As a blockbuster docket comes to a close, we ought to remind ourselves of the importance of understanding our legal institutions, norms, and practices.

I frequent a running trail repurposed from an abandoned railroad corridor. The tracks, given way to marathoner footprints and horseshoe spoors, were built in 1969 to connect tobacco fields to processing plants. An admirable feat of vertical integration, it was initially effective until the railroad company was bought out a decade later and the steel and ties scrapped as eagerly as they were installed. That industrious spirit festered into a wraith, progress into a dumping ground, life into a tobacco barn graveyard. Consider it a warning. 

It is impossible to understand one’s place in an institution without first learning how that institution developed. Everything is a historical contingency: those few surviving tracks rusting among the pebbles; habitat configurations forever altered by train whistles; democratic systems that, like wasted tobacco barns dotting the trail every half-mile, persist rarely by vigilance and invariably by happenstance. Our political order and the constitutional principles upon which it is predicated endure not by reflection and choice, as Hamilton impelled in Federalist 1, but by accident. They are normative only because we’ve been born into a world in which they already exist. It is incumbent on us to study their wood grain before they, once ubiquitous and expected, collapse from dereliction and rot in the leaves. Legal philosophers and social contract theorists deem democracy a constant exercise, an artificial formation in a world naturally devoid of political society. Step one in protecting democracy, then: recognize its transience. 

Legal education elucidates the tension between democratic institutions’ behaviors and the lofty democratic ideal. We can contextualize the legal present by learning how constitutional challenges have perpetuated and resolved the philosophical contradictions in the American political canon and policies that have hampered founding definitions of equality and freedom. Law and its interpretive methodologies depend on human values rooted in a mercurial cultural substrate with particular social attitudes, institutional practices, and schools of moral thought. To understand one is to understand the rest. In other words, legal education makes accessible a moral record, a metric to understand values of another culture at another time. Step two in protecting democracy: examine its failures. 

Pernicious laws contribute to the democratic impulse’s erosion, too. Corporate news media commoditize outrage and force feed viewers at the ideological trough because misinformation is constitutionally protected speech. We are immured in conformity because the state colludes with private actors to surveil, shadow ban, censor. Institutional cynicism abounds because unelected judges heed the pleas of an incompetent legislature to, through judicial fiat, fill in the gaps of broad statutes mangled by deliberation. To identify threats to democratic society and actively maintain it, we must understand how democratic processes work at a functional level and the positive laws — federal elections statutes, suffrage amendments, the Electoral College — that govern this system. Step three in protecting democracy: study its modus operandi. 

Law-related education engenders an understanding of who we are. It is a definitionally capacious discipline: laws of gravity explain how the world works physically, the law of parsimony instructs scientific analysis, the law of nature posits strictures on human rationality. Everything that we are extends from the legal context that binds us. What states know about citizens sharpens the scalpel with which they slash unorthodoxy, is the chisel and hammer with which they sculpt assumptions. The scheme of law-related education is itself a product of curriculum regulation, a program cast through a prism of political and cultural values. Legal education becomes a tool not just to understand the world at large, but to understand ourselves and how that world has formed us. Step four in protecting democracy: see it as a construction of ourselves. 

Legal education, perhaps most crucially, allows us to imagine what could be. A little rebellion now and then might be a good thing, and it might be a political imperative in the Lockean tradition, but one first must understand that against which they are revolting. Rallying cries and protests movements need a fulcrum. The law is both the definition of the status quo to repudiate and the channel through which that rejection is practiced. It, like tobacco fields to processing plants, links the mud of our political morass to the chimney stacks of an enlightened and assiduous legislature, the romantic and agrarian world sowing the philosophies to the industrial one instantiating them. Whatever the people might turn the law into – railroad track, dumping ground, running trail – it is our burden in perpetuity. Our creation. Our progress. 

So study up.

What does Nobel laureate Toni Morrison’s only short story say about the intersection of liberal democracy and privacy?

Privacy is foundational to America’s past, a constant in its legal practices, a tacit promise that weaves through the ethos of its people and their institutions. Physical privacy and the “home is the castle” maxim, recognized as early as 1499 and expressly in Seymane’s Case (1604), have foundations in British common law, from which the American legal system largely draws (Solove 4). Decisional privacy, or individual autonomy in making decisions about bodies and families, remains a flashpoint in political and ethical circles today, from abortion to assisted suicide (Belin 482). Information privacy, which the US Supreme Court has labeled the “individual interest in avoiding disclosure of personal matters” to private and state actors nonconsensually, is the prerequisite for unconstrained academic and intellectual expansion on the web (Whalen v. Roe 429 U.S. 589). Institutional and doctrinal threats to privacy in the modern world seem insurmountable, from the genesis of the shrouded Foreign Intelligence Surveillance Court to the courts’ repeated attenuation of Fourth Amendment protections in private third-party data collation contexts (Solove 27). The amount of privacy which is still retained in a modern mass surveillance state, and the extent to which legislators invest political capital in its continued protection, fuel a constitutional discourse that brings privacy into the public square. In her “Recitatif,” Toni Morrison, by omitting Twyla and Roberta’s races and rendering the reader the perpetrator of race-based surveillance, argues that privacy makes possible participation in the liberal democratic institutions that serve as its final avenue for protection.

Anonymity is fundamental to self-actualization and political advocacy, a nexus that American legal scholars have historically recognized. During the colonial era, British naval officers requested “general warrants” from magistrates to ransack and seize the “personal papers of political dissenters, authors, and printers of seditious libel” without clarifying what or who, specifically, was to be seized (Solove 5). This paradigm put on the defensive the politically and socially subversive, a demographic that is itself a moving target, a buoy in the fickle and mercurial waters of public temperament. As regimes change, so do their enemies, the once voiceless and compliant remodeled into the enemy.

Because expression is germinated in private, and Roberta and Twyla shared room 406 and “changed beds every night” during their psychologically impressionable years, their political and epistemological codependency (protest signs incoherent unless placed against the other; relationship maimed by Maggie’s attack) makes sense (Morrison 1). Privacy legislation, consequently, has classical liberal connotations and takes the form of a negative liberty scheme because its primary concern is protection from state intervention. In the 1880s, American state supreme courts quashed grand jury subpoenas for telegrams and state legislatures passed statutes prohibiting disclosure of telegrams by telegraph company employees (Solove 8). After the 1890 United States Census pried into the details of citizens’ diseases, disabilities, and finances – sparking public outrage and calls for new confidentiality protections – publicizing census information illegally was made a felony (Solove 6).

This fear of unchecked state surveillance is a fundamentally democratic one. What states know about their citizens sharpens the scalpel with which they slash unorthodoxy, is the chisel and hammer with which they sculpt assumptions. What people willingly share – data exhaust they leave hovering online, narratives and opinions they lend in conversations whose metadata is tracked by telecommunications companies under Federal Communications Commission regulation – fuels how they are perceived, and in a social strata, how one is perceived determines who they are. Ex-post political indoctrination is replaced with ex-ante, but either way, choice cowers in the cross hairs.

What is left unsaid is only a minor inconvenience to perpetrators of ideological or informational surveillance who seek to psychoanalyze web users. Multicultural marketers target their advertising to consumers only with “ethnic-sounding” names, even if no additional racial data is provided (Mizrahi). The database industry’s business model depends on drawing conclusions from incomplete and piecemeal records of personal identifiable information ceded online (Redman). Law enforcement collates user information, amalgamating seemingly innocuous and constitutionally acquired data points into a mosaic that discloses a large amount about a target’s life in the aggregate (Harvard Law Review). “Recitatif” finds its most cogent argument on privacy not in the information Robert and Twyla fail to convey to each other, but that which Morrison withholds from the reader. In his attempt to weave together Roberta and Twyla’s characteristics – their hair, food, class – to make a logical deduction about their races, the reader finds himself practicing the surveillance techniques of a data broker, National Security Agency analyst, and micro-targeter.

