The schoolboy version of the American system of government centers on the three-branch structure of the Federal Government established by the ratification of the Constitution in 1788. Integral to that structure are a system of checks and balances among those three branches and the division of powers between the Federal Government and the states. The Tenth Amendment makes that federalism principle explicit.
The dirty little secrets, however, are that the division of powers disappeared long ago, and the checks and balances do not work. Instead of a decentralized, republican system in which the Federal Government bears responsibility for only a few issues, then, Americans now groan under an unlimited central government whose taxing, spending, borrowing, and printing seemingly know no limits either of law or of sense.
To read through this tome is to be struck by the unalloyed banality of both Stevens’ writing and his mind. Stevens spent thirty-four years on the Court, and yet the 282 pages in his book include a 32-page Appendix reproducing the Constitution, the signatures affixed to the Constitution, and the amendments, two pages of acknowledgements, and several blank pages. In addition, he gives thirty pages over to an extremely shallow account of the history of the Supreme Court up to the middle of the twentieth century.In light of their distended significance, Supreme Court justices now occasionally bless the rest of us with their ruminations. The latest specimen of the genre is John Stevens’ Five Chiefs: A Supreme Court Memoir.
For example, Stevens’ account of Chief Justice Roger B. Taney’s tenure as chief justice is notably brief. Its one paragraph merely summarizes the Court’s outrageous decision in Dred Scott v. Sandford (1857) and says that, “The only good thing that can be said about that case is that Abraham Lincoln’s criticism of it in his famous debates with Stephen Douglas received nationwide attention and helped get him elected president.” (p. 20)An impressive intellect might have turned the excursion through the Court’s early history to good effect. Stevens, on the other hand, seems not to recognize the ways in which events he glosses over laid the groundwork for his own career.
Yet, Stevens actually based much of his performance as an associate justice on the foundation of Dred Scott. It was after all in Dred Scott that the Court invented the idea of what scholars and judges alike now call “substantive due process.” That idea is that the Fifth Amendment’s statement that, “nor shall any person … be deprived of life, liberty, or property, without due process of law” did more than guarantee that before one could be punished, he must first be afforded all of the incidents of the traditional Anglo-American adversarial process.
No, the Fifth Amendment’s Due Process Clause was used in Dred Scott as an empty vessel into which seven entirely partisan Democratic justices could pour their desired partisan outcome: a holding that Congress could not bar slavery from the western territories. Far from merely procedural, as it seemed to be (and had always been thought to be), the Due Process Clause was substantive.
When in the 1860s Congress came to draft the Fourteenth Amendment, it inserted a clause nearly identical to the Fifth Amendment’s Due Process Clause, this time applying the requirement to the states. Beginning in the early 20th century, federal judges used this provision as an empty vessel into which they could pour all of their favorite policy outcomes, this time making them enforceable against the states.
Stevens makes clear what he does not mean: that the outcome is consistent with the intention of the people in adopting a particular legal or constitutional provision. He