Civil Liberties (Update 1)

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The significant increase in the constitutional protection of civil rights and civil liberties that has occurred since the late 1950s has brought dramatically renewed focus to the question of the appropriate scope of judicial power. Some argue that the federal judiciary, especially the Supreme Court, should play an active role in helping to shape public values—pushing a sometimes reluctant populace to make more meaningful the broad constitutional guarantees of liberty and equality. Others warn of the antidemocratic nature of judicial review. Constitutional decision making often invalidates the policy choices of popularly elected officials in favor of the rulings of life-tenured unelected judges. Schools are desegregated, prisons are ordered restructured, abortion regulations are voided, and school prayers are prohibited—regardless of how the majority of Americans feel about these decisions.

This countermajoritarian "difficulty" has led to consistent demands for a more passive judiciary. Only if violations of the Constitution are unambiguous, involving significant deprivations of clearly understood civil liberties, the argument goes, should the independent federal judiciary intervene. Otherwise, American democracy should be allowed a loose rein. The choices of the majority, even in most areas that implicate liberty and equality interests, should be considered determinative. And most fundamentally, they should be respected by courts.

How one comes out on this perennial debate, of course, has a major impact upon how one regards the performance of the judiciary in the post-world war ii era. The vinson court (1946–1953) exercised its authority to invalidate governmental practices relatively rarely. As a result, for example, the criminal prosecution of communists under the Smith Act was upheld and the continued implementation of the separate but equal doctrine by the states went largely undisturbed by the Court.

The warren court (1954–1969), however, took a much different tack. Following brown v. board of education (1954, 1955), the Court launched a virtual constitutional revolution. In fairly rapid succession the Court handed down decisions not only combating racial discrimination on a number of fronts but also requiring the reapportionment of legislatures, the application of the bulk of the provisions of the bill of rights against the states through the incorporation doctrine, giving more content to the first amendment's speech and press guarantees, protecting voting rights, prohibiting orchestrated public school prayer, assuring the poor some measure of access to the courts, and bolstering the demands of procedural due process. Other institutions of government, both state and federal, were forced to comply with the Justices' aggressive, and often inspiring, vision of the equal dignity of black and white, rich and poor, high and low.

The almost breathless pace of change wrought by the Warren Court led to significant calls for a judicial counterrevolution. President richard m. nixon named jurists to the Court whom he believed would strictly construe the Constitution. In his view, this meant that the Court would interfere far less frequently with the political branches of government. In many ways, however, the burger court (1970–1986) failed to fit the bill of strict construction. Some Warren-era doctrines—criminal procedure guarantees and legal protections for the poor, for example—were pared back. But the Supreme Court, if anything, became even more accustomed to enforcing its vision of constitutional mandate against other government actors. Important women's rights, including a right to choose to have an abortion, were recognized for the first time. Protections for freedom of speech were expanded. More surprisingly, perhaps, the Burger Court aggressively patrolled what it considered the appropriate division and separation of powers among the branches of the federal government. By striking down the legislative veto procedure in immigration and naturalization service v. chadha (1983), for example, the Court voided, in one stroke, more federal legislative enactments than it had previously in its entire history. The Burger Court may not have been an inspiring Court; it was, however, a powerful one.

The rehnquist court, of course, has yet to sketch fully its vision of judicial authority. william h. rehnquist was confirmed as chief justice in 1986. antonin scalia joined the Court in the same year. anthony m. kennedy replaced Justice lewis f. powell in early 1988. Although it is true that a few terms do not a Court make, significant signs are beginning to appear which suggest that the Rehnquist Court may reject much of the activism of its two immediate predecessors. It is possible that the Court will, in the coming decade, intentionally reduce its role in protecting civil liberties through the interpretation of what Justice william j. brennan has termed the "majestic generalities" of the Constitution and the Bill of Rights. There is increasing reason to believe that after thirty years of political turmoil over the role of the judiciary in American government, a passive Court may be in the making.

Consider a few prominent examples. In 1986 the Supreme Court dramatically announced a halt to the growth of a favorite Burger Court product, the right of privacy. The decision in bowers v. hardwick (1986) refused to afford constitutional protection to the private, consensual homosexual acts of an adult male. Michael Hardwick had been arrested—though the prosecution was subsequently dropped—for violating Georgia's sodomy statute by having sexual relations with another adult man in his own bedroom. Hardwick claimed that the Georgia law violated the right to privacy. Earlier decisions like griswold v. connecticut (1965), which protected the right to use contraceptives, and roe v. wade (1973), recognizing the right to terminate a pregnancy, had characterized the right to privacy as "fundamental" and "deeply rooted in this Nation's history and tradition."

The Court in Bowers declared that it was not "incline[d] to take a more expansive view of [its] authority to discover new fundamental rights.… The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." The majority of the Court claimed that if it were to give credence to claims such as that made by Hardwick, it would be "tak[ing] to itself further authority to govern the country without express constitutional authority." The adjective "further" assumes that the Supreme Court has already moved beyond any supportable role in the constitutional structure. It may also suggest that if Bowers is the reversal of a significant trend of decision making in the privacy arena, others will not be far behind.