With this extrapolation comes the degradation of choice. Once the reader projects a racial identification onto Robert and Twyla, Morrison’s gaps in the text fill themselves in, the reader assuming the role of the storyteller (Morrison 347). A network of stereotypes, of unsaid narratives, begins to qualify the characters’ actions and adjudicate their disputes with a racial undercurrent. Here, socially constructed doctrines, those which pervade the individual mind and assume some governing authority over its thoughts like an intellectual prism, restrain the reader’s interpretation of the narrative, their intellectual expansion and decision making, and their choice. If Hume was right in his “bundle theory,” and human identity is merely a collection of disparate perceptions set in a broader social context, the more time one spends under the influence of public dispositions, the less able they are to choose organically. 

The structural inverse to this restriction of choice is online speech, which has remained relevant to privacy discourse since Edward Snowden’s 2013 leak verifying that NSA contractors and the United Kingdom’s Government Communications Headquarters (GCHQ) surveil user content and metadata on a mass scale (Greenwald et al.). Instead of filling in the unstated, as the reader does in “Recitatif,” when online, one sucks at the bottle of the intellectual authority’s unambiguity, depending not on context and intuition, but on the narrative ambitions of the re-tweeter. And while internet service providers, social media platforms, and telecommunications companies present themselves as platforms rather than gatekeepers of thought because the perception of liberal Internet has market value, privately owned public access systems do not qualify as state actors and face no constitutional liability for banning certain speech (Manhattan Cmty. Access Corp. v. Halleck 139 U.S. 1921). In effect, social media is not democratic; one is subjected to the will of content moderators, denied a system of due process when their tweets are removed, and forced to remain in the good graces of the technocratic elite. Debate in the public square stiffens, partly, into an alloy of the politically and socially acceptable.

This enervation of choice – caused by information privacy encroachments, surveillance, and online speech governance – is alarmining because of its political implications. Liberal democracies are dependent on unfettered choice, embodied institutionally in franchise. A thesis with roots in natural rights theory, participation in a democratic political society is reflected in voting power. Branches of political science in the Western tradition deal solely with voting strategy and analyze how voters respond to political contexts on a ballot that has been secret — the ultimate symbol of the connection between political life and privacy — since the Progressive Era of the early twentieth century (Przeworski 272).

In legal scholarship, privacy theory is traditionally rooted in liberal individualism, which posits an autonomous self who, “in a world characterized by pervasive social shaping of subjectivity,” develops the capacity for rational deliberation and choice, absent of pressures from cultural context (Cohen 1906). Here, privacy is a prerequisite for political stasis, for absolute immunity from societal and technological pressures and their residues of influence. Even decisional privacy has political associations, expressed in the textual bifurcation of the constitutionally implicit “right to association”: the right to expressive association, to join political advocacy groups and grassroots organizations, has First Amendment protection; the right to intimate association, to choose sexual partners, has privacy protection. In constitutional theory, privacy and political participation are linked. While the dichotomy between privacy and politics seems appealing and conduct that transverses it feels alarming – for example, Twyla dragging the personal “Is Your Mother Well?” sign to a public rally, impelling “Roberta [to take] her lunch break and [not] come back for the rest of the day or any day after” (Morrison 35) – it is superficial. 

The liberal individualist narrative of the self with an autonomous, pre-cultural core is misguided, however, because “the self who is the real subject of privacy law and policy is socially constructed, emerging gradually from a preexisting cultural and relational substrate” (Cohen 1905). Predictive policing algorithms perpetuate already discriminatory arrest records, ChaptGPT relies on pre-existing text and fails at content ingenuity, microtargeting strategies are informed by past financial records. The sovereignty of social climate and its restrictions on individual political autonomy are undemocratic and exacerbated by selective content moderators, a history of political witch hunts, and cancel culture that goes beyond a justified remediation of hate.

The undemocratic inequities of choice, with some members of a political society given more social mobility than others, implicates privacy. Roberta sits, complacent and forward-moving, at the diner, while Twyla festers in it as a convict, a Sisyphus engineering her own happiness and picking poppies from the land mine. Here, Roberta “laughed then a private laugh that included the guys but only the guys,” while Twyla “was standing there with my knees showing out from under that uniform” (Morrison 17). For the former, privacy is an active creation, masterfully played like a prop at the right time in the scene, an essential ingredient of power to craft an esprit de corps and, therefore, alienate the dissimilar. For the later, privacy is the pillaged thing, yearned for as the only way to escape the line of fire. The definitional dimensions of privacy, as impacted by experiential choice, makes clear the indubitable connection between the two.

Twyla, for example, traipses through the grocery store, observing gentrifiers with a scientific intrigue, while Roberta has fully integrated with and assimilated into the conventions and niceties of her beau monde brethren. Here, Roberta breaches a sense of economic privacy, offering her “dark blue limousine” for Twyla to hold her Klondikes, foreign alongside Roberta’s “bunch of asparagus and two cartons of fancy water” (Morrison 22).

The undemocratic implications of surveillance are seen most strongly in the context of racial surveillance strategies. While systemic privacy invasion is not isolated to race, race-based surveillance has informed much of the American surveillance state’s programs, whether it be targeting Italian and Jewish immigrants during World War One, civil rights leaders during the 1960s, or Muslim Americans post-9/11 (Roberts and Vagle). And although “Recitatif” is textually deracialized, the environment it depicts is not post-racial; Morrison makes it clear that Roberta and Twyla “looked like salt and pepper” and “even the New York City Puerto Ricans and the upstate Indians ignored us” (Morrison 5). 

There is, however, a significant difference in the role that race plays in surveillance strategies carried out by the reader versus the state. For the reader, identity surveillance – in the context of “Recitatif,” the habit of scrutinizing Twyla and Roberta’s characterizations, desperately seeking to extract racial associations – is predictive and uncertain. Because Morrison has deracialized the narrative, the reader fills in the gaps by subconsciously racializing the characters themselves, but is unsure if they are correct. On the other hand, the state, equipped with demographic census information and the capacity to easily access user data collated by private third-parties without constitutional debris, knows the race of its citizens already. The surveillance technologies of state actors draw from codified racial data in the furtherance of systematized law-enforcement programs. 

While both surveillance infrastructures seem to be a source of epistemological empowerment – the reader a semi-autonomous authority in the storytelling, the state a chooser of statistical even-handedness over human arbitrariness in policing and bail-setting – the technocracy that AI buttresses is, like all governments, constrained by the sentiments and dispositions of the people it governs. 

The capriciousness of the upper surveillance echelon renders “individuals and communities fixed, transparent, and predictable,” whether it be NSA senior staff calling for the detention of Academy Award-winning documentarian Laura Poitras at the border for her criticism of the Iraq invasion, State Department official Richard Armitage leaking covert Central Intelligence Agency officer Valerie Palme’s occupation to The Washington Post as political retribution, or early FBI director Edgar J. Hoover surveilling Dr. Martin Luther King, Jr. and other civil rights leaders (Cohen 1905). It renders them Twylas, unduly aware if they know Hendrix, if they really live in Newburgh, if they are saying the right things to the right people. Ultimately, it renders them orthodoxical. The ubiquity of choice architecture erodes liberal democratic impulses, and just-for-you content fills Amazon shopping carts and social media feeds. The implication is a proliferation of extremism and tribalism, which are antithetical to deliberative democracy and pose major legal questions in themselves. Are Google and Twitter liable for aiding and abetting terrorist groups if their algorithms recommend ISIS videos to certain users based on their watch history? How does Apple News design political bubbles, and how do these bubbles restrain democratic processes? Regardless of the answers, this can be assuredly said: if choice is the lifeblood of democracy, privacy is its IV.

Works Cited

“4 Business Models for the Data Age.” Harvard Business Review, 20 May 2015, https://hbr.org/2015/05/4-business-models-for-the-data-age. 

Bellin, Jeffrey. “Pure Privacy.” Northwestern University Law Review, vol. 116, no. 2, 2021, pp. 464-513. 

