(Continued from “Wonderful Life,” Part III; see “It’s a Wonderful Life,” American Political Edition (Parts I-V) for all five parts combined and revised)
“Third,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Green.pdf for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)
“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve “judicial activism,” because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no effective Constitution, and no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.
“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional, which would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be mere political footballs, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.
“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.
“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional “taking” (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic “strict constructionist” interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.
“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term popular today. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.
“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.
“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.
“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.
“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.”
(Continued in “Wonderful Life,” Part V)
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Inspired by Libertarian’s frequently repeated and broadly representative complete lack of understanding of the true nature of property rights, and the true demands on government, I’ve cobbled together this post from some distilled and explained passages from a Property Law final exam I wrote a few years ago, with a few additions. Aside from illustrating some of the inevitable complexity of property rights, it also illustrates the inevitable and valuable role that courts play, and must play, in the precise definition of the law, because legislatures and regulatory agencies simply can’t anticipate all fact patterns. The complexities of the real world impose demands that can’t be met by exclusive reliance of a few general rules for general purposes.
The system by which bundles of property rights are distributed, defining social relations regarding access to and use of tangible and intangible “things,” is, arguably, the cornerstone of any political-economic system. Words like “capitalism,” “communism,” and “feudalism” refer, clumsily and imprecisely, to general property right regimes, within which infinitely finer gradations of multi-dimensional variation can be discerned. While ideologues often contemplate the broad political-economic “systems” listed above, and social scientists and policy analysts focus on somewhat finer gradations. it is the holdings of courts, by virtue of their embeddedness in the details of particular cases, that seep into the crevices unanticipated by political theorists and legislative and executive policy makers. While this legalistic obsession with minutia can sometimes lose the forest for the trees, it is particularly well adapted to exploring those fine gradations which the blunter (but more encompassing) instruments of conventional policy analysis often fail to discern. The scalpel of legal reasoning dissects, among other things, property parcels along various spatial, and potentially temporal, lines; “ownership” into a plethora of temporal, spatial, and conceptual estates; and a finder’s property rights according to the precise location of the item when it is found.
First and foremost, there is the issue of inevitable public property, such as the air we breathe, which involves the concepts of “public goods,” and the inevitability of having to regulate the ways in which our behaviors affect that public property. Some property that could be privately held isn’t, such as public parks. All of these must have their use governed by our public agencies, in order to ensure everyone’s equal right to enjoyment of them.
There is the related issue of how one’s disposal of or behavior regarding their own property can affect others’ enjoyment of theirs. Can I play my own stereo, in my own house, as loud as I want any time I want? No. Can I dump my own toxic waste in my own backyard? No. The myth that there is some simple world in which we each have absolute rights to use and dispose of property that we absolutely own does not and cannot reflect the complexity of interdependent rights and mutual responsibilities in the real world.
Cases involving “conceptual severance” illustrate that decisions regarding property rights depend on how you define the property. The Constitution guarantees that the government can’t take property without due process or compensation. “Takings law” often rests on the question of whether a property owner is deprived of the full value of their property by an act of government, or only part of the value. But whether the lose of value of some portion of an owner’s property is the loss of the full value or not can depend on whether the property is “conceptually severed” into separate parcels, so that the portion that lost value is either 100% of that conceptually severed portion, or only some lesser percentage of the value of the property considered as a whole.
In Pennsylvania Coal, for instance, one party owned the mineral rights and the subjacent support rights, while the other owned the surface rights. The Supreme Court held that a state law that coal companies can’t cause subsidence was a taking, since it deprived the coal company of 100% of the value of the subjacent support (conceptually severed into a complete property parcel). But, in another case, when Penn Central was denied the value of its air rights, since New York City’s designated landmark law prohibited the owners from building a high-rise over the old edifice, (in the form of building a high-rise over the old edifice, the Court inconsistently held that “’taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated”. The inconsistency of the Court’s decisions in these two cases is not atypical, but rather reflects the fact that the same law, the same right, the same Constitutional protection, can be interpreted in two different ways, depending on whether you consider a partial property right to be 100% of that right, or less than 100% of the physical property.
Despite the conventional belief that all property is owned in “fee simple absolute” (outright ownership of the complete bundle of rights of a given parcel of property), property is in fact often divided into separate “estates,” with various people having various rights over the same property. Again, the law recognizes finer gradations than most of us ever knew existed, carving a single dwelling into a myriad of present and future interests. If someone has a future interest in a parcel (let’s say as eventual heirs) in which someone else has a present interest (e.g., the widow who gets to live in the house until the children inherit it), the person with the present interest can sell only their interest, not the parcel for all time (i.e., can only sell the right to live in the house while she is alive, but not thereafter).
What happens when land deeded to a school on the condition that it be used only for school purposes is converted into a storage facility after the reversionary interest has uncertainly passed through two more hands, or was possibly inherited from the original owners and subsequently disclaimed? The court sorts it out (Mahrenholz v. County Board of School Trustees). These are not the kinds of issues that legislators and regulatory agencies typically grapple with. These are the kinds of issues that fall through the nets other policy makers weave, and are caught in the more finely woven nets of legal analysis. Indeed, legal analysis is the art of sewing threads into the policy gaps through which particular situations have fallen.
