I found this gem that expresses the issues related to how to interpret the constitution intelligently given changing societies and understandings of basic principles such as liberty, justice, etceteras...
http://www.yale.edu/lawweb/jbalkin/articles/lochnerandconstitutionalhistoricism1
.pdf
This article describes and compares the decision of Lochner v. New
York and compares it to Plessy Versus Fergussen, and Brown Versus the
Board of Education which overturned Plessy.
(for a loud rendering of Louchner versus New York go here:
http://aalto.arch.ksu.edu/jwkplan/images/lochnerbullet.htm)
The article is long, but if you are interested.....
He notes that works are "canonical" (Brown versus Board of Education)
or "anti-canonical" (Plessy Versus Fergusen) according to changing
understanding of what the Constitution is about and then discusses
each of the views of the constitution that are cited to justify
changing from a clearly nasty decision like Plessy to Brown, or in the
case of Lochner versus new York. He then concludes:
"In posing these questions, I have employed a particular
constitutional theory of my own – constitutional historicism.
Constitutional historicism holds that the standards of good and bad
legal argument about the Constitution change over time in response to
changing social, political, and historical conditions. Not only does
doctrine itself change over time, but also the constitutional common
sense that allows well-socialized lawyers to recognize what is a
better and worse argument, what is a plausible interpretation of the
Constitution and what is "off-the-wall."
He is not talking about a "living constitution" in the sense that
others have described it, but in the sense that the understanding of
the constitution reflects the life and morals of the people of the
time -- and that embodies a shifting sense of what is "common sense"
and true about the world.
For example, referring to the other thread, William Jennings Bryan
opposed Darwinism on the grounds of it contradicting Christian
principles and his literalist understanding of Genesis -- not because
his egalitarian principles opposed social Darwinism. A person who
opposes Darwinism in our day and age might oppose it on the same
grounds -- but would also throw in arguments about the implications
and misuse of Darwinism to justify a dog-eat-dog society. While the
truths themselves don't change, the framework and understanding of
those issues does.
He goes on:
"Historicism does not deny the felt constraint of legal materials on
well-socialized lawyers and judges at a particular point in time.
Otherwise, the very distinction between the plausible and the
"off-the-wall" would make no sense. Instead, it argues that legal
materials and legal conventions, and particularly those that apply in
constitutional cases, offer sufficient flexibility to allow
constitutional argument to be a site for political and social
struggle. Through these struggles, the internal conventions of
constitutional argument and the constitutional common sense of a
particular historical period are reshaped."
The words of the constitution don't change unless amended. He then
goes on to examine whether Louchner versus New York was wrongly
decided by the standards of the time. He then demolishes the idea that
it necessarily follows from historicism that cases are always decided
rightly even by the standards of their own time. He states that while
the law (and the Constitution) provide restraints:
"My view, in contrast, is that culture enables and empowers
rationality and freedom as well as limiting and constraining them."
In other words, we are still responsible for our decisions not despite
of, but because they are conditioned by society and its norms. A
person who commits barbaric acts, acts that are barbaric even by the
standards of his own day, is a barbarian whether those standards
change or stay the same. All that changes is the level of awareness of
just how barbaric those acts are (or were).
On the other hand mores do change. The relationship of the State and
individuals to contracts has changed. At one time contracts were so
sacred that they were a regular source for tall tales about people
selling their souls to the devil. There was almost no such thing as an
"illegal contract." And indeed the core of the Louchner case depended
on the notion of the sacredness of contracts. Peckham spoke for the
majority:
"We think that there can be no fair doubt that the trade of a baker,
in and of itself is not an unhealthy axe to that degree which would
authorize the legislature to interfere with the right to labor, and
with the right of free contract on the part of the individual." ... It
might be safely affirmed that almost all occupations more or less
affect the health of the individual. There must be more than the fact
of the possible existence of some small amount of unhealthiness..."
The author continues:
"Peckham's majority opinion and Harlan's dissent shared many
assumptions about the police power and judicial review, although
Peckham was somewhat more of a libertarian."
And then he writes:
"The true outlier in Lochner v. New York is Justice Holmes, who does
not join Harlan's dissent. Holmes rejects the premises of limited
government and police power jurisprudence and offers what is
essentially a parliamentary model of democracy: the legislature can do
whatever it likes. Judged solely by the professional and doctrinal
assumptions of its time, Holmes' famous dissent is rather
unconventional, although, as Barry Friedman has recently pointed out,
it resonated quite well with the political views of many contemporary
Populist and Progressive thinkers."
He then compares Holmes and Thomas' "off the wall" comments:
"Put in today's terms, Holmes' dissent in Lochner is a bit like
Clarence Thomas' concurrence in United States v. Lopez in which Thomas
argued for a drastic reduction in the federal government's
constitutional powers to regulate interstate commerce; his arguments,
if accepted, would call into question the constitutionality of much of
the modern regulatory state. Thomas's extremely narrow view of federal
power, while lying outside the boundaries of conventional professional
assumptions, nevertheless has some resonance in conservative political
circles and in the larger political culture. Of course once a member
of the Supreme Court makes such an argument in the United States
Reports, it no longer seems as "off-the-wall" as it had before.
