The Leaked Opinion--Constitutional Nonsense Revisited (Part 2)

In Part 1, we examined the nonsensical, ahistorical, and contra-constitutional argument that "it's-not-in-the-text" of the Constitution. In short, the primary argument in Justice Samuel Alito's leaked opinion--i.e., that a woman's right to choose an abortion is nowhere mentioned in the document--misrepresents the purpose of the Constitution, which was to organize and divide powers in the new national government. Not to enumerate rights. Most significantly, Alito's argument is exactly what the Framers feared when they were considering whether to add a list of some rights to the original document. Moreover, that argument disregards the intended safeguard inserted into the resulting Bill of Rights--what would become the 9th Amendment--that the enumeration of rights was certainly not all-inclusive.

Justice Samuel Alito
Erin Schaff-Pool/Getty Images

As I've previously said, Alito is surely aware of all that. He must know how flimsy that "it's-not-in-the-text" argument is. Indeed, he acknowledges--if begrudgingly so--that there are fundamental rights the Supreme Court has recognized that are nowhere to be found in the text of the Constitution.

Alito does not necessarily take issue with unenumerated rights. At least not all of them. But he does repeatedly insist that any non-textual, unspecified constitutional right must be "objectively, deeply rooted in this Nation's history and tradition." He also repeatedly insists that the right to abortion fails that test, and he exhaustively recites a history of abortion crimes to make his point.

As with the "it's-not-in-the-text" argument, Alito must know the weakness of his fallback test. "Objectively, deeply rooted in this Nation's history and tradition"--really? He must know that every landmark civil rights and liberties decision of the Supreme Court broke with history and tradition. That's why they are landmarks.

The cherished decisions of the Court, the ones that are most celebrated by Americans and by the Court itself, those decisions that have given life to our highest constitutional ideals of liberty and justice and equality--they failed Alito's test! They never would have been delivered if the Supreme Court embraced history and tradition as the mandate Alito insists it is.

Any student of constitutional law--and, to be sure, Alito is one--should have no difficulty rattling off landmark decisions of the Supreme Court that failed his "this Nation's history and tradition" test. Does Alito actually reject those landmarks? Do the other Justices who have apparently voted with him reject those landmarks as well?

Let's consider a few of them.

• Brown v. Board of Education, prohibiting government-sponsored racial segregation. That 1954 decision, 167 years after the Constitution was adopted, overruled the Nation's history and tradition of allowing racial segregation in this country. In fact, racial segregation was even accepted for 84 years after the explicit guarantee of equal protection was added in 1868 in the 14th Amendment. The Court in Brown famously overruled the "separate-but-equal" doctrine which it had approved in 1896 in Plessy v. Ferguson. The constitutional right against racial segregation clearly failed Alito's test. Did that make Brown an illegitimate decision?
• Loving v. Virginia, recognizing the right of interracial couples to marry. That 1967 decision--perhaps the most dreaded by those who fought against racial integration--rejected the Nation's history and tradition of anti-miscegenation laws. It took 180 years since the framing of the Constitution, and even 13 years after Brown. The Court had to overrule another decision, Pace v. Alabama, an 1883 ruling in which the Court placed its constitutional imprimatur on that long tradition in the states. Sorry, but Loving 's recognition of a right to marry for mixed-race couples flunked Alito's test. Illegitimate?
• Reed v. Reed, invalidating discrimination against women as arbitrary. That 1971 decision was the first to prohibit unequal treatment on the basis of sex. Yes, it was not until 1971, 184 years since the Constitution was adopted and 103 years since the 14th Amendment's guarantee of equal protection. This Nation's history and tradition was to accept "a wide difference in the respective spheres and destinies of man and woman [because the] natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." (Bradwell v. Illinois, 1873.) It was nearly a century after Bradwell that the Court, in Reed, finally rejected that constitutionally approved notion of women being "evidently unfit" for the same responsibilities and rights as men. Yep, equal rights for women fails Alito's test. Illegitimate?
• Lawrence v. Texas, invalidating state laws criminalizing same-sex intimacy. That 2003 decision overruled Bowers v. Hardwick, decided 17 years earlier, which had approved the continuing "savage discrimination" [to use Judge Richard Posner's description] against gays and lesbians. That mistreatment was certainly part of this country's history and tradition. Indeed, those who vehemently oppose gay rights and the Lawrence decision argue both that the Constitution does not confer a right of "homosexual sodomy" and, moreover, that such conduct was widely forbidden since the nation's founding. Of course, whether "homosexual sodomy" is a fundamental right is hardly the issue; but, rather, whether there is any legitimate government interest that justifies criminalizing the most personal and private conduct of consenting adults. But be that as it may, the right of same-sex couples to engage in intimate conduct--just as opposite-sex couples are permitted--fails both the "it's-not-in-the-text" and the history and tradition tests. A fortiori, so does the right to marry for same-sex couples which the Court recognized 12 years later in Obergefell v. Hodges. Are both decisions now headed for the chopping block?
• Griswold v. Connecticut, recognizing a private right to use contraceptives. That 1965 decision, continually derided by opponents because a "right of privacy" is not mentioned in the Constitution, also defied the history and tradition of this country's view of contraceptives as being immoral. Indeed, such a view was enshrined in the federal Comstock Act of 1873, together with the prohibition of obscene materials, and was enforceable with criminal punishments up to 10 years imprisonment. Well, neither "privacy" nor "contraceptives" are to be found anywhere in the Constitution's text. Nor was either deeply rooted in the Nation's history and tradition back in 1965 when Griswold was decided. As with gay rights, the private right to use contraceptives fails both of Alito's tests. The chopping block?

