Morris B. Abram
Delivered to Emory University Law School
Atlanta, May 13, 1996
When the former Lord Chancellor of the United Kingdom, Lord Healy, spoke in Geneva several months ago, he raised an important question: Why has Switzerland — a country made up of peoples from diverse cultures, languages and religions — held together for 1,200 years despite periods of great bloodshed and terror, while states in the rest of Europe have continually fragmented and reformed, a process which continues in some parts of Europe today with such tragic results?
The answer, said Lord Healy, lay in two principles:
First, fundamental political change is usually accomplished through open debate and, hopefully, by the reaching of a consensus. This means many decisions are made by referendum after full public discussion, giving people a direct say in important political decisions affecting their lives.
Second, the Swiss federal government devolves power to the lowest possible level, so that on many issues people are governed locally. Swiss people generally feel that they are governed by officials who understand their concerns, and not by some remote central authority.
Are there lessons which can be taken from the Swiss experience and applied to the fractious debate currently taking place in American jurisprudence about judicial activism? This argument turns on the role judges should play during Constitutional litigation. When interpreting the Constitution, should judges allow their moral convictions to hold sway? Do they have the right to create rules about the issues before them when they deem it necessary? And what, at the end of day, should be the relationship between the legislative and judicial branches of government?
I am going to try to frame these issues in light of the jurisprudence of an icon of American liberalism, Justice Oliver Wendell Holmes, a member of the U.S. Supreme Court bench from 1902 to 1932 and thrice-wounded abolitionist veteran of the Civil War.
Holmes was considered a leading liberal in his time and even today the principles Holmes laid down — often in dissent — on issues like free speech, jury composition and fair trial remain important precedents. Indeed, on so many issues was Holmes of a mind different from the “reactionary” Court that he earned the title, “The Great Dissenter.”
Consider, for example, the dissenting opinion he wrote in 1919 on free speech in Abrams v. United States, which involved espionage charges brought against an anti-World War I protester. This opinion is still one of the most oft-quoted justifications for freedom of expression in the English-speaking world:
“[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
In fact, Holmes stood up for free speech on more than a few occasions, not only in the context of espionage cases but also for other controversial figures, like Benjamin Gitlow, who was jailed under New York penal laws for spreading socialist propaganda. After Holmes wrote his Gitlow dissent, which Justice Brandeis joined, Zecharia Chafee at Harvard Law School ecstatically praised both men, ranking them with Milton and Mill and predicting somewhat presciently: “The majority opinions determined the cases, but these dissenting opinions will determine the minds of the future.”
But Holmes liberal reputation was acquired through his decisions in other areas, too. Speaking through Holmes in 1904, the Supreme Court — ahead of its time — declared in Rogers v. Alabama that the intentional exclusion of blacks from a grand jury was contrary to the Fourteenth Amendment. Holmes wrote:
“Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied him, contrary to the Fourteenth Amendment of the Constitution of the United States.”
Holmes further buttressed his liberal reputation with his opinions in the Grandfather Clause Cases and United States v. Mosley. In the former case, Holmes joined the Court in striking down clauses which disenfranchised black voters by making their right to vote dependent on their ancestors right to vote. In Mosley, Holmes wrote the majority opinion which held that the failure of election officials to count black and Indian votes breached the Criminal Code.
But perhaps the opinion that most established Holmes liberal reputation was his dissent in the Frank case, joined by Justice Hughes. Leo Frank, the twenty-nine year old son of a wealthy New York Jew, was sentenced to death in Atlanta, Georgia, for the murder of fourteen-year-old Mary Phagan amidst scenes of mass hysteria. Although the evidence was very flimsy, the jury found Frank guilty in what was — for all intents and purposes — a legal lynching. The Supreme Court refused to intervene, but Holmes and Hughes famously dissented, writing:
“Whatever agreement there may be as to the scope of the phrase “due process of law,” there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. Mob law does not become the due process of law by securing the assent of a terrorized jury.”
