Every reader who followed the Bakke and Weber cases must have marveled—and not for the first time—at the power of lawyers and judges to run the country with lawsuits. In Bakke and Weber, the lawyers and judges laid down rules which will affect our own and our children’s educations and careers from now on, but they did not consult us about what they were doing. All we could do was wait nervously until the lawyers told us how they had disposed of our futures. And Bakke and Weber are not the worst cases of their kind; at least they were started by real plaintiffs with real grievances—not, as is so often the case, by shadowy plaintiffs rounded up by lawyers who want to use them to reform society.
The extraordinary power of lawyers is especially curious because few people (even among the lawyers and judges themselves) have much confidence in them. President Carter thinks their fees are too high and that they overrepresent the rich. Many judges believe most courtroom lawyers are actually incompetent (one judge has suggested that law schools be made to recall defective lawyers the way car makers must recall defective automobiles). It is true that the lawyers who do the most to run our lives for us are by no means incompetent, but neither does superior competence account for their power over us.
That power comes, instead, from their success in manipulating the process of constitutional lawmaking. This process is so far beyond the reach of democratic politics that it is virtually the private property of a small elite of practitioners, judges, and law professors who initiate, decide, and comment on constitutional cases. Lawyers who want the courts to impose policies they know the electorates reject (like abolition of the death penalty and of limitations on abortion) have simply appointed themselves to this elite group. The “vigilante lawyers,” to use David Riesman’s phrase, have never been bashful about their campaigns for “social reform through litigation.” As Archibald Cox explains simply, and sympathetically, because they could not get what they wanted from their legislatures—since, regrettably, ordinary people do not share the “libertarian, humanitarian, and egalitarian impulses” which they, “in the world of the highly educated,” sense so strongly—they felt fully justified in relying on the courts. Through them they have tried to operate a kind of government of men (themselves) in opposition to a government of laws made by “resistant” and merely “self-interested or short-sighted majorities.”
Today’s lawyers’ war on democracy is nothing new. Other true believers, altogether similar except that they were conservative rather than liberal, waged it successfully in the past. But while the warfare is old, a new advance guard has launched an escalation in the realm of social policy that surpasses anything we have seen so far. They have mounted an ambitious campaign to get the courts to dictate economic policy directly and for the explicit purpose of redistributing wealth. They would take welfare policy away from the legislatures and the electorates and give it to the courts. They would have the judges prescribe, as a matter of constitutional law, specific requirements for food, housing, employment, medical care (including abortions), and education, and the legislatures and the voters would have no choice but to provide them to everyone.
_____________
It is worth recalling why the nation forced the Supreme Court to give up its earlier effort to dictate economic and social policy. That effort is symbolized by the famous 1905 case of Lochner v. New York. In Lochner, the majority held that a New York law which limited the working hours of bakery employees to 10 per day and 60 per week was invalid under the due-process clause of the Fourteenth Amendment.1 Why the Court should have thought this was so was never obvious and requires some explanation. The due-process clause of the Fourteenth Amendment is very brief, only one part of a single sentence that also includes the privileges-and-immunities and the equal-protection clauses:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The due-process clause appears to be intended merely to protect “procedural” rights, such as a right to a fair trial. Well before Lochner, however, the Supreme Court, at the urging of conservative legal elites, began to believe that the clause also enacted a great principle protecting “substantive” rights, that is, rights relating to the circumstances and conduct of private life. The clause itself, of course, gave no guidance as to what particular rights “substantive due process” might protect, so the Justices chose, without any hesitation, those that embodied their own laissez-faire social and economic beliefs. In Lochner, for example, they held that the New York law deprived both employers and employees of “liberty of contract,” that is, the right to make employment contracts for as many hours of work as they wanted.
Lochner, which is just one of many similar cases, is not famous for the majority’s decision, however, but for the dissent of Justice Oliver Wendell Holmes, Jr. In an elegant page and a half, Justice Holmes exposed the decision and substantive due process for what they were: a coup de main intended to prevent democratic majorities from enacting social and economic policies that conflicted with the doctrines the Justices preferred:
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. . . . [A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
The Lochner era lasted from the 1880’s to 1937. Throughout the period, the Court exhibited an active pro-business and anti-labor bias and was generally hostile to economic and social regulation. The Court’s decisions did not, of course, go undisputed. Some legal scholars, including Felix Frankfurter, criticized each decision as it appeared, and in the 30’s political opposition to the Court’s obstruction of the New Deal produced a constitutional crisis. On “Black Monday,” May 27, 1935, the Court invalidated a number of New Deal measures, including the National Industrial Recovery Act, and President Roosevelt retaliated with a threat to increase the size of the Court and “pack” it with new members.