There are so many other Supreme Court decisions protecting civil rights and liberties that do not pass one or the other or either of Alito's tests. But let's move to some landmarks that protect the rights of the criminally accused. Let's see how they hold up to the "history and tradition" test. 

As all students of constitutional law know, it is the 14th Amendment, not the Bill of Rights, that makes federal constitutional protections enforceable against the states. Its Due Process Clause, which explicitly protects "liberty," is what the Supreme Court has relied on to enforce fundamental rights. But neither "due process" nor "liberty" are defined in the 14th Amendment, or elsewhere in the document. So ever since 1868 when the 14th Amendment was adopted, the Court has been giving meaning to those terms.

Let's take a brief look at how history and tradition have dealt with "due process."

• The right to a jury trial? For the first 100 years after the 14th Amendment was ratified--and 181 years after the Constitution was adopted--the Supreme Court allowed states to conduct prosecutions without affording the accused a right to a jury. Then in its 1968 decision in Duncan v. Louisiana, the Court overruled a string of precedents (see e.g., Maxwell v. Dow, 1900) that had consistently rejected the notion that a jury trial right was a necessary component of due process. The history and tradition of the Constitution's 14th Amendment and of the meaning of its due process provision certainly didn't win the day in Duncan. The jury right in state trials, illegitimate?
• The right to a unanimous jury? Despite the Duncan decision, the Supreme Court continued to reject the notion that a unanimous verdict was required for a conviction. It took another 52 years for the Court to rule that unanimity was a due process requirement. In its 2020 ruling in Ramos v. Louisiana, the Court overruled a couple of post-Duncan decisions--Apodaca v. Oregon and Johnson v. Louisiana, both 1972--and for the first time ruled that states must not only afford the right to a jury trial, but that state juries must be unanimous to convict. So the Supreme Court's recognition of that due process right in the 14th Amendment took 152 years and 233 years after the adoption of the Constitution. Deeply rooted in the Nation's history and tradition?
• The right to counsel? In Gideon v. Wainwright, the Court held that an accused, rich or poor, was entitled to the assistance of counsel in criminal prosecutions in state courts. Accordingly, that 1963 decision required states to provide an attorney for defendants who could not afford one on their own. The Court overruled its 1942 Betts v. Brady decision, which had adhered to the longstanding view that a defendant's rights in state courts under the 14th Amendment were not equal to those rights guaranteed in federal courts by the Bill of Rights. Specifically, state defendants were not constitutionally entitled to the same right to counsel that the 6th Amendment required in federal prosecutions. So, Gideon contravened the history and tradition of due process rights in state courts--that's 95 years of jurisprudence since the adoption of the 14th Amendment and 176 years of jurisprudence under the Constitution itself. Yep, Gideon's right to counsel flunked Alito's history and tradition test.