Eight years later he had his position vindicated when — already retired from the bench — he was assigned to write the Courts opinion in another lynching-type case, Moore v. Dempsey. With the authority of the Supreme Court now behind him, he declared that when in a case “the whole proceeding is a mask — that counsel, jury and judges were swept to the fatal end by an irresistible wave of public passion, and the State Courts failed to correct the wrong,” the Court stood ready to secure mens Constitutional rights.
Outside of law, not only his distinguished abolitionist Civil War record but his friendships with intellectuals from diverse ethnic groups also labeled him a liberal. Brahmin society was never very comfortable with Holmes open affection for leading Jewish intellectuals like Felix Frankfurter, Harold Laski, Morris Raphael Cohen, Walter Lippman and Lewis Einstein, or with his patronage of John Wu — a young Chinese scholar at Michigan Law School who later became a leading judicial figure in China. And, of course, in later years the tacit judicial partnership Holmes formed with Supreme Court Justice Louis Brandeis became the source of much comment.
Undoubtedly one of the keenest minds to sit on the Supreme Court in the twentieth century, Holmes followed several principles of Constitutional interpretation which, in my opinion, were — and still are — correct.
First, Holmes did not waver from the principle that legislative provisions should not be struck down unless a Constitutional provision had been clearly transgressed. Underpinning his deference to the legislature was the philosophical belief, stated in his famous jurisprudential text, The Common Law, that the “first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong.” Where state or federal legislation complied with that notion, Holmes was loathe to overturn it.
Holmes gave full vent to these views in the famous Lochner case. Joseph Lochner, owner of a bakery in Utica, New York, had been convicted and fined $50 for violating an 1897 state law which prohibited bakery employees from working more than sixty hours a week. In 1905 a majority of the Supreme Court found that the state had violated the Fourteenth Amendment and acquitted Lochner.
But unable to find in the Constitution any prohibition of labor regulations, Holmes dissented and — in an opinion which further established his liberal credentials — upheld the New York statute regulating the hours of bakery workers even though he believed most social and economic legislation was a mistake. A constitution, he stated:
“is not intended to embody a particular economic theory …. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgement upon the question whether statutes embodying them conflict with the Constitution of the United States.”
The Lochner theme was one that Holmes would return to again and again. For instance, in Hammer v. Dagenhart, Holmes dissented in upholding the legality of anti-Child Labor laws, a decision that further bolstered his liberal reputation.
So profound was Holmes respect for the legislature that at times it seemed to override clear Constitutional breaches. For example, in Myer v. Nebraska, Holmes dissented when the Supreme Court struck down state laws prohibiting the teaching of foreign languages below the high school level. The case dealt with education, an issue that Holmes obviously deemed came within the jurisdiction of the state. Yet two years later in Pierce v. Society of Sisters, Holmes — unwilling to tolerate what he saw as a direct assault on the right to freedom of religion — joined the Supreme Courts decision to strike down Oregons law forbidding parents to send their children to private schools.
In fact, Meyer and Pierce act like a prism into Holmes mind. Falling in the margins of his Constitutional framework, they illustrate the latitude which Holmes was willing to allow the legislature in its lawmaking. On education, Holmes stayed out of state affairs, but when religioun was infringed, he entered the fray and struck down the offending legislation.
The second principle Holmes followed concerned the place of morality in interpreting the Constitution.
Professor Ronald Dworkin has argued that judges — despite appearances — actually make moral decisions when they interpret the Constitution, that is, they read their own moral views into the document. Of course, if that were true, judges would be free to impose any political theory onto the Constitution. As Walter Olson, senior fellow at the Manhattan Institute points out, “Once judges go activist, whats to stop them from, say, writing free-market economy into law, as they did years ago? (Especially since the Constitution really does contain provisions against impairing the obligation of contracts or taking property without compensation).”
