Henry J. Friendly is unknown to nearly all Americans. Indeed, if they were asked to identify him, some, focusing on his name, might imagine him a cartoon character with a hearty laugh. But Friendly was, in the words of a judge renowned for his acerbic evaluations, “the most powerful legal reasoner in American legal history“
Richard A. Posner, Richard A. Posner, qtd. Michael Boudin,
What of incorporation? The Due Process Clause of the Fifth Amendment bars government from depriving “persons … of life, liberty or property without due process of law.” On its face, the provision would appear entirely and literally procedural; government may deprive us of these things, provided that it follows due process. It may, for example, deprive me of life, but only if I have been properly charged, convicted, and sentenced, with all the rules of criminal procedure followed. But is this all there is to it? According to Hamilton, “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.”
4 The Papers of Alexander Hamilton 35 (Harold C. Syrett & Jacob E. Crooks eds. 1962).
Yet modern courts have disagreed, as they have devised the oxymoronic substantive due process that broadened the clause’s impact.
Leading originalists have maintained that the original public meaning of “due process” barred arbitrary action by government because such actions represent the exercise of mere will, which is not authorized by the Constitution. Randy E. Barnett & Evan Bernick, Justice Benjamin Curtis made a similar argument a century and a half ago. The Due Process Clause, he wrote, “is a restraint on the legislative as well as on the executive and judicial functions of the government.” Violations, he believed, contravened either the Constitution or “those settled usages and modes of proceeding existing in the common or statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of our country;” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276, 277 (1856). Similarly, in James Madison, 1 A
Like so much else, it all begins with John Marshall, who thought the answer was so obvious that it was unnecessary for the victorious litigant even to state his case. Barron v. Baltimore, 32 U.S. 243, 247 (1833), reaffirmed in Permoli v. New Orleans, 44 U.S. 589 (1845) and Mattox v. United States, 156 U.S. 237 (1833). Though Marshall focused on the Fifth Amendment, his argument was construed to apply to the entire Bill of Rights.
Marshall’s analysis of the text skirted over a textual problem: though the First Amendment begins with “Congress,” and the Seventh Amendment is expressly directed to “any court of the United States,” the remainder of the Bill of Rights is silent as to its application. The Takings Clause, “written in the passive voice,” for example, “invites the question Nicholas Quinn Rosenkranz, Marshall thought it significant that, in the original pre-amended Constitution, clauses with no targeted application apply to the central government, while clauses expressly directed at states apply to the states. “There is a grammatical irony here, as the much-maligned passive voice turns out to be more determinate than its active-voice counterpart.” A Prominent academic authorities seem agreed that Marshall was right.
Complicating matters is the Fourteenth Amendment adopted after the Civil War, chiefly to protect the freed slaves and their descendants from the predations of the white South. Section 1 provides, Many authorities believe that incorporation should instead have involved the Fourteenth Amendment’s Privileges and Immunities Clause, which is expressly directed at states. The privileges and immunities are not defined, but unlike the Bill of Rights that applies to persons (that is, everyone), apply only to citizens. A William W. Van Alstyne, Gerhard N. Magliocca, George C. Thomas III,
Initially, the issue was limited in practical importance by the fact that the Bill of Rights had not yet become “a powerful brake on government.”
A 110 U.S. 516, 538, 541.
Justice Hugo Black, in a famous dissent in a murder case involving self-incrimination,
Adamson v. California, 332 U.S. 46, 68 (1947). Black considered the dissent “his most important opinion.” R Black’s position was supported in C Adamson v. California, 332 U.S. 46, 89 (1947). Black was ready to incorporate the first eight Amendments, but not the open-ended Ninth. Griswold v. Connecticut, 381 U.S. 479, 507, 511, 519–20 (1965).The clear implication of Black’s position was that he was advocating judicial self restraint, while Frankfurter, his chief rival on the Court and its most prominent spokesman for self restraint, was in defending a flexible selective approach embracing judicial activism. In the course of doing so, Black redefined the Bill of Rights as encompassing only the first eight amendments. 302 U.S. 319, 325 (1937). Griswold v. Connecticut, 381 U.S. 479, 486 (1965). I Adamson v. California, 332 U.S. 46, 123–24 (1947). Griswold v. Connecticut, 381 U.S. 479, 500 (1965). Duncan. v. Louisiana, 391 U.S. 145, 171, 186–87 (1968).
