The age of consent.

Author:Bobbitt, Philip C.
Position:American legal history since Grant Gilmore's presentation of the 1974 Storrs Lectures - I. through V., p. 2234-2365


So what happened next? Did the society of which Gilmore wrote in the 1970s become more--or less--just, an assessment Gilmore claimed we could make by examining its laws? (1) There are encouraging signs that it did become more just, such as the broadening of access to health care by federal statute, (2) and the Supreme Court's declaration that the Defense of Marriage Act, which blatantly marginalized homosexual unions, was unconstitutional. (3) Or was there less justice, as a profusion of laws and regulations, like those of the federal tax code, were maniacally propagated, creating a jungle within which only the best-financed corporate predators could thrive?

I suppose the answer must be, as is so often the case with America, that all of these contradictory characterizations are true. We contain multitudes; we contradict ourselves. Law does reflect the moral worth of a society and thus it is, at any time, a mass of conflicting moral claims and entitlements. But Gilmore overstated matters, as he knew, when he asserted that the law in no sense determines the moral worth of a society." (4) Because law guides and channels our moral intuitions--determining at what moments our consciences are engaged to resolve which questions--such assessments are necessarily dynamic and subject to constant change. It is this interaction between the static studio portraits of a society as reflected in its laws, and the cinematic unribboning of law as it challenges, evolves, and shapes the very consciences that observe its development and on which it depends, that makes the moral evaluations of American society so complex, elusive, so legal in character.

Gilmore's conclusion was a paraphrase of Holmes, and it was to a biography of the great jurist and American superhero that Gilmore devoted his last years. The Harvard historian Mark De Wolfe Howe had begun the project, authorized by the Holmes Trust, but he had died having finished only the first forty years of Holmes's long life, before, that is, Holmes went on the Massachusetts bench and long before he was appointed to the U.S. Supreme Court at sixty-one. (5) Gilmore was not an unusual choice to succeed Howe. Though Holmes was known to the public as a great constitutional dissenter, his theories of contract (6) had brought him early fame. Moreover, Gilmore was a thorough New Englander and a prominent second-generation Legal Realist; perhaps the trustees thought his reticent and fastidious irony would render Holmes as compelling to future generations as he had been to the early Realists. Gilmore shared with Holmes a rigorous skepticism about reform movements, partisan programs, and political ideologies, indeed of systems of any kind. What he lacked was Holmes's willingness to let the chips fall where they may, and it was this failure of detachment, a quality so essential for a Nietzchean figure of Holmes's martial temperament, that led to a paralyzing estrangement between the biographer and his subject. Gilmore died fifteen years after receiving the commission and submitted no manuscript. (7)


Gilmore's rueful writer's block reflected the conundrum into which Holmes and the Realists had led American law. Legal Realism posed this challenge: If law was simply what the judges did, then how could they ever be--from a legal point of view-wrong? And if law was simply whatever the judges did--and they often contradicted and reversed each other and themselves--how could they ever be right? This unavoidably cast some doubt on the legitimacy of the judicial process.

This doubt particularly plagued constitutional law. It was one thing to say that great commercial and financial interests had influenced the drafting of the Uniform Commercial Code-that would hardly be surprising-or that the plaintiffs' bar had marshaled its political resources to effect ever broader statutory catchments for liability; that, too, was to be expected. But when the legitimacy of constitutional law was called into question, explosive charges were inserted beneath the very foundation of the rule of law: the idea that the state was constrained by law. Most acutely, the American practice of judicial review was called into question, for if there was no reason to believe that the judges had a legal basis for their decisions, then why should we not defer to the Congress and the state legislatures or the Executive, who could at least claim the political endorsement of the electorate? (8) If judges could never be wrong, then law itself was indeterminate--there was a correct argument for any conclusion-and the only explanation for the different results that judges reached had to lie outside the law in politics, ideology, personality, bias, and countless other factors, none of which provided, and many of which forfeited, the legitimacy of legal decisionmaking.