We could go on and on with constitutional rights of the accused that were finally guaranteed against violation by the states--all in landmarks that flunked Alito's test. For example:

• Search and seizure rights were not protected against state violation until 1961 in Mapp v. Ohio
• The right against cruel and unusual punishment, not until 1962 in Robinson v. California
• The right against compulsory self-incrimination, not until 1964 in Malloy v. Hogan
• The right against double jeopardy, not until 1969 in Benton v. Maryland
• The right against a racially selected jury, not until 1986 in Batson v. Kentucky
• And more recently, the right against excessive fines, not until 2019 in Timbs v. Indiana.

Regarding that last mentioned right, as late as 2008 in District of Columbia v. Heller, the Court listed that right against excessive fines among those that had never been held to be enforcible against the states. Indeed, regarding all of those rights of the accused, the aforementioned landmark cases enforced them against the states for the first time. There had been no previous history or tradition of those rights being included within the requirements of the 14th Amendment's due process guarantee.

One final note about the history and tradition test. Alito's repeated reference to it derives from the judicial opinions of one of America's greatest judges, Benjamin Nathan Cardozo. Yes, Cardozo applied that concept in determining what was a fundamental right constitutional right. But he warned against transforming "vague precepts" of due process into "immutable principles."

Throughout his career on the bench, Cardozo made clear that history and tradition were not prescriptions for primitive or static views about the law. To the contrary, in opinions for which he is renowned, he advanced the American law of consumer rights and business ethics as well as so many other areas while on the New York Court of Appeals. He did the same with the protections of workers and retirees and the scope of constitutionally protected liberty while a Supreme Court Justice.

Perhaps most notably for the focus of this commentary, is Cardozo's famous articulation of a foundational liberty within weeks of his appointment to New York's highest court. As he put it in his unanimous opinion in 1914 in Schloendorff v. Society of New York Hosp.:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body.

He was rephrasing what was already accepted as a basic doctrine of civil liberties in other state courts:

Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words the right' to himself — is the subject of universal acquiescence. (See e.g., Mohr v. Williams [Minnesota Supreme Court,1905.])

Despite the history and tradition underlying that "first and greatest right" of bodily autonomy, Alito's opinion gives it the shortest shrift, the narrowest scope. Of course, no right is absolute. But the disregard of that right in Alito's opinion, when it comes to a woman's decision whether to continue a pregnancy, is not explainable except that he picks and chooses where and how his history and tradition test shall apply. 

Clearly, Alito's "objectively, deeply rooted in this Nation's history and tradition" test, if it were truly to be applied "objectively"--and not based on ideology or partisanship or personal morality--would provide much more weight to a woman's right to choose than Alito is willing to acknowledge. And as we've already seen, his supposedly mandatory test would have precluded so many of the Supreme Court's landmarks that are now basic to American civil rights and liberties. He's not a stupid man. He knows that.

In the next post, Alito's insistence that his opinion does not affect other rights.

The Leaked Opinion--Constitutional Nonsense Revisited* (Part 1)

 *In a series of posts several years ago, I examined some nonsensical arguments that are regularly spouted, often by those who do or should know better. [Supremely Awful Arguments: Constitutional Nonsense (Part 1); (Part 2); (Part 3); (Part 4).] The leaked opinion is full of them.

Let me begin with what is usually left unsaid or ignored regarding the constitutional issue of abortion. There are two profound competing interests involved. There's the woman's interest in making her own choice about her own pregnancy, and there's the governmental and societal interest in protecting a human life that is yet to be born.

Justice Samuel Alito
Chip Somodevilla/Getty Images

It is a difficult issue that requires thoughtful, delicate balancing. Unfortunately, there is precious little such balancing in the public debate. And Justice Alito's leaked opinion evinces more stridency and vengeance than thoughtfulness or delicacy.

Consequently, and not surprisingly, the constitutional argumentation in his opinion is woefully flawed. The point here is emphatically not about whether Roe v. Wade should be overruled or upheld. That's a  separate matter. The point here is that Alito's arguments to overrule Roe and reject a woman's right to choose are nonsense. Yes, that's a strong indictment. But it's one that's deserved.

There are three main arguments in Alito's leaked opinion. Let's start with the first one that sounds so appealing, but is utter...well, a vulgarity would be most fitting, but let's just say gibberish: the text of the Constitution does not say anything about a right to abortion. 

Alito surely knows better than to make that argument. He's well aware that the Constitution is not a catalog of rights. He knows full well that the Constitution primarily organizes and divides the powers of government. He must know that we nearly did not have a Bill of Rights because the Framers were afraid that such an argument would be made. They were afraid that listing any rights in the document would lead some to argue that those not listed did not exist.

