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The Supreme Court's Search for Doctrine in the Constitution:

A Review of Charles Fried's Saying What the Law Is


Friday, May. 14, 2004

Charles Fried's approach to law is decidedly rational and intellectual. Fried, a former Solicitor General and state Supreme Court Justice, and now professor of law, plainly believes that constitutional law is concept-driven and best understood through a categorical approach to its various topics and themes. Accordingly, his new book Saying What the Law Is: The Constitution in the Supreme Court is an excellent primer on constitutional adjudication

But Saying What the Law Is, is also much more than a primer. Fried understands that discerning how the Supreme Court decides what the law will be, by culling out the doctrine, is also a practical exercise in understanding the American legal landscape. Thus, the book is a nuanced presentation of law not just as a set of concepts, but also as a discipline practiced by courts that must translate concepts into doctrine, and apply that doctrine to decide cases.

Professor Fried's goal is not simply to lay out the current black letter law, though he does this very well. Rather, it is to convey an understanding of the doctrine: Is it consistent and coherent? In what ways has it, in places, failed to meet these standards?

Fried's first instinct, then, is to "impose the rule of reason on law." Where the rule of reason fails with respect to a given area of law, however, the author is committed to evaluating that area's doctrines afresh -- rather than simply accepting them as received wisdom.

The result is a sophisticated review of the Court's jurisprudence, coupled with insightful proposals for restoring principle to the law in areas where it falls short.

The Court's Federalism Decisions: A More or Less Conventional Assessment

Several key examples of doctrinal areas will serve to illustrate Fried's basic approach of both explaining the law, and suggesting (if necessary) ways to reform it. For example, when it comes to the Court's controversial federalism decisions, Fried offers both justifications and criticisms.

In Fried's eyes, for instance, the Court's more limited view of Congress' authority to regulate under the Commerce Clause is not primarily a conservative states' rights issue -- as many have claimed. Instead, according to Fried, this view represents an earnest attempt, on the part of the Court, to once again place limits on the Commerce power and thus "reclaim it as a subject for constitutional doctrine." Rather than being partisan, Fried suggests, the Court is simply, in effect, retaking jurisdiction over an area of constitutional law it had long ignored.

Another hot recent federalism topic is on Eleventh Amendment sovereign immunity. The doctrine in this area sharply limits individual suits against a state unless the state consents. In Seminole Tribe of Florida v. Florida, the Court established that this limitation applies in state court. In Alden v. Maine, the Court established that it also applies in federal court,

On this point, Fried is highly critical. He sees both Seminole Tribe and Alden as historically misguided and doctrinally weak. And he faults the Court, more generally, for perpetuating an Eleventh Amendment jurisprudence that he argues is fraught with inconsistencies, and rests upon unsound foundations.

Fried's assessment of federalism doctrine, then, is evenhanded and persuasive -- but relatively conventional in its conclusions. His treatment of free speech issues, by contrast, offers a provocative articulation of First Amendment theory.

The Court's Free Speech Decisions: An Absolutist, Anti-Regulation Approach

Fried espouses an almost limitless conception of free speech. In his view, the First Amendment protects the "freedom of the mind" -- a very broadly defined interest.

Fried endorses the regulation of speech that imminently affects the physical safety of other individuals -- under the test set forth in Brandenburg v. Ohio. But virtually any other speech regulation is, to Fried, unacceptable on the ground that it infringes the "freedom of the mind."

Consequently, Fried -- contrary to Supreme Court doctrine -- finds both obscenity law, and defamation law unacceptable.

He argues that the limiting of obscene speech because of its lack of redeeming social value is unacceptable, because society must not be allowed to control how we affect each other's minds. Distasteful or not, such expression works its effects on the mind and for that reason simply cannot be filtered out of the mix of speech in society.

Similarly, Fried would protect all defamatory statements because at root they are attempts to persuade -- they, too, therefore affect the mind. Not only does defamation law punish speech, Fried points out, it also -- and more ominously -- asks the government (that is, the judge in a defamation suit, and the jury the government convenes to hear the suit) to be the arbiter of truth.

Fried appeals to a basic First Amendment principle: oppose speech with which you disagree with counter-speech, not with laws. Allow each side to advocate on its own behalf, and let the public decide. Let the government itself speak out, if it wishes -- but let it not censor the speech of others, no matter how objectionable.

Fried's proposal here is, at worst, fanciful, and at best, in tension with virtually all Supreme Court doctrine. The Court's cases approving obscenity regulation, such as Miller v. California, and its decisions allowing defamation suits (though with the high intent standard imposed in New York Times Co. v. Sullivan.) aren't going anywhere any time soon. Still, Fried offers a thought-provoking rethinking of what the First Amendment means.

The Court's Decisions on Due Process: Worries About Consistency and Subjectivity

Fried begins his consideration of constitutional due process protections with the following query: Can the Constitution deliver protection for an individual's liberty and property that is as broad as its protection of free expression?

Like many scholars, Fried focuses on so-called "substantive" due process -- the idea of which is that some deprivations of liberty or property are so great, no amount of process is enough to allow them. A number of the Court's most controversial cases -- such as Roe v. Wade -- are also substantive due process cases.

Here, Fried echoes the familiar criticism that the Court's substantive due process jurisprudence is inevitably subjective, and increasingly disconnected from the text of the Constitution. Nevertheless, Fried also acknowledges substantive due process remains a powerful tool for protecting fundamental liberties as the Court chooses to define them.

Fried is able to point to some blatant inconsistencies in due process doctrine. For instance, the Court in Lawrence v. Texas held that the government could not override the privacy of intimate sexual conduct between homosexuals. But in Washington v. Glucksberg it allowed the government to override the liberty of a terminal patient to choose to end his own life.

How can a life-and-death decision be less fundamental than a sexual one? Yet that is just what the Court's two cases, juxtaposed, seem to imply.

While unable to reconcile the Court's cases in this area, Fried does offer comment on how much -- and why -- liberty and privacy are protected by the substantive due process doctrine. Drawing from Lawrence, Fried suggests that liberty broadly encompasses the individual's ability to define her existence, and the privacy to give overt expression to that identity.

Interestingly, this sounds a lot like the "freedom of the mind" Fried championed in his First Amendment commentary. And perhaps substantive due process, for better or worse, is indeed traveling along a trajectory similar to free speech doctrine, toward an ideal of self-expression and self-definition.

A Reflective, Substantive Book That Provides a Welcome Break From Partisanism

Throughout Saying What the Law Is, Fried deliberately avoids political explanations for legal outcomes. He focuses instead on the stabilizing influence of precedent, and the need to reckon with doctrine as doctrine. And he suggests that these forces render a Justice's political persuasions less determinative of results than some would think.

In this time of polarizing debate, Fried's book represents a mature reflection on principles, rather than just another salvo in partisan wars. As such, it is a valuable and refreshing contribution.

Kevin J. Doyle is an attorney living in Burlington, Vermont.

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