Because of the demands of negotiations in both San Francisco and San Jose -- aimed as they are, in part, at “pension reform,” a euphemism if ever there was one – I find myself unable this month to write a piece of the quality that I believe the reader deserves. Therefore, I offer in its place a re-print of a an article I wrote a couple of years back that should prove interesting given the current debate over what is known as the “vested rights doctrine,” i.e., the notion that certain retirement benefits are considered “vested” as such and cannot be altered by an employer. To read and comprehend fully this article, there are only two developments since its initial publication of which the reader should be aware: (1) the California Supreme Court upheld the constitutionality of Proposition 8; and (2) new statewide initiatives seeking to amend the California Constitution in order to rollback retirement benefits for current public employees have been initiated in Sacramento (e.g., former Republican Assemblyman Roger Niello’s “Public Employee Pension Reform Act” which seeks in part to raise the retirement age for all current and future public employees to 62).
Constitutional Law’s Paradox: What the Proposition 8 Controversy Reveals About Tensions in American Law and the Development of Labor Law
At first blush, the recent battle in the California Supreme Court over the constitutionality of Proposition 8 would seem to have little to do with our particular province, labor law. Yet the question of whether a change to the constitution might itself be unconstitutional goes to the heart of a paradox that underlies American constitutional law and, more importantly for our purposes, to the historic development of labor law. No matter which side wins in the battle over Proposition 8, the battle itself should make both sides somewhat uneasy in light of the irresoluble tensions which the case reveals in fact lie at the core of our jurisprudence.
In case you’re thinking that this topic sounds too heady and of little relevance to police labor, consider the fact that there is currently circulating a petition to change the California Constitution to allow local agencies to “take away” previously vested retirement benefits, like the 3%-at-50 benefit, at whose feet many are attempting to lay the blame for much of the financial difficulties faced by local government. Indeed, Governor Schwarzenegger attempted to go even further several years ago by championing a constitutional amendment that would have transformed all public employees’ pensions into the equivalent of 401(k)-style plans. While that effort was defeated politically and one hopes to do the same with regard to the current challenge, wouldn’t it be nice to think that such laws, even if passed by the electorate, would be D.O.A. because they are per se unconstitutional? Indeed, more than one lawyer representing law enforcement has already suggested as much. (See, e.g., “Much Ado About Nothing: The Proposed McCauley Initiative,” where Contra Costa Senior Deputy District Attorney L. Douglas Pipes argues that any initiative which altered pension benefits would violate the U.S. Constitution’s Contract Clause.)
Such, of course, is also the hope of the opponents of Proposition 8. And yet, such hopes – irrespective of whether they seek to lodge non-traditional marriages in the Equal Protection Clause of the Constitution or seek to insulate public safety pension benefits from alteration by rooting them in the Constitution’s Contract Clause – ultimately look to the courts to invalidate laws passed by either the voting public or their elected representatives. And such judicial action is by no means uncontroversial.
The American political system is unique: it affords judges the extraordinary power to invalidate laws enacted by the people and their representatives if those laws damage certain principles contained in the Constitution – most often the abstract moral standards enunciated in the Bill of Rights such as “due process of law” or “equal protection of the laws.” Perhaps the single most famous decision in this regard is the 1954 Supreme Court decision, Brown v. Board of Education, which declared that the longstanding racial segregation of public schools in the south was so invidious that it undermined “equal” protection of the law and was therefore unconstitutional.
Now, consider for a moment the hypothetical of what would have happened if after Brown v. Board was decided, a majority of Americans and state legislatures had voted to amend the Constitution to allow once more for racial segregation. Would the Supreme Court have had a sufficient legal basis to strike down that amendment as unconstitutional? I think that most people would want to answer that question in the affirmative, as laws that would seek to turn black children away from white schools are about as damaging to the constitutional fabric of the nation as can be imagined.
It seems, thus, that certain “amendments” to the Constitution may be thought of as themselves being unconstitutional, as paradoxical as that sounds. And yet, there is an uneasiness in having reached this conclusion, just as there would be an extreme uneasiness if one reaches the opposite conclusion. And the uneasiness lies in what seems to be the inescapable conclusion that courts ultimately have the final say over what laws the voters pass. And this is where the development of labor law enters the picture.
