Over the past two years, I have been on the trail of William
Marbury, protagonist in Chief Justice John Marshall's most renowned
case of Marbury v. Madison. My quest has taken me through
collections of eighteenth century papers found in research
libraries from Williamsburg to Boston. In Washington, I am often at
the National Archives, or I travel the short distance to the
Maryland Hall of Records in Annapolis. I am always surrounded by
others, often older people, doing genealogical research. Every day
I hear someone around me exclaim as they go through some old ledger
or newspaper, "I got him!" or "Mildred, look! He was married
twice!" as people are delighted and surprised by the discoveries of
The Search for Roots. Why is there such a hunger for knowledge
of our specific past, of our roots? Why, indeed, is genealogy such
a passion for older people, knowing that their mortal time line is
nearing its end? The quest, I believe, comes from the irrepressible
human need to know our identity, to make real our being and
individuality. We most frequently search for the answer in
The hunger for the origins of things is unabated in man, witness
each civilization's creation sagas. We seek it in the stories about
our immigrant grandparents, or even about other immigrants, like
the pilgrims, not related to us in blood or religion. We ask how
the universe began, or whether we are the children of Abraham. We
try to imagine the moment of the revolution on the Freedom Trail in
Boston, or in the sufferings at Valley Forge. As tourists, we try
to sense the presence of Jesus along the Sea of Galilee. And,
despite all the scholarly doubts about our finding out, we need to
know what the framers had in mind when they met in Philadelphia to
write our Constitution.
Conservatives in particular find meaning in origins, whether the
origin be historical, or religious, or posited, as in the state of
nature theories that libertarians rely upon. A primary principle of
conservatism is respect for the legacy of the past. A primary
principle of judicial conservatism is respect for the source of
one's judicial authority in the framers' Constitution.
Judicial conservatives in the Anglo-American tradition are most
especially beholden to origins, for Anglo-American judges inherit
their authority from the common law and the doctrine of precedent.
Judges who forsake reference to first principles in favor of
current political trends not only violate the principles of
constitutionalism, they act as apostates to their own judicial
But in searching for origins, we come across a curious
phenomenon. And that is this: we make sense of our origins after
the fact. The meaning we find is not in the exact replication of
what originally happened, but the meaning we find in it afterward.
The Gospels are powerful, not because they are historic renditions
of what Jesus did, but because the writers of the Gospels take
events and report them in a context in which those events take on a
deeper meaning, a more concrete reality.
Maybe you have noticed also that often we do not make sense of
our sacrifice in wars by the reasons we put forward for going to
war, but from the reasons we develop afterwards to justify the
sacrifice. Holding the Union together was part of but not a
sufficient reason for the sacrifice of so many thousands of men.
Keeping the sea lanes open was not enough for our sacrifice
in World War I. Even defeats can be made sense of. The South
has come to terms with the Civil War as a noble effort in an
ignoble cause. We have yet to make sense of the Vietnam defeat, nor
even the Persian Gulf victory, and therein lies much of the current
distress of the country.
The Principles of the Constitution. When we come to examine the
Constitution and a judge's moral obligations to follow it, there
is, over and above the specific text, a number of originating
principles that give the text meaning.
Some of these principles can be discerned in the reason for the
drafting of the Constitution: the need for a central government
that could protect the liberties of Americans against foreign
nations, and from the destructive competition among our own states;
a government that would be capable of maintaining the physical and
economic infrastructure of a large empire, possessed of powers over
the post, commerce, army, navy, communications, currency, taxation,
and the economy. Other originating principles can be found in the
philosophic premises that the framers embraced, in the
Anglo-American tradition of constitutionalism and the rule of law,
in the specific events that led to the Revolution, and in the
experience of the Revolution itself.
But the initial reasons for the Constitution do not give us a
whole picture of the principles of our constitutional order.
In the months after the Constitution was signed, when it was in
its struggle for ratification among the states, a series of essays
appeared in defense of the document. Those essays, soon denominated
as The Federalist Papers, made sense out of a collection of
worked over and worked over again compromises at the Philadelphia
convention. James Madison himself had been in deep distress at the
end of the convention. He had pushed for a much stronger central
government than he got, and he genuinely feared that the
Constitution would go the way of the Articles of Confederation.
