Of rights and choices.

If rights are a good thing, constitutional rights must be even better. But for whom?

SHOULD courts interpret the Bill of Rights narrowly (that is, more or less to mean what they say) or broadly (that is, imaginatively)? A major obstacle to our achieving or returning to a workable society is that this is not considered a serious question by most law professors, media people, and other members of the articulate class. Rights are good things, constitutional rights still better things, and fundamental constitutional rights best of all. Therefore good judges - persons devoted to bringing about the "basic social change" we so badly need - will interpret these Amendments expansively. Indeed, the very best judges, say Douglas or Brennan, will interpret them explosively, treating them as radioactive or phosphorescent, giving off emanations that form a penumbra (see Griswold). They will then interpret not only the actual Bill of Rights but also what they discern in the penumbra, which, as you can imagine, is no easy task.

There are, however, also people less devoted to social advance, mean-spirited persons who would look upon our rights as crabbed and limited things. Some of these people, unfortunately, get to be judges even Supreme Court Justices. Persons who favor human rights will castigate such judges, of course, and urge state judges to take up the crucial task of continually expanding rights on the basis of imaginative readings of state constitutions (see, e.g., Brennan in Harv. L. Rev.). What we really need, it seems, is a list of all possible rights, so that an enlightened legislature can enact them or, better still, constitutionalize them all at once. If only the Framers had had the foresight to do this, think of all the trouble Justices Douglas and Brennan would have been saved!

Lo! We're Better Off!

IN THE EVERYDAY world, benefits come only at a cots, but in the wonderful world of constitutional law, a few Justices sit and create new rights, and, lo, we are all better off. A little thought - which is a lot to ask in this area - will raise a suspicion that someone is kidding someone. Are rights really costless benefits, the more the better? "Such words as |right,'" Justice Holmes warned us, "are constant solicitations to fallacy." To add the adjective "fundamental" or "constitutional" only makes the solicitation all the more insistent.

A legal right is simply a legally protected interest; it is a jurisprudential concept, a creature of law and government. I say nothing of moral rights, as that is not my field, except to note that if we are endowed by the Creator with certain inalienable rights, I think the Creator should put more effort into enforcement. Human interests - our needs and wants - are, if not infinite, at least very great, while the resources necessary to satisfy them are limited. Competition is therefore unavoidable, and the function of rights, as of all law, is to keep it within bounds.

A problem of social choice is a problem only because interest recognized as legitimate come into conflict. We can presumably agree, for example, that freedom of expression is a good thing, as indeed is all freedom, and freedom of expression is served by permitting leaflets, parades, and demonstrations on public streets. We also agree, however, that unlittered and unobstructed streets, usable for driving and walking, are also a good thing. Unfortunately, we can't have more of one of these good things without having less of the other; some of each must be sacrificed, and the crucial question is how the choice is to be made, and by whom. The choice cannot be made by logic or on the basis of a factual determination, although some factual determinations may be helpful; it can only be made on the basis of a political judgment. The meaning of self-government, one of the two basic principles of our Constitution, is that the choice is to be made according to the collective wisdom - or at least the collective judgment - of the people. The meaning of federalism, the other basic constitutional principle, is that most choices should be made at the state rather than the national level. To permit the choice to be made for the nation as a whole by a majority vote of the nine Justices of the United States Supreme Court, unelected and not removable by elections, in the form of the announcement of constitutional rights, is to violate both of these principles. It is to deprive us of what are truly our most fundamental constitutional rights.

A constitutional right is a constitutionally protected interest, an interest immune from change through the ordinary political process. A constitutional right in a democracy is, therefore, a restriction on the power of self-government. The difficult and little-discussed question is: Why should a people that enjoys the power of self-government ever deprive itself of or limit that power? Should not the living govern the living, without either seeking to govern the unborn or agreeing to be governed by the dead? Only today's people, after all, have the advantage of both the experience of the past and the best information on today's problems.

In general, two answers are offered to this question. The first, a strong favorite of anti-democratics, is that the people cannot always be trusted to govern themselves, because they are given to fits of unreasoning passion during which they are attracted to measures that they would, during calmer moments, recognize to be ill advised. But who, then, is to be trusted to govern them? There is no alternative to the government of people by people, and the only alternative to majority rule is minority rule. In practice the alternative to majority rule is rule by a self-selected elite claiming the mandate of heaven or the justification of some ideology beyond the ken of the ordinary person. If these notions are rejected, if all people count equally and the people are seen as the sole legitimate source of political power, then limits on the people's freedom of choice can come only from themselves. The theory requires, therefore, that the people be seen as flighty but still foresightful enough to recognize this weakness in themselves and undertake to protect themselves against it - just as a compulsive overeater might put a lock and chain on the refrigerator or an alcoholic might make the bottles difficult to reach.

