The confirmation wars have escalated. This year, Senate Democrats took the unprecedented step of filibustering nominees to the federal appellate courts. While they cite various reasons, it seems clear the Democrats hope to force President Bush to nominate judges who will interpret the Constitution as they would. The terms of the confirmation debates have also changed. Republicans usually framed confirmation debates as a choice between “strict construction” and “judicial activism”; now, however, Senate Democrats are disqualifying conservative nominees on the ground that they are the judicial activists. How did the confirmation process take these strange turns?

The best way to start answering this question is to read The Rehnquist Court, a collection of essays edited by American University law professor Herman Schwartz, and First Among Equals, a book written by federal appeals judge, Solicitor General, Independent Counsel, and now private practitioner Kenneth Starr. The Senate filibusters are obviously preliminary skirmishes anticipating President Bush’s first nomination to the Supreme Court. Read together, Schwartz’s and Starr’s books present in more or less conventional terms the debate about the work of the current Court, led by Chief Justice William Rehnquist. Schwartz aims to indict the Rehnquist Court for conservative judicial activism; Starr anticipates and rebuts that indictment.

The Conventional Indictment of the Rehnquist Court

The thrust of Professor Schwartz’s collection is obvious from its subtitle—Judicial Activism on the Right. The Rehnquist Court’s five-vote conservative majority, Schwartz warns ominously in his introduction, “has moved as aggressively as its slim margin has allowed to undermine or restrict many of the gains for social justice and civil rights that the Court consolidated over the preceding fifty years.” The contributions in this collection vary a great deal in tone. Some pieces are polemical and overdrawn. Schwartz himself contributes a mean essay on the Rehnquist Court’s federalism revival. To be sure, the Court’s federalism doctrines have their share of problems (see “Altered States,” by John Eastman; Claremont Review of Books, Spring 2003). But others are eminently sensible, especially the most important federalism development, the resuscitation of the Commerce Clause. The interstate-commerce power was never meant to give Congress the power to control whatever it deems to be a national problem; it vests in Congress power only to regulate interstate trade, much as GATT regulates international trade now. Schwartz spends less time considering the legal and policy arguments for this interpretation of the Commerce Clause than he does associating federalism with slavery and Jim Crow.

The less polemical and more insightful essays in The Rehnquist Court undercut Schwartz’s alarmist thesis. For instance, Georgetown law professor Chai Feldblum interprets the Rehnquist Court’s gay-rights cases to suggest “a majority of the justices are no longer willing to accept that homosexual conduct is inherently and necessarily immoral.” The majority confirmed Feldblum’s interpretation in every respect this past June. In Lawrence v. Texas, in a Court opinion striking down a sodomy law, Justice Anthony Kennedy proclaimed, “adults may choose to enter upon [a homosexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”

Lawrence confirms what is obvious from the inconsistencies in Schwartz’s collection. In some areas, the Rehnquist Court has steered the law off the track it was heading down during the Warren Court; in others, the Court has pushed the law down the same track, and faster. Schwartz and his contributors dislike the former and like the latter, but they do not explain why we should, or why any of these changes are “activist.”

The Conventional Defense of the Rehnquist Court

If Schwartz’s collection indicts the Rehnquist Court for straying from the legacies of the New Deal and the Warren era, Judge Starr’s book rebuts that indictment. In Starr’s presentation, the Burger Court and the Rehnquist Court remained substantially faithful to the work of the Warren Court. “[N]ot only does Roe [v. Wade] still stand,” he asserts, “so do the most controversial decisions of the Warren Court.” If the Rehnquist and Burger Courts have been “self-consciously struggling for greater rigor and persuasiveness in [their] doctrine,” it was “no doubt in response to the freewheeling decision-making of [their] predecessor.” As one might expect from someone with such a distinguished career in public service, Judge Starr has many legal insights and personal anecdotes to offer in support of his argument, on topics ranging from abortion to voting rights, and from the New Deal to Bush v. Gore.

Starr’s argument seems more measured and accurate than Schwartz’s, but it has its tensions, too. He proves his case by arguing that the Burger and Rehnquist Courts have not been “activist,” but “lawyerly.” These Courts, Starr means to say, consolidated what was good, pruned what was bad, and, overall, made more predictable what the Warren Court left them. But suppose for a minute that much of the product of the Warren Court was bad, both in legal reasoning and in substantive results. If Starr’s apology for the Burger and Rehnquist Courts is to show that they have substantially followed the Warren Court’s lead, how persuasive an apology is that?

