July 21, 2024

by Stephen Stofka

This week’s letter is about an alliance of business interests and libertarians alarmed by the growing power of the federal government that emerged during the 1930s Depression and enabled by a shift in judicial interpretation on the Supreme Court. In the following decades, executive agencies expanded their authority by assuming powers held by each of the three branches (Epstein, 2014). The agencies wrote rules like a legislature, administered the rules with or without the assent of the President, and resolved controversies in legal interpretation like the judiciary. When the Court’s decisions challenged the traditions of religious groups, social conservatives joined the coalition.

Social unrest in the 1960s followed by political turmoil and economic stress in the 1970s accompanied a generational shift in power in the Congress. A coalition of civil rights advocates  and environmental activists helped pass legislation in both areas. In the southern states where resistance to federal control was still active a century after the Civil War, voter sentiment began to shift from the Democrat Party to the Republican Party. Extractive industry groups increased their lobbying efforts to check environmental laws that increased their costs or delayed their projects (Kraft, 2022). In the 1970s, environmental activist groups turned to the courts to block industrial developments (Smith, 2022). Many of these controversies occurred in federal district courts where 860 justices with life tenure decided the application of the rules. Business groups recognized the need for judges sympathetic to any judicial philosophy that promoted a diffusion of government power to the states and individual business interests. Large corporations, enjoying many of the legal rights of individual persons since the 19^th century, had revenues greater than those of many state governments, allowing big businesses the power to steer state and local policy toward maximizing profits.

A hybrid form of judicial interpretation called textualism/originalism was an effort to develop objective rules of jurisprudence to guide decisions in the lower courts. Textualism focuses on the legislative text while originalism focuses on the history of statutes and the Constitution (Eyer, 2022). Together the rules encourage justices to stay faithful to the text, history and tradition of the law. Six justices on today’s current Supreme Court hold the reins of this team of horses, which sometimes pull in opposite directions. Four decades in development, textualism and originalism have not brought the sought after clarity. Lower courts have sometimes responded with contradictory decisions to recent Supreme Court precedents, resulting in a judicial recycling of controversies in which the Court clarifies an earlier precedent.

As executive agency power expanded in the decades following World War 2, the Supreme Court expanded individual rights in its interpretation of the 14^th Amendment. Richard Epstein (2014, p. 121) voices the conservative sentiment when he called this period a “veritable explosion of new rights.” The 1973 Roe v. Wade decision overruled state laws that prohibited abortions at various stages in a pregnancy, determining a right to privacy in the 14^th Amendment. Social conservatives, business interests and libertarians formed an alliance of think tanks to limit the expansion of judicial and executive power.

Conservatives decried the Court’s Roe v. Wade decision upon its publication. In an interview late in her life, liberal Justice Ginsburg faulted the reasoning the court gave in that decision. She explained that the decision should have been based on a principle of gender equality clearly stated in the 14^th Amendment. The Court’s ruling, based on a presumption of privacy, left the decision vulnerable to repeated attacks by groups of social conservatives. A coalition of religious groups, still angry over the Court’s 1962 decisions banning prayer in schools, now found common cause with business interests angry about the expansion of executive agency power.

For some foundational understanding of this revolution in judicial interpretation, readers will remember that the Bill of Rights was a package of ten amendments submitted to the states for ratification in conjunction with the Constitution. They applied to the federal government and were meant to assuage any concerns that this newly created federal government would impinge on the rights and power of state legislatures and the small number of individual citizens allowed to vote in each colony (Klarman, 2016). The enumerated powers stated in the Constitution was designed to define and contain the powers of the federal government but left unsettled or undefined powers to the states. In the century following ratification, the Court’s rulings gave preferential treatment to state autonomy in controversies over Bill of Rights protections. The Supremacy Clause of the Constitution gave the federal government priority if a federal law contradicted state law, but if there was no federal law resolving a controversy, state law took precedence. Separation of powers included the three branches within the federal government and between the federal government and the states.

For an evolving history of jurisprudence, I will turn to the National Constitution Center, a bipartisan independent organization authorized by Congress to educate the public on the history, text and meaning of the Constitution. They offer a free curriculum of classes on the Constitution for readers who want to expand their knowledge of the controversies related to the Constitution and its Amendments. What follows is a synthesis of a class section on selective incorporation, the Court’s application of protections for individuals to the states law.

Following the passage of the 14^th Amendment, several Supreme Court decisions limited its protections against state abuses. In the 1925 Gitlow v. New York decision, the Court held that a state could not violate an individual’s First Amendment rights. In the 1960s the Supreme Court, headed by Chief Justice Earl Warren, further expanded individual rights, reasoning that the due process and equal protections guaranteed by the 14^th Amendment made Bill of Rights protections applicable to the states as well as the federal government.

Before the rulings of the Warren Court, individuals had few protections against abuses by state governments. States routinely violated protections against search and seizure contained in the Fourth Amendment, the right to counsel stated in the Sixth Amendment, the protection against self-incrimination in the Fifth Amendment, and the right to free speech in the First Amendment. As I noted last week, a minority of rural voters in some states controlled the legislature through clever districting rules that magnified their representation and interests in the state legislature.

As the court has applied combinations of textualist and originalist interpretation, it has satisfied the wishes of the coalition of social conservatives, business interests and libertarians. Its Dobbs decision overruled the 50-year-old precedent set by Roe v. Wade, pleasing social conservatives. It overruled previous precedent set by the Bakke decision in 1978 that established affirmative action, pleasing business interests and libertarians. In 2008, its Heller decision established an individual right to own a gun, satisfying libertarians. It 2010 Citizens United decision overrules McCain-Feingold limits on corporate political contributions, giving business interests a greater opportunity to influence policy. Social conservatives are hoping that the court’s next term will overturn a right to same sex marriage established by the 2015 Obergefell decision.

Next week I will look at the conflicting priorities in textualist/originalist analysis and how its methodology differs from the more traditional analysis that focuses on the purpose of a law.

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Photo by Jim Strasma on Unsplash

Keywords: civil rights, environmentalism, amendments, Bill of Rights, Supreme Court, textualism, originalism

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

Eyer, K. R. (2022). Disentangling textualism and originalism. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4090893

Klarman, M. J. (2016). The Framers’ Coup: The Making of the United States Constitution. Oxford University Press.

Kraft, Michael E. 2022. Environmental Policy and Politics. New York: Routledge, Taylor & Francis Group.

Smith, Kimberly. 2022. “Environmental Policy In the Courts.” In Environmental Policy: New Directions for the Twenty-First Century, eds. Norman J. Vig, Michael E. Kraft, and Barry George Rabe. Thousand Oaks, CA: SAGE. essay, 137–54.