The Framers debated whether it would therefore be more dangerous to add a Bill of Rights which listed some guarantees than to simply leave out any listing at all. Ultimately they chose to include an enumeration of some of those rights that England had been violating, and then to add a provision--the 9th Amendment--that would make clear that the listing was hardly intended to be exhaustive. That a free people had lots of others that weren't mentioned.

In presenting his proposed several amendments to the first Congress, James Madison acknowledged the strength of the argument against listing some rights and the danger of doing so. He offered a provision that he hoped would solve the problem and avoid the "it's-not-mentioned-in-the-text-of-the-Constitution" argument. Well, Madison got his suggested provision--which would become the 9th Amendment. But that dangerous argument that he and the other Framers feared is still being raised. Even by the Justices, as in Alito's leaked opinion.

Perhaps Alito, other Justices, politicians, and commentators need to be reminded. Here's what Madison said as he presented a "bill of rights" to the Constitution on June 8, 1789:

lt has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enu­meration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequent­ly insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [which became the 9th Amendment].

And yet, we still hear the nonsense. "It's-not-in-the-text." Yes, a right may not be mentioned in the text of the document, but that is emphatically not a reason to disparage a right, let alone to deny its existence. There may well be reasons to disparage or deny a right. But that most certainly is not one of them!

Just consider a few examples:

• The right of a couple--even a traditional heterosexual one--to marry? Nope, nowhere mentioned in the text.
• The right of a married couple to be intimate? Nope, not there.
• The right of that couple to kiss prior to marriage? Not that either.
• The right of a married couple to have children? Nowhere to be found in the document.
• The right of a married couple to raise their children, or even to hug them? Not mentioned.
• The right to look for work to support oneself and one's family? Nope.
• The right to have a friend? Not even that one is in the text.
• The right to join a group of friends or others with similar interests? Nope.
• The right to wave to a neighbor and say 'hello?" Not mentioned
• The right to go for a stroll? Sorry, not in the text.
• The right to donate to a favorite charity? Nah, not there.
• The right to offer your services to that charity? Not that either.
• The right to march in support of a cause? No.
• Etc., etc., etc.

And let's not leave out some rights favored by those Justices, politicians, and commentators who most frequently make the nonsensical "it's-not-in-the-text-of-the-Constitution" argument:

• The right to contribute money to a political candidate? Not mentioned.
• The right of a corporation to finance a video about a candidate? Nope. [The closest the Constitution says is "speech." That's the only relevant word James Madison used, and he surely knew its definition.]
• The right to go hunting? Nope.
• The right of self-defense in one's home? Not even that.
• The right to even choose who gets to enter one's home? Not in the text.
• The right to avoid and hate liberals for ruining this country? Nope.
• Again, etc., etc., etc.

The fact is that most of our rights, most of those liberties and privileges that are essential to a free society are not mentioned in the text of the Constitution. The document was never intended to be some all-inclusive catalog of rights. Indeed, not a catalog of rights at all.

And yet, that "it's-not-in-the-text" argument is front and center in Alito's leaked opinion. He must know it's nonsense. He must know it has little to do with whether a woman has or should have a right to choose. Maybe he is just so blinded with anger about abortion rights that he refuses to see or just doesn't care.

Next on New York Court Watcher, Alito's "it's-not-part-part-of-American-tradition" argument.

Supremely Awful Arguments: Constitutional Nonsense (Part 4--"Activism")

Criticizing [that awful, illegitimate, undemocratic] "Judicial Activism"

(Yes, it's been a while. Corruption trials, the selection process for a new Chief Judge, commentary and presentations on that and the courts (i.e., lots of talking). That on top of classes, students, and a crazy, hectic semester overall. But, concededly, loving it all.)

Now, on to the nonsense about "judicial activism." That is, the customary condemnation of it.

It's as though the judicial branch is supposed to exercise its role halfheartedly. Less fully and vigorously than the other branches. Why has this nonsense--yes, again, it's nonsense--gained currency?

Are there stupid decisions? Yes. Deceptive decisions? Yes. Unintelligible decisions? Yes. Unsupported and unjustified decisions? Yes. But criticize the Supreme Court, or any other court, for vigorously--"actively"--exercising the judicial role? Especially when the judicial role is exercised in the service of fundamental principles of American free government?