Ulysses and the Constitution

THIS MAY be called the "Ulysses and the Sirens" theory of constitutional limitations. Ulysses, you will recall, recognizing his fatal weakness for the Sirens' song, ordered his men to tie him to the mast in order to disable him from succumbing to their allure. Could this work? When Ulysses heard the Sirens, would he not order his men to untie him and would not his later order countermand his earlier? That is, how is it possible for the ultimate source of authority to limit itself, given that it can, by definition, abandon any self-imposed limitation at any time? How can today's majority limit tomorrow's if tomorrow's chooses not to be limited? If the people are the ultimate authority, if all people count equally, and if only living people count, then a majority of today's people can change the rules at any time.

This is not merely theoretical; it is exactly how we obtained our present Constitution. The Articles of Confederation provided that changes could be made only by the unanimous vote of the states. Each state, then, had a "constitutional" right to have the Articles continue in effect until it agreed to abandon them. The Framers of our Constitution, however, simply ignored that limitation and proposed a new form of government to come into existence when approved of by only nine of the 13 states. (Ulysses handled this problem by having his men put wax in their ears, which kept them from hearing either the Sirens or any attempt by him to countermand his earlier order.)

Since limitations on the people can come only from the people, the Ulysses theory assumes that the people can and will distinguish moments of passion from moments of calm and impose limitations on their freedom of choice only during the latter. It would seem, however, that attempts to change the basic charter of government would typically take place during times of turmoil. The way such limitations actually work in practice is not that the people when excited are limited by the views of the people when calm, but that the people are at all times directed by the views of their betters, the proponents of constitutional rights.

It would be difficult to show, of course, that the articulate class, those people whose only tools and only product are words, are less subject to moments of passion and irrational faddish notions than are other people. On the contrary, as George Orwell pointed out, "There are some ideas so preposterous that only an intellectual could believe them." Only intellectuals could believe, for example, that a nation that shoots its people to keep them from escaping is morally superior to a nation whose problem is to keep out people who desperately want to enter. Only intellectuals could insist that colleges must admit students and hire faculty on the basis of race and then purport to be dumbfounded at campus racial resentments.

In any event, the Ulysses theory cannot be used to justify any of the Supreme Court's controversial decisions of recent decades. Public opposition to the Court's rulings on busing, abortion, prayer in the public schools, and criminal procedure, for example, is not due to some passing foolish notion that more time will cause the public to think better of. These are the settled, firmly held, and, I might add, generally sound views of a majority of Americans. By frustrating effectuation of these views in the guise of discovering and enforcing rights, the Court is not protecting the people in their calmer moments from the people in passion; on the contrary, it is in every instance substituting the heated passions of doctrinaire ideologues for the cool reason of the people.

The other, and more substantial, justification for limits on self-government is that they may correct or counteract defects in the political process - that is, features of the unrestricted process that may actually frustrate majority will. For example, Milton Friedman argues for adoption of the Balanced Budget Amendment, limiting Congress's ability to spend, on the ground that the unrestricted political process will invariably result in a higher level of government spending than a majority of the people favor. Members of a special interest, such as sugar growers, will individually benefit from a government subsidy - each gaining tens of thousands of dollars a year - while members of the general population will individually be disadvantaged only a little - perhaps losing $50 per family per year - with the result that the organized pressure for the subsidy will typically exceed the unorganized opposition to it. A constitutional limitation on the number of congressional terms might be justified on similar grounds: most people may favor less spending by the Federal Government and yet feel compelled to re-elect congressmen skilled at seeing that their district gets at least a fair share of the expenditures.

Who Likes the Bill of Rights?

IF constitutional rights in a democracy are limitations on powers of self-government, it is clear that their expansion is not necessarily an advance. Our Bill of Rights is much revered, but if we didn't have it, few people - even civil-rights junkies - would favor adopting it in its present form. The ACLU, for example, has no difficulty restraining its enthusiasm for the Second Amendment, which grants a right to bear arms. The Third Amendment, having to do with the quartering of troops in wartime, is of no apparent relevance to today's problems except that it occasionally emits an emanation or two having to do with contraception. The Seventh Amendment, requiring jury trials in federal civil cases involving more than $20, is hard to see today as other than an inconvenience and embarrassment. The Fifth Amendment's privilege against self-incrimination amounts today to little more than an impediment to justice, a means of escape from punishment for the guilty. This, of course, has not prevented the Court from expanding the privilege extravagantly.

In my view, the Court should interpret the Bill of Rights, as it should interpret all provisions of law, neither narrowly nor broadly, but simply in the utmost good faith, to mean, as best can be determined, what its various provisions were intended to mean, neither more nor less. If the Court retains the power of judicial review - despite my frequent urgings to the contrary - it should enforce the privilege against self-incrimination, for example, simply because it is there, even though it is a bad idea. But when the Court uses this constitutional prohibition of compelled confessions as a springboard to decisions that come close to holding that the defendant will not be permitted to confess even if he wants to, it should not be celebrated for making still another contribution to our fundamental constitutional rights.