Holmes, on the other hand, saw no place for morality in legal decisionmaking. His biographers tell the story of how in 1927, a delegation led by his close friend (and later Supreme Court Justice) Felix Frankfurter came to Holmes and asked him to issue a writ of habeus corpus in the case of Sacco and Vanzetti, two Italian immigrants sentenced to death on the basis of evidence which Holmes privately admitted was somewhat spurious. Holmes — reluctant to interfere in state affairs — refused. When his secretary complained, “But has justice been done, Sir?”, Holmes replied:
“Dont be foolish, boy. We practice law, not “justice.” There is no such thing as objective “justice,” which is a subjective matter. A man might feel justified in stealing a loaf of bread to fill his belly; the baker might think it most just for the thiefs hands to be chopped off …. The images of justice change with the beholders viewpoint, prejudice or social affiliation. But for society to function, the set of rules agreed on by the body politic must be observed — the law must be carried out.”
Holmes viewpoint has lately been supported by commentators like Mary Ann Glendon, Learned Hand Professor of Law at Harvard, who vigorously criticizes the Dworkin thesis. Recently, she wrote to me:
“[Professor Dworkin] has no concept of the judicial role as it was lived by Holmes, Hand and many others who tried their best to live up to the oath of office they took. He simply doesnt believe that a man or woman can subordinate his personal predilections and beliefs to Constitutional text, structure and tradition. He doesnt seem to understand why anyone would want to do so. Probably that is because he believes that text, structure and tradition are infinitely manipulable.”
Despite the fact that some of Holmes views are beginning to regain their currency, it is clear that they would make him a politically incorrect judge in the 1990s. It is hard to imagine Holmes agreeing with many of the opinions that have emerged from the Supreme Court since the 1950s on issues ranging from the outgrowth of desegregation to defamation, capital punishment, exclusion of evidence obtained in warantless searches, abortion, pornography, affirmative action, and Christmas displays. Not only, I think, would he have found that these opinions usurp authority from the legislature, but he would have abhorred the obvious influence of political morality on many of them.
On some matters there is no doubt that Holmes would have disagreed with the Court. Take, for example, the affirmative action cases like Bakke, all of which involve decisions based on the Constitutional validity of racial classification. His stance on this issue was clearly stated in 1927 when he announced the Courts decision in Nixon v. Herndon, a case concerning the legality of a blatantly discriminatory Texas primary law which stated: “In no event shall a Negro be eligible to participate in a Democratic Party election in the State of Texas.” Speaking for the Court, Holmes wrote:
“States may do a good deal of classifying that it is difficult to believe rational but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.”
Indeed, I have never been able to understand how the notion of “equal treatment” in the Fourteenth Amendment justifies the taking of positive steps by states, like affirmative action programs. I think that Holmes — who generally interpreted this phrase as imposing a prohibition on state actions — would have voted for those measures in last years Adarand decision which significantly rolled back the legality of affirmative action programs in the context of federal set-asides for minority-owned businesses.
How do we reconcile Holmes reputation as a liberal with his strict guidelines on Constitutional interpretation which, today, would make him politically incorrect? In my opinion, there is no reconciliation to be done. It is perfectly possible to be liberal, conservative or of any other political persuasion, and still maintain Holmes strict standards on Constitutional interpretation. But it has become standard practice for some judges to discharge their duites as if they were legislators, swayed by their own sense of political morality. Appointing Holmes to the Supreme Court today would be highly controversial in liberal circles; the principles of Constitutional interpretation to which he adhered — and which underpin so many of his “liberal” decisions –would, ironically, make him unacceptable.
Why do Holmes views on Constitutional interpretation make political sense? To answer that question I want to return to the Swiss experience. Its lesson is fairly clear. When citizens feel they are effectively participating in their nations political process, popular discontent wanes, reducing the chance of major social unrest and political upheaval. Extrapolating a little, one might say that institutions which promote the role of “the people” in decisionmaking inherently buttress democracy and should be encouraged.
I am not suggesting that in a country as large and diverse as America, we should attempt to transplant the devices used by the Swiss. If referendums were used regularly, our country would soon find itself mired in tangential political disputes. And Switzerlands rather full devolution of power to local level would prove very costly in the United States.
