The First Amendment; John Ely - Democracy and Distrust

The first amendment and a free people, a weekly examination of civil liberties and the media in the United States and around the world. The program is produced cooperatively by WGBH Boston and the Institute for Democratic Communication at Boston University. The host of the program is the Institute's Director, Dr. Bernard Rubin. How should we look at the work of the Supreme Court and the other federal courts as they review judicially the laws of the land and give their impressions and their views on this subject and that from abortion to one man, one rule? I'm delighted to have the author of the new book, Democracy and Distrust, Professor John

Hart-Ely of the Harvard Law School. He's been at the Harvard Law School since 1972 before that he was a teacher for four years at Yale University and his career includes being the public defender in San Diego, California and law clerk to the former Chief Justice of the Supreme Court of the United States, Justice Warren. He's a graduate of the Yale Law School in Princeton University. Professor Ely, let me raise a couple of points about this book which has just been published by the Harvard University Press. One is that you are trying to express some reaction to the value system, search for values which the court has pursued and you're trying to give a different impression and that is that we ought to rely more upon the political processes and as I understand it reviewing

your I think seminal book, you are saying that the key phrases in our Constitution include the phrase do process but where you depart is that you think that process is the key word in the founding fathers minds and that procedure which flows from that as a derivative of that should be a prime preoccupation of the court to make sure that the procedures that the country operates under are flexible and democratic. Yes, that's right but let's be clear that I'm talking about procedure on both levels, not just judicial procedures but this is a theory of judicial review that's geared also to governing procedures more broadly defined suggesting as you indicate that that should be the court's main concern with shoring up the processes by which the country is governed. Now in a couple of places you say a couple of things that are intriguing, one that in

the 20th century since the theory of philosopher kings was espoused, the only ones in favor of it you quote somebody else or a few philosophers and throughout the book you trying to say this that let's rely upon the legislature a little more for the politics of the country. Would you expound a little bit upon that? I think that puts it well, I think it's one that suggests that we should rely or at least the Supreme Court and the federal court should rely in deciding when to intervene on elected officials generally, that that's the core of our system. But there are and I think we've realized this for hundreds of years, there are two points at which a democratic system is unusually undeserving of trust. One is on the question of who is to be allowed to participate in the system, history and common sense for that matter suggests that one decision we really can't rely on those who are in power in incumbents, we can't rely on them to make objectively is the question

of whether they should remain in incumbents, that is who is to be allowed to speak and to vote and to participate politically. So when there are decisions, of course there are frequently constricting the right to participate in the political system, that is one general set of occasions on which I think the court's ought to step in quite, quite briskly and energetically. The other would be one that's related when even assuming that everybody has access to the process, when an effective majority is in effect making one set of rules to govern itself and another set of rules to govern people that don't have as many votes or as much influence. The general thought of the book though is that so long and this puts it very crudely, so long as everyone can participate and so long as the same set of rules being applied to everybody that that's really all a court ought to worry about at that point, you let the process make whatever substantive decisions it wants to.

And if the legislature elected by the people onto proper procedures with the in's not showing to use your language, not showing such overt prejudice to the outs and acting to keep them out, if the legislature does stupid things or foolish things, it is not up to the courts to say that this is disallowed under the Constitution. That's exactly right. But he's not a ground of unconstitutionality even if it's extreme. Now to move to another area and to take an illustration that you offer or a subject area that you comment on, there's a lot of work on abortion going on back and forth. As you know, there are people called the right to lifers, there are people who use phrases, the woman is entitled to her own body, et cetera, et cetera, a court's without going into detail lists so many weeks at which the fetus allegedly is almost a United States citizen

and before that time it is not. Regardless of the merits of any of these cases, you are suggesting that this is an area where judges who would probably faint, this is my allusion, if they watched a live birth. This is an area where the judges ought to, again, in procedural terms, keep alive the discussion or permit the discussion to go on in the legislature, but not to interfere as they have been. Now, to what extent would you remedy the current debate over abortion? How would I react now? Yes, in terms of what the courts ought to do in pulling back. I'll tell you, oh, that's interesting, and whether they should, for example, overrul the original abortion decision, I guess my personal inclination would be to think that they should not, even though I was critical of it when it was made, as you suggest, simply because and this is not something I've thought about in extreme depth, but it is a decision expanding