Even when property is owned in fee simple absolute, there are various complexities and limitations, such as the infamous “rule against perpetuities,” and rules against restrictions on alienability. The latter means that the owner of a parcel can’t bequeeth it to someone else on the condition that they not sell it. One can debate whether some restrictions that exist on property rights are necessary, but a choice must be made between a current owner’s right to dispose of his or her property as he or she pleases (bequeething it with a condition attached) and a future owner’s right to do so. One must be restricted in the exercise of their right over their property to allow the other not to be. A choice regarding how to divide the bundle of rights over a particular piece of property has to be made.
The cases involving finders’ rights offer perhaps the best examples of the hair-splitting policy analyses engaged in by the courts. As a general guideline, the “first in time” principle holds. Ownership is considered relative, with a finder having a valid claim against any subsequent finder, but not against any previous finder or the “true owner.” But, of course, this begs the question of who qualifies as a “true owner” or a previous finder. If a brooch, lost or placed there by a previous owner, is found lodged in the wall of a manor house by a soldier billeted there, does it belong to the soldier or to the current owner of the house who never occupied the house nor knew of the brooch’s existence (Hannah v. Peel)? Is the owner of the house the “true owner” by virtue of having bought the house and everything in it, or a prior finder for having “constructively” found anything previously lost and left in the house he had bought, or does he have no claim whatsoever since the lost brooch was not actually found until it was found by the billeted soldier? And which of these solutions best serves the social policy purposes of property rights, such as giving the “true owner” the greatest chance of recovering his property? (The court, in this case, cited precedents going in all directions, distinguishing between property embedded in the ground and embedded in a wall, for instance, and then decided in favor of the soldier, almost arbitrarily).
Such fine legal distinctions carved, in part, by the lathe of policy considerations are evident in McAvoy v. Medina, in which the court had to determine whether a customer who found a wallet on a barbershop table, or the owner of the barbershop in which it was found, had the superior claim. The court made a distinction as to whether the object was mislaid or lost, as evidenced, for example, by whether it was found on a table or on the floor. If found on the floor, and therefore lost, it belonged to the finder, but if found on a table, and therefore mislaid, it belonged to the shop owner. The court held that since “[t]his property was voluntarily placed upon a table in the defendant’s shop by a customer…who accidentally left [it] there…, it was…the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of [the wallet] until the owner should call for it.” In other words, since the property was mislaid rather than lost, it could not be “found” in the legal sense, and since the true owner might well remember where he had mislaid it, leaving it with the shop owner rather than the customer best facilitated recovery. If the wallet had truly been lost (i.e., found on the floor), however, the rule granting the finder a valid claim would have prevailed. (It is possible, of course, that the rule established in this holding could have the adverse effect of encouraging finders of mislaid objects simply not to announce their finding, since by doing so they would relinquish any hope of keeping the object).
Legislators and regulatory agencies (let alone drafters of 223 year old Constitutions) can’t foresee all contingencies, and rarely craft laws so prescient as to include such fine distinctions as “embedded in the ground” versus “embedded in a wall,” or “found on a table” versus “found on the floor.” The courts are left to weave such fine filaments in the interstices of the coarser net of legislation and regulation, and even in the interstices of the Common Law, i.e., the fine (but never fine enough) filaments already woven by precedent. That they do so not merely with legalistic attention to detail, but also with broad notions of fairness and utility, with personal inclinations and prejudices, and even with occasional caprice, cobbling together (hopefully) plausible solutions to concrete problems in an ad hoc fashion, only serves to accentuate the continuity of legal analysis with other forms of policy analysis. It is a similar process carried out by human beings in a variety of venues, repeating itself in slightly altered form from the general to the specific, from the crafting of overarching guidelines to the cobbling together of particular applications, forever repeating itself on smaller and smaller scales, filling in the interstices wherever a case finds its way through the mesh of the policy net.
If there is an unanswered legal question, fine threads of policy are being woven in the process of answering it. If the case is never appealed, then the policy is ephemeral, a few strands of gossamer that dissolve the moment the case is disposed of. This is the level on which the finest filaments of temporally and situationally local policy are being woven.
The lesson of these examples is that those who state some broad brush-stroke ideological platitude, less precise even than the Constitution itself (see “Constitutional Idolatry”), are not stating anything that applies to all, or even many, of the questions that arise to challenge such all-encompassing notions. Not even those who state the rules with great precision and caution, trying to anticipate all contingencies, succeed in actually anticipating them. What we most require is a procedure for filling in the gaps, for making judgments in particular circumstances. The strength of our system is that we govern ourselves by the rule of law, but the rule of law is not, and cannot be, the rigid adherence to rigid laws that require no interpretation nor application, but rather a set of procedures by which to adapt imperfectly precise and inevitably ambiguous rules to precise circumstances.
Those who rely on any form of “Political Fundamentalism” are trying to reduce a world characterized by such complexities to some caricature or other, and to impose that caricature on our processes for governing ourselves, to our profound collective detriment. Governing ourselves, and forging our public policies, is an information intensive activity, in which we need to mobilize a variety of expertise in service to doing so effectively and intelligently. The particular form of Political Fundamentalism represented by people like Libertarian, characterized by “the unholy trinity” of “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry, simply disregards complexities such as those discussed in this post, which exist in far more abundance than most people realize, permeating every aspect of our lives.
Our Constitution provides the broadest of guidelines, the most loosely knit weaves of the net. Legislators weave strands into the gaps that are left, and regulatory agencies in the gaps that are left by legislators. Courts weave strands into the gaps left by all three. Those whe pretend that our laws are all, or should all be, cut-and-dry, and that there is no need for a complex network of various kinds of governmental agencies (from all three branches of government) constantly weaving the net of law by which we govern ourselves, simply do not understand either law or history, or the real nature of the challenges we face.