Cohen, Julie. “What Privacy is For.” Harvard Law Review, vol. 126, no. 7, 2013, pp. 1904-1933. 

“Data Mining, Dog Sniffs, and the Fourth Amendment.” Harvard Law Review, 10 Dec. 2014, https://harvardlawreview.org/2014/12/data-mining-dog-sniffs-and-the-fourth-amendment.

Greenwald, Glenn, et al. “Edward Snowden: The Whistleblower behind the NSA Surveillance Revelations.” The Guardian, Guardian News and Media, 11 June 2013, https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance. 

Morrison, Toni. “Invisible Ink.” The Source of Self Regard: Selected Essays, Speeches, and Meditations, Alfred A. Knopf, 2019, pp. 346-350. 

Morrison, Toni. Recitatif: A Story. New York, Alfred A. Knopf, 1978. 

Mizrahi, Isaac. “Multicultural Marketing Investments Expected to Grow in 2022.” Forbes, Forbes Magazine, 25 Jan. 2022, https://www.forbes.com/sites/isaacmizrahi/2022/01/24/multicultural-marketing-investments-expected-to-grow-in-2022/. 

Przeworski, Adam. “Freedom to Choose and Democracy.” Economics and Philosophy, vol. 19, no. 10, 2003, pp. 265-279. 

Solove, Daniel. “A Brief History of Information Privacy Law.” Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age, edited by Kristen Mathews, Practicing Law Institute, 2016, pp. 3-51. 

Supreme Court of the United States. Whalen v. Roe 429 U.S. 589 (1977). 22 Feb. 1977. JUSTIA. 

Supreme Court of the United States. Manhattan Cmty. Access Corp. v. Halleck 139 U.S. 1921 (2019). 17 June 2019. JUSTIA. 

Vagle, Jeffrey, and Dorothy Roberts. “Racial Surveillance Has a Long History.” The Hill, The Hill, 4 Feb. 2016, https://thehill.com/opinion/op-ed/264710-racial-surveillance-has-a-long-history/.

Today’s post considers legal theory, social epistemology, and the role of the state in American political life in conversation with a piece of canonical literature.

The philosophical canon has been enamored with the individual for centuries. Egoism, existentialism, hedonism, libertinism, solipsism – all are meat picked off the academic bones of the self. Economic theories, from classical liberalism to mutualism, and psychological analysis concluding that self-interest is humans’ underlying motivation extend from a scholarly concern with the “few cubic centimeters inside your skull” (Orwell 27). But to suggest that individual thought is an untamable beast reveling in the autonomy of cerebrospinal fluid is myopic. In his 1984, George Orwell parallels the prerogatives of the Party with German idealist Immanuel Kant’s epistemological theories to argue that personal thought is governed by external forces of the state. 

Much of 1984 is protagonist Winston grappling with beliefs inconsistent with Party dogma: “freedom is the freedom to say that two plus two makes four” (Orwell 81), “the confessions [of Jones, Aaronson, and Rutherford] were lies” (Orwell 78), “there was a direct, intimate connection between chastity and political orthodoxy” (Orwell 133). Belief, in an epistemological sense, is inextricably linked to language. Most contemporary philosophers – notably former Slusser Professor of Philosophy at the University of California, Berkeley Donald Davidson – characterize belief only in a linguistic framework, concluding that is must be sentential and propositional (Andrews Interpreting autism: A critique of Davidson on thought and language). Language influences thought. Theorists, including Kant, have also long recognized that thought influences language. His theory of “nonage” – the inability to reason without another’s guidance, which develops when men acquiesce as “minors” and permit their thoughts to be controlled by “guardians” and their formulas – is similar to O’Brien’s goal of tearing the “human minds to pieces” and reassembling them in “new shapes of your own choosing” (Kant What is Enlightenment?; Orwell 267). The external, political relationship between minor and guardian qualifies thought. Because thoughts are conjured in words, when reasoning is restricted, language becomes inaccessible. When language becomes inaccessible, future thoughts are out of reach. This is the rationale for Newspeak. 

The Party, including O’Brien’s interrogation of Winston, rejects the argument that true thought is determined by empirical experience and the perception that “reality is something objective, external, existing in its own right” (Orwell 249). Party logic reflects the Kantian epistemological approach. In his The Critique of Pure Reason, Kant presents the theory of transcendental idealism: knowledge begins with experience, but men must consider the forces affecting the human senses that produce representations of that experience. All knowledge and existence (in a metaphysical sense) is mind-dependent, and men can only process objects in the context of their sensibilities (Stang Kant’s transcendental idealism). O’Brien’s argument that “reality is not external” but “exists in the mind of the Party, which is collective and immortal” (Orwell 249) extends Kant’s theory: when the state sets the personal mind’s sensibilities through doublethink and illogical party slogans, men no longer have the capacity to cognize liberty at all. The collective mind, then, has control over how the individual mind operates.

Some may argue that certain information is universally true so no sovereign can reject it, relying heavily on Kant’s depiction of a priori knowledge: that which is absolute and independent of experience or sensuous impressions. As Kant concedes, though, a priori knowledge rarely exists, but is often deducted from a posteriori knowledge: things learned from experience in an empirical sense. Intuition is largely driven by experience. This accounts for Julia and Winston’s different approaches to and intentions for subverting the Party. She had “grown up in the world of the Revolution, knowing nothing else, accepting the Party as something unalterable, like the sky, not rebelling against its authority but simply evading it, as a rabbit dodges a dog” (Orwell 131). He has a chronic “feeling that the conditions [he] lived in were intolerable and that at some other time they must have been different” (Orwell 73). 

The juxtaposition between acceptance on her part, and reservation on his, reflects that most knowledge is determined by experience. Although Winston seems to have a priori knowledge that the Oceania paradigm was not a historical constant, feeling it viscerally, Julia does not. Because this interpretation is not universal, it cannot be a priori by definition; it is likely attributable to the fact that Winston has disparate memories of before the Revolution. The implication is that, once people of Winston’s generation or before die, Big Brother’s absolutism will not seem novel – it will become the status quo, the collective milieu that all future individual thought is raised in. With the historical record already falsified and incinerated in memory holes, there is no archive demonstrating that the Party is not the norm. 

Orwell’s propagation of Kantian epistemology as the basis of absolutism, and how collective influences individual thought, has particular relevance in the modern American political climate. Journalism has taken the position of Big Brother, with media tycoons using networks to publicize their political views: the Murdochs of Fox News, the Sulzbergers of The New York Times, Bezos of The Washington Post. Filter bubbles, targeted advertising, and technocratic algorithms force-feed the populace at the ideological trough, developing a political orthodoxy where people think in headlines and phrases of the news outlets they follow. This breeds political tribalism, with voters contemplating policy in the rhetoric their party supplies, sitting blinded by partisan dogma in a new nonage, and limiting their empirical observations of dissenting circles by engaging solely with people who reaffirm their opinions. Politics have become a new religion, with a series of words and phrases mindlessly recited in the political nave under the assumption that they will yield social salvation. When St. Martin’s Church – celebrating the patron saint against poverty, alcoholism, beggars, soldiers, and all the vices of Oceania – is replaced with a museum for “propaganda displays” and “enemy atrocities,” this is the start of absolutism (Orwell 99). When the programs of the state become credo, this is the start of absolutism. When an external authority dictates individual political thought, this is the start of absolutism. 

Works Cited:

Andrews, Kristin. “Interpreting autism: A critique of Davidson on thought and language.” Philosophical Psychology, vol. 15, no. 3, 2002, pp. 317-332. 

Kant, Immanuel. “What Is Enlightenment?” Columbia University, http://www.columbia.edu/acis/ets/CCREAD/etscc/kant.html. 

Orwell, George. 1984. Signet Classic, 1961. 

