A persistently disturbing aspect of constitutional law is its lack of theory, a lack which is manifest not merely in the work of the courts but in the public, professional, and even scholarly discussion of the topic. The result, of course, is that courts are without effective criteria and, therefore we have come to expect that the nature of the Constitution will change, often quite dramatically, as the personnel of the Supreme Court change. In the present state of affairs that expectation is inevitable, but it is nevertheless deplorable.

The remarks that follow do not, of course, offer a general theory of constitutional law. They are more properly viewed as ranging shots, an attempt to establish the necessity for theory and to take the argument of how constitutional doctrine should be evolved by courts a step or two further. The first section centers upon the implications of Professor Herbert Wechsler’s concept of “neutral principles,” and the second attempts to apply those implications to some important and much debated problems in the interpretation of the First Amendment. The style is informal since these remarks were originally lectures and I have not thought it worthwhile to convert these speculations and arguments into a heavily researched, balanced, and thorough presentation, for that would result in a book.

The Supreme Court and the Demand for Principle

The subject of the lengthy and often acrimonious debate about the proper role of the Supreme Court under the Constitution is one that preoccupies many people these days: when is authority legitimate? I find it convenient to discuss that question in the context of the Warren Court and its works simply because the Warren Court posed the issue in acute form. The issue did not disappear along with the era of the Warren Court majorities, however. It arises when any court either exercises or declines to exercise the power to invalidate any act of another branch of government. The Supreme Court is a major power center, and we must ask when its power should be used and when it should be withheld.

Our starting place, inevitably, is Professor Wechsler’s argument that the Court must not be merely a “naked power organ,” which means that its decisions must be controlled by principle. “A principled decision,” according to Wechsler, “is one that rests on reasons with respect to all the issues in a case, reasons that in their generality and their neutrality transcend any immediate result that is involved.”

Wechsler chose the term “neutral principles” to capsulate his argument, though he recognizes that the legal principle to be applied is itself never neutral because it embodies a choice of one value rather than another. Wechsler asked for the neutral application of principles, which is a requirement, as Professor Louis L. Jaffe puts it, that the judge, “sincerely believe in the principle upon which he purports to rest his decision.” “The judge,” says Jaffe, “must believe in the validity of the reasons given for the decision at least in the sense that he is prepared to apply them to a later case which he cannot honestly distinguish.” He must not, that is, decide lawlessly. But is the demand for neutrality in judges merely another value choice, one that is no more principled than any other? I think not, but to prove it we must rehearse fundamentals. This is familiar terrain but important and still debated.

The requirement that the Court be principled arises from the resolution of the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic. The anomaly is dissipated, however, by the model of government embodied in the structure of the Constitution, a model upon which popular consent to limited government by the Supreme Court also rests. This model we may for convenience, though perhaps not with total accuracy, call “Madisonian.”

A Madisonian system is not completely democratic, if by “democratic” we mean completely majoritarian. It assumes that in wide areas of life majorities are entitled to rule for no better reason than that they are majorities. We need not pause here to examine the philosophical underpinnings of that assumption since it is a “given” in our society; nor need we worry that “majority” is a term of art meaning often no more than the shifting combinations of minorities that add to temporary majorities in the legislature. That majorities are so constituted is inevitable. In any case, one essential premise of the Madisonian model is majoritarianism. The model has also a counter-majoritarian premise, however, for it assumes there are some areas of life a majority should not control. There are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny.

Some see the model as containing an inherent, perhaps an insoluble, dilemma. Majority tyranny occurs if the legislation invades the areas properly left to individual freedom. Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. Yet, quite obviously, neither the majority not the minority can be trusted to define the freedom of the other. This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court’s power to define both majority and minority freedom through the interpretation of the Constitution. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and place beyond the reach of majorities by, the Constitution.

But this resolution of the dilemma imposes severe requirements upon the Court. For it follows that the Court’s power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority or of the minority.

