In honor of today (September 17) being Constitution Day, I have compiled a list of significant Supreme Court decisions which have advanced the cause of liberty in this country through the application of liberal principles of constitutional interpretation. It is my opinion that none of these decisions could have been reached through principled adherence to the methods of interpretation which John McCain advocates and which his judicial appointees would presumably practice. Most of the following decisions are ones which can not be directly derived from the text of the Constitution if strictly interpreted according to the original understanding. I have not included Roe v. Wade because of its exceptionally contentious nature and have instead included cases the outcomes of which most Americans would tend to support independent of the legal reasoning used to obtain those outcomes. These are decisions which have made our country a more just, equitable, and free society, and they would not have been possible had originalism been the prevailing theory of constitutional interpretation over the past 60 years.
Skinner v. Oklahoma (1942)
In this case, the Court struck down an Oklahoma law which mandated compulsory sterilization for anyone convicted of three or more felonies which the state believed to involve "moral turpitude." The rationale behind the law was based on the eugenic idea that criminality was hereditary and that this practice would prevent bad genes from being passed on. The Court determined that the law was a violation of the Equal Protection Clause because it did not apply to white collar crimes. The interpretation of the Equal Protection Clause employed here is much too broad to be based solely on the original understanding of the clause. It requires that the justices make judgments as to whether the distinction which the state has made in applying different types of sentences to different classes of offenses is a reasonable one.
Brown v. Board of Education (1954)
While it is now inconceivable for even the staunchest originalist to express opposition to Brown because of the exalted status it has obtained as a kind of "superprecedent," it nevertheless remains true that the decision is extremely difficult to justify on originalist grounds. Racial segregation in schools was widespread at the time that the Fourteenth Amendment was adapted and continued without serious challenge for many decades after the amendment’s implementation. There is little historical evidence to suggest that the amendment was widely viewed as condemning this practice. In order to strike down segregation in public schools, the Court had to look at the underlying principles of the Equal Protection Clause and apply the facts of this case to those principles independent of how the clause was originally understood.
Mapp v. Ohio (1961)
This case applied the exclusionary rule to the states, holding that evidence obtained by state law enforcement officials through unconstitutional methods could not be presented in court. While this rule is a prophylactic measure not explicitly mentioned in the Constitution, it is necessary in order for the criminal procedure protections in the Bill of Rights to carry any force at all. Without the exclusionary rule, there would be little to keep law enforcement officials from violating the constitutional rights of defendants, as they could still use tainted evidence to obtain convictions.
Sherbert v. Verner (1963)
While this decision was essentially gutted by the conservative Rehnquist Court in Employment Division v. Smith (1990), it served for years as a bulwark protecting the free exercise of religion. This decision held that a neutral and generally applicable law which has the effect of burdening an individual’s ability to freely exercise one’s religion violates the Free Exercise Clause of the First Amendment unless the government can show that it is promoting a compelling state interest in the least restrictive manner possible. This strict scrutiny test functioned to create a legal presumption in favor of religious liberty.
Reynolds v. Sims (1964)
The rationale of this case has become so widely accepted and so deeply ingrained in our thinking about democratic principles that it is hard to believe that it was so controversial when it was passed down. This case established the "one person one vote" principle requiring that legislative districts be approximately equal is population. Before this, many states had legislative districts with huge variations in population thus giving certain groups of people disproportionate political influence. Many Southern state legislatures would design districts in a manner to severely dilute the weight of black votes and inflate the votes of whites. "One person on vote" has come to be widely viewed as a bedrock principle of democracy, but this decision drew accusations of judicial activism by many conservatives when it was passed down.
Griswold v. Connecticut (1965)
In striking down laws banning the use of contraceptives by married couples, this case established that the Constitution includes a right to privacy which protects individuals from government intrusion into some of the most intimate and personal matters of life. Eisenstadt v. Baird (1972) extended this protection to include contraceptive use outside of marriage. Unlike some of the cases I have listed, originalists and conservatives of all stripes continue to be openly hostile towards these cases and subsequent cases dealing with the right to privacy.