Let's consider some of the most "activist" and, at the time, maligned decisions of the Supreme Court. And let's ask which ones were wrong? Which ones were illegitimate exercises of raw, unbridled judicial power that should be curbed? Which ones should be undone?

Brown v. Board of Education (1954): outlawing racial segregation.
That decision overruled precedent that had endorsed the "separate but equal" doctrine. (I.e., Plessy v. Ferguson [1896] and the numerous decisions that followed.)
That decision invalidated state laws that kept the races segregated.
That decision rejected a narrow, "restrained," "originalist" interpretation of the Constitution's 14th Amendment equal protection guarantee, which never would have been ratified in 1868 if its express intention was to end segregation.
That decision's companion (Bolling v. Sharp, decided the same day) invalidated segregation in the District of Columbia and the federal government generally, even though the Constitution's only equal protection clause explicitly applies only to the states.
That decision did what the Congress and many of the states were unable or unwilling to do through the democratic process.
That decision overturned the longstanding, societal status quo in this country.
That decision gave full force and effect to the constitutional principle of equal treatment, despite the equal protection clause's much more limited specific purpose.
That decision was so unpopular in many parts of the country that President Eisenhower had to send in the troops--including the 101st Airborne--to enforce it.

In short, that decision was as "activist" as an activist decision can be.
Does that make it a bad decision?
An illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?
An America without the Brown decision?

Let's try another.
Gideon v. Wainwright (1963): guaranteeing the right to counsel in all criminal trials.
That decision overruled precedent (Betts v. Brady [1942]) in which the Court had rejected any such right to the assistance of counsel in non-capital cases.
That decision invalidated state laws that guaranteed the assistance of a lawyer only when a defendant faced the death penalty or in other limited circumstances.
That decision extended the term "due process"--applicable to the states through the 14th Amendment--to include the right to counsel in all criminal cases, even though that Amendment does not mention any such guarantee.
That decision gave full force and effect to the right to counsel as a fundamental right, recognized by Justice Cardozo in dictum in Palko v. Connecticut (1937) as being implicit in the American scheme of ordered liberty, because essential to fairness in criminal prosecutions.
That decision was extremely unpopular in several states, especially in the South, and was among the series of criminal justice rulings in the 1960's for which "law and order" politicians condemned the Court as being activist, pro-criminal, and violative of state prerogatives.

Another bad activist decision?
Another illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?

And what about this next one?
Loving v. Virginia (1967): guaranteeing the right to marry to interracial couples.
That decision overruled precedent (Pace v. Alabama [1883]) in which the Court had upheld laws that criminalized marriage and sexual relations between whites and non-whites.
That decision invalidated state laws (16 such anti-miscegenation statutes in the South), such as Virginia's so-called "Racial Integrity" law, which the couple had violated in this case.
That decision was another that rejected a narrow, "restrained," "originalist" interpretation of the 14th Amendment's equal protection guarantee, which never would have been ratified in 1868 if its express intention was to allow interracial marriage.
That decision overturned the longstanding, societal status quo in the Southern states and, as a de facto matter, in much of the country.
That decision contravened "states rights."
That decision was contrary to overwhelming public opinion in the country, with only 20% approving marriage between blacks and whites at the time (according to Gallup).

Another one of those bad, illegitimate, activist decisions?
Country would be better off without it?
Should be undone?