This argument is central to the issue of legitimate authority because the Supreme Court’s power to govern rests upon the popular acceptance of this model. Evidence that this is, in fact, the basis of the Court’s power is to be gleaned everywhere in our culture. We need not canvas here such things as high school civics texts and newspaper commentary, for the most telling evidence may be found in the U.S. Reports. The Supreme Court regularly insists that its results, and most particularly its controversial results, do not spring from the mere will of the justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution of the United States. Value choices are attributed to the Founding Fathers, not to the Court. The way an institution advertises tells you what it thinks its customers demand.

This is, I think, the ultimate reason the Court must be principled. If it does not have and rigorously adhere to a valid and consistent theory of majority and minority freedom based upon the Constitution, judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate. The root of its illegitimacy is that it opens a chasm between the reality of the Court’s performance and the constitutional and popular assumptions that give it power.

I do not mean to rest the argument entirely upon the popular understanding of the Court’s function. Even if society generally should ultimately perceive what the Court is in fact doing and, having seen, prove content to have major policies determined by the unguided discretion of judges rather than by elected representatives, a principled judge would, I believe, continue to consider himself bound by an obligation to the document and to the structure of government that it prescribes. At least he would be bound so long as any litigant existed who demanded such adherence of him. I do not understand how, on any other theory of judicial obligation, the Court could, as it does now, protect voting rights if a large majority of the relevant constituency were willing to see some groups or individuals deprived of such rights. But even if I am wrong in that, at the very least an honest judge would owe it to the body politic to cease invoking the authority of the Constitution and to make explicit the imposition of his own will, for only then would we know whether the society understood enough of what is taking place to be said to have consented.

Judge J. Skelly Wright, in an argument resting on different premises, has severely criticized the advocates of principle. He defends the value-choosing role of the Warren Court, setting that Court in opposition to something he refers to as “scholarly tradition,” which criticizes that Court for its lack of principle. A perceptive reader, sensitive to nuance, may suspect that the judge is rather out of sympathy with that tradition from such hints as his reference to “self-appointed scholastic mandarins.”

The “mandarins” of the academy anger the judge because they engage in “haughty derision of the Court’s powers of analysis and reasoning.” Yet, curiously enough, Judge Wright makes no attempt to refute the charge but rather seems to adopt the technique of confession and avoidance. He seems to be arguing that a Court engaged in choosing fundamental values for society cannot be expected to produce principled decisions at the same time. Decisions first, principles later. One wonders, however, how the Court or the rest of us are to know that the decisions are correct or what they portend for the future if they are not accompanied by the principles that explain and justify them. And it would not be amiss to point out that quite often the principle required of the Warren Court’s decisions never did put in an appearance. But Judge Wright’s main point appears to be that value choice is the most important function of the Supreme Court, so that if we must take one or the other, and apparently we must, we should prefer a process of selecting values to one of constructing and articulating principles. His argument, I believe, boils down to a syllogism. (I.) The Supreme Court should “protect our constitutional rights and liberties.” (II.) The Supreme Court must “make fundamental value choices” in order to “protect our constitutional rights and liberties.” (III.) Therefore, the Supreme Court should “make fundamental value choices.”

The argument displays an all too common confusion. If we have constitutional rights and liberties already, rights and liberties specified by the Constitution, the Court need make no fundamental value choices in order to protect them, and it certainly need not have difficulty enunciating principles. If, on the other hand, “constitutional rights and liberties” are not in some real sense specified by the Constitution but are the rights and liberties the Court chooses, on the basis of its own values, to give to us, then the conclusion was contained entirely in the major premise, and the Judge’s syllogism is no more than an assertion of what it purported to prove.

If I am correct so far, no argument that is both coherent and respectable can be made supporting a Supreme Court that “chooses fundamental values” because a Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society. The man who understands the issues and nevertheless insists upon the rightness of the Warren Court’s performance ought also, if he is candid, to admit that he is prepared to sacrifice democratic process to his own moral views. He claims for the Supreme Court an institutionalized role as perpetrator of limited coups d’etat.