Nevertheless, it was far better than the failure that was the
Articles of Confederation, and being trained in the law, he, Jay,
and Hamilton, worked up the best arguments they could for that
Those arguments made sense out of chaotic compromise, and
provide the source of principles upon which so much of the
Constitution makes sense. In modern parlance, they put a "spin" on
those events, and the spin took. The Federalist, more than
any document, defined the origins of our constitutional system,
indeed, as much as the records of the convention itself. It is not
a secondary source.
In answer to the Anti-Federalists who feared that the new
document would reduce state sovereignty and thereby threaten the
liberties of individuals, the Federalist authors developed a
rationale for the structure of the new government system.
Essentially, as Madison discussed in Federalist 10 and 51,
the constitutional structure would be divided along federal lines
first, and then within the central government, divided again into a
complex separation of powers. The liberties of the people would
therefore be protected, first by the residuum of sovereignty left
to the states, and secondly, by tying different constituencies to
separate parts of the federal government - House of
Representatives, Senate, Executive, and Judiciary - and giving each
branch some part of each other's powers in order to defend itself
against any branch's aggrandizement of its own powers.
In 1791, the Bill of Rights were appended to the Constitution.
As described by its mover in Congress, James Madison, those
Amendments had two purposes: 1) to legitimize the Constitution and
the new government in the eyes of a large segment of Americans, the
Anti-Federalists, who were particularly concerned about the lack of
a charter of rights, and 2) to provide, in modern parlance, a
failsafe mechanism against egregious conduct of Congress or the
executive in case the structure of the Constitution proved
inadequate in any particular instance.
The primary mechanism of our liberties was, therefore, a
reliance on the structure, with the Bill of Rights providing a
backstop. It follows that the maintenance of the integrity of the
structure of the Constitution is the first duty of those who
monitor the government, particularly the judiciary.
The Importance of John Marshall. Indeed, it was in the
maintenance of the integrity of the structure of the constitutional
order that Chief Justice John Marshall made his greatest
In 1800, the country and the government had become totally
politicized. Both political parties had come to the honest belief
that the other was animated by treasonous leanings: the Federalists
thought that the Jeffersonians were selling out the country to
maniacal French Jacobinism, and the Republicans thought that the
Federalists had accepted the Tory ideology of England and were fast
making the United States a colony of that kingdom once again. The
judiciary was as political as any other branch. Things had become
so politicized that Madison himself had given up on the separation
of powers, and now wanted one faction, the Jeffersonian
Republicans, to control the whole government.
Thus Marshall reinvigorated the separation of powers structure
originally elucidated by Madison by giving it an ethical grounding.
The branches of government now had a functional separation, a duty
to be true to their function, and were not merely separated for
purposes of power competition. The judiciary would ply its legal
trade, but would leave the political issues to be resolved by the
political branches and the states. Marshall gave the judiciary a
new sense of role, and established an ethical grounding for how
judges should act.
Therefore, in judging whether a court has been true to the
constitutional heritage (which is, at bottom, what we ask of
conservative judges), we look first to see whether it has
reenforced the structural limitations among the branches in the
federal government, on the one hand, and between the federal
government and the states on the other; and second, we seek to
determine whether the court has retained the ethical notion of
self-limitation when pressed to resolve issues on political rather
than legal grounds.
The problem judicial conservatives face is this: since 1938, the
Supreme Court has given up enforcing both the structural and the
ethical elements of our constitutional order. First, the Court has
stopped protecting state jurisdiction against federal incursion,
particularly in the areas of taxation and commerce. Second, the
court has not enforced the limits on the delegated grants of power
to Congress. The Taxing, Commerce, and Spending clauses have been
given the widest possible scope, leading to the massive regulatory
state we have today. Third, after some hesitation, the Court began
using the Bill of Rights as the first line of defense against
government, and, rejecting Chief Justice Marshall's counsel, began
importing political programs into that clause. I do not wish to
minimize the effect that the Fourteenth Amendment had in providing
addition judicial protections for the citizens of the several
states. Nonetheless, the Fourteenth Amendment remains a
modification of the original constitutional structure, not its
Now that the Supreme Court has been overwhelmingly staffed by
appointees of Republican Presidents, we can ask: To what extent
have they been faithful to the original vision of the
Constitution as articulated during its early years? How have they
revivified the structural protections? How have they communicated
an ethical sense of their own role in the structure?