Stang, Nicholas F. “Kant’s Transcendental Idealism.” Stanford Encyclopedia of Philosophy, Stanford University, 4 Mar. 2016, https://plato.stanford.edu/entries/kant-transcendental-idealism/#:~:text=In%20the%20Critique%20of%20Pure,properties%20or%20relations%20among%20them.

Hello! I have recently gotten my op-ed on data privacy published. It can be found here.

As I finish a comprehensive piece regarding the North Carolina gerrymandering case the Court put on its docket this term, Moore v. Harper, here is a piece assessing the political courage of Former Massachusetts Representative Barney Frank, written in the same spirit as President Kennedy’s famous 1956 book.

On May 23, 1987, the Boston Globe ran a piece quoting Massachusetts Democratic Congressman Barney Frank: “If you ask the direct question: ‘Are you gay?’ The answer is yes. So what?” (Carlisle “Barney Frank Talks progress needed on LGBTQ rights”). A politician coming out as gay in 1987 America when 78% of the public thought same-sex relations were “always wrong” amounted to a courageous risk, ostensibly an act of political suicide (Smith Public Attitudes toward homosexuality). Most gay officials at the time came out because of scandal; Gerry Studds, the first openly gay House representative, was censured after admitting to a relationship with a page. Coming out on one’s own terms was unheard of, but Frank “was ashamed of myself for hiding my membership in a universally despised group” (Frank “My Life as a Gay Congressman”).

Even before coming out, Frank’s political record reflected a pro-LGBTQ attitude. In 1972, Frank was the only candidate for the Massachusetts State House to tell gay and lesbian groups that he would support legislation repealing anti-sodomy statutes and banning job discrimination (Carlisle “Barney Frank Talks progress needed on LGBTQ rights”). In 1973, he sponsored a bill to overturn Massachusetts sodomy laws. In 1990, his fifth term in the House of Representatives, he helped amend the 1900 Immigration Act, adding a prohibition on the use of sexual orientation as criterion to deny immigrants entry into the US (S.358 – 101st Congress (1989-1990): Immigration Act of 1900). Frank’s self-expression, though inspirational, does not qualify as political courage alone. Gay politicians came before him, and more after. It was also his inclination to question his own colleagues when fighting for what he thought best that made him a maverick, a habit needed now more than ever when any intra-party resistance is deemed disloyal.

During his 32-year tenure in the the House, Frank took a middle ground to advocate for a judicious expansion of gay rights. He was at odds with a homophobic public opposed to the liberties’ existence, a Democratic Party that had yet to emphasize their imperative, and gay activists who promoted immediacy over durability in their protection. One prominent battle was opposing the 1996 Defense of Marriage Act (DOMA), which denied national state recognition of same-sex marriages and federal benefits to same-sex couples. 

Frank was criticized by gay marriage activist groups for scorning the short-term enthusiasm that made them “tactically and strategically unwise” (Solman “Why Barney Frank Took a Cautious Approach to Same-Sex Marriage”). He thought it politically rash for advocates to insist that all states would have to recognize same-sex marriages after the 1993 Hawaii Supreme Court suggested that banning them was a violation of its state constitution. Frank reflected on his objection in a 2012 interview: “A, that’s not good law, and B, it was terrible politics. That’s one of the reasons we had a harder time getting votes against DOMA” (“The Legacy of Barney Frank”). In 2009, Frank refused to vote for New York Representative Jerrold Nadler’s Respect for Marriage Act, which would have repealed DOMA, pointing to lack of political will. “If we had a chance to pass that, it would be a different story, but I don’t think it’s a good idea to rekindle that debate when there’s no chance of passage in the near term” (Thrush “Frank won’t back Marriage Act repeal”). He pushed for litigation rather than a precarious legislative house of cards susceptible to future public winds, dismaying advocacy groups. President Kennedy advised politicians to listen to their own consciences, not public pressures. And that Frank did, disregarding the haste of those with whom he shared a common goal. 

In 1996, an overwhelming 68% of Americans did not think that same-sex marriages should be legally valid, so popularly elected Democratic leadership supported DOMA (Gallup “LGBT Rights”). Following President Bill Clinton’s declaration that “marriage is an institution for the union of a man and a woman,” the bill passed with large, veto-proof majorities (“Timeline: Bill Clinton’s evolution on gay rights”). Frank was among only 65 Democrats in the House to oppose it.

President Kennedy writes “when party and officeholder differ as to how the national interest is to be served, we must place first the responsibility we owe not to our party or even to our constituents, but to our individual consciences” (Kennedy 35). Frank voting against most Democrats to protect a marginalized group to which he is a member literally represents Kennedy’s call to “compromise our political positions, but not ourselves” (Kennedy 40). Rather than incentivized by political fortunes, Frank’s dissent aimed to free “vulnerable people from the terrible oppression that was homophobia,” even if it meant resisting the president of his own party (“The Legacy of Barney Frank”).

After DOMA, Frank founded the National Stonewall Democrats in 1998 to represent the LGBTQ community while public perception of gay marriage was shifting. In 2003, the Massachusetts Supreme Court was the first in the US to recognize same-sex marriages (Massachusetts Supreme Judicial Court Goodridge Et Al. v. Dept. Public Health). By 2015, 55% of Americans supported gay marriage, the same number that opposed it just ten years earlier (Gallup “LGBT Rights”). On June 26, 2015, the Supreme Court granted same-sex marriages legal recognition throughout the United States (United States Supreme Court Obergefell v. Hodges). Without figures like Frank, public opinion may have never swung to the other side of the pendulum. 

Frank defied his party’s leadership and the public with his DOMA vote, and the gay rights groups he allied with through the process of securing the rights that DOMA denied. For those literate in the words of Kennedy, this is true political courage: “The liberty of this country and its great interests will never be secure if its public men become mere menials to do the biddings of their constituents” (Kennedy 197). Or, as Frank put in his own apothegmatic words, “true political courage involves standing up to one’s friends” (Frank 36). 

The ideal would be if this essay never had to be written, if the Dodd-Frank Act became the gleaming highlight on Frank’s long legislative resume. But progress cannot continue without recognizing those who pioneered it, or praising the courage that it took to do so. As is the case for all trailblazers, lauding Frank’s career as the first voluntarily openly gay congressman is in contradiction with his goal that everyone “be defined not by whom they love, but by what they accomplish” (Staff “Barney Frank: Assessing a controversial legacy”). 

On July 7, 2012, Frank married his long-term partner, Jim Ready, who “‘had a crush on him for 20 years,’” ever since Frank’s courageous public declaration that he was gay (Goh “Barney Frank gets married; the bridegrooms wore black”).

Bibliography

Carlisle, Madeleine. “Barney Frank Talks Progress Needed on LGBTQ Rights.” Time, 19 Oct. 2021, https://time.com/6108032/barney-frank-lgbtq-history-month/. 

Frank, Barney. Frank: A Life in Politics from the Great Society to Same-Sex Marriage. 2015. London: Picador, 2016. 

Frank, Barney. “The Legacy of Barney Frank.” Interview by E.J. Graff. The Advocate, 1 Dec. 2012, https://www.advocate.com/print-issue/current-issue/2012/12/01/legacy-barney.

Gallup. “LGBT Rights.” Gallup, 11 Nov. 2021, https://news.gallup.com/poll/1651/gay-lesbian-rights.aspx. 

Goh, Melisa. “Barney Frank Gets Married; the Bridegrooms Wore Black.” NPR, 8 July 2012, https://www.npr.org/sections/thetwo-way/2012/07/08/156458523/barney-frank-gets-married-the-bridegrooms-wore-black. 

“Goodridge Et Al. v. Dept. Public Health.” GLAD, 22 Jan. 2020, https://www.glad.org/cases/goodridge-et-al-v-dept-public-health/. 

Kennedy, John F. Profiles in Courage. London: Hamish Hamilton, 1964.

