Conservative Donnybrook

I have decided to to post a paper I wrote in law school, in which I argue for a new order in judicial decision-making. In particular, I argue that we need an activist. traditional judiciary who will roll back the innovations of the progressives in order to restore a government that comports with the unwritten American government. In so doing, I will be presenting three sections. The first lays out the problem of conservatism, which lacks the means to counter the progressive activism that tends to move the polity in only one direction. The second section will introduce the concept of what I call the Neo-Whig and also the idea of Russell Kirk’s conception of the unwritten constitution. Finally, I present an argument for how a Neo-Whig would decice cases and make the case that our future is dependent on such a judiciary.

The Problem with Conservatism
Imagine a case comes before the Supreme Court. One party asks the Court to discover a new right (perhaps in the penumbrae); the other asks the Court to uphold a principle that has been known in the culture for centuries. Further, let us suppose that the Court decides the case in favor of discovering the new “right.” Over the course of the next twenty years, let us “imagine” that the Court continues to uphold this decision. At the end of twenty years a conservative justice is confirmed to the Court. The problem arises when the new justice opts to uphold the precedent, which has been in place for twenty years, in the interest of stability. Hardly can this be called stable, since it is a relatively recent innovation in the jurisprudence of the Court. But, this is precisely what happens.

This phenomenon is not particular to Supreme Court justices, but also to politicians and judges who consider themselves conservative. The very word “conservative” denotes this tendency to keep in place that which has come before. Conservatives conserve. Progressives progress. And every time “progress” is made, it becomes a candidate for conservation. The question is how long does an innovation have to persist before it is no longer an innovation and has become the traditional cultural position?

Let us make this example a bit more concrete to see how this ratcheting effect of conservatism works with progressivism. In the discussion which follows, I will make much of the fact that many of the Justices involved in the decisions below were appointed by conservative presidents. It does not necessarily (and obviously does not) follow that the judges they appointed were themselves conservative. Many of them turned out not to be by any stretch of the imagination. However, it is a fair assumption that whenever a conservative president appoints a judge and conservative Senators confirm him, they had a reasonable expectation that the judge they appointed would uphold conservative values.

In 1965, Justice Douglas, writing for the Supreme Court, stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”[1] In so doing, he recognized a “right to privacy” in the Constitution that extended from the combination of the right of association, the right against quartering troops, the right to be free of unreasonable searches and seizures, and the right against self-incrimination. But the Court did not stop there.

Seven years later, the Court extended the “right to privacy” to encompass unmarried persons’ right to contraceptives.[2] “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible.”[3] In the seven years separating the cases, five new justices were seated on the Supreme Court: Thurgood Marshall, Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Other than Marshall, all of these were appointed by Richard Nixon and were presumably expected to uphold conservative values by those who appointed them and yet only one justice dissented (Burger) and on an unrelated issue (the person convicted for distributing the contraceptives was not a licensed doctor or pharmacist).[4] Indeed, in his dissent, Burger stated, “I do not challenge Griswold v. Connecticut . . . despite its tenuous moorings to the text of the Constitution, but I cannot view it as controlling authority for this case.”[5] Astoundingly, Justice Stewart, an Eisenhower appointee, had dissented in the Griswold case specifically stating that, he could “find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court” and yet he joined in the Eisenstadt Court’s decision upholding the very right he had denounced only seven years earlier. Thus, the conception of a “right to privacy” was ratcheted in place. The story goes on.

The following year, the right to privacy was found to secure a right to abortion in Roe v. Wade.[6] Justice Blackmun,[7] in the opinion he wrote for the Court stated, “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Again, Justice Stewart, who so strenuously objected to the discovery of a right to privacy in Griswold, followed the Court in Roe.[8]

Twenty years later, the Court reconsidered its previous decision extending to women the “right to abort” their children in Casey v. Planned Parenthood.[9] In the intervening twenty years only three justices that were sitting on the Court at the time of the Roe decision remained.[10] Of the remaining six justices comprising the Court, all were appointed by Republican presidents, and therefore carried with them the expectation of being conservative by those who appointed them, especially considering that Roe turned out to be such a divisive decision in society at-large and remained controversial at the time Casey was decided.[11]

The Casey Court upheld the central holding in Roe, that a woman has the “right to choose to have abortion before viability of fetus without undue interference from state”; that the State has the power to “restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health”; and “that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”[12] The Casey opinion,[13] authored by Justice Sandra Day O’Connor, ran just over 68 pages (concurrences and dissents brought the total to 83 pages). Of those 68 pages, ten dealt with the issue of stare decisis.[14] O’Connor’s decision was joined by Justices Kennedy and Souter.[15] Concurring opinions were written by Justices Stevens and Blackmun, both of whom also indicate that stare decisis was the basis upon which they decided this case.[16] Dissents were written by Justices Rehnquist and Scalia who were joined by Justices White and Thomas.[17]

Without belaboring the Casey decision, it needs only be pointed out that five of the eight justices appointed by conservatives relied upon the doctrine of stare decisis to hold that abortion was a right guaranteed as a consequence of the holding in Roe, which in turn was premised on the right to privacy discovered in Griswold.

