Coercing Virtue Read Online Free PDF Page A

writing for a majority of the Justices, could simply have dealt with the facts of the case and decided that Scott, as a slave, was not a citizen with standing to bring a lawsuit, but he went further and declared that the United States lacked the power to prohibit slavery in any state or territory or to permit a state to bar slavery in its own territory. That, he said, would deprive slave owners of their property without “due process of law.” With this single sentence Taney converted a clause of the Fifth Amendment from a guarantee of a proper process in the application of law to a guarantee of a proper substance, or meaning (in the view of the Justices), of the law itself.
    The Court would now be able to judge the constitutionality of law by deciding, without any criteria to structure the judgment, that the substance of what the law commanded was not “due.” There could be no intellectual structure to substantive due process because its existence was unjustified, indeed contradicted, by the text, and the framers and ratifiers, of course, provided no legislative history for a concept they never intended. One might have expected this transparent sleight of hand from a Court trying to justify the unjustifiable. What could not have been foreseen was the scores of times the Court would use due process to substitute its law-making for that of the elected legislature.
    If
Marbury
was motivated by Federalist politics and
Dred Scott
by sympathy with the slave states, the Court after the Civil War began to express the ideology of the rising business class. The most notorious example is
Lockner v. New York
(1905), which struck down a decision setting maximum work hours for bakers. Justice Peckham, writing for the majority, used the Due Process Clause of the Fourteenth Amendment to create a “liberty of contract,” a concept found nowhere in the Constitution, to hold that any limitation on hours of work was unreasonable. Statutes of this type, he wrote, were “mere meddlesome interferences with the rights of the individual.” Three of the Court dissenters even agreed that there was a liberty of contract. This freehand approach to constitutional argument was to have results that Peckham, let alone Marshall and Taney, would have abhorred. In the wake of the Great Depression, the next stage in the Court’s ideological journey was the enforcement of New Class values, rather than those of the business class.
    The one thing that stood in the way of a full-blown activism was the Court’s fear of overreaching and a consequent political backlash. That fear must have seemed well founded after President Franklin Roosevelt, frustrated by the invalidation of much of the economic regulation of his New Deal, attempted to “pack” the Court by seeking legislation enabling him to appoint an additional Justice for every Justice who reached the age of seventy and did not retire. Six Justices were then over seventy. It soon became apparent, however, that a conservative activist Court was vulnerable in ways that a liberal activistCourt was not. The Court regained its confidence and the activist enterprise went into high gear after the decision in
Brown
v.
Board of Education
(1954). I have argued elsewhere that
Brown’s
desegregation of public schools can find support in the Constitution, but, as demonstrated by the woefully inadequate opinion it issued, the Court did not think so. Yet, despite its belief that the decision had no real grounding in the Constitution, the Court saw that it could make a highly controversial decision stick, even over powerful opposition. Activism was safe, it believed, and the wraps were off.
    What is this New Class agenda advanced by the Court?
The First Amendment: Speech and Religion
    Perhaps no provisions of the Constitution are more central to American democracy and culture than those of the First Amendment’s guarantee of speech and religious freedom:
    Congress shall make no law respecting an establishment of