Wednesday, November 5, 2008


In recent years, I have been extremely disappointed in the United States Supreme Court. Rather than expanding individual liberty, the Court has run a conservative course that favored the powerful over the weak. In cases dealing with free speech, federal power, search and seizure, criminal procedure, the death penalty and race, the Court routinely turned a blind eye to compassion. In some cases, the Court simply dodged large questions, citing "technical considerations." In others, it squarely rejected arguments favoring the weak over the strong. In still others, it ignored pressing social ills, choosing instead to resolve questions on vacuous legal grounds. While legal technicality may impress legalists, the Supreme Court should occupy a more significant place in our constitutional system. The Constitution's text announces grand principles. The Court should interpret the text principles in a way that vindicates those principles. It should not--as it has in recent years--approach constitutional issues with legalistic coldness.

There have been times in which the Supreme Court did not operate in a spiritual vacuum. There have been moments where compassion has penetrated syllogistic legalism. I call these moments "brightness" in Supreme Court jurisprudence. In these moments, the Supreme Court has looked beyond grammatical formality to unearth true principles in constitutional text. As I wrote in an earlier essay, Brown v. Board of Education, 347 U.S. 383 (1954) is an example. Today I mention another: Goldberg v. Kelly, 397 U.S. 254 (1970).

In Goldberg, the Supreme Court addressed two profound issues: Fairness and Equality. The question before the Court was whether New York City could terminate welfare benefits to eligible recipients without affording them an in-person hearing. How would this violate the Constitution? According to the welfare recipients, taking away their checks without a hearing would deprive them of "property" without "Due Process of law." The Fourteenth Amendment provides that: "No State shall...deprive any person of life, liberty or property without Due Process of law." What does this mean? After all, "Due Process of law" is a nebulous phrase. It was up to the Court to determine the principles embodied in that phrase. What process is "due" a person before the State may take away his property? Or his life? Is the answer clear? Certainly not. Today, our Supreme Court would likely say that the State could take away a welfare recipient's check without much "process" at all. Justices like John Roberts, Samuel Alito and Clarence Thomas are openly hostile to the poor. In recent decisions, they facetiously argue that poor people actually choose to live in substandard housing. See, e.g, People Involved v. Seattle School District No. 1, 551 U.S. __ (2007)(Thomas, J., concurring). Their decisions interpret constitutional text in a way that strengthens the powerful and harms the weak. If it were up to them, "Due Process of law" would mean "almost nothing."

Not so in 1970. In Goldberg, the Court looked beyond mere grammar to determine what "Due Process of law" means. It concluded that the State could not take away a welfare recipient's benefits without first providing a full in-person hearing in which the recipient could challenge the State's determination. Why was this process "due" to the recipient? The Court based its conclusion on a fundamental premise about the role of American government, namely: "[T]he Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders." To that extent, public assistance programs represent government's fulfillment of that commitment. Additionally, welfare payments represent the only way for poor people to obtain "basic sustenance" and "the very means by which to live." If the State could simply take away that sustenance without even providing a hearing, it would ignore the "dignity and well-being" of its citizens. To defend the people's "dignity" and "well-being," the Court held that hearings were "due" before the State could take away their welfare benefits. It rejected the State's argument that such hearings would consume too many resources and take too much time.

There is nothing in the words of the Fourteenth Amendment that required the Court to make this conclusion. There are no words about "dignity," "well-being" or "fairness" in the text itself. But the Court understood that the text implies these concepts. After all, what good is "Due Process" if the process is not fair? What good is "Due Process" if it does not respect every citizen's dignity and well-being? Our Supreme Court today would say "these words do not appear in the text, so the Constitution does not require them." This ignores the function of a Constitution of principle. In Goldberg, the Court understood that the Constitution embodies principle. It commands that judges explore the values embodied in those principles. It requires them to do this; it is not enough merely to recite words on a page and compare those words to arguments advanced in Court. The Supreme Court, in other words, has a painstaking job. The Constitution is not a checklist. Rather, it forces a judge to query whether modern practices conflict with the enduring principles at work behind the words.

Fairness and equality give meaningful resonance to the Fourteenth Amendment. Legalists commonly complain--and cynics assume--that the law has nothing to do with fairness. Legalists say that the law simply prescribes mechanical steps for addressing disputes. But legalists do not understand that the Constitution embodies something more than a rote checklist for declaring dispute winners. It is the Charter of the People. The People put their faith in the Constitution to represent their deepest values and beliefs. When the Fourteenth Amendment was ratified in 1868, the People looked to it to correct the injustice, inequality and unfairness inflicted by slavery. The words reflect a commitment to "fairness" in governmental action, whether or not that word appears in the text. People are not legalists. Intuitively, they expect that government will treat them fairly. Although government in many cases does not act fairly, it inspires popular outcry when it does not. That is because we value fairness. Fairness may not be government's practice--or even its goal--but people expect it in principle.

Legalists hate Goldberg. They say it oversteps the role of the Supreme Court in interpreting the Constitution. They disagree with the Court's premise that government exists to "foster the dignity and well-being of all persons within its borders." They say that there is nothing in the Fourteenth Amendment that requires States to provide hearings to people who receive "free money." They say the Court has no business imposing burdensome procedures on State governments where the Constitution gives no explicit authority. But legalists miss the point. There are times in our history where we must search for meaning beyond literal words. The Constitution does say: "We the promote the general ordain and establish this Constitution for the United States of America." Is that not an expansive principle? Do we need explicit text for every single governmental action intended to benefit the people? I do not think so. Instead, I believe that a true student of the Constitution understands that the interpretive role is much more involved than merely matching words to text. A true student of the Constitution looks to the implications of principle in every word, not simply at the words themselves. To do that, one must understand our values as a society, our history, our aspirations and our common humanity as a free Nation.

In its "bright" moments, our Supreme Court occasionally does this. It occasionally looks beyond rigid legalism to find larger commitments. The Supreme Court should care deeply about "fairness," "well-being," "dignity" and "justice," even if those words do not literally appear in the constitutional text under consideration. Those principles animate the entire document and the People who sustain it. Fairness, dignity and social well-being are the government's concerns, and they are the concerns of the government's fundamental Charter. In coming years, I hope that new Supreme Court justice will grasp this. After watching Barack Obama sweep to victory last night on a platform predicated on government's commitment to the well-being of its citizens, I think my hope is well placed. The American People expect fairness and dignity. And they should expect it from their Constitution.

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