Smith, Tom W. Public Attitudes toward Homosexuality. National Opinion Research Center/University of Chicago, Sept. 2011, https://www.norc.org/PDFs/2011%20GSS%20Reports/GSS_Public%20Attitudes%20Toward%20Homosexuality_Sept2011.pdf. 

Solman, Paul. “Why Barney Frank Took a Cautious Approach to Same-Sex Marriage.” PBS, Public Broadcasting Service, 31 Dec. 2012, https://www.pbs.org/newshour/politics/why-barney-frank-took-a-cautious-approach-to-same-sex-marriage. 

Staff, The Week. “Barney Frank: Assessing a Controversial Legacy.” The Week, 8 Jan. 2015, https://theweek.com/articles/479762/barney-frank-assessing-controversial-legacy. 

S.358 – 101st Congress (1989-1990): Immigration Act of 1990, https://www.congress.gov/bill/101st-congress/senate-bill/358.

“Timeline: Bill Clinton’s Evolution on Gay Rights.” MSNBC, NBC Universal News Group, 24 Sept. 2020, https://www.msnbc.com/hardball/timeline-bill-clintons-evolution-gay-rig-msna19626. 

United States, Supreme Court. Obergefell v. Hodges. 26 June 2015. Legal Information Institute, Cornell University Law School, https://www.law.cornell.edu/supremecourt/text/14-556.

Is it still worth advocating for?

It is a false dichotomy to debate whether existing legal structures, extending from equal protection jurisprudence, are sufficient to promote sex equality, or if the ERA is required. Few legal barriers faced by women would be remedied by the ERA; procedural obstacles and statutory ambiguities bear a greater impact on sex discrimination than the absence of an amendment. 

Proponents argue that the ERA’s most consequential impact on constitutional scholarship would be treating sex as a suspect classification entitled to strict scrutiny: government discrimination is only constitutional if it is “narrowly tailored” to a “compelling state interest.” Precedent mandates that sex classifications receive less rigorous intermediate scrutiny: sex-based discrimination is valid if it is “substantially related” to an “important state interest.” Ostensibly, discriminatory laws would be less common if they face a demanding threshold to be considered constitutional. A closer examination of legal challenges women face, however, concludes that impediments are rarely equal protection-based, rather results of poor legislation.  

For example, it could be argued that the ERA would not encourage stricter protections from sexual violence. The Supreme Court struck down the 1994 Violence Against Women Act’s §13981, giving sex-based violence victims a private right of action to sue assailants in federal court, as a violation of the Commerce Clause. Chief Justice Rehnquist rejected the theory that, although §13981 did not control direct economic activity, all enterprises in the aggregate were impacted by sex-based violence such that a jurisdictional hook was present to permit regulation. It is fashionable to contend that if sex received strict scrutiny, the Court would have applied the aggregation principle to uphold regulation, as it had in cases regarding race. This argument is flawed. Famously, the Court eschewed equal protection arguments when upholding federal statutes prohibiting private party racial discrimination, like Title II of the Civil Rights Act of 1964. The Court used aggregation in order to not use equal protection. Liberal use of interstate commerce power to uphold nondiscrimination statutes does not come on a basis of which scrutiny level is used for a specific classification, but on whether or not the Court takes judicial notice of a discriminatory action’s bearing on interstate activity. Congressional factual findings overwhelmingly, and conclusively, demonstrated that racial discrimination bore a negative impact on interstate activity; similarly conducted reports propagated that gender-based disparate treatment by state authorities, which §13981 sought to prevent, does not even exist in most states. Strict scrutiny is not the silver bullet. 

Likewise, barriers to filing sexual harassment claims in schools are not due to scrutiny, but statutory ambiguities. Although the Court has ruled that monetary damages for sexual harassment are obtainable in an implied private right of action under Title IX, Congress has not described the situations or scopes of available remedies. The Court must infer how Congress would address monetary damages in cases not expressly provided, like teacher-student sexual harassment, in which the Court dismissed a lenient standard of liability for schools based on respondeat superior and constructive notice. It proposed one requiring a school official to have actual notice of, and take deliberate indifference to, a teacher’s misconduct. The Court tasked itself with filling in congressional vagueness; integral to its ruling was the speculation that Congress did not envision funding-recipient liability when a recipient was unaware of discrimination. ERA advocates smeared the Court – claiming that it valued school officials’ privacy over student protections from sexual harassment – and falsely maintained that a more stringent level of scrutiny is the cure-all to discrimination. Relevant in the case was not whether sexual harassment is discriminatory, but that Congress failed to delineate its remedies in the first place. Statutory shortcomings inhibit equality.

According to a 2017 report by Pew Research Center, 42 percent of women have faced job discrimination because of their sex, urging proponents to proffer the ERA as a panacea. But even if deemed ratified, it would not alleviate procedural obstacles to filing a charge of discrimination under Title VII of the Civil Rights Act with the Equal Employment Opportunity Commission (EEOC). Title VII has a statute of limitations (180 or 300 days, depending on a state work-sharing agency) that is shorter than those for civil actions like torts, breach of contract, and other anti-discrimination laws. Its short limitations period is aggravated by doctrines abruptly defining its trigger point, now identified as when decisions to discriminate are made, even if not implemented until later dates. Claimants must swiftly recognize discrimination and file. The Court has also refused to apply equitable tolling doctrines or a discovery rule to Title VII. These obstacles are not isolated to sex, but are faced by all protected demographics, including race. Therefore, receiving strict scrutiny would not spare women of procedural hurdles to employment nondiscrimination enforcement – institutional overhaul would. 

It is still worth wondering: why not ratify the amendment anyways? 

There is a cogent argument that the ERA is bad politics. With about ⅓ of American adults thinking that the US has come far enough in terms of gender equality, and 17 percent of Republicans saying it has gone “too far,” is it prudent to invest political troops in a battle that, if won, would be ineffective at alleviating most gender discrimination? Would it not be strategic to force ERA opponents to grudgingly accept alternative and more impactful measures instead, like changing the process of filing Title VII employment discrimination complaints? When something is deemed superfluous by ⅓ of American adults, there is a limited amount of legislative progress regarding the issue foreseeable in the near future; one must be judicious in determining what that progress should be.

Concern over an easily distracted polity is compounded by the controversy surrounding the ERA’s ratification in the first place. In 1972, the amendment was sent to state legislatures for ratification, with prefatory text permitting only seven years to do so. By 1979, less than the requisite ¾ of states had ratified, impelling Representative Elizabeth Holtzman of New York to propose a joint resolution extending the deadline to June 30, 1982. Her measure received less than two-thirds of the vote in the House and Senate (per Article V of the Constitution, amendments require ⅔ of both houses of Congress to be proposed to state ratifying conventions). While Holtzman’s revision itself was not ordinarily considered to take the effect of an amendment, it altered the introductory text of an one already proposed by Congress. Is it permissible for Congress to refine the text, even if not substantive, of an amendment that it already sent to state legislatures? If so, would the voting requirements be the same as those for any amendment, or would it be permissible to treat the new text as a normal joint resolution requiring only a simple majority?

However interesting, these constitutional questions ultimately do not matter in the context of the ERA, since it failed to meet its 1982 deadline after a series of states rescinded their prior ratifications and no additional states ratified during the extension. After states approved the 27th (“Madison”) Amendment in 1992, 202 years since being proposed by Congress, pro-ERA lawyers cited Nevada, Illinois, and Virginia’s post-1982 ratifications to deem the ERA constitutionally valid. The also pointed to the Court’s ruling in 1939’s Coleman v. Miller holding that amendments are considered pending before state ratifying conventions indefinitely. What they left out is that this is not a bright-line rule, and applies only if Congress fails to delineate a ratification deadline in an amendment’s prefatory text. Therefore, the Court’s second point in Coleman — that Congress has a plenary power to determine if an amendment is properly ratified — is not applicable to the ERA, whose proposing clause included a time constraint on state legislatures.

