Glory, Glory Hallelujah!

One hundred and thirty years ago, in an article entitled The Origin and Scope of the American Doctrine of Constitutional Law, Professor James Bradley Thayer of the Harvard Law School declared:

“It has been often remarked that private rights are more respected by the legislatures of some countries which have no written constitution, than

by ours. No doubt our doctrine of constitutional law has had a

tendency to drive out questions of justice and right, and to fill the

mind of legislators with thoughts of mere legality, of what the

constitution allows. And moreover, even in the matter of legality,

they have felt little responsibility; ‘if we are wrong,’ they say, ‘the.

courts will correct it.’ Meantime they and the people whom they

represent, not being thrown back on themselves, on the responsible

exercise of their own prudence, moral sense, and honor, lose much

of what is best in the political experience of any nation; and they are

belittled, as well as demoralized. If what I have been saying is true,

the safe and permanent road towards reform is that of impressing

upon our people a far stronger sense than they have of the great

range of possible mischief that our system leaves open, and must

leave open, to the legislatures, and of the clear limits of judicial

power ; so that responsibility may be brought sharply home where

it belongs. The checking and cutting down of legislative power,

by numerous detailed prohibitions in the constitution, cannot be

accomplished without making the government petty and incompetent. This process has already been carried much too far in

some of our States. Under no system can the power of courts go

far to save a people from ruin ; our chief protection lies elsewhere.

If this be true, it is of the greatest public importance to put the

matter in its true light.”

This article made a great impression on, and was often cited by, Mr. Justice Holmes, Judge Learned Hand, and Professor Felix Frankfurter. Before the First World War, Hand and Frankfuter conducted an extensive correspondence on how to get rid of the doctrine of substantive due process, at the root of the Dred Scott fugitive slave decision, as well as the decisions in Lochner v. New York and Adkins v. Children’s Hospital, involving wage and hour laws. They were cheered on by Justice Holmes, who declared his constitutional faith on the neglected first page of his book on The Common Law. Justice Black’s dissent in Griswold also rests on the faith that the political guarantees of the Bill of Rights and Constitution provided protections enough.

The opinion of Justices Souter,O’Connor and Kennedy in the Casey case aspiring to put the abortion controversy to rest on ‘liberal’ terms has rhetoric closely resembling that in the abortive concurring opinion of Justice Wayne in the Dred Scott case.:

Judge Richard Posner has declared, accurately, that the most important sentence in American constitutional law was that in Holmes’ dissent in the Lochner case: “the Constitution was made for people of different views.” For today’s “choice” advocates and “right to lifers” the Constitution  was made for people of only one view: their own. Hence their tendency has been to try to declare ‘rights’ to their extreme: to permit third term, gender choice and eugenic, and hasty and uncounselled abortions on the one hand, or to prohibit ‘morning after’ pills intra-uterine devices, very early term scraping operations permitted by the pre-Roe common law, and inter-state travel on the other.

Justice Clarence Thomas has been criticized for his willingness to scrap substantive due process. This, it is said, would endanger three sacred cows, the Loving case on inter-racial marriage; the gay rights and gay marriage cases; and the Griswold and like cases on contraception.

The anti-miscegenation laws were enacted in states where blacks could not vote; it is inconceivable that even Mississippi and Alabama would re-enact them today. The Loving case rested not on substantive due process but the equal protection clause; a court now including two justices in mixed marriages is unlikely to repudiate it. Only two states retained anti-contraception laws at the time of Griswold; they were unenforced and it required elaborate efforts at artificial respiration to generate test cases.

The ‘gay rights’ and ‘gay marriage’ cases rest on shakier ground, since rather weighty public health considerations relating to anal intercourse were not adduced in the defense of the statutes. There is, like it or not, a public interest in at least discouraging and not glorifying a practice which, absent contraception, is at least 10 or 15 times as likely to transmit venereal disease as vaginal intercourse, and which gives rise to an annual  federal AIDS budget exceeding $28 billion. It is also unlikely that adolescent psychiatrists, at least honest ones, are celebrants of the new cults of gayness and transgenderism. But the cures for these phenomena are likely to be more statutory than constitutional: restriction of marital tax benefits to parents with child-raising responsibilities and greater co-payments for treatments of venereal diseases.

The other substantive due process cases protecting private schools and foreign language teaching could well be decided as first amendment cases; those relating to domestic relations, some of which greatly encumber the adoption process, would better have been left undecided by the Supreme Court which has little experience in this field.

Codification of Roe is not in the cards; the Republicans are unlikely to forget that their adversaries were intent on abolishing the filibuster rule so that bare majorities could pack the Senate, enlarge the Supreme Court, abolish the Electoral College, and scrap safeguards against voting by the senile, the incompetent, and the already dead.

Thayer’s belief that a restriction of constitutional protections would lead legislators to avoid extreme legislation and focus on policy rather than legality has already been partially vindicated. Governors Youngkin of Virginia and De Santis of Florida, neither of whom lack further political ambitions, have proposed compromise 15-week legislation like the Mississippi law upheld in the Dobbs case by a 6-3 vote. Where large numbers of people may actually be adversely affected by laws, prudent politicians proceed cautiously. Not so advocacy groups and activist judges eager for five minutes of fame through the seeking and issuance of ex parte restraining orders. While Chief Justice William Howard Taft was not hostile to injunctions in appropriate cases, he though that ex parte restraining orders invited abuse and should be completely prohibited.

Despite the sound and fury, there is no ‘constitutional crisis’ despite the efforts of some to precipitate one. The end results in most states will resemble the Mississippi law, which in turn, in its hostility to late-term abortions, resembles the laws of Western Europe. Any efforts to forestall the ‘morning after’ pill will fail because of their manifest unenforcebility, if not to pre-emption requirements based on the food and drug laws. The new facts will be understood on ‘the street’ and will impair the fund-rising efforts of both sides. As with the effect of welfare reform on teen-age births–a reduction of two-thirds in their number–the new uncertainty may induce sexual caution and a fall in unwed motherhood rates, not to 1950s levels, but at least to those prevailing in Western Europe. These effects will be benign, and a tribute to the restoration of democracy. The lyrics of the Battle Hymn of the Republic may seem inapposite to a moderate like Thayer, but those who care about our political Constitution and not merely their political or economic views may well sing “Glory, Glory, Halleluia/ His truths go marching on.”

The writer, President of the Library Company of the Baltimore Bar, is the author of The Common Law Tradition: a Collective Portrait of Five Legal Scholars (Transaction Books) among other works

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