All Ten of the Constitutions-in-Exile Order Their Respective Mojitos

I count ten times in the past 225 years when judges--without any lead from legislators--have changed the law:

• John Marshall's original judicial review power grab.
• The privileging of entrepreneurial over other property interests in the early republic, as chronicled by Morty Horwitz's Transformation of American Law.
• Roger B. Taney's attempt to entrench slavery in the territories, in Dred Scott.
• The post-Civil War empowering of corporations with exorbitant privileges of citizenship and limited liability at the expense of government regulators and creditors.
• The post-1890 empowering of managers of bankrupt enterprises, at the expense of shareholders and bondholders, to keep their enterprises running.
• The early twentieth century claim that the Constitution enacts Spencer's Social Statics--that the Constitution's Commerce Clause does not say what it says.
• The post-1937 rollback: the claim that the federal government does in fact have the power to regulate interstate commerce and thus economic activity as it wishes.
• The Warren Court's declaration that the Constitution obliges it to do whatever it can to make this a free and equal country.
• The Bork-Posner-led transformation and rollback of antitrust doctrine.
• The Rehnquist trump: no matter what the law says, when an election is tied the right wing wins.

Is that rather a lot of constitutional moments, or rather a little?

Comments

[dale]

"The post-Civil War empowering of corporations with exorbitant privileges of citizenship and limited liability at the expense of government regulators and creditors."
I'd be interested in hearing if there is wide spread agreement that this is a pivital court decision. And if so, what can or should be done about it.

[logicnazi]

I disagree strongly with the Marshal claim. If you read the federalist papers written before the constitution and look at much of the dialog of the framers you will notice that both sides of the debate assumed that the courts would have the power to refuse to enforce unconstitutional laws. Moreover, there are some good arguments that this understanding was implicit in the concept of the courts of the time so a contemporary reading of the constitution would have at least accepted it as a possibility.

["Accepted it as a possibility" is certainly the case. Any further? Unclear.]

To put the matter differently all Marshal needs to reach his conclusion is the idea that when two laws conflict and one law is the constitution the courts must decide which is superior.
--

Admittedly some of these other changes seem more incompatible with the original understanding of the constitution. However, the very fact that the constitution stipulates a judicial system that by context is assumed to operate by precedent and interpretation suggests that perhaps this sort of court power to reinterpret was exactly what was intended. In which case none of these situations could genuinely be cited as the courts changing the constitution.

[Ed Coke]

Corporations are _not_ citizens and have no privileges and immunities under the 14th Amendment, rather they are `persons' to be accorded due process and equal protection. This `corporate personality' language was moreover not argued in SANTA CLARA V SOUTHERN PACIFIC and not annunciated by even the justices, but was rather provided by a privately employed writer of headnotes or syllabi.

Nor was liability there an issue: it's a distinct concept.

It was the California Workingmen's Party that defined a corporation as a ``corrupt combination of individuals formed together for the purpose of escaping individual responsibility for their acts.''

[James Grimmelmann]

Three of the ten items in your list deal primarily with non-Consitutional law. For that reason, it's hard to see them counting as Constitutional moments.

[Simon St.Laurent]

Few moments, large impacts.

[David Lloyd-Jones]

I agree with logicnazi that Brad is wrong on Marshal.

-dlj.

[David Lloyd-Jones]

I do, however, agree with Brad that Marshall has two l's.

-dlj.

[David Lloyd-Jones]

More precisely, Justice Marshall has four l's, two for John and two for Thurgood.

-dlj.

[Jon Fernquest]

Looks like de Tocqueville but with a cycle (hopefully with an **upward** progressive trend and hopefully looping back to play Roosevelt and Warren in the near future, once again).

[Robert Waldmann]

Dear Brad

I would much rather you not deracinate our discourse with semi translated French as you did when you used "privileging" to mean "favoring" (and you used the French word entrepreneur in the same sentence (and why the hell do we use a French word for entrepreneur that's like using a German word for light hearted)).

You better stop or I am going to hack your bank account to steal your values and repost all of your texts with a crossed out font.

However, I do think much more highly of you than HTML Mencken does
http://sadlyno.com/archives/5108.html

a bit outre' no ?

[But he is right about one thing: our work to balance the budget in the 1990s in the end did little more than enable Bush's tax cuts, didn't it?]