Such a man occupies an impossible philosophic position. What can he say, for instance, of a Court that does not share his politics or his morality? I can think of nothing except the assertion that he will ignore the Court whenever he can get away with it and overthrow it if he can. In his view the Court has no legitimacy, and there is no reason any of us should obey it. And, this being the case, the advocate of a value-choosing Court must answer another difficult question. Why should the Court, a committee of nine lawyers, be the sole agent of change? The man who prefers results to processes has no reason to say that the Court is more legitimate than any other institution. If the Court will not listen, why not argue the case to some other group, say the Joint Chiefs of Staff, a body with rather better means for implementing its decisions?

We are driven to the conclusion that a legitimate Court must be controlled by principles exterior to the will of the justices. As my colleague Professor Alexander Bickel puts it, “The process of the coherent, analytically warranted, principled declaration of general norms alone justifies the Court’s function. . . .” Recognition of the need for principle is only the first step, but once that step is taken much more follows. Logic has a life of its own, and devotion to principle requires that we follow where logic leads.

Professor Bickel identifies Justice Frankfurter as the leading judicial proponent of principle but conceded that even Frankfurter never found a “rigorous general accord between judicial supremacy and democratic theory.” Judge Wright responds, “The leading commentators of the scholarly tradition have tried ever since to succeed where the Justices failed.” As Judge Wright quite accurately suggests, the commentators have so far had no better luck than the justices.

One reason, I think, is clear. We have not carried the idea of neutrality far enough. We have been talking about neutrality in the application of principles. If judges are to avoid imposing their own values upon the rest of us, however, they must be neutral as well in the definition and the derivation of principles.

It is easy enough to meet the requirement of neutral application by stating a principle so narrowly that no embarrassment need arise in applying it to all cases it subsumes, a tactic often urged by proponents of “judicial restraint.” But that solves very little. It certainly does not protect the judge from the intrusion of his own values. The problem may be illustrated by Griswold v. Connecticut, in many ways a typical decision of the Warren Court. Griswold struck down Connecticut’s statute making it a crime, even for married couples, to use contraceptive devices. If we take the principle of the decision to be a statement that government may not interfere with any acts done in private, we need not even ask about the principle’s dubious origin for we know at once that the Court will not apply it neutrally. The Court, we may confidently predict, is not going to throw constitutional protection around heroin use or sexual acts with a consenting minor. We can gain the possibility of neutral application by reframing the principle as a statement that government may not prohibit the use of contraceptives by married couples, but that is not enough. The question of neutral definition arises: Why does the principle extend only to married couples? Why, out of all forms of sexual behavior, only to sex? The question of neutral derivation also arises. What justifies any limitation upon legislatures in this area? What is the origin of any principle one may state?

To put the matter another way, if a neutral judge must demonstrate why principle X applies to cases A and B but not to case C (which is, I believe, the requirement laid down by Professors Wechsler and Jaffe), he must, by the same token, also explain why the principle is defined as X rather than as X minus, which could also cover A but not cases B and C, or as X plus, which would cover all cases, A, B, and C. Similarly, he must explain why X is a proper principle of limitation on majority power at all. Why should he not choose non-X? If he may not choose lawlessly between cases in applying principle X, he may certainly not choose lawlessly in defining X or in choosing X, for principles are after all only organizations of cases into groups. To choose the principle and define it is to decide the cases.

It follows that the choice of “fundamental values” by the Court cannot be justified. Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other. The judge must stick close to the text and the history, and their fair implications, and not construct new rights. The case just mentioned illustrated the point. The Griswold decision has been acclaimed by legal scholars as a major advance in constitutional law, a salutary demonstration of the Court’s ability to protect fundamental human values. I regret to have to disagree, and my regret is all the more sincere because I once took the same position and did so in print. [1] In extenuation I can only say that at the time I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights.