The answer, unfortunately, is that the record remains
disappointing. I cannot here assay a complete survey, but let me
give a few illustrations.
1) Federalism. Subsequent to 1938, any real judicial concern for
maintaining the federal system quickly evaporated. Through a
virtually unlimited definition of the Commerce Power1 and especially through an unrestrained use of
the Spending Power,2 Congress was able
to supplant the states as the primary policy making force in the
The Rehnquist Court has been able to do nothing to protect the
states from the inducements of federal spending.3 For a while, then-Justice Rehnquist was able
to forge a bare majority to safeguard a very narrow enclave of
state independence under the Tenth Amendment from direct
Under National League of Cities v. Usery 426 U.S. 833
(1976) and succeeding cases, the Court declared that Congress could
not regulate the states as states in an area of historically
exclusive jurisdiction of the states. Thus, congressional
regulation of the wages of state police and fire personnel was
prohibited by the Tenth Amendment. The attempt to leave the states
free of congressional control was short lived, however, and a
change in vote by Justice Blackmun in the case of Garcia v. San
Antonio4 overruled Usery and
declared that the states' only constitutional protection lay in the
political process, a process we all know has provided precious
little range of independence from federal control. At that time,
Justice O'Connor, in dissent, declared that she hoped that
Garcia itself would one day be overruled and the Tenth
In this last term of the Supreme Court, Justice O'Connor had
such an opportunity. By the vote of 6 to 3, the conservative
majority resurfaced to protect New York State from being
conscripted into passing regulations on radioactive waste.5 Yet, Justice O'Connor failed to overrule
Garcia and thus the future of state independence under the
Tenth Amendment is as ambiguous as ever.
2) Separation of Powers. In a similar vein, the conservative
Court early on began to enforce the distinctions between the three
branches of government only seemingly to abandon the project in its
most recent decisions. For a while, a conservative coalition voided
Congress's attempt to regulate the executive branch's internal
workings by the device of the congressional veto.6
It prevented the Comptroller General, part of the legislative
branch, from performing the functions of the Executive,7 and it protected the President's right of
appointment to the Federal Election Commission.8
Again, however, the trend has been reversed. Strangely, the
Court has been particularly insensitive to congressional incursions
into the judicial process. The Court upheld the independent counsel
statute, allowing the equivalent of an unresponsible Star Chamber
to operate in the American Government.9
The Court also permitted Congress to establish an independent
agency within the judiciary to set sentencing guidelines.10 Finally, in this last term, the Court
undercut one of the greatest precedents in its history11 and agreed that Congress could direct an
outcome of a case pending before a court by changing the underlying
law at the same time.12
3) Rights. In recent years the Court has expanded the rights of
property owners against direct government takings, requiring
compensation for partial takings,13
temporary takings,14 and takings of
intangible property.15 The Court has,
on the other hand, allowed the government to take property for any
reason whatsoever, so long as compensation is paid for it.16
A greater problem for property owners is not direct government
taking, but government regulations that deny so much of one's
ordinary uses of one's property. This last term, in the much
anticipated case of "Lucas v. South Carolina Coastal
Council,17 the Court did little to
protect property owners from intrusive state regulation.
In Lucas, a man was prohibited from building on a lot on
one of South Carolina's barrier islands despite the fact that
houses were already built on the adjoining lots. The most that
Justice Scalia could do was to remand the case and indicate that in
certain very narrow circumstances, a regulation could constitute a
In other rights areas, the Rehnquist Court has developed
modifications of the law on which conservative opinion is divided.
The Court has expanded the substantive protections of political
speech, even including expressive flag burning,19 but has restricted the areas in which
unrestrained speech can be expounded.20 The government may, for example, determine
that certain kinds of speech are impermissible in schools and
The Court has maintained the distinction between obscene and
non-obscene expression,22 but has cut
back on the protections afforded to commercial speech.23
Generally speaking, the Rehnquist Court has retained most of the
protections afforded persons accused of crimes,24 but has vigorously pruned the procedural
techniques that have led to virtually unlimited delays and
rehearings of legitimate convictions.25
The greatest disappointments for conservatives, however, lay in
the areas of school prayer and abortion. This last term, five
person majorities, led by Justices Kennedy, O'Connor, and Souter,
halted a trend towards greater tolerance for religious expression
in school settings. By striking down a non-denominational prayer at
a voluntary school graduation, the Court rejected two centuries of
unbroken tradition of ceremonial acknowledgement of Providential
guidance by all levels of government.26
At the same time, that trio of Justices upheld a judicial
usurpation of but two decades' longevity27 in the name of stare decisis and
with the pretentious claim of saving the reputation of the Court is
a burlesque of conservative principles.