[H. Haller]

What about the Slaughterhouse Cases, where the Court castrated the Privileges & Immunities Clause?

[Mike Huben]

If corporations are persons (but not citizens), why do they seem to be privileged above the flesh and blood persons we have detained at Guantanamo? Ah, rhetorical questions.

[Mike Huben]

logicnazi seems to have it right: judicial review is explicitly discussed in FEDERALIST No. 78, as part of the sales pitch for the Constitution:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing...
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Marbury v Madison followed this description of the power in the FEDERALIST.

[Alexander Hamilton certainly believed in extensive judicial review. But Hamilton is not our Solon, or not our only Solon.]

[James Killus]

I think you're grouping a lot of concerted actions as "moments" like taking the entirety of the Warren Court's actions and putting them as one bullet point. That gives rather short shrift to the epic wrestling match between Plessy v. Ferguson and Brown v. Board of Education. If the former was done with "a lead from legislators" surely the latter was also following (albeit at great length) that same lead. But if that is the case, then the Warren Court was always dealing with legislation, nor writing laws per se.

I'm also thinking that the evolution of the "takings" clause is a series of constitutional moments. People nowadays seem to think it unremarkable that eminent domain applies to corporations that own power grids and railroads, but find it offensive if the corporation owns a shopping mall.

[HTML Mencken]

Please read more carefully, Robert. I praised Prof. DeLong's intelligence and decency, before I went into how one of his posts pissed me off. I didn't express a negative opinion of Brad DeLong per se; I expressed a negative opinion of something he wrote that struck me as wrong and unfair.

That said, I think DeLong is wrong here in his characterization of the Warren Court, buying into the right-wing meme that it invented rights out of whole cloth. I think it instead tried to make the Bill of Rights apply in the way that George Mason had always intended. (Black was famously literalist; how a literalist reading can produce new rights out of whole cloth is beyond me.)

OTOH, DeLong's points 4 and 6 are spot on and underrated; number 4 especially so, given the context that the reconstruction amendments were created precisely to give legal guarantees to abused blocs of people who'd previously had no rights as people, only as chattel property. Those guarantees were *hijacked* by entities deserving no such rights; meanwhile, the people for whom the amendements were made regressed to the de facto point of no protections, as codified and assumption-implied in Plessy. So it's not just that the legal hijacking was crass; it was also cynical: power in the form of legal rights were made to accrue to the already powerful (this was the Gilded Age, after all) instead of to the weak, for whom the new power and protections were intended. If I could do only one thing to reform this country, it would be to repeal corporate personhood.

[kaleidescope]

I would add the finding that the eleventh ammendment doesn't mean what it really says and instead enshrines the notion that states have sovereign immunity even as against their own citizens.

[Denis Drew]

Never forget what I call Roe v. Wade's "consensus test" on a list of new constitutional departures: "In view of all this [in view of Roe's 5 "pointless surveys" to use the phrase chosen by soon-to-be Stanford Law president John Hart Ely in 1973] we do not agree that, JUST BY ADOPTING ONE THEORY OF LIFE,
Texas may override the rights of the pregnant woman that are at stake." [my emphasis]

Roe was supposedly a "compelling interest test" -- a compelling interest being needed to override a "fundamental" constitutional right (in this case privacy") -- but I suppose that even uncertain human life in the womb could qualify as compelling (would in any other context), thus: Roe's odd consensus test.

As for constitutional privacy, any constitutional right which merely required legislatures to weigh it in the balance: sometimes coming down on one side, sometimes on the other, is unlikely to be put into the constitution -- certainly not in in the USA 150 years ago; perhaps in San Francisco, today. :-)

It could be said that Roe really did not start any new trend because something as outlandish as a consensus test is not likely ever to be heard of again.

BTW, the medical consensus on when full-fledged life begins should be somewhere between 14-20 weeks -- one week under whatever line is drawn will exist an undeniable compelling interest: 95% the same baby -- and no court would dare to set the week when compelling interest begins; too obviously legislative.

Lastly, what will the courts say when fetuses may be removed overnight for medical care and returned alive to the womb? Will we have some fetuses slave and some free?

[Francis]

I'd break out the Warren Court into two sub-bullets: procedural rights (one person, one vote) and substantive rights (enforcing the liberty interest against majoritarianism).

