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Justice Rehnquist and the Constitution

Justice Rehnquist and the Constitution

Copyright Date: 1989
Pages: 258
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  • Book Info
    Justice Rehnquist and the Constitution
    Book Description:

    This analysis of the decision making of William H. Rehnquist from the beginning of his tenure as an Associate Justice of the United States Supreme Court in 1971 until he was nominated to be Chief Justice in 1986 presents a refreshing new perspective on the Burger Court's most conservative member. The common assessment of Rehnquist's career on the Supreme Court is that he has tried to put his own political agenda into effect--deciding as he wishes and justifying it later. Davis disputes that view through careful, insightful analysis of his opinions, his votes, and his public speeches. She argues that Rehnquist does, indeed, have a judicial philosophy--one that has legal positivism at its core. By examining the interaction between the facets of that judicial philosophy and Rehnquist's particular ordering of values, Davis reveals the coherence of his decision making.

    The author finds that Rehnquist's hierarchy of values gives paramount importance to state autonomy, or the "new federalism." He sees the protection of private property as secondary to the significance of federalism, followed, finally, by the protection of individual rights.

    Originally published in 1989.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-5987-0
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
  4. Acknowledgments
    (pp. ix-x)
  5. Part One: THE FRAMEWORK

    • ONE 1971: Richard Nixon Appoints a New Justice
      (pp. 3-19)

      Richard Nixon made the Supreme Court a major issue in his campaign for the presidency in 1968. In an attempt to appeal to voters by emphasizing law and order, he blamed decisions of the Warren Court for high rates of crime and little punishment. Judicial decisions, he said, “have had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces” (quoted in Simon 1973, 8). Nixon adopted the term “strict constructionist”¹ to describe the type of jurists he would place on the Court if he had the opportunity—justices who would “interpret the Constitution...

    • TWO Rehnquist’s Legal Positivism and His Ordering of Values
      (pp. 20-38)

      In July of 1986 while the Senate Judiciary Committee prepared to convene hearings on Justice Rehnquist’s nomination to be the sixteenth chief justice of the Supreme Court, civil rights groups planned, as they had in 1971, to oppose his confirmation. Civil rights leaders alleged that his hostility to civil rights and civil liberties, as well as his consistent stance far to the right of the mainstream, rendered him unfit to head the federal judiciary. Benjamin L. Hooks, chair of the Leadership Conference on Civil Rights, characterized the justice as “ ‘an extremist an enemy of civil rights’ whose rulings m...


    • THREE Justice Rehnquist’s Fourteenth Amendment
      (pp. 41-65)

      Justice Rehnquist delivered a lecture in 1980 that subsequently appeared in theMissouri Law Reviewunder the title “Government by Cliché.” At the outset of that lecture he stated that he intended to dispel two clichés about the Constitution. First, he wanted to refute the idea that the Constitution is a charter that guarantees rights to individuals against the government. Second, he wished to correct the misconception that the Supreme Court “ ‘upholds’ the Constitution only when it decides a constitutional claim in favor of an individual and not when it decides such a claim against the individual and in...

    • FOUR The First Amendment Speaks with a Different Voice: Rehnquist and Freedom of Expression
      (pp. 66-94)

      The analysis of Rehnquist’s decision making in the context of the due process and equal protection clauses of the Fourteenth Amendment, presented in the preceding chapter, indicated how clearly he supports judicial deference to legislative decisions when individual rights are involved. That deferential posture is in accord with his judicial philosophy, composed of the democratic model, moral relativism, and his approach to constitutional interpretation. His views concerning the Fourteenth Amendment, moreover, reflect his ordering of values whereby a conflict between a state and an individual is resolved in favor of the state; federalism takes precedence over individual rights. Additionally, the...