In the same year, the Supreme Court upheld a municipal zoning ordinance making it illegal to locate an "adult" theater within a thousand feet of a residential area, single-family dwelling, church, park, or school. The opinion in renton (city of) v. playtime theatres, inc. (1986) carried many of the suggestions of the diminished judicial role that appeared in Bowers. As a result, the decision allowed the regulation of constitutionally protected (nonobscene) speech in order to "maintain property values … and preserve the … quality of the city's neighborhoods."

Perhaps even more telling, though, was the crux of the Court's rationale. The fact that the statute "may" have been motivated, at least in part, by the city's desire to restrict "the exercise of First Amendment rights" was ruled beyond the scope of the Court's review; "[T]his Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." Furthermore, the Court declared that it is beyond the judicial function to "appraise the wisdom of the city's decision.… The city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." This language is at least somewhat surprising in a case involving the regulation of speech that is, as even the Court admits, protected by the First Amendment. In an earlier time, one can almost imagine Justice hugo l. black reminding in dissent that legislatures retain a great deal of leeway for experimentation without violating the Bill of Rights.

In the context of public education, the Supreme Court has taken these declarations of deference to local decision makers considerably farther. In bethel school district v. fraser (1986) the Court sustained a school's suspension of a student for making a sexually suggestive nominating speech at a voluntary assembly, concluding flatly that the "determination of what manner of speech in … school assembly is inappropriate properly rests with the school board." And in hazelwood school district v. kuhlmeier (1988), in which the Court upheld the censorship of a high school newspaper, it determined that judicial oversight must be reduced in order to give local school administrators the opportunity to "disassociate" themselves from the messages contained in school-sponsored student publications. Accordingly, principals may constitutionally exercise editorial control over high school newspapers "so long as their actions are reasonably related to legitimate pedagogical concerns."

The Supreme Court's controversial abortion ruling in webster v. reproductive health services (1989) reflects a major change in emphasis as well. Although a majority refused to overrule Roe v. Wade, the Court recognized considerably greater authority in state governments to regulate the abortion process. Chief Justice Rehnquist's plurality opinion characterized the Court's prior abortion decisions as "unsound in principle, and unworkable in practice." Roe 's privacy protections are, in his view, "not found in the text of the Constitution or in any place else one would expect to find a constitutional principle." Moreover, they result in the Justices of the Supreme Court acting as the country's "ex officio medical board," accepting or rejecting medical practices and standards throughout the United States. Surely, the Chief Justice wrote, the goal of constitutional adjudication is not "to remove inexorably politically divisive issues from the ambit of the legislative process."

Justice Scalia was even clearer in his declarations that the Supreme Court has no business deciding sensitive policy issues like abortion. He described Roe as asserting a "self-awarded sovereignty over a field where [the Court] has little proper business since the cruel questions posed are political … not juridical." As a result, he would overrule the 1973 abortion decision outright, returning the difficult human rights issue to the legislatures for determination.

Other examples—such as the Supreme Court's rulings that minors and mentally retarded defendants can be subjected to capital punishment—could be mentioned. No doubt, though, these few instances constitute far less than a major cross-sampling of the Court's work. In the past several terms the Court has occasionally ventured into new arenas of judicial purview. These areas have primarily involved separation of powers claims rather than classic civil liberties issues. But the Justices have also bolstered the protection afforded to some economic rights and, even more surprising, tentatively entered the difficult thicket of the gerrymander.

Still, the likelihood is strong that a significant trend is afoot. The present Supreme Court seems determined to reduce its role as a policymaker in American government. If new and difficult civil liberties claims are pressed, the judiciary may be less inclined to impose its will on the more democratically accountable branches of government. Even the Court's higher-profile constitutional decisions reflect something of this tendency. In the controversial and widely noted flag desecration case, Texas v. Johnson (1989), a majority of the Court voted to reverse a state conviction based upon the burning of a flag. Justice Kennedy's influential concurring opinion, however, emphasized that the Court "cannot here ask another branch to share responsibility … for we are presented with a clear and simple statute to be judged against a pure command of the Constitution." This desire to defer to other government actors—if possible—may be the hallmark of the judiciary in the years to come. As a matter of democratic theory, that choice may be a wise one. For this constitutional democracy, however, the verdict may be significantly more complex.

Gene R. Nichol

(see also: Desegregation; Freedom of the Press; Prisoners' Rights; Religious Liberty; Separation of Church and State; Sexual Orientation; Sexual Preference and the Constitution.)


Dworkin, Ronald 1986 Law's Empire. Cambridge, Mass.: Harvard University Press.

Fisher, Louis 1988 Constitutional Dialogues. Princeton, N.J.: Princeton University Press.

Garvey, J. and Aleinikoff, Alexander 1989 Modern Constitutional Theory: A Reader. St. Paul, Minn.: West Publishing Company.

Greenwalt, Kent 1988 Religious Convictions and Political Choice. New York: Oxford University Press.

Levinson, Sanford 1988 Constitutional Faith. Princeton, N.J.: Princeton University Press.

Mackinnon, Catherine 1987 Feminism Unmodified. Cambridge, Mass.: Harvard University Press.

Nagel, Robert 1989 Constitutional Cultures. Berkeley: University of California Press.

Perry, Michael 1988 Morality, Politics and Law. New York: Oxford University Press.

Symposium 1987 The Bork Nomination. Cardozo Law Review 9:1–530.

Tribe, Laurence 1988 American Constitutional Law, 2nd ed. New York: Foundation Press.

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Civil Liberties (Update 1)

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