[Joe S.]

If we are going to add nonconstitutional cases, I would also suggest the invention of products liability by Judge Traynor and others in the 1950s (IIRC.)
Kaleidoscope has a good constitutional point, although we are only halfway toward state sovereignty. Alden and similar recent cases have gone a long way toward restoring state sovereignty, but matters are still reversable.

[David Borgendale]

"The post-Civil War empowering of corporations with exorbitant privileges of citizenship and limited liability at the expense of government regulators and creditors."

I am so happy you included this in your list. I think that the unargued assumption in Southern Pacific Railroad vs. Santa Clara County is one of the most egregious decisions in the history of the Supreme Court. A very substantial proportion of the current ills our society faces have their origin in this monumental and stupid error of law.

[im1dc]

logicnazi says "I disagree strongly with the Marshal claim."

However the Marshall 'power grab' issue is really over the fact that the power of review was not explicitly written in the US Constitution, only implied, therefore Marshall's 'power grab' was one of the turning points in US Constitutional law. Probably the MOST important considering the timing of it.

See:

Original Intent & Judicial Review

"The Constitution does not expressly provide for judicial review. What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers."

"Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation. It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review."

from http://www.law.umkc.edu/faculty/projects/ftrials/

conlaw/judicialrev.htm

You should know President Jefferson refused to call the Marshall lead SCOTUS into session for almost two years due to the Marbury vs. Madison impasse, TJ knew what Marshall was going to assert so he didn't let the SCOTUS meet. When they did meet Madison vs. Marbury was handed down.

That said, I agree with logicnazi's reasoning giving the SCOTUS the power of review implicitly.

[im1dc]

Here's a link to an excellent US Supreme Court Media blog: (Its all there)

http://www.oyez.org/

[eb]

Symposium: The Critical Use of History

The Origins of Judicial Review: A Plea for New Contexts

Jack N. Rakove

Stanford Law Review, Vol. 49, No. 5. (May, 1997), pp. 1031-1064.

Stable URL: http://links.jstor.org/sici?sici=0038-9765%28199705%2949%3A5%3C1031%3ATOOJRA%3E2.0.CO%3B2-H

Abstract

In this article, Professor Rakove argues that a critical history of the origins of judicial review would begin by recognizing that far too much importance has been ascribed to the famous case of Marbury v. Madison and the handful of cases that anticipate it. He suggests that a better account would locate the origins of this crucial doctrine of American constitutionalism in three other contexts. First, judicial review has always been much more concerned with policing the boundaries of federalism than with the task of maintaining the separation of powers within the national government alone. Second, the original appeal of judicial review reflected a new appreciation and critique of the positive lawmaking activity of republican legislatures-an appreciation that would have been difficult to obtain before the Revolutionary era. Third, before Americans could accept the legitimacy of judicial review, they first had to form a new conception of the benefits of an independent, professional judiciary.

[Roger Bigod]

Calling Marbury a "power grab" seems inaccurate. Judicial review was a respectable position that had been widely discussed. There were dicta in SC opinions from the 1790's suggesting that the Court had the power. Marshall's contribution was to creatively violate the canons of interpretation to get the law in his cross hairs. (And to an unknown extent enjoy sticking it to Jefferson.)

More generally, it's well within the bounds of common law practice, and the Founders clearly contemplated a common law regime. That includes relying on a hodgepodge of sources, from tenuously related Amendments to the output of Swedish sociologists. Unattractive as the pro-business are, they have some basis in prior law and policy arguments for promoting commerce.

I'm mystified that the Griswold-Roe line of cases didn't rate an item. It's fun to believe that there was a pristine right of privacy at the Founding, tarnished by nasty old state legislators during the Victorian Era. It's also fun to believe that I have a pristine right to a pony. (The first proposition at least has the support of some some social practice and legal history. Support for the second is as tenuous as looking up words in an Eighteenth Cent. dictionary.)

The two power grabs that stand out to me are Dred Scott and Bush v. Gore. Both found things in the Constitution that no one had suspected were there. It's difficult to square either one with common law procedure.

[J. Michael Neal]

That said, I think DeLong is wrong here in his characterization of the Warren Court, buying into the right-wing meme that it invented rights out of whole cloth. I think it instead tried to make the Bill of Rights apply in the way that George Mason had always intended.