  7. Part Three: PROPERTY RIGHTS

    • FIVE Nontraditional Property: The Bitter-Sweet Denial
      (pp. 97-112)

      During the hearings of the Senate Judiciary Committee on Rehnquist’s confirmation in 1971, Sen. John Tunney queried the nominee as to whether he placed a higher value on property rights than individual freedoms. He responded as follows:

      I certainly am not prepared to say, as a matter of personal philosophy, that property rights are necessarily at the bottom of the scale. Justice Jackson, . . . commented shortly before his death that the framers had chosen to join together life, liberty, and property, and he did not feel they should be separated. I think property rights are actually a very...

    • SIX The Rights of Traditional Property
      (pp. 113-132)

      Justice Robert H. Jackson captured the essence of the legal positivist’s view of property rights when he stated that “not all economic interests are ‘property rights’; only those economic advantages are ‘rights’ which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion” (U.S. v. Willow River Power Co., 324 U.S. 499, 502 [1945]). The preceding chapter examined Rehnquist’s treatment of nontraditional property, demonstrating that he values federalism over such rights and, indeed, that he finds scant constitutional protection for the...

  8. Part Four: FEDERALISM

    • SEVEN Federalism I: Congressional Power and State Sovereignty
      (pp. 135-152)

      For over thirty years prior to Rehnquist’s appointment as an associate justice, the Supreme Court construed the powers of Congress with respect to the states broadly. Indeed, from 1937 until the early 1970s, concerns about autonomy appeared to have a negligible impact on constitutional law.¹ And when Rehnquist took his position on the Court in 1972, it was generally accepted that the federal courts had little role to play when federal power was challenged on behalf of state autonomy because the states were adequately protected by the political process.²

      The Court’s expansive interpretation of Congress’s power under the commerce clause...

    • EIGHT Federalism II: Protecting the States from the Federal Courts
      (pp. 153-173)

      Judicial federalism refers to the relationship between the state and federal judicial systems—a relationship of major importance that has never been precisely defined. Although the framers of the Constitution provided in Article III that the federal courts would have jurisdiction in cases involving the federal law or the Constitution, they left Congress the discretion to establish “inferior Courts” that would share the judicial power with the Supreme Court. Pursuant to that power, Congress has provided for a system of lower federal courts,¹ and for judicial review of state court decisions.² Still, Congress has never drawn a firm line between...

    • NINE Federalism III: “Our Federalism” or Rehnquist’s Federalism?
      (pp. 174-188)

      In this chapter I conclude my examination of Rehnquist’s judicial federalism by discussing several of his opinions in cases in which the Supreme Court has limited the circumstances under which a federal court may issue an injunction against state officials. In Younger v. Harris (401 U.S. 37) in 1971,¹ the Court held that only under exceptional circumstances may a federal court enjoin a pending state criminal proceeding. The Court’s decision created a major exception to the guarantee, which was provided inMonroe,of a federal forum under Section 1983. Justice Black, writing for the majority, identified two sources of the...


    • TEN Legal Positivism, Federalism, and Rehnquist’s Constitution
      (pp. 191-208)

      On June 17, 1986, President Ronald Reagan announced his nomination of William H. Rehnquist to succeed Warren E. Burger as chief justice of the United States. The president chose Antonin Scalia, a judge on the United States Court of Appeals for the District of Columbia, to fill Rehnquist’s seat as associate justice. Until Reagan’s nomination of Rehnquist, only two sitting associate justices had been promoted to Chief Justice.¹ Rehnquist’s record during his fourteen and a half years on the Court made him, from the perspective of the Reagan administration, an ideal choice for chief justice. His positions regarding the applicability...


    • APPENDIX A: Justice Rehnquist’s Opinions for the Majority, 1972–1986
      (pp. 211-217)
    • APPENDIX B: Justice Rehnquist’s Concurring Opinions, 1972–1986
      (pp. 218-220)
    • APPENDIX C: Justice Rehnquist’s Dissenting Opinions, 1972–1986
      (pp. 221-227)
  11. References
    (pp. 228-236)
  12. Index
    (pp. 237-247)