I’m finishing up Walter Berns’s Taking the Constitution Seriously and will return it to the library in a few days. Before I do, let me note something on Berns’s jurisprudence. Berns posits a view of strict judicial restraint similar to that of Robert Bork’s/Lino Graglia’s. Like them, Berns argues that Marbury v. Madison was wrongly decided. As such, I obviously strongly disagree with his approach. But he makes his case in a more even handed and fair manner than either of those two, and demonstrates far more respect for the “original liberalism” of the likes of Jefferson and Madison that he often finds himself arguing against. (For instance, Berns recognizes that there was much support for both judicial review and applying the religion clauses of the Constitution to the states—both of which Madison supported—but argues that Madison’s views simply weren’t dominant at the time of the framing.)
Berns is one of those “East Coast Straussians” who recognizes that this nation was founded on the “modern political principles” contained in the Declaration of Independence, yet that we are bound, not by the Declaration’s organic law, but by, as Thomas West puts it, “fidelity to the Constitution, to the institutions and mores created by the Constitution, and a willingness to turn away from the principles of the Declaration, so that they can be kept in check.”
This view accepts that the Constitution was written to secure the natural rights of the Declaration, but by following the Constitution only, without regard to the ideals of the Declaration, we are left with a “shell” of natural rights, which is better than the whole shebang because those “compromises” that the Constitution makes with the “ideals” of the Declaration temper “the extremes of liberty and the pursuit of happiness that court personal license and social disorder” (as Robert Bork puts it—Berns probably wouldn’t put it so harshly, but it’s clear that he shares the sentiment).
As should be expected, Berns sees the Court's Fourteenth Amendment jurisprudence as the source of most present day Constitutional law evils. As much as I may disagree with his overall opinion of the Amendment, he correctly explains the proper function that each of the Amendment’s clauses ought to have and contrasts that with how the Court’s jurisprudence (improperly) understands each clause to function. Where I disagree with Berns is whether the Court has the right to enforce substantive “privileges or immunities,” that Congress hasn’t enumerated.
According to Berns, the “Due Process,” “Equal Protection,” and “Privileges or Immunities” clauses each were directed at different branches of state governments. Berns argues that neither the Due Process Clause NOR the Equal Protection clause were intended to grant any kind of substantive rights; that both of the clauses are procedural. Substantive rights, particularly of “liberty” and “equality,” are to be found in the “privileges or immunities” clause, not the “liberty” phrase of the Due Process clause or in the “equal protection” clause.
Here is how Berns describes the proper function of each clause, and as you will see his analysis that gives the greatest weight to the “privilege or immunities clause” is not too far off from Randy Barnett’s or Akhil Amar’s (I think, based on what I understand Amar’s position to be—I have not yet read Amar’s work, although I plan to soon).
Equal Protection restrains state executives:
[T]he equal protection clause…when read literally, says nothing to the state legislatures, but it says something of real importance to the state executives. They are now forbidden to “deny to [i.e., withhold from] any person within [their] jurisdiction the equal protection of the laws.” Governors and sheriffs and the rest were now, for the first time, under a national constitutional obligation to provide the protection of the laws to any person within the jurisdiction of their states or counties, whether resident or visitor, citizen or alien, black or white, adult or child, male or female. p. 212.
In other words, this is “procedural” not substantive equality. The clause has nothing to do with whether a particular law that draws distinctions between classes of citizens is constitutional or not, but rather demands that law enforcement give the full protection of generic laws to all citizens. For instance, if a law forbids murder, theft, or assault, then law enforcement must protect blacks fully under those laws as they would whites (and this wasn’t being done in the Jim Crow South—if a white assaulted a black [or a white for that matter who violated the “color line” by doing business with blacks], local yahoos would subject these folks to violence and local law enforcement would ignore, or otherwise not adequately handle, the matter. Indeed, often the local law enforcement and the criminal yahoos were the same people!).
Due Process of law was directed at the judicial system, demanding a fair and impartial process:
Berns believes substantive due process to be an oxymoron.
Read literally, the due process clause…imposes restrictions not on state legislatures or on the kind of laws they may enact but on state courts. It forbids those courts “to deprive any person of life, liberty, or property, without due process of law”; which is to say, when imposing punishments or penalties on any person, the state courts are now under a national constitutional obligation to follow the accepted processes of law. Ibid.