This can be true, and that moment still be a turning point. Clearly, the Bill of Rights had not been made to apply in the way that you assert George Mason intended up to that point.

[Cheap Holidays low web rates]

What about the Slaughterhouse Case?

[Tyrone Slothrop]

In the last several years, the Supreme Court has decided that the Due Process Clause limits the amount of punitive damages that can be awarded in proportion to the underlying actual damages, in cases like BWM v. Gore and State Farm v. Campbell (I think). The arguments pro and con are essentially legislative, and there is (as far as I know) no serious argument that these limits have anything to do with any originalist understanding of the Due Process Clause.

[Trickster Paean]

It's funny, I'm taking Constitutional Law right now, and this was a big question at the beginning of the course, what counts as a constitutional moment.

I would argue that the big three constitutional moments are these three:

1. Judicial Review basically putting the Supreme Court where it remains today. (the first Constitutional collision between the Courts and the Executive).
2. Dred Scott, the Civil War, the 13th and 14th Amendment, and all of that.
3. The New Deal, the Switch in Time, and the Warren Court in Brown v. Board of Education turning the Court around.

These were all part of broader occurrences, broader social movements and changes within the constitution of society as well as the interpretation of our written Constitution.

The business law changes were not constitutional moments, as they lacked the sort of broader social significance, although they are important.

As for the Bork-Posner-led transformation and rollback of antitrust doctrine, the problem with antitrust is that it is part of the common law of the U.S., not part of the constitutional law of the U.S. And like all common law, it evolves judicially, and the law as written legislatively gives that power to the courts.

As for the Rehnquist trump, I don't think this has been a constitutional moment. I believe that so far, it is an aberration, and will in the future be looked at as a mistake on the order of Lochner v. New York.

[Esq.]

With the limited exception of railroad reorganizations, the "empowerment of managers" in bankrupt enterprises was really driven by the 1898 Bankruptcy Act and later the 1938 Chandler Act, not the Courts.

I would also suggest that the characterization "at the expense of bondholders and shareholders" is less than completely accurate. Secured creditors are well protected (or at least "adequately protected")in Bankruptcy, receiving at least as much as in a liquidation. In fact, secured creditors often force the conversion from reorganization to liquidation by convincing the Courts that they aren't adequately protected. Confirmation of a Plan requires that unsecured creditors get as much as in a liquidation. A insolvent business by definition has liabilities exceeding assets, so shareholders' shares are worthless under any circumstances.

The empowering of corporations against creditors (and shareholders too), in fact the creation of the modern corporation, was also driven by the state legislatures rather than the Courts. This must be considered apart from protection from regulation. The states engaged in a race to the bottom for fees, and Delaware won.

And the biggest change in the consitution by the Courts is the disembowelment of the right to a jury trial in criminal cases by prohibiting mention to the jury of jury nullification.

[Roger Bigod]

Trickster Paean,

Your point #3 is analytically two. The switch in time story concerns relations between business and government. Brown et seq. is about relations between individual and government. They're related in the sense that the same elements of society tend to line up in the same sides. But the business story was essentially done in 1938. Brown exfoliated into reapportionment, defendant rights, Griswold, Roe, Lawrence.

Bad as Dred Scott was as law, it was in effect only a few years and was corrected, expensively. I have the impression that the Court took a cautionary lesson from the experience. The Rehnquist trump has already been in effect longer than Dred Scott and has been uncorrected, also expensively. The Justices have been emboldened, if you will, by the outcome.

[Sebastian Holsclaw]

The Roe decision which both created a new right and inspired the political Christian Right movement doesn't even get passing mention? To take just one influence, do you believe that the count would have been close enough in Bush v. Gore for it to ever get to the Supreme Court if abortion had been dealt with in the states?

[Roger Bigod]

IOW, an indirect effect of the Row decision was that it presented the Rehnquist Court with the temptation of an open cookie jar. This is a breathtakingly creative argument, and perhaps the best soundest ever made against Roe.

[James Killus]

The idea that Roe v. Wade somehow presented the Rhenquist Court with an "open cookie jar" would be plausible were it not for the entire previous history of the Court. Conservative Courts have always found whatever they needed to find in the wording of the Constitution and always will.