In the early part of the last century, a deeply conservative Supreme Court declared unconstitutional much of the budding labor laws enacted to protect workers from economic misery and exploitation, such as laws stipulating maximum working hours and imposing minimum wages. The Court believed that such legislation offended the “due process” clause of the Fourteenth Amendment because it deprived citizens of a fundamental liberty of contract. Perhaps the most notorious of these cases was the Supreme Court’s 1912 decision, Lochner v. New York, which invalidated statutes regulating the hours of work in bakeries. In perhaps the single most famous dissent in American legal history, Justice Oliver Wendell Holmes disassembled the reasoning of the majority with a withering critique
“This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”
In other words, Holmes was lambasting the court for what today falls under the pejorative heading, judicial “activism.” Judicial “activism” is a critique leveled by those who view courts as overstepping their authority and making laws rather than interpreting or enforcing them. This was essentially Holmes’s critique – one that I share – of the Lochner-era Court. But the judicial activism of the Supreme Court in the early 1900’s was a very different creature from the “activism” associated with the Court of more modern times – particularly the Warren Court of the 1960’s – and its liberal decisions.
The Lochner-era Court found in the Constitution a very different set of values and assumptions underlying the Bill of Rights than did the Warren Court generations later. For a majority of the Lochner justices, the Bill of Rights contained a fundamental right to liberty of contract, which they used to strike down law after law passed by Congress to help the nation out of the economic miseries brought on by the Great Depression, including the foundations of the labor laws that we today take for granted and which give organizations like the one whose newspaper pages you are reading the right to exist in the first place. It was outrage over such conservative judicial activism that prompted President Franklin Roosevelt’s misguided to attempt to increase the size of the Court in order to get his social legislation passed into valid law.
The paradox of course lies in our wanting to cheer a decision like Brown v. Board while at the same time decrying Lochner, when, in fact, both cases are those where judges struck down laws passed by the people and their representatives. How can one have it both ways and remain intellectually honest? Indeed, several of the great judges of the last century whom many people think of as liberal were sorely troubled by the implications of the Court’s jurisprudence in the Brown v. Board-era, haunted as they were by the conservative “activism” of the earlier Lochner Court. For example, Justice Felix Frankfurter, one of the most liberal justices in the nation’s history and a member of the unanimous Brown decision, worried over the wisdom of the Court’s invalidating too quickly, from his point of view, laws prohibiting interracial marriage. And Judge Learned Hand, an ardent champion of progressive legislation and First Amendment rights in his many decisions on the Second Circuit Court of Appeals, was so deeply affected by the excesses of the Lochner-era Court that even as he despised and fought against prejudice all his life, he could not overcome an inner conviction that the Constitution did not give judges the ability to outlaw even the horrific impacts of prejudice. Here, Hand looked to the words of his one of his teachers at Harvard Law School, the legendary James Bradley Thayer who favored judicial restraint: “Under no system can the power of courts save a people from ruin; our chief protection lies elsewhere.”
This, then, is the tension inherent in the American constitutional scheme. We look to the Courts to interpret and apply laws that reflect the will of the people. And yet, every one of us holds dear certain values that we, if we are honest with ourselves, would not want to see eliminated or altered, even by a majority vote of the people. And, accordingly, we look to the courts to strike down laws that offend those values. How those values are defined will continue to be a source of endless struggle and debate. For my own part, all I seem to be able to do is recognize my own intellectual inconsistency in joining with Holmes’s condemnation of the activist Lochner Court but applauding heartily the Warren Court’s activism in Brown v. Board of Education. Such is the paradox of American Constitutional law.
“Roll the Union On . . .”
Author’s Note: I am deeply indebted to legal scholar Ronald Dworkin and his 1994 review of Stanford Law Professor Gerald Gunther’s biography of Judge Learned Hand which appeared in the New York Review of Books on August 11, 1994 (“Mr. Liberty”).
