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The Role of Public Opinion in Constitutional Interpretation Cleveland State University EngagedScholarship@CSU Law Faculty Articles and Essays Faculty Scholarship 1993 The Role of Public Opinion in Constitutional Interpretation James G. Wilson Cleveland State University, [email protected] Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles Part of the Constitutional Law Commons, and the Law and Society Commons How does access to this work benefit ou?y Let us know! Original Citation James G. Wilson, The Role of Public Opinion in Constitutional Interpretation, 1993 Brigham Young University Law Review 1037 (1985) This Article is brought to you for free and open access by the Faculty Scholarship at EngagedScholarship@CSU. It has been accepted for inclusion in Law Faculty Articles and Essays by an authorized administrator of EngagedScholarship@CSU. For more information, please contact [email protected]. +(,121/,1( Citation: 1993 BYU L. Rev. 1037 1993 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed May 2 10:06:43 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0360-151X The Role of Public Opinion in Constitutional Interpretation James G. Wilson* Table of Contents I. INTRODUCTION ............................. 1039 II. PLANNED PARENTHOOD V. CASEY: A MODERN EXAMPLE OF THE SUPREME COURT'S RELATIONSHIP TO PUBLIC OPINION .......................... 1043 III. A BRIEF HISTORY OF THE ROLE OF PUBLIC OPINION IN CONSTITUTIONAL INTERPRETATION FROM THE GLORIOUS REVOLUTION THROUGH THE LOCHNER ERA ....................... 1048 A. The Influence of Public Opinion on Law and ConstitutionalThought Prior to the Constitution ..................... 1049 B. Public Opinion and the Framing of the Constitution ................... 1057 C. The Battle Between the Republicans and the Federalists ...................... 1060 1. The Republicans'glorificationof public opinion ................... 1060 2. The Federalistperspective ............. 1064 D. Public Opinion and the Early Courts ........ 1068 E. Public Opinion and Slavery ............... 1075 F. Public Opinion and the Post-Civil War Court: The Domestication of Public Opinion ..... 1082 1. Informed public opinion: Determining "cruel and unusual punishment" under the Eighth Amendment ............... 1084 * Professor of Law, Cleveland State University. BA., Princeton University; J.D., University of Chicago. I wish to thank Maijorie Kornhauser, Sheldon Gelman, Gregory Mark, Patricia McCoy, Tayyab Mahmud, Susan Becker, and Mimi Lord for their invaluable assistance. The Cleveland-Marshall Fund also provided assistance. 1037 HeinOnline -- 1993 BYU L. Rev. 1037 1993 1038 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1993 2. The mixed role of public opinion in determiningprocedural fairness for criminal trials ................... 1088 3. Public opinion as ward of the Court: The FirstAmendment ............. 1091 4. Public opinion triumphant:Economic and social legislation .............. 1097 a. The Lochner era ................. 1097 b. The death of economic substantive due process .................. 1103 IV. WHAT ROLE OUGHT PUBLIC OPINION PLAY IN CONSTITUTIONAL ADJUDICATION?............. 1104 A. Weeding Out Venal Public Opinion: Equal Protection and Race ............. 1105 B. Public Opinion as ConstitutionalDecisionmaker and the Constitutional Structure ........ 1108 1. Congressionalcommittee investigations: A case study of law and convention ... 1110 2. Public opinion, war, and peace .......... 1113 3. Public opinion and the judiciary ........ 1115 C. The JudicialTradition Opposing the Use of Public Opinion in ConstitutionalAdjudication ... 1117 D. A Matter of Principles .................... 1125 V. CONCLUSION ............................... 1134 HeinOnline -- 1993 BYU L. Rev. 1038 1993 1037] THE ROLE OF PUBLIC OPINION 1039 [American] lawyers are obliged, however, to yield to the current of public opinion, which is too strong for them to resist .... " I. INTRODUCTION This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey1 opinions of Justice Souter,2 Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created in Roe v. Wade,3 while Chief Justice Rehnquist and Justice Scalia claimed in their Casey dissents that public opinion was constitutionally irrelevant.4 ** 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 279 (Phillips Bradley ed., Alfred A. Knopf 1972) (1835); see Louis FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL PROCESS 17 (1988) (illustrating the influence of public opinion on the Supreme Court); see also GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (arguing that Courts cannot make "significant" changes without support from the electoral branches); Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957) (arguing that Justices follow election returns). But see LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY (1992) (asserting that judicial doctrine has a major effect on outcomes and that the Justices are relatively insulated from policy and political considerations). Law and public opinion have a symbiotic relationship: "The history of the Anglo-Saxon race shows that, for ages past, the members of the legal profession have been powerful for good or evil to the government. They are, by the nature of their duties, the moulders of public sentiment on questions of government ... ." Ex parte Garland, 71 U.S. (4 Wall.) 333, 385-86 (1866) (Miller, J., dissenting) (holding that Congress cannot condition pardon to keep attorney out of federal courts by requiring loyalty oath). 1. 112 S. Ct. 2791 (1992). 2. The New York Times reported that Justice Souter was primarily responsible for the joint opinion. Linda Greenhouse, The Supreme Court: A Telling Court Opinion, N.Y. TIMES, July 1, 1992, at Al. 3. 410 U.S. 113 (1973). 4. 112 S. Ct. 2791, 2814-15. Contra id. at 2862-63, 2884. HeinOnline -- 1993 BYU L. Rev. 1039 1993 1040 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1993 The second part of the Article demonstrates that all three Justices' arguments in Casey have a viable intellectual tradition. This section presents a history of public opinion from before the American Revolution to the present. It considers the views of David Hume, James Madison, Chief Justice Marshall, Abraham Lincoln, Chief Justice Taney, and Justice Brandeis, along with a host of others. Part III argues that :public opinion ought to influence many constitutional decisions. In other words, public opinion is a legitimate interpretive factor, comparable to text, history, structure, precedent, and policy. Indeed, some constitutional disputes, such as impeachment standards and proceedings, can only be effectively regulated by public opinion. Public opinion can either expand or contract important constitutional rights. The different fates of Supreme Court nominees Robert Bork and Ruth Bader Ginsburg are public reaffirmations of the Supreme Court's previous decisions outlawing gender discrimination; Bork characterized such non-originalist outcomes in the area of sexual equality as "illegitimate," or "unsatisfactory"' while Ginsburg was a leading advocate of gender neutrality. On the other hand, the Court's unwillingness to combat segregated suburban schools in Milliken v. Bradley6 becomes somewhat defensible because of probable adverse public opinion, confirmed by the country's continued unwillingness to rectify the underlying problems. Other important cases appear different when viewed from this perspective. Justice Powell's condemnation in Regents of the University of California v. Bakke' of "quotas" while approving of "diversity" in affirmative action plans may not be very coherent or elegant, yet his opinion was arguably the "best" decision, simply because both political sides have adopted his rhetoric in the subsequent debate over this inherently contentious issue. Some constitutional rights, however, are so important that the Court should resist public opinion. For example, the "core" 5. ROBERT H. BORE, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 131, 330 (1990); see also Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretationof "This Constitution," 72 IOWA L. REV. 1177, 1272 n.397 (1987) (regretfully concluding that gender discrimination decisions are illegitimate). 6. 418 U.S. 717 (1974). 7. 438 U.S. 265 (1978). HeinOnline -- 1993 BYU L. Rev. 1040 1993 1037] THE ROLE OF PUBLIC OPINION 1041 right in Brown v. Board of Education8 of all schoolchildren to be able to attend public schools that do not overtly, maliciously
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