The principle of stare decisis is designed to maintain
worthy precedents. But Roe v. Wade is without any
constitutional worth. That decision was a political ruling
ungrounded in the Constitution's text or the history of our
country. It destroyed legislation and precedents that stretched
back over a hundred years. Its very maintenance brings the Court
continued disrepute, distorts the nomination process, and makes the
Supreme Court the very political body John Marshall had sought to
limit in Marbury v. Madison.
Chief Justice Rehnquist has, on the whole, led a brave and good
natured battle to return the Supreme Court to its ethical
grounding. He has been deserted in that quest by Justices who had
once claimed to have been his allies. Constancy is another
conservative virtue neglected by many members of this
This year especially, conservatives have been surprised to
realize how untutored so-called conservative judges are in the
first principles of the Constitution and of their judicial craft.
It is a lack that conservative educational and policy institutions
should now address.
1 See, e.g. Wickard v.
Filburn, 317 U.S. 111 (1942).
2 See, e.g. Oklahoma Civil
Service Commission, 330 U.S. 127 (1947).
3 See his opinion in South
Dakota v. Dole, 483 U.S. 203 (1987) upholding the withdrawal of
highway trust funds from states that do not enact a 21-year-old
minimum drinking age, despite the provisions of the Twenty-First
4 469 U.S. 528 (1985)
5 New York v. United
States, 60 USLW 4603 (1992).
6 INS v. Chadha, 462
U.S. 919 (1983).
7 Bowsher v. Synar, 478
U.S. 714 (1986).
8 Buckley v. Valeo, 424
U.S. 1 (1976).
9 Morrison v. Olson,
487 U.S. 654 (1988).
10 Mistretta v. United
States, 488 U.S. 361 (1989).
11 United States v.
Klein, 80 U.S. 128 (1872), prohibiting Congress from
prescribing results of a case before a court.
12 Robertson v.
Seattle Audubon Society, 60 USLW 4273 (1992).
13 Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419
14 First Lutheran Church
v. Los Angeles County, 482 U.S. 304 (1987).
15 Ruckelhaus v. Monsanto
Co., 467 U.S. 986 (1984).
16 In doing so, the Court
has made the "public use" requirement of the Fifth Amendment a
nullity. See Hawaii Housing Authority v. Midkiff, 467 U.S.
17 60 USLW 4842 (1992).
18 The best I can discern
from a most complex opinion is this: If a regulation operates to
deprive an owner of real property (not chattel or intangible
property) of its total value (not just part of the value) based on
owner's investment-backed expectation (leaving out owners of land
who obtained it by gift or inheritance) in a state where such
regulation could not be presumed to part of the normal scheme of
state-imposed property encumbrances (such as zoning, environmental
and other regulations), then there is a taking and compensation
must be paid. Obviously, not many property owners are protected
under this ruling.
19 Texas v. Johnson,
491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310
20 Cornelius v. NAACP
Legal Defense & Ed. Fund, 473 U.S. 788 (1985).
21 Bethel School District
No. 403 v. Fraser, 478 U.S. 675 (1986); International
Society for Krishna Consciousness, Inc., v. Lee, 60 USLW 4749
22 Sable Communications
of California, Inc. v. FCC, 492 U.S. 115 (1989).
23 Board of Trustees of
SUNY v. Fox, 492 U.S. 469 (1989).
24 Foucha v.
Louisiana, 60 ULSW 4359 (1992); Hudson v. McMillan, 60
USLW 4151 (1992).
25 Keeney v.
Tamayo-Reyes, 60 USLW 4339 (1992); Sawyer v. Whitley, 60
USLW 4655 (1992).
26 Lee v. Weisman, 60
USLW 4723 (1992).
27 Planned Parenthood of
Southeastern Pennsylvania v. Casey, 60 USLW 4795 (1992). The
reaffirmation of Roe v. Wade 410 U.S. 113 (1973).