But then Justice Roberts made his famous “switch in time that saved nine,” and in 1937, in West Coast Hotel Co. v. Parrish, the Court (five to four) reversed an earlier decision and upheld a state minimum-wage law. This marked the end of the Supreme Court’s enforcement of laissez-faire economics. Thereafter, the Court, with some of its old critics sitting as new members, kept its hands off economic policy.
Now, forty years after West Coast Hotel, substantive due process continues to have a bad name. The Court uses the due-process clause primarily in cases involving the fairness of law-enforcement methods and government procedures (although it has also used it in family-relations and abortion cases). The Court has been careful not to use the clause in pursuing the “egalitarian revolution” (the phrase is Philip Kurland’s) of the past two decades—undoubtedly because it has wanted to avoid the charge that it has resurrected Lochner v. New York. Instead, it has relied almost exclusively on the equal-protection clause.
To be sure, over the past generation, critics of the Supreme Court—many of them (such as John Hart Ely, Learned Hand, Philip Kurland, Herbert Wechsler, Henry Hart, and Alexander M. Bickel) sympathetic to some of the Court’s work, particularly in protecting and enhancing the legislative representation of underrepresented groups—have accused it and its academic supporters of still playing the old Lochner tune while pretending merely to be protecting individual rights under the equal-protection clause. But when it comes to today’s proponents of constitutional welfare rights, we do not even have to ask whether they are still playing the old tune. They proudly proclaim that they are, and that their objective is to reestablish substantive due process (or “substantive equal protection,” as one of them prefers to call it).
_____________
The proponents of constitutional welfare rights are principally Professors Frank I. Michelman and Laurence H. Tribe of the Harvard Law School and Kenneth L. Karst of UCLA. Many other commentators from elite law schools, including Charles L. Black of Yale, Archibald Cox and Abram Chayes of Harvard, and Arthur Selwyn Miller of George Washington, have over the years celebrated and justified active court intervention in society’s affairs. Still others have specifically argued for Supreme Court intervention in certain cases involving wealth discrimination, or have advanced theories to justify legislative policies of income redistribution. But the breakthrough into unashamed substantive due process with court-ordered welfare rights was made by Michelman, Tribe, and Karst, beginning with an article by Michelman in the Harvard Law Review in 1969. Their campaign has since continued unabated.
The professors apparently came to their doctrines after the frustration of earlier expectations that the Supreme Court must sooner or later recognize constitutional rights to welfare services (as well as rights to a good many other things they also favored). In an article he wrote with Harold W. Horowitz of UCLA in the optimistic days of the Warren Court, Karst positively reveled in the prospect of the Court’s wholesale resort to “substantive equal protection.” The authors argued explicitly that the Court did not need to justify such action with any coherent reasoning. It would be enough if it simply concluded that a government action, or toleration of a private action, produced “inequities that are unacceptable in this generation’s idealization of America.” Everything the Court did would be validated by “tomorrow’s history.”
But ultimately the professors were disappointed. While the Supreme Court did many things for the poor, it never went beyond invalidating the poll tax, providing indigents with effective resort to the courts in certain proceedings, requiring procedural safeguards for the withdrawal of welfare benefits, and invalidating residency requirements for admission to welfare programs. What was worse, the Court explained even these cases in ways which did not readily suggest a constitutional right to welfare services.
The most serious obstacle current doctrine presents to our professors arises from the principles that determine the responsibility of governments for their own and for private actions. The Fourteenth Amendment provides that no state shall “deny” any person the equal protection of the laws. There are other ways of reading this language, but the traditional one is that the clause is not violated except by some form of “state action.” Over the years, the Supreme Court developed ways of finding that what appeared to be merely private action was, in fact, state action. It did this by treating the private activity as a “public function” or by “sifting” the details of private action until it found some kind of state involvement. Thus, the Court held in a leading case that a restaurant’s refusal to serve blacks was state action because the restaurant leased its space from a municipal government.
