When Richard Nixon was running for President he promised that he would appoint to the Supreme Court men who represented his own legal philosophy, that is, who were what he called “strict constructionists.” The nominations he subsequently made and talked about, however, did not all illuminate that legal philosophy; jurisprudence played little part in the nation’s evaluation of Haynesworth and Carswell, let alone those almost nominated, Hershell Friday and Mildred Lilly. But the President presented his recent choices, Lewis Powell and William Rehnquist, as examples of his theory of law, and took the occasion to expand on that theory for a national television audience. These men, he said, will enforce the law as it is, and not “twist or bend” it to suit their own personal convictions, as Nixon has accused the Warren Court of doing.
Now the President has expressed his legal philosophy in a different way: he has asked Congress in effect to overrule the Supreme Court’s interpretation of what the Constitution requires. The segregation cases, which began with the Brown case in 1954 and have been continued through the Swann v. Charlotte-Mecklenburg Board of Education case of last year, together come to this: the Court has held that de jure school segregation is so fundamental a violation of the Constitution’s guarantee of equal protection of the laws that states that imposed this segregation must now take whatever steps are necessary to repair its effectsâ€”even if this means busing. Nixon now wants Congress to take the power to order busing away from the courts. His recent bill would, in effect, overrule Swann, which held unconstitutional a North Carolina statute that itself tried to take that power from the courts.
I believe the statute Nixon wants would be unconstitutional as well. But I want here to consider a different issue. Nixon would claim that his opposition to the segregation decisions is not based simply on a personal or political dislike of the results they reached. He would argue that the decisions violated the legal philosophy he claims to have followed in his appointments. But it is not easy to state what that philosophy is, or why the segregation decisions offended it.
He cannot object to these decisions simply because they went beyond prior law, or say that the Supreme Court must never change its mind. Indeed the Nixon Court itself seems intent on limiting the liberal decisions of the Warren Court, like Miranda. The Constitution’s guarantee of “equal protection of the laws,” it is true, does not in plain words determine that “separate but equal” school facilities are unconstitutional, or that segregation was so unjust that heroic measures are required to undo its effects. But neither does it provide that as a matter of constitutional law the Court would be wrong to reach these conclusions. It leaves these issues to the Court’s judgment, and the Court would have made law just as much if it had, for example, refused to hold the North Carolina statute unconstitutional. It would have made law by establishing, as a matter of precedent, that the equal protection clause does not reach that far.
So we must search further to find a theoretical basis for Nixon’s position. It may be silly, of course, to suppose that Nixon has a jurisprudence. He might simply have strung together catch phrases of conservative rhetoric, or he might be recording a distaste for any judicial decision that seems to extend the rights of individuals against constituted authority. But Nixon is, after all, a lawyer, and in any event his conservative views are supported by a great many other lawyers and some very distinguished legal scholars. It is therefore important to see how far this conservative position can be defended as a matter of principle and not simply of prejudice.
The constitutional theory on which our government rests is not a simple majoritarian theory. The Constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make, even when that majority acts in what it takes to be the general or common interest. Some of these constitutional restraints take the form of fairly precise rules, like the rule that requires a jury trial in federal criminal proceedings or, perhaps, the rule that forbids the national Congress to abridge freedom of speech. But other constraints take the form of what are often called “vague” standards, for example, the provision that the government shall not deny men due process of law, or equal protection of the laws.
This interference with democratic practice requires a justification. The draftsmen of the Constitution assumed that these restraints could be justified by appeal to moral rights which individuals possess against the majority, and which the constitutional provisions, both “vague” and precise, might be said to recognize and protect.
The “vague” standards were chosen deliberately, by the men who drafted and adopted them, in place of the more specific and limited rules that they might have enacted. But their decision to use the language they did has caused a great deal of legal and political controversy, because even reasonable men of good will differ when they try to elaborate, for example, the moral rights that the due process clause or the equal protection clause brings into the law. They also differ when they try to apply these rights, however defined, to complex matters of political administration, like the educational practices that were the subject of the segregation cases.