The Court’s Griswold opinion, by Justice Douglas, and the array of concurring opinions, by Justices Goldberg, White, and Harlan, all failed to justify the derivation of any principle used to strike down the Connecticut anti-contraceptive statute or to define the scope of principle. Justice Douglas, to whose opinion I must confine myself, began by pointing out the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Nothing is exceptional there. In the case Justice Douglas cited, NAACP v. Alabama, the state was held unable to force disclosure of membership lists because of the chilling effect upon the rights of assembly and political action of the NAACP’s members. The penumbra was created solely to preserve a value central to the First Amendment, applied in this case through the Fourteenth Amendment. It has no life of its own as a right independent of the value specified by the First Amendment.

But Justice Douglas then performed a miracle of transubstantiation. He called the First Amendment’s penumbra a protection of “privacy” and then asserted that other amendments create “zones of privacy.” He had no better reason to use the word “privacy” than that the individual is free within these zones, free to act in public as well as in private. None of the penumbral zones from the First, Third, Fourth, and Fifth Amendments, all of which he cited, along with the Ninth covered the case before him. One more leap was required. Justice Douglas asserted that these various “zones of privacy” created an independent right of privacy, a right not lying within the penumbra of any specific amendment. He did not disclose, however, how a series of specified rights combined to create a new and unspecified right.

The Griswold opinion fails every test of neutrality. The derivation of the principle was utterly specious, and so was its definition. In fact, we are left with no idea of what the principle really forbids. Derivation and definition are interrelated here. Justice Douglas called the amendments and their penumbras “zones of privacy,” though of course they are not that at all. They protect both private and public behavior and so would more properly be labeled “zones of freedom.” If we follow Justice Douglas in his next step, these zones would then add up to an independent right of freedom, which is to say, a general constitutional right to be free of legal coercion, a manifest impossibility in any imaginable society.

Griswold, then, is an unprincipled decision, both in the way in which it derives new constitutional rights and in the way it defines that right, or rather fails to define it. We are left with no idea of the sweep of the right of privacy and hence no notion of the cases to which it may or may not be applied in the future. The truth is that the Court could not reach its result in Griswold through principle. The reason is obvious. Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure. Compare the facts of Griswold with a hypothetical suit by an electric utility company and one of its customers to void a smoke pollution ordinance as unconstitutional. The cases are identical.

In Griswold a husband and wife assert that they wish to have sexual relations without fear of unwanted children. The law impairs their sexual gratifications. The state can assert, and at one stage in that litigation did assert, that the majority finds the use of contraception immoral. Knowledge that it takes place and that the state makes no effort to inhibit it causes the majority anguish, impairs their gratifications.

The electrical company asserts that it wishes to produce electricity at low cost in order to reach a wide market and make profits. Its customer asserts that he wants a lower cost so that prices can be held low. The smoke pollution regulation impairs his and the company’s stockholders’ economic gratifications. The state can assert not only that the majority prefer clean air to lower prices, but also that the absence of the regulation impairs the majority’s physical and aesthetic gratifications.

Neither case is covered specifically or by obvious implication in the Constitution. Unless we can distinguish forms of gratification, the only course for a principled Court is to let the majority have its way in both cases. It is clear the Court cannot make the necessary distinction. There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy than another. Why is sexual gratification nobler than economic gratification? There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ. Where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute. That, by definition, is an adequate basis for judicial supremacy. The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question. The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.

One of my colleagues refers to this conclusion, not without sarcasm, as the “Equal Gratification Clause.” The phrase is apt, and I accept it, though not the sarcasm. Equality of human gratifications, where the document does not impose a hierarchy, is an essential part of constitutional doctrine because of the necessity that judges be principled. To be perfectly clear on the subject, I repeat that the principle is not applicable to legislatures. Legislation requires value choice and cannot be principled in the sense under discussion. Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution.