individual liberty. I think people have begun to rely on it. I might add, in a court, with my own political preference, that that's the way they ended up. I just think it's improper constitutional law. I would like to suggest, though, just for a moment, that I think the court has really the combination of decisions in this area, which doesn't get much attention, seems to me unusually regrettable. That is, what happened was, in the original case, where, against Wade, it was held that women generally have a right to choose an abortion, under broadly defined rules. Then, several years later, came the question whether states could constitutionally withhold funding for poor women, whether you could omit it from a Medicaid-type program, the funding of abortion, and many states were prepared to fund childbirth, but not abortion. Now, surprisingly, at least to me, the court upheld that and said that a state could fund

childbirth, but not abortion. To me, the two together add up to a picture that is not in accord with the theory of my book. In this sense, the original case took a right that had originally been available effectively only to the very rich, people who could fly to Japan or somewhere and get an abortion, and extended it to the middle class, now people like you and me, maybe who can't or our wives or friends, can't afford the trip to Japan, but now, if you can pay for it, you can have it. That was a decision that extended an upper class right to the middle class, then they failed to take the next step, I think, and extend it to poor people. In my view, that's sort of upside down, that both cases are really suspicious. The middle class is the class that doesn't need protection by the court. They can take care of themselves. The poor people who ended up losing in the subsequent case may or against row are a class that I think generally needs judicial protection and ended up that they didn't get it, so it's

kind of an odd package we now have that you can get an abortion if you can pay for it. It seems to me it's really the opposite of protecting powerless minorities is what the courts ended up with. So you would say then that the courts have a duty under your theory to make sure that the poor, not because they are poor, but because they are a group that is denied procedure, they are denied what everybody else is denied, that they should remedy that. That is the more fertile province for their inquiry than abortion itself. Yes, that's right. Of course, it isn't the case the government has to buy everything for poor people that they can't afford, however, this wasn't right that the court had been in such pains in the earlier case to argue was especially protected constitutional right now in the desegregation area. We have judges like Judge Guarady here, Federal Judge Guarady, actually in part administering a school system.

You, I don't want to jump into your mind, but just on the basis of your book, correct me if I'm misinterpreting. You would say that's silly. I'm not sure I would and I can see why you hesitated. Surely the general subject matter there, the general goal of what Judge Guarady is doing is one that I think is properly and centrally within the judicial competence. He's protecting a racial minority that can't protect itself. Should he do it through administration or through decision? Well, I'm not sure we can draw a crisp line between those two. It is, of course, rather troubling to see a judge running a school system or a prison system or a state mental hospital system and that is happening increasingly and I think on grounds that really are independent of what I argue. The book one can say, well, they're just not experts and here they are acting like bureaucrats. It's troubling. It troubles me. I think it would have to trouble anybody. On the other hand, though, when you get into an area like racial discrimination, it's

not clear to me that someone, I don't know the details of the Boston school case, but just in the abstract, it is not at all clear to me that that district judges often really have a choice because to declare the segregation unconstitutional may be an empty gesture if the people actually administering the system can by some kind of maneuvering perpetuate the prior situation. So I guess in that, I kind of want more to restrict the judicial attempts to define fundamental values and protect rights that really aren't either in the Constitution or don't relate to the protection of powerless minorities. But once we are in such a proper area of judicial intervention, like segregated schools, I'm not so sure I would be too critical of the fact that they have to go pretty far in administering it. Now when the judges search for values, you contend and I agree with you that more often

than not they discover their own values. They search the world for somebody that is perfectly fine themselves. The values of the court are really not an issue. It is the attempt to interpret what the founding fathers meant. Now another point that you make without being, I think, entirely a conclusive on because you're presenting it to us, is that the original Constitution, of course, had no Bill of Rights. Hamilton's point of view was it doesn't need it. The whole Constitution, he alleged, was a Bill of Rights. On the other hand, there was the Jeffersonian thing, the Jefferson, I think, was counsel to France at the time and said if you want Virginia to be behind the battle to get the Constitution ratified, you had better put in the Bill of Rights. The first Congress was very reluctant. What would have been the situation? If at the end of the first Congress there had been no ten amendments, how would our rights

have been protected in the body of the Constitution? Well, I think they would have been protected in various ways which were quite intentional. The United States governmental system wasn't many ways made, for example, inefficient by fractionalizing decision authority and, of course, the point was not inefficiency for its own sake, but rather to a substantial extent to keep the government within bounds in various ways, not simply that it not intrude in the local affairs, but also that it not trade on people's treasure individual rights. I think to a substantial extent that probably would have worked, that there would have been more checks in the political branches if we didn't have a Bill of Rights and we didn't rely on a court to protect us. I don't think there can be really any doubt about the fact that since there is a Bill of Rights and since there is a court system, the legislators may go further than they otherwise

would in terms of infringing rights, knowing that the courts are there as a backstop. It's hard, one really can't throw oneself back 200 years and say how would it have developed without a Bill of Rights. I guess I think in this country, huge and heterogeneous as it now is without the social and political consensus that may exist some other places in some periods, that I would be rather fearful, that is, I would think that political checks alone would not be enough and therefore I think we'd probably be in trouble without some listening of that. But we would have obviously put much more power behind the legislature as I recall it when the government moved to Washington DC, there was no room for the court. Well I'm sure that's right and I'm sure also that they would have exercised their power more responsibly from the standpoint of protecting individual rights.

