Legal Neutralism
Principles, Politics, and Fundamental Law.
by Herbert Wechsler.
Harvard University Press. 171 pp. $4.25.
This volume is to be commended for rescuing four important essays by one of the eminent figures in American constitutional law from the obscurity of the professional journals. Though the essays were written over the past fifteen years, they nevertheless remain timely and instructive, proceeding as they do from Professor Wechsler’s central concern “with our national efforts to govern our polity by fundamental law.” “Nuremberg Trial Issues”—profitable reading in view of the Eichmann trial—defends Nuremberg as “essentially just and constructive”; “Mr. Justice Stone and the Constitution” evaluates the contribution of a great judge; “The Political Safeguards of Federalism” emphasizes the extent to which the Constitution, particularly through the role it reserves to the states in selecting the federal government’s elected officials, has influenced our political life.
It is, however, Wechsler’s most recent effort, “Toward Neutral Principles of Constitutional Law,” which will attract most attention—and controversy. The impact of “Neutral Principles” is such that it had scarcely appeared in print before two noted Yale law professors, Louis H. Pollack and Charles L. Black, Jr., rushed to publish their separate dissents.
The primary purpose of Wechsler’s essay is to develop a standard of adjudication which he would have both judges and critics use in reaching and evaluating Supreme Court decisions. He describes this standard as one of “neutral principles,” having considered and rejected such alternative adjectives as “impartial,” “disinterested,” “impersonal,” and “general,” because they lack the “overtones” conveyed by “neutral.” These overtones, he teasingly admits, are “somewhat enigmatic,” but finds this no real deficiency, saying, “this is an enigmatic subject.”
In any case, it seems clear that Wechsler wants the Court to come to its decisions according to principles which would apply equally well in every comparable situation and which would not take into account the ensuing result. An instance of such neutrality is the Court’s having enunciated the principle of federal power over interstate commerce and then having applied it impartially—citing it as justification for both the pro-labor Wagner Act and the pro-business Taft-Hartley Act. Wechsler’s hope, therefore, is for constitutional adjudication that proceeds according to a “genuinely principled” process, “resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved.”
But how relevant is this principle when applied to the concrete legal problems that come before the Court? Wechsler meets the question directly by applying his concept of neutrality to some of the modern Court’s most significant decisions, i.e., those upholding the rights of Negroes to vote in Southern primaries, to own houses in spite of restrictive racial covenants, and to attend integrated public schools. His verdict: while he thoroughly approves of these results, the decisions fail to rest on “neutral principles that satisfy the mind.” Wechsler’s problem with the first two, the white primary case of 1944 and the restrictive covenant case of 1948, is a consequence of earlier Supreme Court rulings. Ever since the Reconstruction period, the Court had generally construed the Fourteenth and Fifteenth Amendments as only preventing racial discrimination by states; actions of private individuals have been held to be beyond federal control. Thus public authorities may not exclude Negroes from jury service or deny them the right to vote, but there is nothing to prevent white Southerners from denying Negroes equal access to their theaters, restaurants, and stores (not to mention the use of all sorts of subtle pressures to bar Negroes from voting or serving on juries). Under this theory, the Supreme Court had held that the Democratic party in the Southern states was merely a “private club” and therefore free to keep Negroes out of its primaries. Then, in 1944, the Court, overruling an earlier decision, declared that since primary elections were an integral part of the federally-protected election process, political parties which excluded persons from their primaries because of race were engaging, in effect, in action prohibited to the states. Similarly in the restrictive covenant case, until which it had been widely assumed that homeowners could make—and enforce—private agreements designed to prevent property from falling into the hands of minority groups, the Court announced a new concept of state action. It recognized individual freedom to enter into agreements not to transfer property to racial minorities, but declared judicial enforcement of such contracts to be forbidden state action.
_____________
To wechsler these conclusions rely on disingenuous interpretations of state action; hence the two decisions are simply “ad hoc determinations of their narrow problems, yielding no neutral principles for their extension or support.” The primary case, for example, strikes at private discrimination—that is, “party organization upon racial lines”—which is not constitutionally proscribed. However, this line of reasoning, to borrow Wechsler’s expression, “fails to satisfy the mind.” The primary in the South is the election. Furthermore, neutrality inheres in the Court’s decision: neither whites nor Negroes are to be denied, either by overt or covert state action, the right to cast a meaningful ballot. So also with the housing covenant case: its principle prevents Negroes and whites, both equally, from asking courts to enforce their discriminatory agreements. Yet for Wechsler there is an insoluble contradiction in the Supreme Court’s imputation of state discrimination to court actions that enforce covenants which, admittedly, individuals are free to make. But, following Professor Louis Pollack, law imposes “public force” upon men. When discriminatory arrangements of public consequence prevail because enforced by state courts, then state action has occurred. If the choice is whether or not a white homeowner should be able to rely on a court to give force to his prejudices—thereby denying a Negro freedom to live where he chooses—why should the state throw its weight on the side of he who would discriminate?
Wechsler is also dismayed by the reasoning in the school segregation decision, which places him with a host of Northern scholars and legal writers. Rarely, if ever, have those who applauded a momentous decision been so anxious to dissociate themselves from its supporting opinion. (A comparable reaction would have been for Jefferson Davis to rise gravely in the United States Senate, expose the fallacies of the Dred Scott opinion, and then warmly endorse its pro-slavery conclusions.) True, part of their criticism is the product of hindsight, born of the deep South’s successful resistance to the decrees. There is force nonetheless in the contention that for the Court to rest its decision on the “fact” that segregation is inherently unequal, is to expose the decision to challenge by other “facts,” and to neglect more persuasive arguments: the patently discriminatory intent of the segregation statutes, the presumed invalidity of laws making racial classifications, and the sophistry of earlier decisions upholding segregation (which argued, for instance, that “the assumption that the enforced segregation of the two races stamps the colored race with a badge of inferiority” inheres solely in the construction Negroes “choose” to put upon segregation laws).
However, these more cogent grounds still fail to satisfy Wechsler’s quest for neutrality. As he sees it, the crucial issue in the segregation case is “freedom of association.” Segregation, he grants, denies Negroes freedom to associate with whites. By the same token, “integration forces an association upon those for whom it is unpleasant or repugnant.” So, given a situation where the choice is one between denying association to those who desire it or imposing it on those who dislike it, he then asks: “Is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?” His answer is, no.
With all due respect, this reasoning is untenable. Association versus non-association is not the choice. Rather, the choice is whether or not Negroes and whites are to receive equal treatment under the law in the enjoyment of state-sponsored facilities. Whites for whom school integration is distasteful remain free to practice non-association by attending private schools. Where the state establishes a system of compulsory public education, true neutrality decrees it be open equally to all.
The difficulty with Professor Wechsler’s “neutral principles” is their generality. Few, except those who dismiss law as mere will, can disagree that Supreme Court adjudication is most persuasive when grounded in principled, impartial, and consistent reasoning. Certainly, the judge or critic who upholds Congressional power to investigate business abuses and would deny its use to investigate alleged subversion is impaled on a logical dilemma created by his own inconsistency. But what, precisely, are “neutral principles”? They are not, Wechsler makes clear in an introduction written after the first reaction to his thesis, principles devoid of values. Is not the crucial part of the concept, then, the values that are to be applied neutrally, as, for example, in the school litigation where to Wechsler (but not to me) the operative values involve the right to association and non-association? This being the case, Professor Wechsler is likely to find that his thought-provoking piece produces much agreement “in principle” (who, after all, wishes to avow a commitment to biased principles?), but little consensus on specific decisions.
_____________