It follows, of course, that broad areas of constitutional law ought to be reformulated. Most obviously, it follows that substantive due process, revived by the Griswold case, is and always has been an improper doctrine. Substantive due process requires the Court to say, without guidance from the Constitution, which liberties or gratifications may be infringed by majorities and which may not. This means that Griswold’s antecedents were also wrongly decided, e.g., Meyer v. Nebraska, which struck down a statute forbidding the teaching of subjects in any language other than English; Pierce v. Society of Sisters, which set aside a statute compelling all Oregon school children to attend public schools; Adkins v. Children’s Hospital, which invalidated a statute of Congress authorizing a board to fix minimum wages for women and children in the District of Columbia; and Lochner v. New York, which voided a statute fixing maximum hours of work for bakers. With some of these cases I am in political agreement, and perhaps Pierce’s result could be reached on acceptable grounds, but there is no justification for the Court’s methods. In Lochner, Justice Peckham, defending liberty from what he conceived as a mere meddlesome interference, asked, “[A]re we all . . . at the mercy of legislative majorities?” The correct answer, where the Constitution does not speak, must be “yes.”

The argument so far also indicates that most of substantive equal protection is also improper. The modern Court, we need hardly be reminded, used the equal protection clause the way the old Court used the due process clause. The only change was in the values chosen for protection and the frequency with which the Court struck down laws.

The equal protection clause has two legitimate meanings. It can require formal procedural equality, and, because of its historical origins, it does require that government not discriminate along racial lines. But much more than that cannot properly be read into the clause. The bare concept of equality provides no guide for courts. All law discriminates and thereby creates inequality. The Supreme Court has no principled way of saying which nonracial inequalities are impermissible. What it has done, therefore, is to appeal to simplistic notions of “fairness” or to what it regards as “fundamental” interests in order to demand equality in some cases but not in others, thus choosing values and producing a line of cases as improper and as intellectually empty as Griswold v. Connecticut. Any casebook lists them, and the differing results cannot be explained on any ground other then the Court’s preferences for particular values: Skinner v. Oklahoma ( a forbidden inequality exists when a state undertakes to sterilize robbers but not embezzlers); Kotch v. Board of River Port Pilot Commissioners (no right to equality is infringed when a state grants pilots’ licenses only to persons related by blood to existing pilots and denies licenses to persons otherwise as well qualified); Goesaert v. Cleary (a state does not deny equality when it refuses to license women as bartenders unless they are the wives or daughters of male owners of licensed liquor establishments); Railway Express Agency v. New York (a city may forbid truck owners to sell advertising space on their trucks as a distracting hazard to traffic safety though it permits owners to advertise their own business in that way); Shapiro v. Thompson (a state denies equality if it pays welfare only to persons who have resided in the state for one year); Levy v. Louisiana (a state may not limit actions for a parent’s wrongful death to legitimate children and deny it to illegitimate children). The list could be extended, but the point is that the cases cannot be reconciled on any basis other than the justices’s personal beliefs about what interests or gratifications ought to be protected.

Professor Wechsler notes that Justice Frankfurter expressed “disquietude that the line is often very thin between the cases in which the Court felt compelled to abstain from adjudication because of their ‘political’ nature, and the cases that so frequently arise in applying the concepts of ‘liberty’ and ‘equality.’” The line is not very thin; it is nonexistent. There is no principled way in which anyone can define the spheres in which liberty is required and the spheres in which equality is required. These are matters of morality, of judgment, of prudence. They belong, therefore, to the political community. In the fullest sense, these are political questions.

We may now be in a position to discuss certain of the problems of legitimacy raised by Professor Wechsler. Central to his worries was the Supreme Court’s decision raised in Brown v. Board of Education. Wechsler said he had great difficulty framing a neutral principle to support the Brown decision, though he thoroughly approved of its result on moral and political grounds. It has long been obvious that the case does not rest upon the grounds advanced in Chief Justice Warren’s opinion, the specially harmful effects of enforced school segregation upon black children. That much, as Wechsler and others point out, is made plain by the per curiam decisions that followed outlawing segregated public beaches, public golf courses, and the like. The principle in operation may be that government may not employ race as a classification. But the genesis of the principle is unclear.

