Vol. 10 No. 3 (March 2000) pp. 212-216.

WE THE PEOPLE: THE FOURTEENTH AMENDMENT AND THE SUPREME COURT by Michael J. Perry. New York: Oxford University Press, 1999. 273pp.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University.

Michael Perry begins WE THE PEOPLE (not to be confused with Bruce Ackerman's series of the same name) with an account of a symposium published in 1996 by the conservative journal FIRST THINGS. Its title, "The End of Democracy: The Judicial Usurpation of Politics?" conveys its message. "Again and again," wrote the editor in chief, "questions that are properly political are legalized, and even speciously constitutionalized." The symposium's language was incendiary enough to provoke the resignation of several members of its editorial board. The idea that "the United States was perilously close to a revolutionary situation" because the Supreme Court was "behaving like a band of outlaws" (p. 5) was apparently too much even for the neoconservative establishment. So why does a committed liberal like Perry take this journal so seriously? Because, surprisingly enough, he agrees with much of what it had to say. The resulting book is a valuable, though ultimately unpersuasive, contribution to constitutional scholarship. Although far from a must-agree, it is definitely a must-read.

The comments Perry quoted struck this not entirely impartial reader as odd characterizations of the Court's output in the last twenty years, especially considering their source. Were the authors referring to the likes of INS v. CHADHA (1983), BOWSHER v. SYNAR (1986), and U.S. TERM LIMITS v. THORNTON (1994)? These rulings could be interpreted as usurpations of representative government, an institution often identified with democracy. But, no, it's the Fourteenth Amendment that the courts are allegedly using as a basis for all this specious constitutionalizing. Specifically, what aroused the collective ire at FIRST THINGS was a lower court decision favoring physician-assisted suicide, later reversed by the outlaws. The symposium's statement that rulings like this "could be fatal not only to many people who are old, sick, or disabled, but also to popular support for our present system of government" (p. 169) recalls the ongoing debate over the abortion decisions. And, indeed, the familiar criticisms of both the substance and the process of ROE v. WADE (1973) reappear in the symposium. The Fourteenth Amendment has been a popular subject for conservative interpretation at least since Raoul Berger's GOVERNMENT BY JUDICIARY (1977) was published. However, with the partial exception of Robert Bork's defense of originalism as a way of restraining those counter-majoritarian judges, the tension between judicial review and democracy was not their primary concern. Berger's call for de-transformation, Bork's insistence on a return to the framers' intentions as "the sole legitimate premise" for constitutional

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analysis" (but only, note, "with respect to freedoms") and Edwin Meese's advocacy of disincorporation (in apparent ignorance that the Fourteenth Amendment existed) emphasized what the authors saw as the Court's lack of fidelity to text and history.

Although some constitutionalists on the center and left, including Perry himself, essentially conceded the historical argument to Berger, the emergence of narrow historical interpretations of the amendment stimulated several scholars to do their own research into the record and often to disagree with the conservatives' conclusions. William Nelson's (1988) call for moderation occupied the center. On the left appeared Michael Kent Curtis's (1986) attempt at re-incorporation, my own defense of incorporation plus (Baer 1983), and Robin West's (1994) abolitionist progressivism. Most of us found in the historical materials approximately what we wanted to find - and, whatever our opinions were, the record provided support for them. What nobody was able to do - judging by our vigorous reviews of one another's work and the continued popularity of the topic for scholars - was to convince the opposition of the rightness of our various interpretations (See Baer 1990; Baer 1995).

Now, Perry attempts to redirect the debate. His original contribution is to link Fourteenth Amendment interpretation with democratic theory. In so doing, he manages to break the nexus between review of the record and ratification of personal opinion. "The constitutional issues I examine in this book," he writes, "have each been resolved by the Supreme Court on the basis of a claim about what the Fourteenth Amendment forbids or requires."Critical analysis of these decisions requires "first inquiring what norms 'We the People' - through their elected representatives, of course - established in adding the Fourteenth Amendment to the Constitution" (p. 12). This is not a capitulation to the FIRST THINGS ideology. Perry defends many rulings that aroused conservative ire, like decisions on affirmative action, sex discrimination, and homosexuality (ROMER v. EVANS, 1996, not BOWERS v. HARDWICK, 1986). Nor is it a prescription of absolute democracy: "there are matters which the Constitution (wisely) did NOT leave to ordinary political processes" (p. 9). However, it was the people - to use Perry's grating terminology, "We the People" -- who put these matters outside the political process. Finally, Perry concludes that the Court has read into the Fourteenth Amendment norms that the people left WITHIN this process. Prominent among instances of actual or potential judicial usurpation of democracy are two of the areas identified by FIRST THINGS: abortion and assisted suicide.

How does Perry get here? He reviews the same historical materials his predecessors in Fourteenth Amendment scholarship have examined. What he finds in the privileges or immunities clause of Section 1 is not dissimilar to what others have located in the equal protection clause: a "fundamental antidiscrimination norm" prohibiting any law premised on "a view to the effect that the disfavored citizens are not truly or fully human;" on "hostility to one or more constitutionally protected choices;" or "is otherwise not reasonably designed to accomplish a legitimate governmental purpose" (p. 76). His interpretation is unlikely to persuade anyone not predisposed in its favor - although what Perry does with it might. The minimalist school of Fourteenth Amendment interpreters - some of whom contributed to the FIRST THINGS symposium - would vehemently dispute this conclusion in so far as it implies that the

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amenders had any such thing in mind. However, if we follow Justice Holmes in emphasizing what the words mean rather than what the authors intended, Perry seems to me to have done a rather good job of interpreting the clause. Like Earl Warren in BROWN I (1954) or William Brennan in SCHEMPP (1963), Perry insists that the fundamental norm must override any specific positions the amenders might have taken. Thus, even if they accepted male supremacy as legitimate according to his criteria-and they did, or at least there is no recorded instance of any legislator suggesting otherwise - "many instances of discrimination against women are based on a view to the effect that being male is normative, that Man is the fully human, the exemplary human, and that, by contrast, women are not fully human, they are, at best, defective human beings" (p. 122).

