A common Progressive-era complaint advanced that the Constitution’s framers were overly suspicious of democracy. George Norris, a leading Progressive Senator, bluntly argued in the 1920s and 1930s that while the Constitution was an advance in democracy for its time, it created too many checks and balances on majority will, it created too many barriers to legislation in the modern era. (He thus advocated legislative unicameralism and opposed activist judicial review, among other things.)
Imagine, if you will, that a president who has not shown himself overly careful about a strict observance of the Constitution, announces that he does not propose to abide by the term limits of the Twenty-Second Amendment, and that he proposes to run for a third term. He notes that the members of the Supreme Court might have a problem with this, but argues that they should not have the sole authority to interpret the Constitution, that he also might do so when backed by the will of the people, and that democratic government is the grundnorm of the Constitution…
A century ago, a brilliant young lawyer named Felix Frankfurter spoke at the 25th anniversary of the Harvard Law Review. His speech was entitled “The Zeitgeist and the Judiciary.”
At 30, Frankfurter was already a central figure in progressive circles, and would prove one of the most influential American jurists of the 20th century. During the first quarter-century of his adult life, he maintained a regular correspondence with Justice Holmes, regularly wrote legal commentary for Herbert Croly’s new magazine, The New Republic, co-founded the ACLU, and served as advisor to Franklin Roosevelt. In the next quarter-century (1939-1963), he became one of the most influential and prolific Supreme Court justices in American history.
“The Zeitgeist and the Judiciary” is a remarkable exemplar of early progressive jurisprudence. His brief, candid remarks display the main aspects of the progressive political and constitutional project.
In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?
A few weeks ago, I took issue with the PPACA plaintiffs’ contention that the statute impermissibly “coerces” states to participate in a massive expansion of Medicaid. The federal government’s brief on this issue is due today. I’m not going to like the feds’ position, either. Both sides, I believe, proceed from a badly flawed federalism premise.
Everyone recognizes that there is no direct, explicit constitutional guarantee against the “coercion” of state and local authorities by the federal government. However, the constitutional structure is widely understood to require a federal “balance” between Washington and the states. While the feds may encourage states to participate in federal schemes (usually, by offering them money), they may not coerce the states’ participation: that would derange the federal balance. The notion of “federalism as balance” is deeply embedded in the Supreme Court’s decisions, the legal literature, and the public federalism debate. In the contentious Obamacare litigation, it is a small patch of common ground among the parties.
It’s a miserable piece of real estate. Any appeal to federalism’s “balance” is pernicious, constitutionally baseless nonsense. Federalism is about a carefully wrought constitutional structure, not a global balance; and one cannot get that structure right until and unless the balance dogma is first put to rest. That’s the agenda for this post. (A more fully developed, footnoted version of the argument appears in The Upside-Down Constitution, which has a longer version of everything.) Monday’s post will apply the argument to the Obamacare litigation.