Wechsler states that his problem with the segregation cases is not that:

History does not confirm that an agreed purpose of the Fourteenth Amendment was to forbid separate schools or that there is important evidence that many thought contrary; the words are general and leave room for expanding content as time passes and conditions change. [2]

The words are general but surely that would not permit us to escape the framers’ intent if it were clear. If the legislative history revealed a consensus about segregation in schooling and all the other relations in life, I do not see how the Court could escape the choice revealed and substitute its own, even though the words are general and conditions have changed. It is the fact that history does not reveal detailed choices concerning such matters that permits, indeed requires, resort to other modes of interpretation.

Wechsler notes that Brown has to do with freedom to associate and freedom not to associate, and he thinks that a principle must be found that solves the following dilemma:

[I]f the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension. . . . Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion. To write it is for me the challenge of the school-segregation cases. [3]

It is extremely unlikely that Professor Wechsler ever will be able to write that opinion to his own satisfaction. He has framed the issue in insoluble terms by calling it a “conflict between human claims of high dimension,” which is to say that it requires a judicial choice between rival gratifications in order to find fundamental human right. So viewed it is the same case as Griswold v. Connecticut and not susceptible of principled resolution.

A resolution that seems to me more plausible is supported rather than troubled by the need for neutrality. A court required to decide Brown would perceive two crucial facts about the history of the Fourteenth Amendment. First, the men who put the amendment in the Constitution intended that the Supreme Court should secure against government action some large measure of racial equality. That is certainly the core meaning of the amendment. Second, those same men were not agreed about what the concept of racial equality requires. Many or most of them had not even thought the matter through. Almost certainly, even individuals among them held such views as that blacks were entitled to purchase property from any willing seller but not to attend integrated schools, or that they were entitled to serve on juries but not to intermarry with whites, or that they were entitled to equal physical facilities but that the facilities should be separate, and so on through the endless anomalies and inconsistencies with which moral positions so frequently abound. The Court cannot conceivably know how these long dead men would have resolved these issues had they considered, debated, and voted on each of them. Perhaps it was precisely because they could not resolve them that they took refuge in the majestic and ambiguous formula: the equal protection of the laws.

But one thing the Court does know: it was intended to enforce a core idea of black equality against governmental discrimination. And the Court, because it must be neutral, cannot pick and choose between competing gratifications and, likewise, cannot write the detailed code the framers omitted, requiring equality in this case but not in another. The Court must, for that reason, choose a general principle of equality that applies to all cases. For the same reason, the Court cannot decide that physical equality is important but psychological equality is not. Thus, the no-state-enforced-discrimination rule of Brown must overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson. The same result might be reached on an alternative ground. If the Court found that it was incapable as an institution of policing the issue of the physical equality of separate facilities, the variables being insufficiently comparable and the cases too many, it might fashion a no-segregation rule as the only feasible means of assuring even physical equality.

In either case, the value choice (or, perhaps more accurately, the value impulse) of the Fourteenth Amendment is fleshed out and made into a legal rule not by moral precept, not by a determination that claims for association prevail over claims for separation as a general matter, still less by consideration of psychological test results, but on purely juridical grounds.

I doubt, however, that it is possible to find neutral principles capable of supporting some of the other decisions that trouble Professor Wechsler. An example is Shelly v. Kramaer, which held that the Fourteenth Amendment forbids state court enforcement of a private, racially restrictive covenant. Although the amendment speaks only of denials of equal protection of the laws by the state, Chief Justice Vinson’s opinion said that judicial enforcement of a private person’s discriminatory choice constituted the requisite state action. The decision was, of course, not neutral in that the Court was most clearly not prepared to apply the principle to cases it could not honestly distinguish. Any dispute between private persons about absolutely any aspect of life can be brought to a court by one of the parties; and, if race is involved, the rule of Shelley would require the court to deny the freedom of any individual to discriminate in the conduct of any part of his affairs simply because the contrary result would be state enforcement of discrimination. The principle would apply not merely to the cases hypothesized by Professor Wechsler, i.e. the inability of the state to effectuate a will that draws a racial line or to vindicate the privacy of property against a trespasser excluded because of the homeowner’s racial preferences, but to any situation in which the person claiming freedom in any relationship had a racial motivation.