 The Original Constitution vs. the Living Constitution

The only way to answer the question Starr and Schwartz raise is to understand how most of the main conflicts in our constitutional law trace back to disagreements about the “living Constitution.” This notion originated earlier than most lawyers think. It was during the Progressive Era that the architects of modern liberalism first sought to replace the Founders’ Constitution with the centralized bureaucratic welfare state. (To read a history by a legal scholar who does appreciate this connection, see G.E. White’s The Constitution and the New Deal, reviewed by Richard Morgan in the CRB, Winter 2002.) As early as 1920, Justice Oliver Wendell Holmes suggested in Missouri v. Holland that the words of the Constitution “called into life…an organism,” “the development of which could not have been foreseen completely by the most gifted of its begetters.” He stressed that such a constitution “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

Living-constitution theory explains what lawyers like Schwartz and Starr mean when they refer symbolically to “the New Deal” and “the Warren Court.” New Deal social reformers built on Progressive notions about a living Constitution, to discredit constitutional property rights, weaken the structural constitution, and establish a national administrative state guaranteeing economic security for all. Lawyers tend to miss this connection, because the constitutional law from the New Deal avoids talk of a living Constitution. Such principles inspired the New Deal legislative agenda, but sympathetic federal judges found it more expedient to uphold that legislation with deferential and seemingly value-neutral doctrines like the “rational basis” test.

Thus, it was not until the Warren Court that the Supreme Court injected living-constitution theory into constitutional interpretation. The Court did so to make the Due Process and Equal Protection Clauses into transmitters for evolving conceptions of liberty. Living-constitution theory gave the federal courts the legal doctrine they needed to insulate the sexual and criminal rights revolutions of the 1960s from legislative regulation.

The Rehnquist Court Reconsidered

This perspective on the living Constitution clarifies the ongoing debate about “activism” in the confirmation wars, and it also highlights a more interesting set of problems in the Rehnquist Court’s work than one sees in books like Schwartz’s and Starr’s. To begin with, living-constitution theory explains how liberals like Schwartz understand “judicial activism.” This is an important insight now that Senate Democrats have learned how to accuse Republican court nominees of “activism.”

The Democrats operate within living-constitution horizons. For them, the New Deal and the Warren Court’s legacy have more constitutional authority than the written words of the Constitution. The Democrats understand constitutionalism as it was explained in the abortion case Casey v. Planned Parenthood: during the New Deal, the country learned that constitutional property rights “rest on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare.” Then, during the cultural revolution of the 1960s, the country learned that sexual privacy should encompass “the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.” Given our shared experiences from the New Deal, it is “activist” for judges to toy with discredited doctrines even if they are clearly in the written Constitution, like the Commerce Clause or the Takings Clause. Given our shared experiences from the 1960s, it is just as activist not to expand doctrines that are clearly out of the written Constitution, like the right to explore the sweet mysteries of life.

The hold of living-constitution theory on the Court also highlights important problems in the jurisprudence of the conservatives on the Rehnquist Court—Justice Thomas and especially Justices Scalia and the Chief Justice. All of them reject living-constitution theory, but that theory may still distort their constitutional interpretation in subtle ways.

In particular, the Chief Justice and Justice Scalia do not break with living-constitution theory quite as fundamentally as they think. Both reject the notion that constitutional meaning may change as society changes. At the same time, Rehnquist and Scalia agree with living-constitution theory—and break with the natural law political theory that inspired the Founders’ constitutionalism—to the extent that they doubt that nature can justify constitutionalism and the rule of law. In the Chief Justice’s words, for instance, constitutional rights “assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice but instead simply because they have been incorporated in a constitution by a people.” Scalia and Rehnquist are positivists. When constitutional text seems clear to them, they enforce text; when the text is not clear, they respect simple majority rule.

