Don't Run From the Truth

The pendulum of constitutional law has been a pendulum of changing intellectual or moral orthodoxies overcoming brilliant detractors on the Supreme Court. Chief Justice John Marshall's lucid defense of private property in Dartmouth College v. Woodward (1819) succumbed to a rising tide of populism and egalitarianism that found expression in Charles River Bridge v. Warren Bridge (1837). The ascendant racism of the post-Reconstruction era explains how the odious "separate-but-equal" doctrine of Plessy v. Ferguson (1896) came about despite the unanswerable dissent of Justice John Harlan, who, in anticipation of 1954's Brown v. Board of Education , protested that, "The law regards man as man, and takes no account of his surroundings or color when his civil rights are guanteed by the supreme law of the land."

The discredited Lochner era (1905-1937) -- so christened because of Lochner v. New York, which invalidated a maximum-hours law for bakers -- frowned on all manner of social or economic regulation, from minimum wage to child labor laws. The era was guided by Social Darwinism and British philosopher Herbert Spencer's "Social Statics" over the persuasive protests of Justices Oliver Wendell Holmes, Louis Brandeis and Harlan Fiske Stone. In Lochner, Holmes, writing in dissent, maintained that "a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire."

Roe conceived of Supreme Court justices as Platonic Guardians tasked with improving on the Constitution through inventive interpretations. If a conservative philosophy is to prevail and endure on the court, that conception must be replaced by an understanding that the justices are constrained in their interpretations by the text and original purposes of the Constitution.

But R oe's orthodoxies will not change without a public fight, just as the Scopes trial was necessary to jar thinking about Genesis. If Alito continues to shy away from criticizing Roe's Platonic Guardian vision of the court, then his confirmation will mark another potential turning point, like Bork's nomination in 1987, when the Supreme Court did not turn.

Author's e-mail:

bruce@thelichfieldgroup.com

Bruce Fein, associate deputy attorney general and general counsel of the Federal Communications Commission under President Ronald Reagan, is a constitutional lawyer and international consultant in Washington.