As I recall it when the government moved to Washington DC, there wasn't even room for the Congress that had to stay in a hotel. For the court. For the court. In today's world, moving to the subject of movie censorship and the fight against movie censorship, would you have left that or in your theory, do you leave this to the legislature as well? No, I don't, it's certainly the First Amendment area within this book and this theory is one of the places where the court should be most active in its review of legislatures telling people what they can or can't say. Now I think what your question suggests is they ought to be most concerned with political speech on that theory and that is undoubtedly true. The trouble I suppose we're trying to draw a line between political and non-political speeches, well I've just stated the problem as I've stated the question, it's very hard

to know what speech ought to count as political and what ought not. What's more, although this is a book about the open-ended, more delphic provisions of the Constitution, ones that really don't give you much of a clue as to what they might mean on their face, there are a host of provisions and I think the First Amendment is at least halfway, one of these that do give you a pretty good clue as to what they're about. The language of the First Amendment, of course, is quite strong and certainly signals that it's about speech generally, so no, I think censorship of speech within my theory would be an area for court activism, although political speech more strenuously than other. How do you account for the, there are many people who can easily account for it, but how do you account for the dramatic switch between the Berger Court and the Warren Court that preceded it?

Is it because the Court has been taken up itself with the political environment and has become in part a legislature rather than just a review body that it realizes that it is living in a certain time in a certain place and the judges are afraid or concerned or adamant on certain points, is is each court under your theory not only to be aware of the need to rely upon the legislature for the politics, but is each court a different political instrument according to the political times? I think this court is certainly behaves politically in that sense. I guess I think that doesn't account for the shift though because it's very hard to think of examples of courts in history that have not behaved politically more so than I would want. So I don't think that accounts for it. I really think Richard Nixon was the rare president who set out to change the court. Many of them have set out to do it, but actually fairly well succeeded.

His appointments have not surprised him in a way that some other justice appointments might have surprised them. Like Roosevelt's appointments served him very well in terms of upholding new deal legislation. But then when the issue is somewhat shifted, the civil liberties issues, that was a whole new set of issues that Roosevelt hadn't foreseen when he appointed them, even assuming he cared about them very much, and then you had those people begin to split, Frankfurt or from black, on these new kinds of issues. Eisenhower, assuming he cared about appointing conservatives, which I guess he did to some extent, didn't do a very good job of it. He appointed Warren and he appointed Brennan. Well, Nixon, as far as we can tell, as of 1980, the four people he appointed, there are some differences among them, but by and large, they have moved the court to the right, which of course is exactly what he wanted to happen. He was pretty good predictors for as I can tell.

Both Warren and Berger are not the quintessional legal minds, I think, by general consensus. Does this have an effect that they are from, let me say it without, I know a lawyer would hesitate to say this, I consider both of them, I admire Warren much more, you've dedicated your book to Warren and I, I would tend to agree with that, but I would see both of them coming from the political spectrum, their lives were, especially Warren's more in the political area. Well, I think that, I think it should be a mix, I think it's a good thing to have some politicians on the court, because as we vindicated my theory as one that's geared to being a little skeptical about the political process and in particular about attempts on the part of the people in power to freeze other people out of the process. And I must say, I clerked for Warren, as you mentioned, and that was really one thing he was very good at, you know, he'd say, John can't you see what they're up to, and he would be able to spot it right away, you know, this is not a law that's really genuinely

worried about subversion, they're just picking on this splinter political party and trying to keep it a splinter political party. Now I would like to see, I think over time, they probably have been too high a percentage of politicians, I'd like to see that cut down some one of few, few more lawyers who care about craft appointed, but I think it has to be a mix, and I really think that was much of Warren's strength, was was a political sophistication. He could see what people were up to, and I think that's much of what the court has to be able to do. He was dead fast as well, I guess his major mistake, or at least some people think his major mistake was to qualify on the desegregation case, Brown vs. Topeka, to qualify the change of constitutional interpretation with that phrase with all deliberate speed. Yeah, I don't know, I know Justice Blacklight in his life said that he thought that had been

