Wednesday, September 07, 2005

RIP Rehnquist

I really wish more students of the Constitution had to read things like this. (I know my class didn’t have to.)

A 1954 memorandum from clerk William Rehnquist to his boss, Justice Jackson: "A Random Thought on the Segregation Cases":

After the Civil War, business interest came to dominate the court, and they in turn ventured into the deep water of protecting certain types of individuals against legislative interference. Championed first by Field, then by Peckham and Brewer, the high water mark of the trend in protecting the majority opinion in that case, Holmes replied that the fourteenth Amendment did not enact Herbert [S]pence[r]'s Social Statios [sic]. Other cases coming later in a similar vein were Advins v. Children's Hospital, Hammer v. Dagenhart, Tyson v. Banton, Ribnik v. McBride. But eventually the Court called a halt to this reading of its own economic views into the Constitution. Apparently it recognized that where a legislature was dealing with its own citizens, it was not part of the judicial function to thwart public opinion except in extreme cases.

In these cases now before the Court, the Court is, as Davis suggested, being asked to read its own sociological views into the Constitution. urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice's individual views on the merits of segregation, it quite clearly is not one of those extreme cases which command intervention from one of any conviction. If this Court, because its members individually are "liberal" and dislike segregation, now choose to strike it down, it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects. To those who argue that "personal" rights are more sacrosanct than "property" rights, the short answer is that the Constitution makes no such distinction. To the argument made by Thurgood Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind--whether those of business, slaveholders, or Jehovah's Witnesses--have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.

I think the reason Brad DeLong quotes this is because he’s disgusted by WR, and wants to show how retrograde he was. And I do not find it implausible that he only accepted this logic as it bolstered his policy preferences at the time. However if even the Chief Justice views things that way, one reknowned for his judicial aestheticism, then that only further proves my point.

Again and again, people who like the policy outcomes from the bench need to explain why a legislature couldn’t reach this.


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