The practice has developed of referring to a “strict” and a “liberal” side to these controversies, so that the Supreme Court might be said to have taken the “liberal” side in the segregation cases and its critics the “strict” side. Nixon has this distinction in mind when he calls himself a “strict constructionist.” But the distinction is in fact confusing, because it runs together two different issues that must be separated. Any case that arises under the “vague” constitutional guarantees can be seen as posing two questions: 1) Which decision is required by strict, that is to say faithful, adherence to the text of the Constitution or to the intention of those who adopted that text? 2) Which decision is required by a political philosophy that takes a strict, that is to say narrow, view of the moral rights that individuals have against society? Once these questions are distinguished, it is plain that they may have different answers. The text of the First Amendment, for example, says that Congress shall make no law abridging the freedom of speech, but a narrow view of individual rights would permit many such laws, ranging from libel and obscenity laws to the Smith Act.
In the case of the “vague” provisions, however, like the due process and equal protection clauses, lawyers have run the two questions together because they have relied, largely without recognizing it, on a theory of meaning that might be put this way: If the framers of the Constitution used vague language, as they did when they condemned violations of “due process of law,” then what they “said” or “meant” is limited to the instances of official action that they had in mind as violations, or, at least, to those instances that they would have thought were violations if they had had them in mind. If those who were responsible for adding the due process clause to the Constitution believed that it was fundamentally unjust to provide separate education for different races, or had detailed views about justice that entailed that conclusion, then the segregation decisions might be defended as an application of the principle they had laid down. Otherwise they could not be defended in this way, but instead would show that the judges had substituted their own ideas of justice for those the constitutional drafters meant to lay down.
This theory makes a strict interpretation of the text yield a narrow view of constitutional rights, because it limits such rights to those recognized by a limited group of people at a fixed date of history. It forces those who favor a more liberal set of rights to concede that they are departing from strict legal authority, a departure they must then seek to justify by appealing only to the desirability of the results they reach.
But the theory of meaning on which this argument depends is far too crude; it ignores a distinction that philosophers have made but lawyers have not yet appreciated. Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind, or could quickly bring to mind, examples of the conduct I mean to discourage, but I would not accept that my “meaning” was limited to these examples, for two reasons. First I would expect my children to apply my instructions to situations I had not and could not have thought about. Second, I stand ready to admit that some particular act I had thought was fair when I spoke was in fact unfair, or vice versa, if one of my children is able to convince me of that later; in that case I should want to say that my instructions covered the case he cited, not that I had changed my instructions. I might say that I meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind.
This is a crucial distinction which it is worth pausing to explore. Suppose a group believes in common that acts may suffer from a special moral defect which they call unfairness, and which consists in a wrongful division of benefits and burdens, or a wrongful attribution of praise or blame. Suppose also that they agree on a great number of standard cases of unfairness and use these as benchmarks against which to test other, more controversial cases. In that case, the group has a concept of unfairness, and its members may appeal to that concept in moral instruction or argument. But members of that group may nevertheless differ over a large number of these controversial cases, in a way that suggests that each either has or acts on a different theory of why the standard cases are acts of unfairness. They may differ, that is, on which more fundamental principles must be relied upon to show that a particular division or attribution is unfair. In that case, the members have different conceptions of fairness.
If so, then members of this community who give instructions or set standards in the name of fairness may be doing two different things. First they may be appealing to the concept of fairness, simply by instructing others to act fairly; in this case they charge those whom they instruct with the responsibility of developing and applying their own conception of fairness as controversial cases arise. That is not the same thing, of course, as granting them a discretion to act as they like; it sets a standard which they must tryâ€”and may failâ€”to meet, because it assumes that one conception is superior to another. The man who appeals to the concept in this way may have his own conception, as I did when I told my children to act fairly; but he holds this conception only as his own theory of how the standard he set must be met, so that when he changes his theory he has not changed that standard.