The dormant commerce clause doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S.
An Insular, Discrete, and Disdained Majority
Some fans of Justice Sonia Sotomayor have recently dubbed her “the people’s justice.” But if her dissent in Schuette v. BAMN is any indication, she doesn’t seem to really like the actual people. And unfortunately for popular government, her colleagues on the bench do not seem very friendly either.
In Schuette, the Supreme Court held that the Constitution did not prohibit the people of Michigan from adopting a constitutional amendment banning governmental racial discrimination, including racial preferences. The Court’s decision overturned a Sixth Circuit decision invalidating the ban.
The sheer existence of this controversy, as a legal matter, may seem strange to those innocently familiar with the Constitution’s text. Our Constitution, expressly adopted by “the people,” is deafeningly silent as to any duty to adopt or retain any system of racial preferences. At the same time, the charter’s Tenth Amendment expressly provides that constitutional silence denotes state authority—that “residuary and inviolable sovereignty,” as Publius said. Moreover, the Constitution’s Republican Guaranty Clause expressly imposes on the whole United States (including the judicial officers thereof), the duty of safeguarding each state’s right to popular self-government. Accordingly, federal judges should preserve, not usurp, the authority, reserved to each state’s citizenry, to reject racial preferences.
To those familiar, in addition, with the history of the Fourteenth Amendment, the Schuette case may seem doubly surprising. At least some of the drafters and ratifiers of that Amendment hoped to prohibit, not require, governmental racial discrimination. For similar reasons, contemporaneous with ratification, some black-majority states incorporated in their constitutions bans on such discrimination that were remarkably similar to Michigan’s challenged ban. In any case, there is no evidence that anyone believed that state bans on racial discrimination were inconsistent with the Amendment.
But Schuettte reached the Supreme Court. And rather than unanimously and summarily vindicating Michigan’s reserved right not to practice racial discrimination, a deeply fractured bench wrestled with the matter for over 100 pages. The justices presented no majority opinion, but instead a lead plurality opinion (written by Justice Kennedy and joined by Chief Justice Roberts and Justice Alito), three concurrences (by Roberts, by Justice Scalia with Justice Thomas, and by Justice Breyer), and one lengthy dissent (by Justice Sotomayor joined by Justice Ginsburg).
As the various opinions indicate, the legal dispute arose not from constitutional text or original history, but from judicial precedent. In the second half of the last century, the Court had developed the “political process doctrine,” according to which the Fourteenth Amendment prohibits the states from adopting laws that frustrate the capacity of minorities—and especially racial minorities—to achieve policy victories via the political process. So, for instance, the Court had invalidated certain voter initiatives that barred local and state legislatures from adopting certain desegregation or anti-discrimination measures.
In her dissent, Sotomayor argued persuasively that these precedents strongly favored the conclusion that Michigan’s largely white electorate could not adopt a state constitutional amendment prohibiting all racial preferences. In fact, two of the concurring justices (Scalia and Thomas) largely conceded the point. Hence, four of the eight participating justices agreed that these precedents supported the challengers to Michigan’s ban. But Scalia and Thomas believed that the Court should reject, not follow, these contra-textual precedents.
But Justice Sotomayor did not limit her opinion to a simple application of the political-process doctrine. Rather, much of her 58-page opinion consisted in (1) a passionate defense of the necessity of what she called “race-sensitive” policies, (2) an indictment of Michigan’s (and America’s) white majority for a long history of racial hostility or insensitivity, implicitly demonstrated by the majority’s rejection of race-sensitive policies, (3) a celebration of the Supreme Court’s long tradition of race-sensitive counter-majoritarian vigilance, and (4) the thinly-veiled charge that the Court’s current majority had abandoned that tradition, and had become as race-insensitive as Michigan’s white majority.
Not surprisingly, Sotomayor’s polemics have generated polarized reactions. Commentators on the left have offered strong, at times hyperbolic, praise, calling her prolix opinion “eloquent,” “beautiful,” and even “a national treasure.” Attorney General Holder, somewhat more mildly, called it “courageous and personal.” Conservatives, however, decried the opinion, with some calling her “a naked and bare-knuckled political activist with barely even a pretense of attending to the law.”
Perhaps the most troubling aspect of her opinion is its disregard and disdain for the people.
Sotomayor’s opinion begins with a perfunctory statement that we are “fortunate to live in a democratic society,” but the rest of her opinion suggests that American democracy has been most unfortunate. She recounts the majority’s “long and lamentable record” of hostility to racial minorities. But nowhere does she even hint at the majority’s virtues.
For example, she gives no credit to the people for adopting and preserving the very Constitution that secures minority rights. Indeed, when discussing the Fourteenth and Fifteenth Amendments, the people’s authorship disappears. Rather, she anthropomorphizes the Constitution, writing that the Fifteenth Amendment made a “command” and “promised the right to vote.” But of course the Amendment itself could not make commands or promises. It was the people who commanded, the majority who promised, by mere means of that Amendment.
