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‹ FEATURED DISCUSSION

September 03, 2005

Psychoanalyzing Robertsís Opposition

By Richard Epstein

Steveís last post makes a sympathetic effort to see the world as Robertsís opponents would see it. And they certainly have reasons to be unhappy about the kind of justice he would be. What they do not have is strong reasons to think that they should block the person because of those disagreements. I might also add that I am certain that I have disagreements with Roberts as well, and hope after his confirmation to find out what they are. But for the moment let me again return to my favorite theme. How do we disentangle the sensible threads of opposition from the political hype?

My text du jour is Fridayís column that our Senator Dick Durbin wrote in the Chicago Tribune in which he expressed his anxiety over issues of the commerce power and the right of privacy as it pertains to intimate associations. It is interesting that he does not talk about any current controversies but confines his attention to two of the great and enduring conflicts of the 1960s, those over the scope of the commerce clause with respect to the civil rights acts on public accommodations, and the scope of some (undefined) guarantee with respect to rights of intimate association, which for these purposes I will not include abortion.

How could anyone disagree with Durbanís view that the segregation in public accommodations in the South was a national disgrace? I canít. But on the initial question is whether the commerce clause reaches these matters, the answer is surely yes for inns and other establishments that are part of the interstate system, but not for every local restaurant in town. His outrage and the shortfall of the clause leads him to defend, wholly without regard to text, history, and structure, the modern meaning of the clause. It is perfect reverse engineering. Know what is right (and he is right) and the constitutional issues are resolved.

What is ironic here is that he does not explore how the entire document is put together. The villain of this piece is the narrow reading of the privileges or immunities clause of the Fourteenth Amendment in the Slaughterhouse Cases, which essentially stripped that provision of all its protection to the newly made citizens, the former and now freed slaves. But if that clause were read correctly, it would cover the right to travel freely between states (not to receive welfare in new states, however), and that right would carry with it, I think, the rule that public accommodations had to offer nondiscriminatory provisions for all, whether or not in interstate commerce. We get to the right result without having to pay the high cost of agricultural cartels (of the sort propped up in Wickard) of which Congress is all too fond.

The privacy issue is amenable to the same kind of analysis. Here the wrong turn in the road was the rejection of Lochner (one of Senator Durbinís favorite cases, I am sure) so that ordinary contracts were subject to extensive state regulation. Griswold was of course at root a contract case, and here the usual justifications of safety and health donít come within a country mile of justifying a ban, which could never be sustained because other people were offended by contraceptive use. So we donít need a right of privacy. The ordinary protection of liberty will do just fine here, without committing us to Roe v. Wade, where the state interest is so much stronger.

The hardest question in constitutional law often asks how we back and fill. My own preference is to confess error and reverse precedent. It is intellectual cleaner than the Durbin approach that finds a sound result that is defensible of his reading of a particular provision, but which sweeps in lots else that should be left aside. Not clear what Roberts would do. But one hopes that he would be sensitive to the problems of dealing not only with constitutional text, but with prior judicial errors in constitutional interpretation.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.