If the ERA debate resurfaced in political conversations today, pedantic disputes surrounding the soundness of its ratification would eclipse conversations about its intentions. Once the inevitable political chaos ceases, subsequent gender rights legislation would most likely be postponed, worn-out politicians asserting that they’ve “been there, done that.” And, ultimately, the ERA would still be unsuccessful at settling discrimination American women face. Solely elevating a classification to strict scrutiny is insufficient to achieve absolute protection. Instead, rectifying poorly written statutes themselves – both substantive and procedural – is mandatory to achieve sex equality. The ERA may have the appearance of being a revolutionary gender-rights safeguard, but it would be nothing more than a hollow promise.

Bibliography

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).

Cannon v. University of Chicago, 441 U. S. 677 (1979).

Craig v. Boren, 429 U.S. 190 (1976).

Forde-Mazrui, Kim. “The ERA’s Threat to Sex Equality.” The University of Minnesota Gender Policy Report. Jul. 14, 2020, https://genderpolicyreport.umn.edu/the-eras-threat-to-sex-equality/#:~:text=The%20ERA%20would%20likely%20subject,efforts%20to%20advance%20sex%20equality. 

Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).

Geduldig v. Aiello, 417 U.S. 484 (1974).

Katzenbach v. McClung, 379 U.S. 294 (1964).

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

Marr, Chris. “Last-Minute Bid to Save Right to Abortion Comes via ERA Lawsuits.” Bloomberg Law. May 20, 2022, https://news.bloomberglaw.com/daily-labor-report/last-minute-bid-to-save-right-to-abortion-comes-via-era-lawsuits. 

Parker, Kim and Cary Funk. “Gender discrimination comes in many forms for today’s working women.” Pew Research Center. Dec. 14, 2017, https://www.pewresearch.org/fact-tank/2017/12/14/gender-discrimination-comes-in-many-forms-for-todays-working-women/. 

United States v. Morrison, 529 U.S. 598 (2000). 

Wickard v. Filburn, 317 U.S. 111 (1942).

Was 1937’s West Coast Hotel v. Parrish really that unprecedented?

Among the moments in American history that witnessed a shift towards stronger federal executive power, President Franklin Delano Roosevelt’s administration invariably comes to mind. In response to the economic crisis of the Great Depression, FDR introduced his “New Deal,” an unprecedented expansion of regulatory executive power that permanently changed interpretations of liberalism, shifted the role of government in American political life, and “altered the constitutional system in ways so fundamental as to suggest something akin to a constitutional amendment had taken place.” This burgeoning welfare and regulatory state was not met without resistance, however. The Gilded Age economic establishment advocated alongside classical liberals for a return to laissez-faire policy, arguing that it was consistent with the present doctrinal regime dictated by the Supreme Court of the United States.

The foundation of the industrial legal era which they referenced was the Court’s rationale from 1905’s Lochner v. New York, in which the theory of substantive due process – pointing to the Due Process Clause of the 14th Amendment to hold that certain fundamental rights are implied in the spirit and tenor of the Constitution and can never been infringed on by state action – was utilized to render minimum wage statutes and other labor regulations unconstitutional violations of the “right to contract.” It was shocking to the public, then, when the Court reversed this 32-year-old precedent at the basis of early 20th-century substantive due process jurisprudence in 1937’s West Coast Hotel v. Parrish, upholding a Washington minimum wage law for women. The public was quick to point out that the unforeseen doctrinal shift came less than two months after FDR announced his Court-packing bill in the House, the Judicial Procedures Reform Bill of 1937. Humorist Cal Tinney encapsulated popular sentiment by labeling the change a sudden “switch in time that saved nine.” The Court’s shift was nothing more than a political move to preserve its institutional integrity and statutory membership limit at nine, he thought. This characterization of abruptness, however, was misled. The Court had, for the previous century, been growing more tolerant of bureaucratic labor regulation of the private sphere; Parrish was merely one piece consistent with an enduring jurisprudential liberalization.

To invalidate Tinney’s quip, it is critical to understand the context that made it compelling. Before the 1932 election, the Court nullified an Oklahoma law requiring ice making facilities to be licensed as a violation of contract, impelling FDR to denounce the Court as an institution “in the complete control” of the Republican Party. After he took office, the Court progressively invalidated New Deal actions. On May 27, 1935, nicknamed “Black Monday” by legal historians, the Court issued three decisions detrimental to the New Deal’s executive-centered enforcement paradigm: ALA Schechter Poultry Corp v. US, which struck down a provision of the National Labor Relations Act (NLRA) permitting the President to approve trade codes drafted by businesses to ensure “fair competition”; Louisville Joint Stock Land Bank v. Radford, which nullified mortgage foreclosure limits of the Frazier-Lemke Act as a violation of the Fifth Amendment; and Humphrey’s Executor v. US, which proscribed the president from removing civil service employees from administrative agencies for reasons unauthorized by Congress.

A sense of exacerbation reverberated throughout the administration. Attorney General Homer Cummings wrote to FDR: “I tell you, Mr. President, they mean to destroy us…We will have to find a way to get rid of the present membership of the Supreme Court.” After discussing options with his brain trust, Roosevelt decided on increasing the size of the Court through congressional act, considering that Article III of the Constitution, governing the judiciary, does not set a constitutional requirement for the number of Justices.

For much of the early twentieth century and throughout the Lochner era, it appeared that the Court was becoming more hostile to the expansion of bureaucratic regulation in the private sphere, particularly in matters of labor. In J.W. Hampton, Jr. and Co. v. US (1928), the Court crafted the “nondelegation doctrine” to ban congressional delegation of legislative authority if no “intelligible principle” to guide the executive branch was provided. The convenient portrayal of this test’s development as evidence of conservative, small government-concerned judicial activism typical of the Lochner era is untenable and misconcieves the holding of J.W. Hampton itself, which upheld, rather than voided, the delegation of tax-setting powers to the President under Section 315, Title III of the Tariff Act of 1922.

Furthermore, the Court has only used the nondelegation doctrine to strike down an act of Congress twice, both in 1935: upholding an injunction to halt presidential bans on interstate shipment of petroleum beyond set quotas under Section 9(c) of the National Industrial Recovery Act, and the trade codes from Schechter. In other words, although nondelegation is “universally recognized,” it is seldom enforced, such that in legal scholarship it is “commonplace that the nondelegation doctrine is no doctrine at all.” Because a substantial portion of the uniquely anti-labor characterization of the Lochner Court, and whose doctrinal shift was supposedly unprecedented, relies on tests like nondelegation, demonstrating that they were rarely applied undermines the viability of the argument.

Before it created the systematized nondelegation test, the courts policed executive delegation with a fluctuating framework of precedent that loosely considered the extent of “true” legislative authority. In most cases, the Court upheld the challenged act, ruling that a conditional forfeiture statute based on executive inaction, a presidential tariff setting authority under the McKinley Act, a law empowering the Secretary of the Treasury to establish purity and quality standards for imported teas, and a law permitting the Secretary of Agriculture to write regulations of federal forests subject to criminal liability were constitutional. The only case where it struck down congressional delegation of legislative authority was a law giving courts power over rules of judicial procedure, not the executive.

Additionally, the argument that Parrish was influenced by FDR’s Court-packing plan is ahistorical. To understand this, New Deal Court politics are paramount. The ideological balance of the Court was in the control of two coalitions: the conservative “Four Horsemen” (Associate Justices Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter) who habitually struck down labor regulation, and the liberal “Three Musketeers” (Associate Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone) who upheld it. Chief Justice Charles Hughes and Associate Justice Owen Roberts were swing votes. After Conference on December 19th, 1936, the Court knew that Hughes and Roberts joined the Three Musketeers to uphold the minimum wage law in Parrish. FDR did not announce his Court-packing plan until February 5, 1937.