What about these--just to mention a few more that make (what I believe to be) the incontrovertible point?
Pierce v. Society of Sisters (1925): protecting parents' right to send their children to private religious schools rather than public ones--interpreted "due process" and "liberty" to include the right of parents to raise their children, which the Constitution nowhere mentions; invalidated all state laws requiring that children attend public, not private schools; simultaneously overrode the popular anti-immigrant sentiment (white supremacist, anti-Catholic, anti-Semitic, etc.) underlying those laws; rejected the claimed power of states to dictate all education retirements; disregarded (and effectively overruled) precedents that the 14th Amendment did not protect any implicit rights or liberties against state governments.
NAACP v. Alabama (1958): protecting the right to associate with others--invalidated state laws interfering with the freedom to join groups with like-minded persons; recognized a freedom of association nowhere mentioned in the Constitution; broadly interpreted free speech as including a fundamental right to associate with others for the purpose of advancing beliefs and ideas; broadly interpreted "liberty" and "due process" in the 14th Amendment as including such rights to be applicable against the states; in short, recognized an unenumerated  right to join groups with like-minded individuals.
Reed v. Reed (1971): invalidating gender discrimination against women--overruled a long line of precedents (e.g., Bradwell v. Illinois [1973], which allowed states to prohibit women from becoming lawyers);  invalidated countless state laws that treated women unequally; rejected a narrow, "restrained," "originalist" interpretation of the equal protection guarantee; rejected the longstanding, societal status quo that confined women to traditional roles; and effectively adopted the gender equality mandate of the ultimately-failed ERA (Equal Rights Amendment) as a matter of constitutional case law.
Lawrence v. Texas (2003): recognizing the right of adults to engage in consensual sex in private, absent some counterbalancing legitimate government interest--invalidated state laws that criminalized "sodomy" (i.e., anything but vaginal intercourse), based solely on moral, religious, and biblical condemnation; overruled precedent (the shameful Bowers v. Hardwick [1986] decision) that had upheld such "sodomy" laws as applied to same-sex couples, again based solely on moral, religious, and biblical condemnation; rejected a narrow, "restrained," "originalist" interpretation of "liberty" that would limit it to freedom from physical restraint; rejected popularly enacted restrictions on intimate private conduct, absent some legitimate government/societal interest in health, safety, or welfare.
(Yes, there are those who view homosexuality as wrong for moral, religious or other reasons, and those who support laws against homosexual conduct. But whatever one's views on that specific issue, the sole principle enforced in the Lawrence decision--that the government has no business interfering with the most private aspects of our lives without some good reason--is nothing less than one of the essential foundations of American free society.)

And there are countless other examples where the Court gave effect to what we cherish most about being American. Rights that we take for granted today, but which became reality only because of "activist" decisions that were typically unpopular at the time.

Make no mistake, "activist" decisions are hardly confined to politically liberal outcomes. Just a couple of recent ones (actually 3) makes the point.
Citizens United v. Federal Election Commission (2010): recognizing a right to finance the production and distribution of a political communication--invalidated federal law (and similar state laws) that limited independent campaign spending; overruled precedent that had approved campaign finance restrictions; rejected a narrow, "restrained," "strict" interpretation of the 1st Amendment's protection of "speech;" protected spending money on political communications as a 1st Amendment right; repudiated popular and democratically enacted measures intended to curb campaign corruption.
McDonald v. City of Chicago (2010) and District of Columbia v. Heller (2008): recognizing an individual right to bear arms assertable against the federal and state governments--invalidated numerous federal and state laws limiting gun ownership; overruled precedent that had confined gun rights to the context of state militias and that held that 2nd Amendment rights were not assertable against state governments; broadly interpreted "liberty" and "due process" in the 14th Amendment as including individual gun rights.

One more thing about which to make no mistake. Whatever one might think about the foregoing politically conservative examples of judicial activism, there are certainly "activist" decisions that are part of the junk heap of discredited rulings. Just as "activism" doesn't necessarily result in a bad decision, it hardly insures a good one either.

A few examples? Check these out.
Lochner v. New York (1905): denying the power of states to adopt health regulations setting maximum hours for workers--invalidated New York's (and by implication any other state's) health laws that limited the number of hours employees [in this case, bakers] could work; broadly interpreted "liberty" and "due process" in the 14th Amendment as including the "right of free contract" that largely prevented states from regulating working conditions; repudiated the health concerns underlying the law that had been affirmed by the state's highest court.
(N.B., Justices John Marshall Harlan and  Oliver Wendell Holmes each wrote dissenting opinions and, for that and other reasons, it is not surprising that this decision was eventually overruled.)
Hammer v. Dagenhart (1918): denying the power of Congress to place limitations on child labor--invalidated the federal Child Labor Act of 1916 that enforced restrictions on child labor; adopted a novel, tortured reading of the interstate commerce power as not reaching manufacturing; rejected popular, democratically enacted health and safety protections for children, in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and another dissent of Justice Holmes was vindicated.)
Adkins v. Children's Hospital (1923): denying the power of government to set minimum wages--invalidated the federal (and by implication any state's) law setting minimum wages for workers; broadly interpreted "liberty" and "due process" in the 5th Amendment as including the "freedom of contract" that largely prevented the federal government from regulating working conditions; adopted a tortured distinction between the (by then) accepted governmental power to set maximum hours and the disallowed power to set minimum wages; rejected popular, democratically enacted labor protections [in this case for women and children] in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and yet another dissent of Justice Holmes was vindicated.)