But in my opinion, the broader lesson does apply to America. We should cultivate rather than undermine those institutions which give power to the people. And in our country that means leaving important public legislation to the legislature — which is supposed to express the will of the people — and not to the judiciary. To do otherwise is to endanger the democratic institutions upon which this country is founded.
Two recent and controversial American court decisions striking down state laws prohibiting doctor assisted suicide — one by the 9th Circuit Court of Appeals on the West Coast and the other by the 2d Circuit on the East Coast — illustrate the way in which judicial activism can erode democracy.
Despite involving one of the most difficult ethical, moral and practical decisions confronting modern medicine, both of these decisions were made without any national debate. Yet they have nationwide impact. The effect of such decisionmaking is succinctly stated by Glendon in her important book, A Nation Under Lawyers:
“When the courts hang their rulings on Constitutional pegs …. the dialogue is over and the ordinary political process comes to a halt …. The matter is off the table — unless the Constitution is amended or the court changes its mind. Political energy, lacking its normal outlets, flows into litigation and the judicial selection process [italics added].”
Whatever one may think about the substance of the decision, Roe v. Wade is testament to the truth of that assertion. Similar sentiments led Supreme Court Justice Ruth Bader Ginsburg to criticize of the decision, much to the puzzlement of many who know of her work as a womens rights advocate.
The decision, Ginsburg points out, “invited no dialogue with legislators.” Instead, it seemed to remove the ball entirely from the legislators court. In fact, Ginsburg observes, Roe v. Wade “halted a political process that was moving in a reform direction and …. prolonged divisiveness and deferred stable settlement of the issue.”
And many of the more controversial decisions, like Roe v. Wade and the busing case, Swann v. Charlotte-Mecklenburgh, not only take issues away from legislators, but also impose regimes in place of the legislation which they strike down, regimes which cannot be changed except with the consent of the Supreme Court or by amendment of the Constitution, even when they no longer make sense or have become socially unacceptable.
For instance, Justice Blackmun laid down a set of rules on abortion in Roe v. Wade which appear to be based on the assumption that viability — the point at which a fetus can survive outside the womb — is reached between 24 and 28 weeks. Because of advances in medical technology since the decision, viability is now reached at 20 weeks. Thus, between 20 and 24 weeks, terminating a premature fetus outside the womb would seem to amount to murder; but if done inside the womb according to the terms set down in Roe v. Wade, it would be a legal abortion and no state could interfere. This makes the criminality of an act dependent on its venue. The law should be changed — but we are stuck with it until the Supreme Court overturns the decision or its reversed by Constitutional amendment.
I have no quarrel — and neither, I believe, would Holmes — with the first desegregation case, Brown v. The Board of Education. I am sure that Holmes would have agreed with Justice Marshalls argument for a color-blind Constitution, believing — as many did at the time — that it meant a black child could never again be driven past a white school which he otherwise would have attended (and not — as it later came to mean –that a white child must be driven to a black school which he otherwise would not have attended). And hopefully Holmes would have supported the one-man, one-vote cases, too.
But the later desegregation cases — which purportedly build on the earlier examples — not only lack a clear Constitutional basis but have sometimes led to divisiveness. Swann v. Charlotte-Mecklenburgh typifies this phenomenon. Busing has certainly aggravated racial tension and it is questionable whether it has helped the education of either race. Yet it has taken decades for states to come to terms with and, in some cases, roll back its effects. Had the decision been legislative, its effects could have been easily modified or reversed based on experience.
In a world where powerful forces are causing the separation of peoples — think of the former Yugoslavia, the former USSR and even Canada — its well to reflect on the Swiss democratic model, one that has worked for centuries. Having lived in Switzerland for seven years, I can vouch for the fact that there too powerful forces are pushing people apart. But the country has hung together because it does not tackle issues like abortion and doctor-assisted suicide without public discussion and the building of a consensus. The fact that the devices used in Switzerland cannot be transferred to the United States makes it even more important that the judiciary not make decisions outside of its competence and authority.
The Supreme Court would do well to remember Holmes words in Missouri, Kansas and Texas Railway Company v. May when it next tackles a Constitutional dispute:
“Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”