The delineation of Parrish as prodigious also rests in part on the incorrect presupposition that contract, the child of the Lochner era, had not yet been subjected to state restriction, or that it was an unassailable and absolute freedom. It is, after all, understandable to paint the conversion of a previously unqualified freedom to one abridged by due process-complying state action as momentous, but that does not make it true. As early as 1911, the Court conceded that contract is “a qualified and not an absolute right” susceptible to “reasonable regulations,” as the legislature has discretion to protect “health and safety,” promote “wholesome conditions of work,” and establish “freedom from oppression.” Twelve years later, it emphasized that legislative regulation of contracts has been justified, historically, during “exceptional circumstances,” typically ones pertaining to public health. It pointed to an 1898 case that found a Utah law setting an eight hour workday for miners to be presumptively valid after taking judicial notice of the fact that underground work posed a unique health risk worthy of intervention by the state legislature.

In his Opinion of the Court in Lochner, Justice Peckham used similar logic to decide if the New York law restricting bakery working hours to ten hours per day and 60 hours per week was a true health measure protected by state police powers. He concluded, against medical evidence and scientific information offered in voluminous “Brandeis Briefs,” that “the trade of a baker has never been regarded as an unhealthy one.” The challenged law was only labor regulation interfering with the right of sui juris workers to contract their own employment, he said. As early as 1887’s Mugler v. Kansas, the Court relied on this principle of judicial notice of existing and justifying facts to determine if a police power regulation had a reasonable relation to protecting citizen safety, morals, or health. Furthermore, the Court had already applied judicial notice to decide that working hour regulations for women and men in certain industries were permissible uses of police powers almost thirty years before Parrish. Before the Depression, the Court would shift the factual burden of proof to the state seeking enforcement of a labor-management relation legislation. It stopped doing so three years before Parrish was decided. In short, Parrish was not the watershed.

Parrish continued these practices and traditions of legal analysis. Although the Court took new judicial notice of remedial economic demands in Parrish, it also concluded that a minimum wage law for women helped protect “health, safety, morals and welfare of the people.” How unprecedented can legal reasoning be if it maintains a decades-old tendency to regulate labor for the protection of health? The judicial notice test applied in Parrish is not dissimilar to the one applied in Lochner, its supposed diametric opposite.

Arguably, public opinion cast a vastly more central role to the decision in Parrish anyway. In Morehead v. New York ex rel. Tipaldo, the Court reaffirmed the use of Lochner in striking down minimum wage laws for women and children. According to legal historians, “the public outcry following Tipaldo was simply of a different order” than cases from Black Monday. Although public opinion concurred with Parrish’s holding, evident by the fact that Americans vehemently opposed the precedents that Parrish overturned, it still did not support FDR’s Court-packing plan. His scheme was opposed in the media, by telegram traffic to congressional offices, by correspondence addressed to the Justices, and by all Republican Senators and twenty of their conservative Democratic colleagues. Chief Justice Hughes even delayed the delivery of Parrish for weeks to prevent conveying the impression that the Court reversed on minimum wage matters because of the Court-packing plan. In this way, its concern over institutional prestige did not stem from the fear that Court-packing was possible, but from the consideration that the public would think it succumbed to the pressure of a massively unpopular plan.

Later case law, too, bore a longer-lasting impact on labor regulation than Parrish ever did. In current law, demoting a fundamental right to one of lesser importance – as Parrish ostensibly did to contract – would greatly impact the vigor with which courts seek to protect it from state infringement. This is because of the Court’s use of “levels of scrutiny,” a three-teired test that determines the constitutionality of state discrimination or liberty encroachment depending on the demographic being discriminated against or the right being violated. The highest level is called “strict scrutiny,” which the Court uses for fundamental rights and “suspect classifications” like race, religion, national origin, alienage, or any classes of individuals that have been historically subjected to discrimination. For a law that limits a fundamental right or discriminates against a suspect classification to be considered constitutional, the state must prove that it is “narrowly tailored” to and “the least restrictive means” of achieving a “compelling state interest.” The second-highest standard is “intermediate scrutiny,” used for sex, sexual orientation, and legitimacy: the state must prove that its discriminatory law is only “substantially related” to achieving an “important state interest.” The third standard is called “rational basis review,” used for non-fundamental rights and non-suspect classifications like age and disability: the movant must prove that the government action is not “rationally related” to achieving a “legitimate state interest.” If a right no longer received strict scrutiny, it would be easier to infringe.

This argument is irrelevant in the context of contract, Lochner, or Parrish, though. The Court did not invent scrutiny until 1938, the year after Parrish was decided, and strict scrutiny (which contract would have received, had Parrish not been ruled) did not sprout into its modern form until the late 1950s at the earliest. Because the cases emphasizing the need for fundamental rights’ advanced protection were not on the books when Parrish was issued, contract being “declassed” was impactless.

Before scrutiny existed, courts would analyze the objectives and justifications of laws when determining if they had a proper purpose; they had to be enacted “to serve the public welfare” and could not be “arbitrary, unreasonable, or discriminatory.” A law was generally assumed to be one of the three latter characterizations if it exceeded state police powers. Before the New Deal or scrutiny, economic regulations, like those on labor, were treated the same as laws restricting other liberties. So long as state action did not “arbitrarily benefit certain classes of individuals (or economic actors) over others” or pose “discriminatory economic protectionism,” it was constitutional. When the Court determined in Lochner that New York’s labor law for bakers had no health or safety rationale, it struck it down using this framework, the same framework that organized the legal calculus in Parrish.

The Court no longer operates this way, though. Economic legislation arbitrarily benefitting specific economic actors, and economic protectionism, are increasingly being seen as valid exercises of state police powers. Law Professor at Georgetown Law Center Randy Barnett points to the 1955 Warren Court case of Williamson v. Lee Optical as the development of this “anything goes” rational basis scrutiny that economic regulations now see: “Justice Douglas replaces the realistic actual rational basis scrutiny that was employed by the lower court with a formalist hypothetical rational basis that is satisfied so long as a judge can imagine any possible rational basis for a statute.” In addition, constitutional license to regulate working hours did not come as a result of Parrish, but rather when the Court recognized the liberty of employees to organize and bargain collectively. In other words, if Parrish were decided today, its abruptness and revolutionality would be correctly placed. Because it was not, this depiction is flawed and defending it moot; the cases that established rational basis review, which post-Parrish contract would have received, and the ones weakening its application were decades down the line.

Ultimately, labeling Parrish’s doctrinal change as a sudden “switch in time that saved nine” with no precedential backing, aimed solely at appeasing the Court packing wrath of FDR, is misplaced, misleading, and misconstrued. For executively enforced labor regulations, Parrish represented an enduring trend towards more executive delegation, rather than an abrupt constitutional revolution, as evidenced by 19th-century developments in delegation cases that almost unanimously upheld the delegation in question, and by the failed and used nondelegation doctrine. For labor statutes, Parrish’s judicial notice rationale was consistent with precedent. In a broader sense, changes in the Lochner era’s reasoning were consistent with the previous century of law. In a narrow sense, its adjustments can be more cogently credited to public opinion and future cases regarding scrutiny, rather than institutional pressure. The “switch in time that saved nine” is more aptly designated a “switch in line” with American legal trends. What the name lacks in pith it makes up for in historial rigor.

Bibliography

A.L.A. Schechter Poultry Corp v. United States,  295 U.S. 495 (1935). 

Barnett, Randy. “Strict Scrutiny For Every Law? Remembering the Real Carolene Products.” The Volokh Conspiracy. Last modified Apr. 20, 2012. Accessed June 4, 2022, https://volokh.com/2012/04/20/remembering-the-real-carolene-products/. 

Bhagwat, Ashutosh. “Purpose Scrutiny in Constitutional Analysis.” 85 California Law Review 297 (1997). 

Bunting v. Oregon, 243 US 426 (1917). 

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Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U.S. 549 (1911).

Cushman, Barry. “Inside the ‘Constitutional Revolution’ of 1937.” 2016 Supreme Court Review 367 (2017). 

