 96 Segregation. See Brown v. Board of Education; Plessy v. Ferguson Separate-but-equal doctrine, 23, 24, 148. See also Brown v. Board of Education; Plessy v. Ferguson Separation-of-powers (SOP) issues, 83, 109n.2 Shepard, Matthew, 135 Sirica, John, 21 Slaughterhouse Cases, 55n.13, 56n.34 Slavery, 129; constitutional Amendments and, 23, 98

165 Souter, Justice, 43 Southern Manifesto, 26 Stanley v. Georgia, 155nn.56–57 Stewart, Justice, 51, 107 “Strict” construction, 17–18, 25, 29 “Strict” interpretation, 18, 20, 28, 72 “Strictly interpreting” Constitution, 3, 4, 17, 19, 20, 28 “Substantive due process,” 37. See also under Due process clause Substantive (prophetic) theme, 66, 67 Supreme Court: “active,” 5; Constitution and, 20–21. See also specific topics Supreme Court decisions, progressive, xiii Talmud, 1, 95 Ten Commandments, xiii, 5, 70, 119–20 Tileston, Wilder, 34 Tileston v. Ullman, 34–35 Tocqueville, Alexis de, 3, 44–45 “Tyranny of the majority,” 3, 45. See also Majoritarianism/“majority rules” Ullman. See Poe v. Ullman; Tileston v. Ullman Unenumerated rights, 46–48 Values in American culture, most central, 26 VMI, United States v., 8 Wainwright. See Gideon v. Wainwright Waldron, Jeremy, 114n.44 Wallace, David Foster, 139–41 Walzer, Michael, 59, 77n.17 Washington v. Glucksberg, 145 Weber, Max, 77n.17 Wechsler, Herbert, 26 White, Byron, 127, 143, 145 Wisconsin v. Yoder, 102–3 Women’s rights, 99 Yoder, Jonas, 102–3

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About the Author DAVID R. DOW is University Distinguished Professor at the University of Houston Law Center and Visiting Professor of History at Rice University. His areas of expertise include contracts, constitutional law, and death penalty law. He has handled more than fifty appeals, including twenty-five death penalty appeals. He earned his J.D. from Yale University, where he was an editor on the Yale Law Journal. He is the author of three books, including Executed on a Technicality (2005) and Machinery of Death (2002), and more than one hundred book chapters and professional articles. His essays and editorials on abortion, polygamy, gay marriage, affirmative action, separation of church and state, biblical law, and judicial activism have appeared in The New York Times, The Washington Post, The Christian Science Monitor, The Progressive, The Houston Chronicle, and The Dallas Morning News.