Well, sure. Once Perry has identified what he regards as the core principle of the Fourteenth Amendment, he has no difficulty justifying familiar liberal constitutional positions with respect to racial minorities, women, and homosexuals. His chapters 4 and 5 flow smoothly from his premise. He is particularly eloquent about the Court's error in BOWERS and timidity in ROMER: the Court should have explained "that discrimination against homosexuals BECAUSE THEY ARE HOMOSEXUAL violates the Fourteenth Amendment IF THE DISCRIMINATION CANNOT BE DEFENDED IN TERMS THAT REBUT THE INFERENCE THAT THE DISCRIMINATION IS BASED ON THE IRRATIONAL FEAR AND LOATHING OF HOMOSEXUALS" (p. 140, emphasis original).

Perry approaches abortion and assisted suicide with the organizing question that has guided the earlier chapters: are these laws unreasonable, destructive of protective rights, or based on the premise that those hurt by them are less than fully human? "Antidiscrimination arguments for the result decreed by the Court in ROE V. WADE," he insists, can bear little if any "of the weight that is typically put on them" (p. 163). These arguments MIGHT bear the weight of more limited rulings; for example, the Court could invalidate "a state's decision to outlaw abortion even in cases of rape, IF that decision would not have been made - if, instead, a decision to allow such abortions would have been made-but for the fact that the condition (pregnancy due to rape) affects only women" (p. 161, emphasis original). General prohibitions on elective abortion, however, can reasonably be based not on "sex-selective sympathy and indifference" but on "good faith concern for fetal life." A judge considering such a law cannot "discern any explanation, much less justification" for concluding "that were [the law's] effect visited equally on men, the restriction would not have been enacted" (p. 162).

It is difficult for a feminist scholar of a certain age to read these passages without recalling the slogan, "If men got pregnant, abortion would be a sacrament." It matters little whether the basis of anti-abortion laws is sex-selective sympathy. Their impact is so sex-weighted that they are incompatible with sexual equality. Whether or not they are premised on a notion of female inferiority, they reinforce it. Control over fertility is a necessary condition for women's equal citizenship and liberty; and, at present, that control demands the right to terminate a pregnancy. Conceding - as we must -- the truth of Perry's reminders that anti-abortion laws can adversely affect men, the difference of degree remains enormous. Even if the Bill of Rights or the Thirteenth Amendment were irrelevant to the question

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of abortion, and the right had to rest on the Fourteenth Amendment alone, there is no shortage of reasonable arguments that can be mounted in defense of a conclusion that the matter belongs, not to the democratic process, but to the individual. Even if ROE retarded rather than accelerated public acceptance of abortion rights, how many millions of women were saved from unwanted pregnancy? Judicial "usurpation" of an issue from "democracy" may have less dire consequences than societal usurpation of a decision from individuals.

A similar problem exists, of course, with laws against physician-assisted suicide: they interfere with a decision of crucial importance to one individual life. Perry's plea to "let democracy do its work" (p. 177) discounts this fact. The primary difference between abortion and assisted suicide is one Perry does not stress: the equal protection argument is weak if not nonexistent in the latter that area, since the number of people who may get pregnant is no more than half the number who will die. However, since the Court did not legalize physician-assisted suicide - and was unanimous in its refusal to do so (WASHINGTON v. GLUCKSBERG 1997) - Perry is left with the abortion rulings as his one example of illegitimate judicial usurpation. It is disturbing that this one example involves the one gender-specific constitutional claim. The reviewer is left wishing that the author evinced greater familiarity with the feminist legal scholarship of the last twenty years. Perhaps the most important lesson of this book is the continuing need for doctrinal analysts and feminist jurists to study and understand one another's work.



REFERENCES:

Baer, Judith A. 1983. EQUALITY UNDER THE CONSTITUTION: RECLAIMING THE

FOURTEENTH AMENDMENT. Ithaca, N.Y.: Cornell University Press.

______. 1990. "Making Moderation an End in Itself: William Nelson's

FOURTEENTH AMENDMENT." LAW AND SOCIAL INQUIRY 15: 321-341.

______. 1995. "Review of Robin West, PROGRESSIVE CONSTITUTIONALISM." THE LAW AND POLITICS BOOK REVIEW. 5: 130-132.

Berger, Raoul. 1977. GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE

FOURTEENTH AMENDMENT. Cambridge, MA.: Harvard University Press.

Curtis, Michael Kent. 1986. NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS. Durham, N.C.: Duke University Press.

Nelson, William E. 1988. THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE. Cambridge, MA: Harvard University Press.

Symposium. 1996. "The End of Democracy: The Judicial Usurpation of Politics?"

FIRST THINGS. 67:18-42.

West, Robin. 1994. PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT. Durham, N.C.: Duke University Press.


CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BOWSHER V. SYNAR, 478 U.S. 714 (1986).

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BROWN v. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483 (1954).

IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA, 462 U.S. 919 (1983).

ROE v. WADE,. 413 U.S. 110 (1973).

ROMER v. EVANS, 517 U.S. 620 (1996).

SCHOOL DISTRICT OF ABINGTON TOWNSHIP v. SCHEMPP, 374 U.S. 203 (1963).

U.S. TERM LIMITS v. THORNTON, 514 U.S. 779 (1994).

WASHINGTON v. GLUCKSBERG, 521 U.S. 702 (1997).


Copyright 2000 by the author, Judith A. Baer.