Richard A. Epstein is the Laurence A. Tisch Professor of Law, New York University School of Law, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law and Senior Lecturer, the University of Chicago. He took constitutional law from Professor Bickel in the spring semester of 1968.
There is little question that The Least Dangerous Branch counts as one of the most important books in constitutional law scholarship ever. Written some fifty years ago, it should not be understood, however, as a timeless constitutional doctrine, but as a response to the many challenges in constitutional law that arose at a time when the implications of two constitutional transformations had still not been worked out.
The first of these transformations was the huge shift in the Supreme Court’s decisions in its epic October 1936 Term, when it jettisoned the conservative Court’s two key positions. First, the old Court imposed sharp limits on federalism by a narrow reading of the Commerce Clause. Second, that Court afforded extensive protection to economic liberties. Both these fundamental positions were decisively rejected during October of the 1936-1937 Term. The turnabout on these two norms paved the way for implementing the progressive program of the New Deal. Bickel clerked for Felix Frankfurter and thoroughly internalized the now ascendant norms on federalism and economic liberty from his mentor.
Yet history then threw a curveball at the Progressive synthesis that emerged triumphant from those two key victories. The white primary cases were then working their way through the Supreme Court, and they made it all too evident that the placid form of majoritarian politics was morally untenable in dealing with the questions of race relations, especially in the South.
In those cases, the political institutions were dominated by Southern racists who used a combination of legal and illegal means to subject the black Americans under their thumb to a set of nonstop indignities and abuses. Passivity in the face of this line was not tenable. From this caldron emerged the famous Footnote 4 in the 1938 case of United States v. Carolene Products that turned to political process to explain why added scrutiny should be given to “discrete and insular” minorities that have only imperfect access to the political system. The road from Carolene Products to Brown v. Board of Education lasted only sixteen years. At its end lay a level of judicial intervention, which no matter how sugar-coated, dwarfed by orders of magnitude such wimpy decisions as Lochner v. New York, which struck down a ten-hours-per-week-maximum hour law.
The question of how to justify that shift was clearly on everyone’s mind, including Alex Bickel, who worked hard on the over-compartmentalization of the two areas. My own direct engagement with this issue came from taking in the spring of 1968, the last of my two years at Yale Law School, an advanced course in constitutional law with Bickel that touched on many of the issues that he wrote about in The Least Dangerous Branch. He had an enormous influence on my thought.
Indeed, I think that it is fair to say that most of my beliefs were crystallized in direct and conscious opposition to the message that he pounded into us day after day. He was obviously adroit on his feet, and sometimes he used this talent too easily to ward off questions from a very strong class that was somewhat skeptical about his position. Most of the skepticism, as might be imagined, came from students who thought that the once liberal Alexander Bickel had become too conservative for his own good. But in reality, the objections were directed by students to the two interconnected themes for which he became famous – the countermajoritarian difficulty and the passive virtues.
Here are a couple of the points about Bickel’s view that have proved so troublesome. Bickel clearly comes out of the Progressive political tradition, which places great confidence in political majorities that organize and run complex programs through expert agencies. Bickel placed his stress on public participation and tended to slight the concern with administrative expertise, but could never explain why this tradition put to rest the more traditional concerns with faction and majority domination of the legal system. The simplest of these traditional concerns asks what should be done if fifty-one percent of the population votes to confiscate the wealth of the other forty-nine percent. Clearly something is amiss, and even a rudimentary concern with property rights leads one to the conclusion that this action at least is beyond the power of the state. Indeed, the Takings Clause, widely neglected at the time, offers protection against this majoritarian difficulty.
The question that arises in this stark context cannot, however, be confined to it. So in the next case, a small community adopts a zoning law that benefits the fifty-one percent who vote for it, but restricts the development opportunities of the forty-nine percent of its opponents. Do we still believe that expert progressive planners should be beyond reproach when their actions have this set of consequences? And if this can be done with property, why not with speech, as through differential taxes on publications by type or political view?
In the end, there is a deep Lockean streak that runs through us all. We don’t think that rights are all top down. Instead we think that rights to person and property that come from the bottom up are what governments are instituted to protect. The danger of majority abuse is paramount, so that we cannot think of just a countermajoritarian difficulty, which asks why a minority of individuals can use the courts to block legislative initiatives that command wide popular support. We have to confront the majoritarian difficulty as well.
The law of standing
This first difficulty ties in with a second. Much of Bickel’s constitutional law course dealt with the doctrine of standing as it was first articulated in the twin 1923 decisions of Frothingham v. Mellon and Massachusetts v. Mellon. These two cases denied the power of first individuals and then states to challenge the constitutionality of the Maternity Act on the ground that the United States could not tax and spend for this purpose. The constitutional challenge rests on a clause (Art. I, §8, cl. 1) that provides:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States . . . .