In 2003, eleven years after Casey, the Court decided the case of Lawrence v. Texas.[18] In that case, the Court struck down its previously long-held precedent of Bowers v. Hardwick in favor of finding a right to privacy that protected homosexual sodomy between consenting adult males.[19] “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’”[20] Kennedy wrote the opinion of the Court and was joined by Souter, Ginsburg, Breyer and Stevens. O’Connor wrote a concurring opinion; Rehnquist, Scalia and Thomas dissented. Once again the idea that there exists a “right to privacy,” this time as applied to homosexual sodomy, is ratcheted into place and, in large part, by justices appointed to the Court by conservatives.

The fundamental problem with conservatism is that the liberalism of the previous generation has a tendency to become the conservatism of the current. And, likewise it is to be expected that the liberalism of this generation will be revered and protected by the conservatives of the following generation. Progressives continue to lay the track; conservatives follow behind them and pound the spikes. By repeatedly pounding in the spikes on the “right to privacy” line, conservatives have put themselves in a position where, if they were to overturn the notion that a “right to privacy” exists, they would, in effect be overturning Griswold,[21] Eisenstadt,[22] Roe,[23] Casey,[24] and Lawrence,[25] not to mention Akron v. Akron Center for Reproductive Health, Inc.,[26] Thornburgh v. American College of Obstetricians and Gynecologists,[27] Loving v. Virginia,[28] Skinner v. Oklahoma ex rel. Williamson,[29] Prince v. Massachusetts,[30] and Pierce v. Society of Sisters.[31] The Right to Privacy Railroad is quickly becoming a major rail line cutting through the heart of this nation. And, what’s worse, the conservatives do not seem to have any desire to direct its course[32], blithely pounding in stakes as the miles stretch on.

I have made much of the political ideologies of the presidents who nominated these justices. But, this does not necessarily mean that conservatives do, in fact, pound in these nails. Another quick example should show that even justices that are considered conservatives are not immune to the ratcheting craze. In 1966, Chief Justice Warren wrote the decision of the Court in the case of Miranda v. Arizona.[33] That case held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”[34] The procedural safeguards suggested by the Court were the reading of a statement that advises a person that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”[35]

It is germane to this discussion to point out that Miranda was a significant innovation to the common law tradition and the practices of American criminal procedure as noted by Justice White in dissent:

That the Court’s holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious–that the Court has not discovered or found the law in making today’s decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution.[36]

In 1968, Congress enacted §3501 of the 1968 Crime Bill.[37] The statute stated that admissibility of statements made by suspect in custodial interrogation would “turn only on whether or not they were voluntarily made.”[38] Chief Justice Rehnquist wrote the opinion of the Court.[39] In the opinion, he recaps the history of the law governing admissibility of confessions. He wrote, “Prior to Miranda, we evaluated the admissibility of a suspect’s confession under a voluntariness test. The roots of this test developed in the common law, as the courts of England and then the United States recognized that coerced confessions are inherently untrustworthy.”[40]

In so saying, he acknowledged that the historical model that had been followed in our common law tradition since before the United States even existed was to evaluate confessions on a case-by-case basis – exactly what §3501 required. Furthermore, he acknowledged that Miranda was a significant innovation over this tradition.[41] Nonetheless, Chief Justice Rehnquist elevated the decision in Miranda to constitutional status, thus making it impervious to legislative amendment or overruling.[42] In essence, a conservative Justice[43] had ratcheted in place a decision that was a significant innovation over the traditional practice and which could not be rooted in the text of the Constitution.

Progressive activism on the Court has brought us these lines of cases. Conservatism only offers the prospect of nailing down the activism that has already been wrought. Only an opposing activism can reverse the tide and return this country to its original foundation. But what does this new activist look like? And how does this new activist ensure continuity with our country’s foundation? Conservatism needs to be shed in favor of Traditionalism as I will describe below.

[Part II of this paper may be found here.]