Dieterle, Jarrett. “Differing Levels of Scrutiny for Economic Regulations: ‘Anything Goes’ Rational Basis v. Rational Basis ‘With Bite.’” The Federalist Society. Last modified Apr. 26, 2017. Accessed June 4, 2022. https://fedsoc.org/commentary/fedsoc-blog/differing-levels-of-scrutiny-for-economic-regulations-anything-goes-rational-basis-v-rational-basis-with-bite. 

Field v. Clark, 143 U.S. 649 (1892). 

Holden v. Hardy, 169 U.S. 366 (1898).

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J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928). 

Kagan, Elena. “Presidential Administration.” 114 Harvard Law Review 2245, 2364 (2001). 

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Menacher, Richard G. “FDR’s Court-Packing Plan: A Study in Irony.” The Gilder Lehrman Institute of American History. Accessed May 23, 2022. http://ap.gilderlehrman.org/history-by-era/new-deal/essays/fdr%E2%80%99s-court-packing-plan-study-irony. 

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It’s time to debunk the misconception. Edited August 15, 2022.

When the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization last month – overturning 1973’s Roe v. Wade, which established a federal constitutional right to an abortion – paranoia ensued. Pro-choice politicians, understandably, smeared the Court as a right-wing institution tearing apart the American foundation of liberty and independence. But if that argument, which eschewed any reference to the 108-page opinion and its two appendixes, was not sensationalist enough, they have found a new thesis: with Roe gone, all privacy-based rights like gay sex and interracial marriage are bound to fall next. This is unlikely for two reasons: 1) racial and gay rights, unlike abortion, can be guarded by the Equal Protection Clause of the 14th Amendment, and 2) if the Court overturns rights overwhelmingly supported by the American public, it loses its institutional power.

Before I explain why the privacy-rights-are-dead reasoning is flawed, it is worth briefly considering the development of privacy rights in American corpus juris. In 1965’s Griswold v. Connecticut, the Court ruled that state laws banning married couples from accessing contraception were a violation of a “right to privacy” implied in the 3rd, 4th, 5th, 9th, and 14th Amendments, and emanated in the general “penumbras” of the text. This relies on a legal doctrine called substantive due process. Substantive due process holds that the word “liberty” in the Due Process Clause of the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) connotes fundamental rights that are implied, rather than explicitly protected anywhere in the Constitution, as long as they are foundational to American history or tradition, and implicit in the concept of ordered liberty (Washington v. Glucksberg, 521 U.S. 702).

The Court had used substantive due process, distinct from procedural due process (under the 4th, 5th, 6th, and 8th Amendments, the federal and state governments are obliged to provide certain procedures, like jury trial, to offenders before they deprive them of life, liberty, or property), as early as 1905’s Lochner v. New York, which identified a “right to contract” that was abridged by state minimum wage and working hour statutes. The Court stopped recognizing a right to contract by 1937, and modern substantive due process jurisprudence is marked by an emphasis on privacy, which the Court began to extend as basis for new rights: interracial marriage (Loving v. Virginia, 1967), abortion (Roe v. Wade, 1973), gay sex (Lawrence v. Texas, 2003), and gay marriage (Obergefell v. Hodges, 2015). It is fashionable to contend, then, that with the extension of privacy to abortion rejected by the current conservative Court, it is only a matter of time before it uses the same rationale to reverse valuable racial and gay rights. And there is some validity to this fear: Associate Justice Clarence Thomas urged the Court to reconsider these rights in his Dobbs concurrence.

Racial and gay rights, though, can be protected under the Equal Protection Clause of the 14th Amendment (“nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws”), which generally bars state governments and the federal government from discriminating. Abortion cannot. Regulating a medical procedure that only one sex experiences does not trigger equal protection consideration unless the regulation is a “mere pretext designed to effect an invidious discrimination against members of one sex or the other” (General Elec. Co. v. Gilbert, 429 U.S. 125). But the goal of “preventing abortion” does not present “invidiously discriminatory animus against women” (Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263).

Even if abortion was protected under an equal protection framework, the Court would most likely still have ruled that the Mississippi law in question in Dobbs would pass an intermediate scrutiny test. Arguably, Mississippi has an important state interest to protect fetal life, which has historical, statutory, and legal precedent: the Unborn Victims of Violence Act (2004) recognizes the fetus at “any stage of development” as a legal victim if it is killed during the commission of sixty eight federal crimes of violence, and 38 states have feticide laws (mostly older than 1973) under which a defendant can be convicted of first degree murder for killing a fetus, 29 of which apply previability. Pregnant women can be held liable for feticide, too, if they recklessly cause stillbirths, as in the cases of Purvi Patel, Rennie Gibbs, and Bei Bei Shuai. Because the actus reus of abortion is the seemingly same as that of feticide, permitting the former over the latter might display illogical criminal understanding.

The decisions in Roe and its subsequent Planned Parenthood v. Casey, which changed the framework for abortion protection to one rooted in the viability of the fetus, did not cite an equal protection element. Rationales protecting interracial and gay marriage did, meaning that if the Court rejected the extension of the right to privacy – and inherently substantive due process – as constitutional evidence, they would still be protected on equal protection grounds. And although only Justice Sandra Day O’Connor held that state statutes criminalizing sodomy violated the Equal Protection Clause, her thesis is compelling. When the state decides to discriminate on the basis of sexual orientation, which anti-sodomy statutes do de facto by targeting gay men, the burden of proof is on the government to display to the Court that the discrimination is substantially related to an important state interest (this test is called intermediate scrutiny). The state interest that Justice Antonin Scalia cited in his Lawrence dissent was the promotion of “community morals,” a flimsy and insufficient reason that the Court would never say qualifies as “important.” Gay sex, too, could be protected under the equal protection clause.

If the law is unconvincing to you, the Court does not even have the ability to overrule popularly supported rights, like interracial and gay marriage. Although some legal scholars, like Yale’s Alexander Bickel, argue that the Court is counter-majoritarian – meaning that it frequently nullifies laws passed by the majority if they are unconstitutional abuses of power – we must consider how often it actually acts as such. The political reality is for the Court to be finely attuned to popular opinion, since its decisions are not self-executing. As Alexander Hamilton wrote in Federalist 78, one of eighty five essays penned to convince the 1788 New York ratification convention to approve the Constitution, the Court has no dominion “over either the sword or the purse,” with no army or taxation power. It relies on the public to pressure its elected officials in the legislature and executive, who have institutional means of enforcement.

The Court must not be too controversial in its rulings for fear that its prestige will be undermined, its opinions ignored, and its power seized. Elected branches have rejected Supreme Court decisions before, after all. President Andrew Jackson advocated for the state of Georgia to ignore an 1832 case that nullified its criminal statute prohibiting non-Native Americans from going onto Native American lands without a state license. Southern states ignored the Court’s ruling in Brown v. Board of Education, and it had to issue Brown II the next year mandating that schools be integrated with “all deliberate speed.” If enough Americans do not support a court ruling, its enforcement is unlikely. According to Gallup, however, 71 percent of Americans support gay marriage, and so many support interracial marriage that its approval rating is no longer recorded.

The Court would never reconsider gay or interracial marriage, let alone overrule them, because if it does, it will be undeniably perceived as a corrupt branch securing a partisan agenda, and become an obsolete projector of opinions that no one seriously respects. Because 62 percent of the public wants abortion to be legal in all or most cases, and are therefore pro-Roe, the Court in many ways cannot issue an equally controversial ruling anytime soon; they must maintain the image of bona fide constitutional scholarship, not political advocacy.

Ultimately, the thesis that all privacy rights are at risk after Roe’s overruling is many things but accurate. It might be a way to discredit a conservative court and tarnish its public perception, so elected officials do not feel pressured to enforce upcoming controversial rulings on affirmative action and immigration. It might be a political ploy aiming to energize the Democrat base for the midterms, or pull moderate Republicans and independents away from a party that supports “sexist” and “homophobic” judges. It might be yellow journalism, clickbait that helps aid a dying industry. What is important to remember, though, is that it is practically impossible.