That much is the common objection to Shelley v. Kramaer, but the trouble with the decision goes deeper. Professor Louis Henkin has suggested that we view the case as correctly decided, accept the principle that must necessarily underline it if it is respectable law, and proceed to apply that principle:

Generally, the equal protection clause precludes state enforcement of private discrimination. There is, however, a small area of liberty favored by the Constitution even over claims to equality. Rights of liberty and property, of privacy and voluntary association, must be balanced in close cases, against the right not to have the state enforce discrimination against the victim. In the few instances in which the right to discriminate is protected or preferred by the Constitution, the state may enforce it. [4]

This attempt to rehabilitate Shelley by applying its principle honestly demonstrates rather clearly why neutrality in the application of principle is not enough. Professor Henkin’s proposal fails the test of the neutral derivation of principle. It converts an amendment whose text and history clearly show it to be aimed only at governmental discrimination into sweeping prohibition of private discrimination. There is no warrant anywhere for that conversion. The judge’s power to govern does not become more legitimate if he is constrained to apply his principle to all cases but is free to make up his own principles. Matters are only made worse by Professor Henkin’s suggestion that the judge introduce a small number of exceptions for cases where liberty is more important than equality, for now even the possibility of neutrality in the application of principle is lost. The judge cannot find in the Fourteenth Amendment or its history any choice between equality and freedom in private affairs. The judge, if he were to undertake this task, would be choosing, as in Griswold v. Connecticut, between competing gratifications without constitutional guidance. Indeed, as Professor Henkin’s description of the process shows that the task he would assign is legislative:

The balance may be struck differently at different times, reflecting differences in prevailing philosophy and the continuing movement from laissez-faire government toward welfare and meliorism. The changes in prevailing philosophy themselves may sum up the judgment of judges as to how the conscience of our society weighs the competing need and claims of liberty and equality in time and context, the adequacy of progress toward equality as a result of social and economic forces, the effect of lack of progress on the life of the Negro and, perhaps, on the image of the United States, and the role of official state forces in advancing or retarding this progress. [5]

In short, after considering everything a legislator might consider, the judge is to write a detailed code of private race relations. Starting with an attempt to justify Shelley on grounds of neutral principle, the argument rather curiously arrives at a position in which neutrality in the derivation, definition, and application of principle is impossible and the wrong institution is governing society.

The argument thus far claims that, cases of rare discrimination aside, it is always a mistake for the Court to try to construct substantive individual rights under the due process or the equal protection clause. Such rights cannot be constructed without comparing the worth of individual gratifications, and that comparison cannot be principled. Unfortunately, the rhetoric of constitutional adjudication is increasingly a rhetoric about “fundamental” rights that inhere in humans. That focus does more than lead the Court to construct new rights without adequate guidance from constitutional materials. It also distorts the scope and definition of rights that have claim to protection.

There appear to be two proper methods of deriving rights from the Constitution. The first is to take from the document rather specific values that text or history shows the framers actually to have intended and that are capable of being translated into principled rules. We may call these specified rights. The second method derives rights from governmental processes established by the Constitution. These are secondary or derived individual rights. This latter category is extraordinarily important. This method of derivation is essential to the interpretation of the First Amendment, to voting rights, to criminal procedure and to much else.

Secondary or derivative rights are not possessed by the individual because the Constitution has made a value choice about individuals. Neither are they possessed because the Supreme Court thinks them fundamental to all humans. Rather, these rights are located in the individual for the sake of a governmental process that the Constitution outlines and the Court should preserve. They are given to the individual because his enjoyment of them will lead him to defend them in court and thereby preserve the governmental process from legislative or executive deformation.