By 1965, in any case, the process of selective incorporation had been operating for nearly three-quarters of a century. The Takings Clause was incorporated in 1897,
Chicago, Burlington & Quincy Ry. Co. v. Chicago, 166 U.S. 226 (1897). Gitlow v. New York, 268 U.S. 652 (1925). Near v. Minnesota, 283 U.S. 697 (1931). Powell v. Alabama, 287 U.S. 45 (1932). Hamilton v. Regents, University of California, 293 U.S. 245 (1934). De Jonge v. Oregon, 299 U.S. 353 (1937). Everson v. Bd. of Educ., 330 U.S. 1 (1947). In re Oliver, 333 U.S. 257 (1948). Wolf v. Colorado, 338 U.S. 25 (1949). NAACP v. Alabama, 357 U.S. 449 (1958). Robinson v. California, 370 U.S. 660 (1962). Gideon v. Wainwright, 372 U.S. 335 (1963). Malloy v. Hogan, 378 U.S. 1 (1964). Pointer v. Texas, 380 U.S. 400 (1965). Griswold v. Connecticut, 381 U.S. 479 (1965).
Yet it was at this time that Judge Friendly announced his displeasure with selective incorporation. In his 1965 Morrison Lecture to the California Bar Association, Friendly declared that “it appears undisputed” that selective incorporation has no historical basis and no theoretical foundation.
Henry J. Friendly, Friendly, Malloy v. Hogan, 378 U.S. 1 10 (1964). A
Friendly’s position was that as the states and the central government have differing constitutional responsibilities, the parameters of the rights should reflect these differences. Thus, as states “have primary responsibility for the security of persons and property,” they should be allotted “more freedom as to a particular selected interest than the Court has chosen to give the Federal Government.”
Friendly,
To illustrate the point, Friendly discusses the Sixth Amendment as applied by the recent high profile case, 378 U.S. 478 (1964).
Friendly finds no support for the decision, whether in the language of the Sixth Amendment or its history. The language of the Sixth Amendment indicates that the rights begin when prosecution begins, not at an earlier stage, as in this case. Moreover, historically the Framers’ purpose was to ban the English practice of denying defendants charged with felonies other than treason the use of lawyers concerning matters of fact, which, again, was unrelated to this case. How, then, could the Sixth Amendment be introduced in
But it is the impracticality of the Court’s rigid standards that drew Friendly’s contempt. Suppose, he asks, “there is often nothing save the interrogation of suspects on which to go, or at least to get started? Can the Sixth Amendment really mean that the only persons the police may interrogate are those on whom their inquiry has Friendly, H
With these views, Friendly opposed the conventional wisdom of the Warren Court, which saw the Bill of Rights almost entirely as a means of protecting individual liberty. Friendly was not insensible to these claims, but for him, as for Marshall, it also posed a central federalism issue. The scope of a particular right, he insisted, can be addressed only after determining against whom the right is supposed to prevail. Ironically, in this emphasis, Friendly not only looked backward to Marshall, but also forward to authorities writing after his, Friendly’s, death, who also emphasized the federalism element.
Friendly fought this battle alongside his “close friend”
D Malloy v. Hogan, 378 U.S. 1, 15 (1964). Later, Harlan would reject the claim that the Fourteenth Amendment’s Due Process Clause “impose[s] or encourage[s] nationwide uniformity.” Adamson v. California, 332 U.S. 46, 172 (1947). 413 U.S. 15, 30–34 (1973). Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972). Williams v. Florida, 399 U.S. 78 (1970); Colgrove v. Battin, 413 U.S. 149 (1973); Ballew v. Georgia, 435 U.S. 223 (1978).
Friendly’s arguments arrive like hammer striking glass, leaving opposing views in pieces. His is the practical, nonideological voice discussing not the goals on which there is consensus but the means on which there is not. We all want the police to protect us, but not abridge our liberties. We all want to punish only the guilty and spare the innocent. But how is this to be accomplished? Courts speak easily of fairness, but what does this signify? We want, say, a football match to be fair; if one side has more players than the other or is awarded five goals for merely showing up, we would say that something is seriously unfair. Is this model transferable to criminal justice? One answer is: no. Where the competing football teams are of equal worth, the police and criminals are not. Thus, we permit the police to lie to criminals, for example, but not the criminals to lie to police. The criminal law is not a game; criminals are our enemy, not merely our competitors.
Yet can we be confident that the police are correct in claiming the suspect to be a criminal? So wary are we of the power of the state and the possibility of error that we stack many rules against it. Though the police may be certain he is guilty, the law compels us to presume the defendant is innocent and place the burden of proof upon the prosecution; too, the prosecutor is supposed to serve justice, while the defense attorney serves only his client, and unlike the prosecutor has no obligation to inform the other side of the evidence he intends to use. “Better that ten guilty escape than that one innocent suffer” is Blackstone’s governing cliché.
W
To which we can easily imagine Friendly asking, Why? A deontological view would hold that it is simply wrong to punish the innocent. Taken to the extreme, however, this would rule out all prosecutions, for it is obvious that even the best system will be imperfect and convict some innocent persons. Avoiding this absurdity, most of us are consequentialists. If the one innocent was convicted of a minor offense and the ten guilty were homicidal maniacs, we might feel comfortable tolerating the injustice. The point of criminal prosecution, then, is not only holding government to account. Rather, there are multiple goals, which necessitate tradeoffs and compromises, not solely the narrow end targeted by the Court. “The true picture is not the solid sheet of black,” Friendly wrote, “but a spectrum.”