Nor was Roe responsible for the rise of the Christian Conservative movement, unless one assumes that without Roe, abortion would become completely illegal in all states in all cases. The Christian Conservative movement is not interested in legal theories, only with asserting its power.

[Nathan Newman]

Brad, I am surprised or maybe not so surprised that you ignored the judicial decisions that overtuned Reconstruction-era Civil Rights laws and ushered in Jim Crow in the 1870s and 1880s. A post in reponse is up at:

http://www.tpmcafe.com/blog/coffeehouse/2007/feb/21/amnesia_on_the_death_of_reconstruction

[Brad DeLong]

I had always seen the Supreme Court as a very minor player in the victory of the terrorists in the U.S. south in the 1870s. I saw it as a loss of morale on the part of the north--an executive (and legislative) decision that the south was not worth it. But I could be wrong.

[anne]

"I had always seen the Supreme Court as a very minor player in the victory of the terrorists in the U.S. south in the 1870s. I saw it as a loss of morale on the part of the north--an executive (and legislative) decision that the south was not worth it. But I could be wrong."

WEB DuBois, rather sadly, agreed. Possibly the turn begins with the concerns of Franklin and Eleanor Roosevelt. (I think so.)

[Tom Perkins]

"And the biggest change in the consitution by the Courts is the disembowelment of the right to a jury trial in criminal cases by prohibiting mention to the jury of jury nullification."

Absolutely agreed. It was a disastrous change.

Yours, TDP, ml, msl, & pfpp

[jp]

About #4 -- "The post-Civil War empowering of corporations with exorbitant privileges of citizenship and limited liability at the expense of government regulators and creditors."

No, no, no. I can't really fault Prof. D. for thinking this, since it's outside his area of expertise. But this is a myth (perpetuated by, among others, the 2003 film "The Corporation").

The case that Prof. D. appears to be referring to, Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), stands for the narrow proposition that corporations are "persons" FOR THE PURPOSES OF the due-process and equal-protection clauses of the 14th Amendment. And whatever impact this holding may have had was more than swamped by Prof. D's #7 (the vast expansion of Commerce Clause power in the 1930s).

More importantly, corporations (or analogous forms under other legal systems) have been legal persons for thousands of years -- meaning that they could buy and sell property, enter into contracts, outlast the lives of their owners, etc. Limited liability likewise has existed for millennia. See, e.g., "Law and the Rise of the Firm," by Henry Hansmann, Reinier Kraakman, and Richard Squire, published last year in the Harvard Law Review (119 Harv. L. Rev. 1333). Go to http://www.harvardlawreview.org/issues/119/march06/hansmann_kraakman_squire.shtml

In the nineteenth century there *was* some apparent disruption as states moved from ad hoc licensing of corporations to "general" incorporation laws. (New York was the first state to adopt such a general law, in 1811.) This made becoming a corporation much easier. But it's a mistake to see this (or the Santa Clara case) as marking the "creation" of corporations as legal persons, or as entities with limited liability, or as business enterprises. Those legal principles had been in use long since, simply on a much more limited basis as was to be expected in pre-industrial societies.

[Tracy Lightcap]

Ted Lowi talks of two constitutional revolutions, both in recent times, but I'd say there have been three:

1. The Civil War Amendments and incorporation - Not for the reasons usually given, but because they gave some shape to the idea of national citizenship. The original Constitution is silent on this. Incorporation of the Bill of Rights into the due process clause of the 14th followed, albeit at a 50 year lag.
2. The ICC and tax reinterpretations in 1937 - This is the turn made in NLRB and Stewart Machine. By recognizing broader commerce powers (reclaiming Gibbons for modern purposes) and broader taxing powers, the modern regulatory state got a legal basis.
3. The civil rights and equal protection revolution - Here we are talking about Brown I and II and Baker. This started the USSC on the road toward a re-conception of the role of the federal government in protecting citizenship rights.

I think, agreeing with Lowi, these really did establish a different Constitution. The rest of the changes, though not insubstantial, are a LOT less important.

[rickhavoc]

jp,

The good Prof's point is that whatever bennies corps came into after Santa Clara were dished out by the Court in lieu or in spite of the legislative branch, the states, etc etc. Simple reference to takings cases and intellectual property rights make clear that there is much to being a person under the law.