Here he is on some of the earliest substantive due process cases:
Louisiana had enacted a statute forbidding the purchase of insurance from out-of-state companies and had sought to recover a sum of $3,000 from a New Orleans cotton merchant who had insured a shipment with a New York company. Whatever might be said against the purpose or substance of the statute, Louisiana had not violated legal process by adopting or enforcing it. The Supreme Court nevertheless declared it to be a violation of due process. It said the liberty protected by the clause included the liberty to enter into contracts and then proceeded to say, in effect, that the states were forbidden to deprive any person of this liberty no matter what process, due or undue, it followed. Again, to refer to two later cases, there is nothing in the language of the clause enabling judges to distinguish between miners and bakers, or, more precisely, between a law limiting the hours of employment of miners and a law limiting the hours of employment of bakers. The Supreme Court, nevertheless, upheld the miners law and struck down the bakers law, and it did so for reasons having nothing whatever to do with the process of law. p. 213.
Again, during the worst of Jim Crow, the court processes involving blacks were anything but “fair and impartial.”
Privileges or Immunities Clause—finally we get to our “substantive rights” (that would prevent state legislatures [or constitutions] from having laws that conflict with such rights):
Now here is where Berns, to his credit, distinguishes himself from Bork, et al., who holds the “privileges or immunities clause” to be an “inkblot,” thus a “meaningless” provision of the Constitution. Berns believes that this clause was one of the most important and meaningful provisions of the Fourteenth Amendment. Moreover, he calls the Slaughterhouse decision that nullified the clause, “ridiculous.”
According to Berns, this clause clearly was intended to be the source of substantive “equality” and other rights. But here’s Berns’s rub: The Supreme Court, by itself, was not granted the power to “find” or “define” those rights—that’s Congress’s job. And Congress clearly didn’t do its job: “Nor did Congress make a serious effort to exercise the other major power granted it by the Fourteenth Amendment, that of enumerating the privileges or immunities belonging to national citizenship.” p. 210.
So as it turns out Brown v. Board of Education did indeed involve an issue that the federal government could properly have jurisdiction over (the federal government did indeed have the power to outlaw such segregation, as Berns thinks ought to have been done). However, in the absence of specific Congressional action, the Court had no power to stop segregation:
Specifically, if New York may, by law or constitutional provision, declare that one of the privileges of New York citizenship is to sue in its courts, would it not seem an appropriate exercise of the power granted in section 5 of the Fourteenth Amendment for Congress, by law and in the course of time, to declare that one of the privileges of national citizenship is to attend a nonsegregated public school? (A privilege that may not be abridged by “any law” of any state?) p. 211.
But the right to “equality,” both substantive and procedural, is part of the organic law that founds this nation. That “all men are created equal” necessarily implies that government doesn’t have the right to treat blacks in a subservient manner to whites. Berns’s position on Brown is a clear example of how paying fidelity to the procedures of Constitutionalism not only does not fully secure our natural rights, but often acts as a “check” against them. A constitutional technicality means that blacks don’t get their “equal” right to attend a public school secured. Likewise, if Congress did nothing to state that an individual has a “privilege” to marry someone outside of his race, Berns would certainly hold that a state may forbid this.
Except for the notion that the Court, on its own, has no right to enforce our “privileges or immunities,” I find Berns’s analysis sound, far sounder than Bork’s, et al.
I also find it interesting that our Supreme Court found substantive rights to “equality” under the equal protection clause, and “liberty” under the Due process clause. The significance is this: In a liberal state, “liberty” and “equality” (and I’d argue “property” as well) are vitally important concerns; in fact, it is what our nation is founded on. The Declaration of Independence’s organic law implies not only procedural rights to liberty and equality, but substantive rights to them as well. The court has rightly found those substantive rights to exist, but arguably implemented liberty and equality through the wrong clauses.
But what is significant about the clauses that the Court did use? The “equal protection clause” is the only part of the Fourteenth Amendment that uses the textual term “equal” and the word “liberty” in the Due Process clause is the only part of that Amendment that uses the term “liberty.” I guess it sort of makes sense that, if we aren’t going to use the “privileges or immunities clause” (which doesn’t on its face reference the terms “liberty” and “equality”), that the court would channel “liberty” through the one clause that explicitly mentions the term “liberty” and “equality” through clause that explicitly uses the term “equal.”
Finally, as I have written before, in addition to “liberty” and “equality,” this nation was also founded on “property.” And immediately after the term “liberty” in the Due Process clause we find the term “property.” No doubt property is one of those “privileges or immunities” referenced by the Fourteenth Amendment.