The Court got so adept at finding private actions to be state actions that commentators confidently predicted the state-action requirement would in time become virtually meaningless (despite the obvious requirement in the Amendment for some kind of state denial). In the Sit-in Cases of 1964, however, the Justices considered, but did not adopt, what would have been their furthest extension of state action: a holding that the private choice of a restaurant owner to exclude blacks from his restaurant was a state choice excluding blacks solely because a restaurant serves the public and the restaurant owner’s choice could only be enforced through the state’s trespass laws. Since then, the Court has retreated. For example, in 1976, it reversed a 1968 decision and held that the exclusion of pickets by the owner of a shopping center was not exclusion by the state.
The state-action requirement is an obstacle to a doctrine of constitutional welfare rights because poverty is essentially a consequence of private actions—ordinary, self-seeking economic activities—rather than governmental programs. What is more, the private actions are not, unlike a restaurant owner’s exclusion of blacks, intentionally discriminatory, but are merely neutral. For this reason, even the theory rejected in the Sit-in Cases would not be enough to support a doctrine of constitutional welfare rights. What is required for such a doctrine is a principle stating that the results of neutral private actions (including the actions of the poor themselves), done without any discriminatory intent, should be treated as if they were the intended results of government action. This would not only eliminate the state-action requirement, but would establish a new principle of governmental responsibility for non-discriminatory activity. It is a principle the Supreme Court has specifically rejected.
_____________
Even if the state-action obstacle were overcome, however, our professors would have other problems. Under current doctrine, the Supreme Court will uphold a challenged governmental action, so long as there is a “rational basis” for it, unless such action is based upon a “suspect classification” of persons or groups or invades “fundamental interests.” In either of the latter cases, the Court will subject the justification for the action to “strict scrutiny.” The foremost suspect classifications are racial ones. Classifications based on alien status, sex, or illegitimacy are less suspect and are given less scrutiny, and some discriminations based upon such classification are permitted that would not be permitted if based upon race. The interests the Court has recognized as fundamental, or otherwise in need of protection by strict scrutiny, are voting rights, access to the courts, marriage, family relations, and abortions. Housing and education are not considered fundamental.
What is crucial for constitutional welfare rights is that the Court has specifically held that classifications based on wealth (or poverty) are not suspect, and that the list of protected fundamental interests will not be expanded. As the list stands now, it does not include any of the welfare rights (even education) that the professors would like to provide. All of these are left to governments and electorates as matters of economic and social policy.
Finally, the use by the professors of the Constitution’s equal-protection principle presents them with a philosophical problem. Equal protection implies equality of treatment. What the professors want for the poor, however, is not equal amounts of whatever is provided but extra amounts of certain things. In Michelman’s formulation, if the state provides a certain facility, whether for golf, education, or opera, the Constitution should not stop at the requirement that the facility be provided even-handedly to everyone, but should select those specific facilities the poor need most and insure that they get them. What the professors need is a doctrine that, as Michelman says, answers the question, “Why education and not golf?”
_____________
Our professors are more painfully aware than anyone that there has been an “unhappy pause” in their progress. They also know why; they have been halted by a general belief in Justice Holmes’s principle, reflected in current doctrine, that the Constitution does not embody particular economic theories. To get under way again, the professors have had to escalate their campaign with frontal attacks on current doctrine, particularly the state-action limitation, and on Justice Holmes’s principle. They have attacked the former with a kind of total-state theory, and the latter with the simple claim that Holmes was in error. The result is not merely a reversion to the old Lochner, but a resort to a kind of distorted mirror image of Lochner, the courts’ old right-handed interventions would become left-handed and would not just forbid action the legislatures and electorates wanted to take, but would compel action they did not want to take.
To overcome the state-action obstacle, the professors must argue that the state should be deemed to have intended the consequences of all (even neutral) private activity. They do this with enthusiasm. They think, in fact, that it is self-evident. Tribe believes quite firmly that government must be held to have chosen the entire economic system and all its works, because, after all, government chooses to tolerate the consequences of private activities which it could alter if it wished. Michel-man’s view is even more universal: private parties (at least as they function in public) are parts of the very structure of the state itself, because whatever they do in society, government could have done. Leaving matters to private parties and private life is merely leaving them to one kind of state agency.