The distinction between rights that are inherent and rights that are derived from some other value is one that our society worked out long ago with respect to the economic market place, and precisely the same distinction holds and will prove an aid to clear thought with respect to the political market place. A right is a form of property, and our thinking about the category of constitutional property might usefully follow the progress of thought about economic property. We now regard it as thoroughly old hat, passé and in fact downright tiresome, to hear rhetoric about an inherent right to economic freedom or to economic property. We no longer believe that economic rights inhere in the individual because he is an individual. The modern intellectual argues the proper location and definition of property rights according to judgments of utility, i.e. the capacity of such rights to forward some other value. We may, for example, wish to maximize the total wealth of society and define property rights in a way we think will advance that goal by making the economic process run more efficiently. As it is with economic property rights, so it should be with constitutional rights relating to governmental processes.

The derivation of rights from government processes is not an easy task, and I do not suggest that a shift in focus will make anything approaching a mechanical jurisprudence possible. I do suggest that, for the reasons already argued, no guidance whatever is available to a court that approaches, say, voting rights or criminal procedures through the concept of substantive equality.

The state legislative reapportionment cases were unsatisfactory precisely because the Court attempted to apply a substantive equal protection approach. Chief Justice Warren’s opinions in this series of cases are remarkable for their inability to muster a single respectable supporting argument. The principle of one man, one vote was not neutrally derived: it runs counter to the text of the Fourteenth Amendment, the history surrounding its adoption and ratification, and the political practice of Americans from colonial times up to the day the Court invented the new formula. The principle was not neutrally defined: it presumably rests upon some theory of equal weight for all votes, and yet we have no explanation of why it does not call into question other devices that defeat the principle, such as the executive veto, the committee system, the filibuster, the requirement on some issues of two-thirds majorities and the practice of districting. And, as we all know now, the principle, even as stated, was not neutrally applied.

To approach these cases as involving rights derived from the requirements of our form of government is, of course, to say that they involve guarantee clause claims. Justice Frankfurter opposed the Court’s consideration of reapportionment precisely on the ground that the “case involves all the elements that have made the Guarantee Clause cases nonjusticiable,” and was a “Guarantee Clause claim masquerading under a different label.” Of course, his characterization was accurate, but the same could be said of many voting rights cases he was willing to decide. The guarantee clause, along with the provisions and structure of the Constitution and our political history, at least provide some guidance for a Court. The concept of the primary right of the individual in this area provides none. Whether one chooses to use the guarantee of a republican form of government of Article IV, Section 4 as a peg or to proceed directly to considerations of constitutional structure and political practice probably makes little difference. Madison’s writing on the republican forms of government specified by the guarantee clause suggests that representative democracy may properly take many forms, so long as the forms do not become “aristocratic or monarchial.” That is certainly less easily translated into the rigid one person, one vote requirement, which rests on a concept of the right of the individual to equality, than into the requirement expressed by Justice Stewart in Lucas v. Forty-Fourth General Assembly that a legislative apportionment need only be rational and “must be such as not to permit the systematic frustration of the will of a majority of the electorate of the state.” The latter is a standard derived from the requirements of a democratic process rather than from the rights of individuals. The topic of governmental processes and the rights that may be derived from them is so large that it is best left at this point. It has been raised only as a reminder that there is a legitimate mode of deriving and defining constitutional rights, however difficult intellectually, that is available to replace the present unsatisfactory focus.

At the outset I warned that I did not offer a complete theory of constitutional interpretation. My concern has been to attack a few points that may be regarded as salient in order to clear the way for such a theory. I turn next to a suggestion of what neutrality, the decision of case according to principle, may mean for certain First Amendment problems.

. . .

Excerpt taken from Robert Bork’s A Time to Speak: Selected Writings and Arguments (Wilmington, DE: ISI Books, 2008).

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Notes:

1. Bork “The Supreme Court Needs a New Philosophy,” Fortune, Dec., 1968, 170.
2. H. Wechsler, “Toward Neutral Principles of Constitutional Law,” Principles, Politics, and Fundamental Law 3, 27 (1961).
3. Ibid., 47.
4. Henkin, Shelley v. Kramer: “Notes for a Revised Opinion,” 110 U. PA. L. Rev.
5. Ibid., 494.