This mix of positivism, textualism, and majoritarianism is hard to reconcile with the notion of constitutional government, and it is often hard to apply in practice. For instance, Scalia and Rehnquist have both argued for interpreting the Takings Clause to reach “regulatory takings,” zoning and other regulations that strip use-rights in property without confiscating the property. Far from changing takings law, their efforts have only discredited their jurisprudence. In the 19th century, state courts were quite comfortable applying state takings guarantees to protect the natural right to “private property,” and specifically the natural right to use one’s property, against takings. In Lucas v. South Carolina Coastal Council, by contrast, Justice Scalia brusquely asserted that there is no “objective, value-free basis” for distinguishing between a regulation of use rights and a regulatory taking, but then held a South Carolina beachfront regulation confiscatory anyway. Since Scalia sees no “objective” way to understand regulation, it was hard for him to explain why regulatory-takings create the same dangers of confiscation and majority tyranny as ordinary physical takings. Sever the Takings Clause from its natural law roots, and it seems disingenuous—even activist—for a positivist like Scalia to apply the Takings Clause to any act except for an outright condemnation of land.

On the other hand, in areas like the 14th Amendment, there may be more to say in defense of Justice Scalia’s and the Chief Justice’s interpretive methods than many readers of this journal may appreciate. To illustrate, in Troxel v. Granville, the Court splintered on the question whether the Due Process Clause bars states from giving grandparents and other outsiders visitation rights when the children’s parents object. Justice Thomas—who is more sympathetic to the natural law than Rehnquist or Scalia—voted to strike down the state visitation-rights statute under challenge. He followed Court precedent that recognizes parents’ right to control their children’s upbringing as a fundamental (and natural) right. To follow this precedent, he put off the question whether the original meaning of the Due Process Clause has anything to say about fundamental parental rights. If he had reached this question, the answer would have been “No.” The Due Process Clause was not originally meant to protect liberty and property against any deprivation that invades a natural right. The original meaning only required the government to follow “due process”—procedures and substantive laws validly enacted and in force—before depriving liberty and property. Justice Thomas’s opinion trapped him in a natural law dilemma. To vindicate parents’ natural rights, he may have violated judges’ natural law duty to uphold the rule of law by respecting the ordinary meaning of constitutional text. Justice Scalia dissented in Troxel to keep the Court’s Due Process Clause precedent closer to the Clause’s original meaning. He may have been right, even if for the wrong reasons.

The Living Constitution Reconsidered

Most important, however, living-constitution theory shows how American constitutional law has developed more or less consistently with the prescriptions of modern liberal political theory ever since the Progressive Era. These connections explain why Starr’s account of the Rehnquist Court is more accurate than Schwartz’s. They also explain why the Democrats are now fighting to stop the president from appointing judges whom he calls “strict constructionists,” and whom the Democrats call “activists,” to the federal bench. True, a narrow five-vote majority on the Supreme Court has enforced the structural Constitution, in areas like constitutional federalism and the Takings Clause. At the same time, two of those five votes, Justices Kennedy and O’Connor, have stressed repeatedly that they will quickly jump off the conservative bandwagon before it ever really threatens the centralized bureaucratic welfare state. In the realm of individual rights, Lawrence confirms what should already have been obvious from decisions like Casey. A solid six-vote majority still embraces the living-Constitution conception of sexual privacy; in coming years that majority will surely keep this au courant.

Once we understand how living-constitution theory guides constitutionalism even on the seemingly conservative Rehnquist Court, we may ask some really fundamental questions. To begin with, if the Rehnquist Court is still enlisting the services of the federal courts to the living-constitution project, has it contributed to the cause of constitutional government? If constitutionalism is supposed to restrain, direct, and improve popular opinion, it is worth wondering whether a constitutionalism that “grows” with changing opinion is a constitutionalism worthy of the name. There is not much constitutionalism left in the regulation of property and economic rights. Congress can still pick and choose its jurisdiction in economic affairs, bureaucracies can still make up and enforce rules of conduct against the people they regulate, and guarantees like the Takings Clause set only worst-case limits on what the bureaucracies do. At the same time, Casey and Lawrence suggest, living-Constitution constitutionalism is making it more and more difficult for either popular opinion or the rule of law to superintend matters that touch on the family.

Does the living-constitution vision, this mix of bureaucracy and radical autonomy, ultimately contribute to the happiness of the American people? Alexis de Tocqueville worried that America might someday embrace a government that “facilitates [the people’s] pleasures,…directs their industry, [and] regulates their estates.” If it did, he asked, what would stop that government from reducing the people “to being nothing more than a herd of timid and industrious animals of which the government is the shepherd”?

Such questions are discomfiting to ask and difficult to answer. But they are the sorts of questions that a constitutional people should expect its senators to consider in the confirmation process.