Miranda v. Arizona (1966)
Another case which continues to evoke to ire of conservatives and is often cited as a paradigmatic case of liberal judicial activism, this decision set the requirement that defendants in police custody be informed of their basic constitutional rights including their right against self-incrimination and their right to consult with an attorney. While the Constitution does not say that defendants must be explicitly informed of these rights, the majority in this case believed that such a requirement was necessary for the Fifth and Sixth Amendments to be anything beyond dead words because of the rampant practice of coerced interrogations on behalf of law enforcement officials. It was common for police manuals at the time to train interrogators in methods aimed at coercing confessions from defendants and thus strategically undermining their rights. Along with Mapp, this decision and subsequent decisions building on it have done a great deal to protect the rights of the criminally accused. Such protections are core to our Bill of Rights.
Loving v. Virginia (1967)
This decision struck down all laws banning interracial marriage, which were still in place in 16 states at the time. Like Brown, no one disagrees with the decision in this case today. Also like Brown, it is very difficult to reconcile this decision with originalist principles. Anti-miscegenation laws existed in the colonies before this nation’s founding, and they continued to be widespread well beyond the Civil War and the ratification of the Fourteenth Amendment. Similar to segregation in schools, there is little evidence that anti-miscegenation laws were widely viewed as problematic under the Fourteenth Amendment when the amendment was passed. In Pace v. Alabama (1883), a case only 15 years removed from the Fourteenth Amendment’s ratification, the Supreme Court ruled unanimously that laws banning interracial sex did not violate the Equal Protection Clause because they applied equally to blacks and whites. This is probably the best glimpse into the original understanding we have, and it is an ugly reality.
Katz v. United States (1967)
In this case, the Court ruled that the Fourth Amendment prohibition on unreasonable searches and seizures applies to government eavesdropping on electronic communications. Given the ubiquity of electronic communication in modern life, this case is of great importance in protecting the privacy of individuals from the prying ear of government. Had this ruling gone the other way (as it did in Olmstead v. United States (1928), the case which was overruled by Katz), the government would be free to wiretap telephone conversations or intercept private internet communications at will without any need to obtain a warrant.
Atkins v. Virginia (2002)/Roper v. Simmons (2005)
In these cases the Court ruled that the Eighth Amendment ban on cruel and unusual punishment prohibits the execution respectively of individuals deemed mentally retarded and those who were minors when they committed the relevant crime. Both of these cases drew vigorous dissents from conservative justices on originalist grounds, and both of these cases represent great steps forward for our society in promoting respect for human dignity.
Lawrence v. Texas (2003)
In striking down anti-sodomy laws as unconstitutional, the Supreme Court ruled that the state may not impose itself upon matters of private sexuality between consenting adults. While this represents the greatest judicial victory to date for gay rights activists, it is also a major victory for those who believe there are certain matters which, because of their nature as intensely private and intimate, should not be subject to the meddlesome hand of the state.
Boumediene v. Bush (2008)
A case from the most recent Supreme Court term, this decision was the most far reaching of the cases dealing with the rights of Guantánamo Bay detainees. In striking down the Military Commissions Act of 2006, the Court affirmed the centrality of habeas corpus to our constitutional system of justice. The Court determined that the detainees are entitled to habeas corpus protection and that the government may not detain individuals indefinitely without presenting charges against them and allowing them an opportunity to rebut such charges. Unlike with the other cases I have discussed, I actually believe this decision flows relatively directly from the text of the Constitution and is not at all inconsistent with originalist principles. However, because the Court’s four principled conservatives angrily dissented in this case, I include it as a liberal decision. This decision is a historic victory for due process and the rule of law. It will surely stand in the way of any future executive or legislature that would seek to deny individuals of their most fundamental legal rights.
While it would be unreasonable to suggest that a Supreme Court dominated by McCain appointees would overturn all of these cases if given the chance, I believe it to be the case that the interpretative method employed by such judges would be mostly inconsistent with the decisions I have listed. The balance of the Court hinges on this presidential election given that the two oldest justices, Stevens and Ginsburg, are both liberals. If McCain were given the chance to fill these seats with two more judges in the mold of Justice Scalia, the balance of the Court would swing from moderately conservative to far right. Such a Supreme Court would undoubtedly be more hostile to the expansion of liberty in this country, and it would likely work to undue much of the progress which has been made over the years.
Happy Constitution Day!