Most people, if they think about it, probably believe that governments are useful to do those things that a majority might agree upon from time to time as being in the common interest, but that otherwise governments have no business doing anything. Our professors think differently. They believe that when the people adopted the Fourteenth Amendment they created a self-starting government machine commissioned to search out and correct any and all defects in their society and their private lives in accordance with the “idealizations” of judges and their commentators. Professor Tribe’s idealization is that the courts must require governments to support “human freedom, rightly understood”; Professor Michelman’s, that the courts should enforce a theory of justice derived from a “coherent” moral philosophy; Professor Karst’s that the courts should insure that everyone enjoys respect and self-respect as “a social fact.”
To be fair, our professors are not yet totalitarians. They concede that governments, driven by the courts, cannot cure every defect of society. They also believe that there should be “roles,” or “spheres” reserved for private life. And, of course, they believe that the particular governmental intrusions and coercions they insist upon are intended for virtuous purposes: the promotion of “freedom,” “justice,” and “respect.”
But these considerations offer little comfort. The inability of governments to cure every defect of society will afford relief only at the point the courts decide it is impractical to track down the last remaining traces of such defects. The roles our professors would reserve for private life leave little or nothing for organized private life, and, in any case, even within their roles people must not be too “self-regarding.” And the “freedom,” “justice,” and “respect” that the professors want to promote are not freedom, justice, and respect as the people on their own may understand them and express them in their laws, but as they are “rightly understood” by the judges and their commentators. The government interventions our professors “rightly” understand to be necessary are already serious enough; we can only guess what interventions others with even purer “idealizations” will want to enforce.
_____________
The three professors make somewhat different attacks on Justice Holmes. Karst and Tribe argue simply that everyone has been wrong all this time in supposing that the Fourteenth Amendment did not enact a particular social and economic theory. Michelman thinks the important question is not whether the Fourteenth Amendment actually enacted any particular theory, but whether he can find one he can persuade the judges to enforce anyway.
While Tribe thinks the Fourteenth Amendment enacted a theory, he does not yet—despite some halting and bizarre efforts to think it through—quite know what it was. He is sure, however, that some day someone will work it out, and it will then be found to include a constitutional right to welfare services. In the meantime, courts must do the only “honest” thing they can, which is to decide cases on the basis of what is good policy. For him, the error of Lochner was not that the Supreme Court did not follow Holmes and leave the question of working hours to the New York legislature, but that the Court’s view on working hours was wrong and the legislature’s was right. Tribe has no patience with democratic quibbles. Courts should not be “wholly insensitive” to them, but on the other hand “it would be wrong to make too much of the point.”
Michelman is much less confident than Tribe and Karst. His approach to Justice Holmes is tentative; he does not try to answer him but to evade and out-maneuver him. He avoids the question of what courts ought to do and discusses only what they can be persuaded to do. He looks for a theory of moral philosophy which the courts might be willing to take up and which would support a doctrine of constitutional welfare rights. For this purpose, he evaluates in detail John Rawls’s A Theory of Justice.
Rawls argues that a just society (one which would be chosen by people in the “original position” of not knowing their ultimate conditions in life or what individual capacities they would have) would be based upon two principles of justice: the “liberty” principle, which would guarantee everyone maximum basic liberties compatible with similar liberties for others, and the “difference principle,” which would permit material or other advantages for some only if allowing them improved the condition of those least well-off. Michelman concludes that Rawls’s difference principle implies a right in each person to a guaranteed income and that Rawls’s theory “as a whole” might also imply the right to guaranteed services. He concedes, however, that in the ideal Rawlsian state, Rawls’s own principles would not permit judicial enforcement of such welfare rights, but he argues that in a non-ideal society like our own, judicial enforcement of a right to welfare services would be appropriate.