a mistake, Warren never indicated that. Wouldn't that be consistent though with your theory? If the court says something opening the procedures, they shouldn't go into all the nitpicking on it, it's either legal or illegal, constitutional or unconstitutional. That would be my instinct. Yes, I think it was a mistake. Tell me, entitling your book Democracy and Distrust, and in attacking the value setting role of the court, beyond the reasonable stage, we all agree, and you have pointed out that the First Amendment should be interpreted, and that's a pretty good thing on most occasions. What do you see the importance of your theory is in a practical way, is it to hopefully on your part caution judges and lawyers in the future not to jump where they might walk? Well, yes, with some qualifications, obviously there are areas in which I want them to jump in areas in which I want them not only not to walk, but not to enter at all.

It's always hard to judge what practical effect if any of a book like this will have. I think the justices will probably read it, but mainly they will use it as we all use the works of others to support views that we already are sympathetic to. I hope it will have some slight influence, but it shouldn't be taken as a general plea for self-restraint, because there are some areas, voting area, First Amendment areas being obvious examples, areas of traditional prejudice discrimination, or race discrimination against aliens, discrimination against poor people, even some laws discriminating on the basis of gender, at least those that were not passed very recently. Those are areas in which I think they ought to get in and really be quite active. It's more of a sorting out type of book saying something's ought to be done quite strenuously, something's ought to not to be done at all.

Well, you have greater faith in the legislative political process than most people. You constantly stress the participatory function of democracy. If your theory was the basis for everyday action, pragmatic action, would the result be assuming the best of all possible outcomes? Everything works perfectly in the test, too. Would the result be a democracy and more trust rather than distrust? Yes. Yes. In theory, although it's an ideal theory, it's a sort of... The court could wither away to use a familiar phrase. If it worked perfectly, the idea would be to get the democratic system to arrive at a self-policing sort of state where people are not excluded and the same set of rules is applied to everybody. Of course, people aren't angels and that's not going to happen, but I think you're right.

But the substance you would find from the legislative process, and how would you define what we should get from the judicial process, especially the courts, the federal courts? A policing of the process by which I mean keeping a sharp eye on who's not being allowed to participate and who's being treated differently from majorities by a different set of rules. There also are certain specific provisions of the Constitution that we haven't really been talking about. There are legal provisions that certainly deserve to be enforced, the fact that they don't have enough fit into my grand theory doesn't mean they're not there. When you say the justices will probably be reading the book, and indeed that's true. When they have read it, can they view themselves in a new light as under the old argument of strict constructionists versus interpretiveists?

Well, I don't find the term strict constructionist, unfortunately, is at a bad history. It might mean somebody committed in a principled way to sticking close to the original intention. I, at least when President Nixon used it, it didn't mean that. It meant political conservatory, sorry, reactionaries, yes. I would hope, when they had read it, they would understand that you can't go on the one hand to that extreme, the extreme of trying to figure out what a provision means just by looking at its language and the intentions of the people who wrote it, those are not retrievable in many cases. I think the people who wrote it did not intend to give it a narrow meaning. They meant to give it an open ended meaning. The trouble, of course, is that the usual response to that realization is to say anything goes, courts can second guess everything, they can apply their own values, or what they think the people's values truly are.

Hopefully, people who read it will realize that there's a middle course that is more consistent with democracy, and that is one of policing the democratic process. Last question, you have become akin to Rachel Carlson in the environmental field in that you've done a scholarly book, I think, for the purposes of your own scholarship, and discover that you are acclaimed as a new seer, as an eye-opening investigator, as someone presenting an alternative. Does this come as a shock to you as a surprise? I'm surprised that it's getting a little more attention, and I thought I'd book this serious wood. The comparison with Rachel Carlson is very surprising and quite welcome. Well, I threw that in, and I believe that to be true, because it has had an impact and very few books are separated from the mass, perhaps coming so soon after the brethren people were looking for something beyond rumour and the internal housekeeping of the court. May I recommend to all John Hart, Ely's book, Democracy and Distrust, just published

by the Harvard University Press, and Sarah, thank you very much for this edition, Bernard Rubin. The first amendment and a free people, a weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Margot Garrison, and the program is produced by Greg Fitzgerald. This broadcast is produced cooperatively by WGBH Boston and the Institute for Democratic Communication at Boston University, which are solely responsible for its content. This is the public radio cooperative.