Similarly, she ignores the many other ways in which America’s popular majority have freely acted to secure minorities’ political rights. America’s largely Protestant majority, solely by nonjudicial democratic action, gradually abolished the extant religious tests that prohibited religious minorities from voting or holding office. America’s majority lent overwhelming support to the Voting Rights Act, as indicated by the wide margin by which their elected representatives supported the measure. She seems unaware and uninterested in these facts.
Her indictment of Michigan’s electorate is likewise one-sided. Michigan’s representatives in Congress took a leading role in the drafting of the Fourteenth and Fifteenth Amendments. (Senator Jacob Howard’s role was so important that some contemporaries called the Fourteenth Amendment the “Howard Amendment”). Both amendments were ratified by massive majorities of the people’s representatives in the Michigan legislature. Soon thereafter, a majority of Michigan’s voters directly approved an amendment striking every instance of the word “white” from the state’s constitution, thus further protecting minorities’ political equality. And a century later, the people of Michigan overwhelmingly supported the Voting Rights Act, for their entire congressional delegation, in the House as well as the Senate, unanimously voted for the measure.
Further, she shows no personal gratitude to the people of Michigan, a majority of whom voted for both the President and two of the Senators that selected her for our nation’s highest tribunal. One of those Senators (Debbie Stabenow) was chosen in 2006, and thus by the same allegedly “race-insensitive” electorate that adopted the amendment at issue in Schuette.
Conversely, in celebrating the Court’s counter-majoritarian tradition, she fails to mention the Courts’ abridgement of minority rights under the Fifteenth Amendment. In several cases, the Court largely nullified that Amendment by judicial usurpation (invalidating the enforcing legislation passed by Congress) and judicial abdication (by acquiescing in state laws and misadministration that were plainly designed to abrogate the Amendment). In these cases, the Court proved itself not only counter-majoritiarian, but also counter-minoritarian—and counter-constitutional.
Some conservatives have taken solace in the fact that Sotomayor’s dissent commanded only two votes, suggesting her opinion was relegated to an extreme fringe on the Court. But the two votes would probably have been three had Justice Kagan not recused herself. And if a Democratic President should have the chance to replace Justices Kennedy and Scalia in a coming decade—a not-unlikely scenario—then Sotomayor may, within a decade, rally a majority to her anti-populist, pro-racial-preferences agenda.
Moreover, the other opinions, especially Justice Kennedy’s plurality opinion, indicate that Sotomayor and Ginsburg’s disregard for the people is only an extreme version of an anti-majoritarian posture already prevalent on the Court.
No one on the Court rose to the people’s defense in the face of Sotomayor’s scathing impeachment. Roberts responded briefly, but mainly to defend himself and his colleagues. Scalia argued very plausibly that the Fourteenth Amendment does not support the political process doctrine, but asserted, far less plausibly, that the Amendment imposes the color-blind rule on the people’s sovereignty.
Moreover, only Scalia and Thomas defended the people’s Constitution against an interpretation that seems plainly irreconcilable with that charter’s language and original history. No one, to my knowledge, has seriously argued that the simple text of the Amendment supports the political process doctrine. No one on the Court in Schuette sought to rebut Justice Scalia’s characterization of the doctrine as “[p]atently atextual.” Indeed, by disregarding the judiciary’s duties toward the states under the Tenth Amendment and Republican Guaranty Clause, this doctrine is not simply atextual but contra-textual.
At first glance, Justice Kennedy’s main opinion seemed to vindicate popular authority. He rightly noted that the freedom secured by our Constitution included the people’s right of self-government. But his peculiar formulation radically circumscribed that sovereignty:
Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.
For a progressive like Kennedy, the people’s freedom, then, includes the right to continuous transformation, but not the simple freedom to preserve. He reiterates this theme: The people have the right “to continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.” Again, “[t]he idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty…to form a consensus to shape the destiny of the Nation and its people.” The people have the right to choose progress, but not conservatism.
Our Constitution is founded on a different theory. The first freedom mentioned in the first sentence is the liberty belonging to “we the people.” Further, that same sentence affirms that by ordaining the Constitution, the people exercised that liberty not to facilitate transformation but to safeguard freedom: to make justice more stable (“establish”), to “insure” domestic tranquility, and to “secure” the blessings of that same liberty.
In truth, Justices Kennedy does not fundamentally disagree with Sotomayor on this point. They are both progressives. Their sole dispute concerns the relation of progress to racial preferences. Kennedy believes their abolition may be necessary to progress, while Sotomayor believes such abolition is anti-progressive, a crime against history. Kennedy protests that the “case is not about how the debate about racial preferences should be resolved,” yet that is precisely the disagreement between the two justices. If he agreed with her that racial preferences were necessary to the ever-evolving standards of “fairness and equal dignity,” he would vote with her to compel Michigan to retain those preferences.
In his First Inaugural, Abraham Lincoln taught that “[a] majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism.” “Why,” he asked, “should there not be a patient confidence in the ultimate justice of the people?”
As in his time, Lincoln’s doctrine does not prevail on the Supreme Court. Before that tribunal, the purportedly sovereign people are increasingly friendless and less free—an insular, discrete, and disdained majority.