Michelman then directly faces the problem raised by Holmes’s jibe about Herbert Spencer: should constitutional doctrine be based upon Rawls’s A Theory of Justice, any more than on Spencer’s earlier conservative tract? After looking the problem straight in the face, however, he passes on to an easier question: can the courts be persuaded to enforce welfare rights on the basis of Rawls’s or some similar theory? He concludes that at present they might not, from fear that they could not adequately explain the theory and that legislatures might not obey them. But he believes that courts could use the theory to lay the basis for future enforcement. As the public and legislatures become educated, the courts could, by a series of “tactical judgments” as to how much they could get away with, lead and drive the public and legislatures until, at an appropriate stage, they were able to declare outright the existence of welfare rights as a matter of law.
_____________
Karst’s argument, finally, is both sophisticated and comprehensive—so comprehensive that constitutional welfare rights are only one part of it. As noted, he, like Tribe, believes the Fourteenth Amendment did, in fact, enact a social and economic theory, but unlike Tribe, he knows what it is: “equal citizenship.”
Karst relies heavily on the proposition that Congress, after abolishing slavery with the Thirteenth Amendment, set out to eliminate the nation’s racial caste system. Its first effort was the Civil Rights Act of 1866, which was specifically aimed at the Black Codes the Southern states had adopted to replace slavery. These Codes deprived blacks of basic legal rights such as access to the courts and the rights to make contracts and to own, convey, and inherit property. The 1866 Act declared everyone born in the United States to be a citizen, and guaranteed to blacks the specific rights which the Black Codes had sought to take away.
In adopting the Fourteenth Amendment, Congress wanted to give constitutional support to the 1866 Act. In doing so, however, Congress did not use the specific language of the Act protecting those legal rights denied by the Black Codes, but instead used general language not limited to blacks or to particular rights. Therefore, Karst argues, the Framers must have intended to adopt a principle of “equal citizenship,” not just equal legal rights, a principle “capable of growth” to protect others besides blacks and to guarantee not only legal rights but the enjoyment of whatever social conditions might later come to be thought necessary for “full membership” in society.
This is one of those arguments that, as the law professors say, you can follow all the way up to the “therefore.” In fact, the Framers’ use of general language, rather than the specific language of the 1866 Act, suggests only that they intended to generalize the method used in the Act and insure that everyone should enjoy equally all legal rights, not just the ones taken away from blacks by the Black Codes. The language in no way suggests that they intended to guarantee anything in addition to legal rights.
This non sequitur, together with his frequent, incantatory repetition of the words “equal citizenship,” is all that Karst offers to support his new principle. But even if his principle were, nevertheless, adopted, it would still be necessary to decide what the abstraction “equal citizenship” had “grown” into, and this necessity would make the principle simply another arbitrary exercise in substantive due process. Karst’s own method for determining what equal citizenship has become is simply to announce that “we” all now believe citizenship means that everyone must enjoy respect, including self-respect, not just before the law but as a “social fact.” Specifically, everyone must be relieved of the stigma of being a member of an inferior group (being, for example, a black, a woman, or poor) and must be empowered to participate fully in society’s affairs (in all its affairs, not just its political affairs). And since these social conditions are what citizenship now entails, it follows that the Fourteenth Amendment requires government to insure that everyone enjoys them, even if it must treat people unequally to do so.
For Karst, if the Supreme Court were to accept his doctrine, some major new interventions would follow. For example, minorities and women could use the doctrine to make courts “erase” the effects of society’s past discriminations and attitudes, and governments could use the principle to justify discrimination in favor of minorities and women. As applied to welfare rights, equal citizenship would require governments to provide welfare services to the poor to overcome those deprivations which either impose the stigma of being one of “the disreputable poor” or impair participation in society.
_____________
The proponents of these neo-Lochner doctrines are not daunted by the prospect of the courts issuing orders to Congress and state and local legislatures telling them what to do. To our professors this is only a minor mechanical problem. Karst, in fact, is quite offhand about it. As he and Horowitz say, if a direct order is “unbecoming,” a court can give a negative order; instead of saying “Do X,” it can say “Do not do anything that does not include X.”