Gilmore's contemporaries working in constitutional law struggled, often heroically, with this problem. At the Harvard and Columbia Law Schools, Henry Hart and Herbert Wechsler proposed an answer. It wasn't what the judges decided but how they arrived at and applied their decisions that mattered. Judicial rule-applying must be a reasoned process of deriving rules from general principles of law-regardless of the substantive content of those principles--and following those rules resolutely in resolving actual controversies between adverse parties without regard to their status or to any fact not explicitly made relevant by the rule itself. (9)

On the U.S. Supreme Court, Justice Hugo Black proposed a different answer: not the legal process, as Hart and Wechsler's approach came to be known, but the plain words of the constitutional text provided the bases for judicial decisions. (10) The constitution's majestic absolutes-"Congress shall make no law ... abridging the freedom of speech or of the press"; "Nor shall any state deprive any person of life, liberty or property without due process or law"-supervened and cordoned off vast areas of judicial decisionmaking where politics and personality were forbidden to trespass. These provisions were to be applied according to the common understanding of the words to our contemporary publics, and not reconceived by doctrine or recondite, legalistic constructions. "No" meant "No."

At the Yale Law School, Charles Black--Gilmore's colleague and friend, the best man at his wedding--proposed yet another route out of the wilderness. Couits, Professor Black wrote, should look to the political structures ordained by the Constitution. American constitutional law could not be confined to constructions based on the history and text of the Constitution alone because many of its most important commitments lay in the relationships implicit among these structures. The democratic process, which authorized judicial oversight, and not the legal process isolated in an apolitical vacuum, legitimated legal rulemaking, for example. This could be inferred from the relationship between Article I and Article III of the Constitution whereby Congress established the federal court system, endowed it with jurisdiction, and expected it to apply the statutes the Congress had passed, subject only to the constitutional restraints to which the Congress itself was subject. (11)

Gilmore himself was intrigued by an approach proffered by the eccentric but hugely forceful Chicago Law School professor, William Crosskey, who gave a new, post-Realist twist to the originalist position--the position that constitutional interpretation is a matter of recovering the original intentions of the ratifiers of the text to be construed. Courts, Crosskey argued, should determine such intentions by examining the language of the society from which those ratifiers came. (12) Teasing out meaning from history had often been criticized by Realists as leading to labyrinths of indeterminacy, but Crosskey claimed we could avoid such mazes by taking words and phrases on their own historical terms and building up meaning to arrive at original intentions rather than the other way around, (13) as originalists had customarily done.

Alexander Bickel, a colleague of Gilmore's and Black's at Yale, pressed yet another alternative. Extending an approach with origins in the jurisprudence of Justices Louis Brandeis and Felix Frankfurter, Bickel argued that the practical consequences for the institutions of the law should guide judges in deciding how (or even whether) to apply the provisions and precedents of the Constitution. (14) As with the other second-generation Realist approaches, Bickel's sought a calculus long ratified by common law-in his case, a comparison of the costs and benefits of a proposed rule-and tried to connect it to a fixed position mandated by the Constitution, the institutional position of the judiciary, thereby limiting the discretion of judges and protecting their stature.

Finally, an outsider--if a philosophy professor educated at Princeton and teaching at Harvard can be deemed so--claimed that legitimacy for the rules of government could be established by applying a simple test. What rule, John Rawls asked, would we all agree to in the absence of any knowledge about its impact on ourselves? (15) Such a rule derives from the guiding ethos of any society whose laws are indifferent to the political, social, and economic interests of those who wield power-even the power of a majority of the electorate. Law professors-most influentially Ronald Dworkin--as well as judges and advocates, some who hadn't read the philosopher or perhaps did not even know his name, adopted this approach or others derived from it, (16) in the hope of finding that moral principle, that saving, generative ethical theory, that would allow them to decline the wormwood chalice proffered by Legal Realism.

Each approach enjoyed a temporary preeminence--even Crosskey's unusual historicism, which has recently experienced a renaissance (17)--but ultimately no one approach was wholly able to succeed...

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