Finally, the point of all this is that the judicial "activism" argument is nonsense. Whether a decision is "activist" or not does not necessarily have a whit to do with whether it's a good or bad one, wise or foolish, enduring or fleeting, cherished or discredited.

A judicial decision may overrule precedent or not; may invalidate legislation or not; may be contemporaneously popular or not; may adopt a strict or "loose" interpretation, a traditional or novel one; etc., etc., etc. But none of those characteristics of "activism" or "restraint" are very helpful in assessing a judicial decision. Decisions with any combination of those qualities may be good ones or bad ones.

As is usually true for most serious matters, the whole question cannot be resolved with simplistic dichotomies. I did my best to address the matter a few years ago.  I'm not sure I can improve upon my admittedly unoriginal and not wholly satisfactory sentiments at the time. So, in conclusion, here they are:

To deny that bold exercises of judicial activism have produced some of our proudest and wisest landmarks...is either blind ideology, woeful ignorance, or some other specie of nonsense. The American experience with judicial review emphatically demonstrates that activism and restraint are not helpful as dividing lines between good and bad judges, worthy and flawed decisions. 

[W]hen we talk about judges, when we talk about decisions, the qualities that count are wisdom, foresight, discretion, a sense of history, an appreciation of the possible, pragmatism, fairness to the parties, promotion of the common good, and dedication to the fundamental principles of the American constitutional republic. That, of course, is what judging is all about; those are the kinds of qualities that make a good judge and a worthy decision. 

(Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, Vol. 68, No. 3, 2005 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142071])

Supremely Awful Arguments: Constitutional Nonsense (Part 3)

Textualism, literalism, or that's not exactly what it says

There are several variations on this theme:
"Just apply the plain language"
"The language is clear, so don't change it"
"It means what it says"
"It says what it means"
Etc., etc., etc.

Sounds good, sensible, easy.
Stop the Justices from twisting what the Constitution actually says and means.
Just stick with the text as written by the Framers.
Don't add or change anything.

Oh, really?
Even if the result is absurd? Dangerous? Suicidal for the community or the nation?

Now that wouldn't happen, would it?
That's an exaggeration, isn't it?
By just applying the text, the wording, the very language of the Constitution?

Oh yes!
And that's one of the major reasons why an insistence on textualism, literalism, "just apply what it says" is pure constitutional nonsense.

Let's delve into the Constitution.
Actually, don't need to do that.
Let's start at the very top of the Bill of Rights.
Right there in the 1st Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." [My emphasis.]
That's what it says. Verbatim.

Let's start with the very first word of that very first amendment.
"Congress."
What about the president?
What about a federal bureaucrat?
What about a federal agency?
What about the FBI?
What about a federal magistrate?
What about a federal trial judge?

May they prohibit free exercise of religion? abridge freedom of speech? of the press?
The 1st Amendment only says "Congress."
So just apply that, and don't add to or change what the amendment literally says?
So Congress isn't allowed to trample on freedom of religion, speech, or press.
But all the other officials and institutions of the federal government may?

Well, thank God, the 1st Amendment has NOT been construed literally, strictly according to its text, its plain language.
Instead, it has been "interpreted" to apply to all government officials and institutions.
Even though "that's not exactly what it says."

But textualism and literalism are even worse than the foregoing suggests.

Let's try the "no law" language in the 1st Amendment.
To begin with, that plain language mentions only "law."
It does not mention executive orders, agency determinations, or judicial decrees, etc. that violate freedom of religion, speech, and press.
So those would be permitted to violate our basic 1st Amendment rights?
Again, thank God, "law" hasn't been literally applied either.

But back to that entire phrase, "no law."
No law? None? Not any?
Really?
Should that text, those plain words, that constitutional language be applied literally?
Exactly what it says?
So no law?
Not even if necessary for the health, safety, welfare, and security of the community and the nation?

No law prohibiting religious human sacrifices? (And let's remember, many if not most religions in history believed in them.)
No law requiring that a deadly sick child be provided life-saving medical health care regardless of the parents' religious objections?
No law forbidding flying into buildings or slaughtering heretics or infidels for religious religions?