Michelman also clearly believes that direct court orders to the legislatures are both appropriate and feasible, but with Tribe he thinks that the courts might sometimes worry whether they could “induce compliance on all relevant fronts.” Both believe that even if rights to welfare services may not be “perfectly enforceable,” courts can accomplish whatever they need to indirectly by manipulating the programs which legislatures have already adopted. They suggest the courts could put “severe strain” on limitations in the programs; invalidate eligibility conditions or classifications even if they are “seemingly plausible”; “impose exacting standards of procedural nicety” for admission or exclusion from the programs; and “create seemingly inflexible requirements of equal expenditure” to insure an adequate minimum for everyone. They believe the courts could even prohibit repeal of welfare programs. With these techniques available, it is hard to imagine what the courts might want to do that they could not do.
Our professors also want the courts to use their powers to dictate in detail both the theory and practice of welfare policy, and particularly the amount of wealth and income to be redistributed. They are not content with—in fact hardly even discuss—merely helping the poor to compete equally in society. They insist that the courts provide everyone some income, and Michelman wants it given as services rather than cash because courts can more easily determine the adequacy of services and because the poor, left to themselves, might squander cash. Furthermore, while Karst and Tribe might in some cases permit a legislature to condition receipt of welfare benefits upon work, Michelman would not. He wants services to be provided without regard to a recipient’s “efforts, thrift, or foresight.”
Michelman would apparently follow Rawls’s difference principle and redistribute income up to the point at which any further redistribution would so destroy incentives for the non-poor that the incomes of everyone, including the poor, would be reduced. Karst would go further. Because the stigma of poverty is “defined socially, not naturally,” it depends on relative and not actual deprivation. Therefore, redistribution is necessary even though the poor in the United States are rich by historical standards or by the standards of other cultures. Furthermore, redistribution should not necessarily stop when it reaches the point of reducing the incomes of the poor themselves. It could continue so long as it reduced the incomes of the non-poor even more and thereby lessened relative deprivation. Karst does, however, offer a limit to save us from complete leveling. Because self-respect implies at least some obligation to support oneself, he assures us (in his habitual condescending tone) that “The principle of equal citizenship does not call for the dismantling of the structures of capitalism, such as they remain in the era of the ‘welfare-corporate state.’”
_____________
Will the courts ever take up as constitutional law any part of our professors’ doctrines? It is still impossible to say. So far they have been largely unreceptive. While academics have been much more sympathetic, a number have also resisted strongly. Some years ago, Ralph Winter of the Yale Law School made a particularly cogent rebuttal of Michelman, and quite recently John Hart Ely of Harvard persuasively attacked the neo-Lochner attitudes that have infused numerous Supreme Court decisions and, even more, the minds of the academics (“the ranks of the academy have never missed a beat of the old rhythm”).
Far more important, however, than opposition by a minority of legal scholars is opposition to court interventions in general from other quarters of the public. It is true that the history of Lochner suggests that public resistance to the courts is only a long-range strategy at best. Nevertheless, increasingly acute criticism from some social and political scientists may turn out to be decisive. The appalling effects of court interventions on social policy have begun to receive detailed analysis from critics like Nathan Glazer, Daniel Patrick Moynihan, David L. Kirp, and especially Donald Horowitz in his book, The Courts and Social Policy.2 They may find allies, surprisingly enough, among judges themselves who may become reluctant to go floundering in the deep waters of social movements they do not understand. Judges are, properly, protective of the prestige of their courts, and may not want them to be exposed before the world as disruptive, confused, and, especially, ineffective.
_____________
But even if constitutional welfare rights and the total state are held off for the present, their threat will be with us for a long time to come. We should, in fact, be prepared for assaults of all kinds on democracy from new waves of activist lawyers. We may soon face what one legal warrior happily describes as a special “new generation of lawyers.” This new generation, “the new professors as well as judges and practitioners,” was educated during the “shining moment” of the 1960’s and the Warren Court. Because in that period they formed “very basic attitudes, presumptions, and cognitive frameworks in their late teens and early twenties,” they will, in due course, be ready to set about “combating injustice,” which they are sure “can be routed.” It is sobering to think what we may be in for from governments with a duty to correct the defects in society discovered by lawyers with teenage ideas about injustice.
1 The Fourteenth Amendment is one of the Civil War Amendments which were designed primarily to free the slaves (Thirteenth), insure that blacks were treated the same as whites (Fourteenth), and grant the vote to blacks (Fifteenth).
2 See also his article, “Are the Courts Going Too Far?,” in COMMENTARY, January 1977.