To the students in our class, it looked as though there was a serious question of whether these payments to a select class of persons could count as expenditures for “the general welfare of the United States.” At the time, I don’t recall that we pushed hard on the point that taxation was for the creation of public goods only. But even if that point is neglected, why do payments to a few women advance the general welfare of the United States? What bothered us in that setting was that no one could raise the challenge even though it raised fundamental questions about the scope of federal power. Any decision by the states not to accept the money did not neutralize the harmful effects of the program. The money will still be collected and spent to help citizens in other states. So either the program is stopped by a lawsuit or it will spread everywhere.
The “passive virtues” homily
Bickel gave us a standard speech on the importance of the “passive virtues,” which extols the virtues of courts standing aside and letting the political process run its course. But that homily was pitched at too high a level of generality and always sounded hollow. Why not let a serious challenge go forth? These cases could be brought to enjoin municipalities and state governments, so why not here? The insistence on the passive virtues just emphasized how little weight that Bickel gave to the majoritarian difficulty.
The temperature in the room started to boil, moreover, when the attention turned to two other situations. The first involved a then-Second Circuit case, Flast v. Gardner, which morphed a year later into Flast v. Cohen (1968), which asked whether there was some special standing rule that should apply to Establishment Clause cases. My initial instinct then, from which I have not wavered in over forty years, was that there would be no need to consider this question if Frothingham had been rightly decided in the first place. It would just be another instance of a citizen or taxpayer challenge to actions that were beyond the power of Congress to authorize.
In Bickel’s universe the question of exceptions had to arise and he pushed his position with might and main. To make his point, he asked us repeatedly whether we thought that any one should be in position to challenge the titular appointment of the Bishop of New York City so long as he had no official duties. He did not appreciate the level of anxiety to which symbolic harms can give rise, and consistently answered no before a class of liberals and conservatives alike that ached to answer yes. We all thought that this one example was enough to discredit much of what he had written about standing six years before.
The second of the new issues that arose deals with the line of cases after the 1962 decision in Baker v. Carr that articulated an equal protection violation by the system of malapportionment that gripped Tennessee for close to fifty years. The issues in the case are multiple: first, does anyone have standing to challenge the system; next, is there a political question; and last, is there some kind of remedy under the Equal Protection Clause?
Bickel stuck to his guns by pushing the passive virtues and insisting that the case should not come to Court. The Frankfurter in him lived on. He also went through some of the subsequent cases where with some considerable shrewdness he was able to show that the doctrine may have been pushed a step too far by denying the states the rights under Equal Protection to have bicameralism of the sort that is built into the federal Constitution. He did not consider how all this tied into the Republican Form of Government Clause, which would have pointed to a different result on this question.
Exchanges with students
But what I remember most about the class had to do with the issue of whether this judicial intervention worked. We read a number of cases that dealt with some fine points as to how to count military personnel in redistricting cases, and this emboldened Bickel to insist that the entire matter was really a tempest in a teapot, in which a huge and unwarranted constitutional brouhaha gave no practical relief. The high point of this debate came in the following exchanges, which I remember to this day.
One of the students in that class was Michael Barone, who even at that tender age displayed the encyclopedic knowledge of law, elections, and politics that marked his distinguished work over the next forty-four years. This was not a state secret. Everyone in the class knew this to be so.
So he says to Bickel: “Do you know, sir, that after reapportionment X percent of the Michigan legislators lost their seats.” Bickel shrugged, and said nothing. A second student, Jeff Wood from Florida, raised his hand and said, “The same thing happened in Florida.” At this point Bickel was moved to respond, “There must have been a bunch of lazy politicians in those two states.”
The lesson that I took from that exchange is that certain pre-commitments become so strong that they resist revision in the face of new evidence. That point applied not only to the question of how to think about reapportionment cases. It also radiated outward to the question of how to think about constitutional law.
I was not of the mind to think that Brown was a mistake, or that the self-perpetuation of segregation really was a viable national option. But it did occur to me that the two-part universe – in which some government acts receive heightened scrutiny from the courts, but others are virtually unchallengeable – that was put together in Carolene Products was false. We ought to apply the same level of scrutiny to all cases, which means that the Lochner-era cases must be attacked on their merits, not on some generalized grounds of judicial restraint.
That simple observation, moreover, reveals a deep tension between two strands of conservative thought: constitutional originalism and judicial restraint. The point here is simple. A consistent originalist does not read broad clauses narrowly, or narrow clauses broadly, because of some independent belief in judicial restraint. You read them as they are written. By that standard, there is no case for a special standing requirement in Article III, and no reason to belabor matters of institutional competence in cases where it does not apply. So it is just fine to read the Takings Clause to apply to all forms of private property. It is equally fine to limit the Commerce Clause to, well, commerce among the several states. Current law goes the other way.
In a strange way I owe many of my views to the influence of Alex Bickel. If he could not persuade me of the soundness of his positions, no lesser mortal could do so either.