F
After pausing for reflection, however, we might notice Friendly’s apparent lack of interest in the plight of the suspect. Imagine (with Blackstone) that he is
As to the agents of the state, even if their motives are pure, they are human and therefore radically imperfect and prone to error, and may simply be mistaken. But as fallible humans, their motives may not always be pure. Perhaps, for instance, they are pressured by superiors to solve a case; perhaps, their judgment is bent by prejudice, ideology, greed, ambition or other extraneous factors. In these situations, a vulnerable suspect will require a lawyer even at an early stage, if he is to avoid disaster. And arguably the only way to ensure this protection is through rigid rules that defense attorneys can exploit. If the rules are flexible – in Friendly’s terms, “reasonable” – the police or state’s attorneys might twist them, and courts might cave in and give them their imprimatur. But if they are rigid, it is harder for them to be warped, bent or ignored; also, rigid rules provide an opportunity for courts to avoid responsibility for unpopular decisions by blaming them on the law makers, making it easier for them to do the right thing. Friendly is concerned with practicalities, but not with Friendly was by no means blind to the interests of the vulnerable. For example, he supported
In this light, consider the venerable debate over policy versus rights. The policy side, as expressed by the distinguished English philosopher, H.L.A. Hart, holds that when the law is unclear, appellate courts are free to take policy consequences into account;
H.L.A. H Ronald Dworkin, Henry J. Friendly, In this, he predated Mary Ann Glendon, who critiqued rights talk as hostile to compromise, deaf to nuance and complexity, and indifferent to social responsibility. M F
As to courts creating rights, he is more emphatically negative. Viewing recent decisions on so-called victimless crimes, he wonders, “is there any end short of holding that the Due Process Clause enacted John Stuart Mill’s F Similarly, Isaiah Berlin believed that individuals naturally pursued ends that were incompatible and incommensurable (that is, could not be measured) with those pursued by others. Therefore, pluralism ought to be preferred not only out of expedience, but also out of principle. I
In this sense, Friendly was compelled to face what Daniel Bell famously called “the cultural contradictions of capitalism.”
D O
It is hard to deny that incorporation “has, in general, dramatically strengthened the Bill [of Rights],”
A
Friendly, like Harlan,
Duncan. v. Louisiana, 391 U.S. 145, 174 (1968). Though they approached the Constitution very differently, Friendly admired Black’s integrity and fought successfully for Harvard to award him an honorary degree. Boudin, Morton J. Horwitz, Missouri v. Holland, 252 U.S. 416, 433 (1920). Earlier, however, Holmes had warned against the view “that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon a conception of morality with which they disagree.” Otis v. Parker, 167 U.S. 606, 608 (1903). Lochner v. New York, 198 U.S. 45 (1905). Benton v. Maryland, 395 U.S. 784 (1969). Arguably, Cardozo did not target double jeopardy
Which raises a pair of obvious questions. First, given the vagueness of most of the Bill of Rights, would total incorporation make much of a dent in judicial subjectivity? Terms like “unreasonable searches and seizures,” “assistance of counsel,” and “freedom of speech,” after all, are hardly clear in their application. If a state botches an execution, can it try again or will this be ruled out by the Eighth Amendment’s ban on cruel and unusual punishment?
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 472 (1947). U.S. v. Jones, 132 U.S. 945 (2012). Regents of the Univ. of Calif. v. Bakke, 438 U.S. 379, 387, 402, 408 (1978).
Second, why did the framers of the Fourteenth Amendment not spell out its impact on the Bill of Rights? Is the absence of evidence, evidence of absence? That is, would the framers have included an impact statement if they intended the Fourteenth Amendment to have such an impact? From this perspective, incorporation so greatly alters the federal relationship by effectively rewriting the Tenth Amendment that courts should be able to point to a specific warrant justifying this move. Berger argued that the purpose of the Fourteenth Amendment was to provide a constitutional rationale for the Civil Rights Act of 1866, which outlawed the notorious Black Codes, with the Due Process Clause intended to guarantee the judicial protection of these rights from state action.
R
As an appellate judge, Friendly was in a bind. He could not, like a Supreme Court justice, announce that precedents were wrongly decided and correct them. He was bound by the chain of command. And yet it is not hard to imagine him reading Berger and nodding in agreement. For Friendly’s views seem to have anticipated Berger’s, and pose the question as to how courts should identify and delimit rights. The answer, both seem to say, is that judges should examine the text and study the legislative history. If we cannot demonstrate incorporation (or at least selective incorporation) by text or history, it stands as merely another instance of judicial usurpation to be avoided. Here is the paradox: while Friendly was widely considered the preeminent practical judge, he was in fact guided by rather abstract notions: the role of the judge, the rule of law, the nature of federalism. His opponents, meanwhile, though often characterized as idealists,
E.g., Melvin I. Urofsky,