Legal culture has an important place for such "off-the-wall" arguments."
Then he says:
"They are a form of prophecy. They dare others to think differently
about settled questions in a constitutional regime. They try to
unsettle what seems fixed and certain. Even if today a particular
position seems extreme, the position asserts that it is the true
meaning of the Constitution that will come to be recognized in time.
"Off-the-wall" arguments cannot wholly be excluded from a legal culture."
At the same time, they represent views that reflect extremes in the
political culture that may be "upcoming" or may be simply extremes.
Holmes dissent might not be such a good idea after all in our own
context. Clarence Thomas' point may be an utter disaster if accepted.
As he says "What makes Justice Holmes' dissent in Lochner no longer
"off-the-wall," but rather an example of constitutional orthodoxy, is
not the quality of his argument at the time, but rather what happened
later on."
Holmes was making a prophesy of the state of things that folks like
Andy or Thomas currently decry. They represent antipodes of opinion.
He next says:
"If Harlan looks increasingly sensible today, that is because we have
lived through the Rights Revolution and the Second Reconstruction. We
understand that judges need ways of balancing competing interests and
protecting liberty from legislative overreaching."
We need balance in governance. We need linkage to principles. We need
principles to be linked to common sense and self interest be moderated
by principles. However, our concept of what those principles are
shifts with time. It's not the constitution that shifts. It is our own
relationship to it.
He concludes:
"For example, it is not difficult, I think, to conclude that Harlan's
approach in Lochner was available (after all, it commanded three
votes). If we want to say that it was also better, a more successful
legal performance, a more admirable product of the contested legal
culture of early twentieth century America, we must bring to bear our
present day judgments about what this admirableness consists in. There
is nothing wrong in that; if it is anachronistic, it is an anachronism
necessary to historical understanding. The fault is in assuming that
the best version of Lochner v. New York is the one that most closely
matches our own constitutional common sense. Put another way, the
mistake is in automatically assuming that Lochner was wrongly decided
because the right way to decide it was Holmes' way, which seems more
familiar to us in light of the New Deal."
Harlan's dissent seems somewhat more reasonable in our day:
"Speaking generally; the State in exercise of its powers, may not
unduly interfere with the right of the citizen to enter into contracts
that may be necessary and essential in the enjoyment of the inherent
rights belonging to everyone among which is the right to be free 'in
the enjoyment of all his faculties, to be free to use them in lawful
ways, to live and to work where he will, to earn his livelihood by any
lawful calling, to pursue any livelihood or vocation.'"
The web site author says:
"But, Harlan specifically notes that the right of contract itself is
subject to certain limitations which the state may lawfully impose in
the exercise of its police power. While this power is inherent in all
governments, it has doubtlessly been expanded in the past half century
owing to an enormous increase in population, urban living, and persons
employed in dangerous occupations. Having laid this foundation, Harlan
notes that if there is a dispute or doubt as to the validity of the
statutes [i.e. fair debatable] that doubt must be resolved in favor
the state and the statute's validity, and the c[our]ts must keep their
hands off, otherwise the Court places itself in the role of enacting
or disapproving legislation. Whether or not this New York law is wise
legislation is not the province of the court to inquire. Under our
system of government, the courts are not concerned with the wisdom or
policy [substantive due process] of legislation."
The State's regulation of bakery's wasn't "unconstitutional" simply
because it violated some sacred right of workers to work and of
bakers to make them work more than 60 hours a week. There had to be a
compelling violation of rights involved and not a mere policy dispute.
In our own time Harlan sounds more reasonable than either Peckham or
Holmes. Going by Holme's reasoning the State can do anything. Going by
Peckhams' reasoning the courts can intervene in policy matters such as
they did in Bush Versus Gore. Going (literally) by Holmes' reasoning
the State can arrest Doctors in California for prescribing medicine,
or declare people enemy combatants and lock them up without due
process. In either case the result is injustice and bad decisions.
The case was "wrong on the day it was decided" -- by our standards,
but not for the reasons that its opponents thought at the time; as the
author says:
"If Lochner was wrong the day it was decided, it will not be for any
of the reasons that we law professors continually offer for why it was
wrongly decided. It will not be because the Justices failed to
recognize the artificiality of common law baselines. It will not be
because the Justices failed to understand that the proper role of
courts was to police the democratic process. And it will not be
because the Justices did not realize that social and economic
legislation is to be upheld unless it is rationally related to some
set of facts that a rational legislature might have believed. Rather,
if Lochner was wrong the day it was decided, it will be because those
who lived in that time, enabled by the tools of understanding that
their legal culture offered them, could have done better for
themselves. Doing better would have shaped, however subtly, the legal
culture they lived in. That improvement, in turn, might have had
important ripple effects in the trajectory of the legal culture they
inhabited. Indeed, if they had done a better job, we might well not be
living in the legal culture we inhabit today."
I concur
Chris
Posted by cholte at September 12, 2007 10:32 PM