No law prohibiting--you know--falsely shouting fire in a crowded theater?
No law prohibiting verbal threats (whether or not carried out)?
No law prohibiting a soldier from telling his military commander, "Go F yourself," when the soldier dislikes the commander or the commander's order?
No law prohibiting an individual from telling national security secrets to an enemy?

No law prohibiting the press from doing so?
No law prohibiting the press from publishing deliberately false stories that ruin someone's reputation?
No law prohibiting the press from publishing child pornography?

And of course we could go on indefinitely--if not interminably.

The point should be clear.
And that's just the very first amendment.

"Congress" means Congress.
"Law" means law.
"No law" means no law.

And yet, thank God, that plain language, that text, has not been literally applied--"interpreted" if you prefer (although it's hardly really that).
Thank God that, instead, over the years the Court (and lower courts and judges) have generally been more reasonable than that.
Thank God that, instead, over the years American constitutional jurisprudence has been concerned with the underlying principles, the broader constitutional concepts--not simply a literal, narrow reading of "plain words"--and not overly concerned with "that's not exactly what it says."

And we haven't even discussed textualism and literalism and plain meaning with regard to those terms in the Constitution such as "liberty," "due process," and "equal protection."
How are those to be applied literally?
What is their plain meaning?
Even if it were a good idea to "just apply the text," how would that be done?
Those terms, and so many others in the Constitution, simply have no fixed, pre-determined meaning.

"Liberty" includes exactly which rights and freedoms? and which does it not?
Then there's the old saw about liberty versus license. That's always clear!

"Due process" literally means the process or procedure that is due, or the right amount, or right amount owed or to which one is entitled.
And that is exactly what? and how much?

And "equal protection" of the laws?
Everyone to be treated equally under the law?
No differences in treatment? No distinctions at all?
Even when those differences or distinctions are entirely relevant? For example, academic ability and admission into state universities? Athletic ability and playing on a state university sports team? Substance abuse and rejection from a highly sensitive government position? Etc., etc., etc.

Oh, of course different treatment based on relevant criteria is fine, perfectly permissible.
But not based on irrelevant criteria--that would be "discrimination," not legitimate differentiation.
Ahhhh, so it's a matter of relevant versus irrelevant.
That's always clear!

So, to start with, "equal protection" really means "equal protection except when differences are constitutionally relevant."
But beyond that, what is constitutionally relevant is not exactly fixed or pre-determined--not by the text; and not by anything else.
Indeed, what is constitutionally relevant or irrelevant has been difficult and controversial throughout our history--and without the slightest help from the constitutional text which says nothing about it.

Consider that the Supreme Court did not rule that race was an irrelevant (and therefore impermissible) criterion for different treatment, at least for segregation, until 1954; and not for marriage until 1967.
It did not rule gender to be an irrelevant (impermissible) criterion for different treatment regarding government benefits, professions, education, etc., until 1971.
It did not rule sexual orientation to be an irrelevant  (impermissible) criterion for some different treatment until 2003; and for marriage until earlier this year.

And none of those criteria, or any seemingly countless others, are even implied in the text of the 14th Amendment's equal protection clause--let alone whether they, or any other criteria, are to be treated as relevant or irrelevant.

Well, we could go on and on with this.
But what should be more than clear without further examination is that the argument for textualism, for literalism, for just applying the plain words is nonsense.

Yes, it sounds right, sounds simple, sounds like the way to rein in a "rogue" judiciary that's "making law instead of just applying it."
But even the slightest examination shows the argument to be thoughtless or silly at best, and mindless or dangerous at worst.

Again, to close, consider textualism, literalism, "just apply the words" as applied to "liberty" and "due process" and "equal protection"--even to the 1st Amendment's terms of "religion" and "speech" and "press."
What is the clear, unmistakable, and specific meaning of each of those that would enable the Court to "just apply the words?"
And even if some of those terms--perhaps "speech"--were susceptible of a specific meaning, should the Court actually limit the Constitution's protection to that? Exclude all other forms of expression?

And then there are terms such as "no law" in the 1st Amendment.
Should the Court just apply the plain meaning of that?
"No law" against any religious, expressive, or press activities regardless of the dangers or risks they present to health, safety and security?

One would certainly hope not.
And certainly hope that those who advocate textualism, literalism, "just apply the words"--and complain "that's not exactly what it says"--would actually consider the realities and ramifications before they spout that utter nonsense.