Error Theory

A confab of bloggy law professors over at Volokh has gotten around to the question of "reverse incorporation," whereby the Supreme Court decided that, even though the equal protection clause explicitly applies only to the states, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” (Chief Justice Earl Warren writing for the majority in Bolling v. Sharpe, 347 U.S. 497, 500 (1954).) i.e. It is "unthinkable" that the Fourteenth Amendment means what it says, so Justice Warren was magnanimous enough to fix it for us!

Volokh contributor David Bernstein links a paper he has written arguing that Warren's main argument in Bolling actually has a sound Constitutional foundation and that the "reverse incorporation" pitch is just dicta. Be that as it may, Bolling is in any event not the case that established the reverse incorporation doctrine. That dishonor goes to United States v. Korematsu, the case that upheld the internment of Japanese-Americans during WWII. Where Bolling declared the principle of reverse incorporation without actually relying on it, Korematsu had ten years earlier relied on the principle of reverse incorporation without declaring it.

Korematsu's surreptitious approach to reverse incorporation actually turns out to have been much more harmful than the overt approach has ever been. The overt approach is overtly unconstitutional, which has limited its application. Korematsu, on the other hand, just happens to be the case that established the entire modern system for deciding when constitutional provisions can be over-ridden, and it established this system while carefully eliding all distinctions between state and federal government (so as to hide the fact that it was misapplying the Fourteenth Amendment to the federal government).

What is the consequence of eliding the distinction between state and federal interests? Just consider what the primary federal interest is: the Constitution. Korematsu's sneaky approach to reverse incorporation has had the effect of placing the Constitution on the same plane as generic state interests, effectively annihilating the principle of constitutional supremacy! This is why we now see such abominations as the Supreme Court in Grutter v. Bollinger acknowledging that racial preferences in state university admissions violates the equal protection clause, yet at the same time allowing the equal protection to give way on the strength of a highly dubious competing state interest: Michigan's claim that its law students get a better education when students of one race are favored over students of another race.

It is a borderline question whether this proclaimed state interest is even an admissible state interest under the Constitution. Certainly it is not constitutionally required. How then can it take precedence over an actual constitutional provision? Aren't constitutional provisions only to give way when they confront competing constitutional provisions? Not under Korematsu. ANY "compelling state interest," be be it a constitutional requirement, or a mere state level interest, is sufficient grounds, post-Korematsu for setting aside a constitutional provision. It is not a necessary grounds, but it IS sufficient. The Court gets to decide what it thinks is weightier: the proclaimed compelling-state-interest, or the Constitution. The very principle of constitutional supremacy is set aside.

In the Korematsu case, there actually WAS another constitutional provision on the other side of the federal-equal-protection-requirement that the Court wanted to fabricate. Opposing the supposed federal-equal-protection-rights of the interned Japanese were the Constitutionally granted war powers of the President, and Article I section 9 is explicit that war powers take precedence over individual rights: "The Privilege of the Writ of Habeas Corpus [i.e. the enforcement of individual rights] shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." [Article I section 9 is nominally addressing the war powers of Congress, but the same prioritization applies to the war powers of the executive, which is the final judge of military necessity.] The Court didn't have enough hubris to in time of war try to overturn the Constitution's explicit prioritization of war powers and so it made the correct ruling (upholding internment), but it did so on the wrong grounds.

To uphold the fiction that the federal government is constrained by the equal protection requirement, the Court had to elide the distinction between federal and state, ushering in the ultimate instrument of "living Constitution" jurisprudence. The Court can now set aside the Constitution in favor of absolutely whatever it deigns to designate a "compelling state interest," and not just in the area of equal protection law. This same criterion has migrated from equal protection to First Amendment law. That is how the Court (in McConnell v. FEC) was able to uphold the unlimited regulation of political speech under McCain-Feingold. It found a version of a compelling state interest in regulating political speech and this was sufficient for setting aside the First Amendment.

We still have a written Constitution, but it is no longer the supreme law of the land. Supremacy now lies in a panel of would-be-Solomons, whose predecessors granted themselves Solomonic power to set aside the Constitution whenever they see fit. This betrayal occurred via the Court's completely gratuitous bit of do-gooding in the Korematsu case. The fabricated federal equal-protection constraint was acknowledged to be overcome by the "compelling state interest" in (instead of by the clear constitutional provision for) letting the executive determine what is and is not a matter of military necessity. For this bit of bit of grandstanding, the Constitution now lies in shreds.

Maybe Cass Sunnstein and Jeffery Rosen did concoct the "Constitution in Exile" moniker out of their own fevered imaginations, but you know what? I like it. Bring that Constitution back out of exile. The place to start is with the carefully calculated dishonesty of Korematsu.


My 2003 Stanford Review article on Korematsu and Bollinger here. Also, some comic relief.

This post slightly edited for clarity, 5/8/05 and 1/6/12.