Totally mistaken, never in doubt

One of the genuine pleasures of working on a talented and diverse constitutional law faculty is the unpredictable and therefore entertaining emergence of random conversations, in person or by e-mail, among colleagues who share interests but definitely not viewpoints.

Dale Carpenter posed this question Tuesday evening:

Can you think of any notorious candidates for Supreme Court decisions that were unanimous but wrong? I don't mean wrong on some imaginable theory of constitutional law, but widely regarded as wrong nowadays. It helps, but is not necessary, that the unanimous decision was subsequently overruled.

A good number of nominations arose over the course of an e-mail exchange. By and by, I'm sure Dale will blog on this topic for the Volokh Conspiracy (though probably not for his OutRight feature for IndeGayForum). Or perhaps he'll discuss the matter somehow within his formal scholarly repertoire.

All that remains to be seen. What detains me here is the curious inclusion of one candidate for Dale's derby of Supreme Court cases in which the Justices were totally mistaken but never in doubt.

Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874), unanimously and notoriously held "that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void." Thanks to the 19th amendment, Minor has no contemporary significance as positive law. And in any decent sense of social ordering and the good life, the notion of denying the franchise to women surely offends.

Yet it is hard to argue that Minor was wrongly decided as a matter of interpreting what was then the relatively new 14th amendment and its privileges or immunities clause. Section 2 of the 14th amendment expressly contemplates the restriction of the franchise to "male citizens":

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

To be sure, section 2 does not invite, let alone require, the states to deny the vote to women. But it surely contemplates state laws that confine the franchise to men.

There is a further structural problem with the assertion that Minor misread the Constitution as that document lay before the Justices in 1874. The 15th amendment, which promises that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," suggests by its very presence that the nearly contemporaneous 14th amendment did not protect the right to vote, either as a matter of equal protection or as a privilege and immunity of national citizenship. As the Supreme Court recognized merely two years after Minor:

The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, &c., as it was on account of age, property, or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is.

United States v. Reese, 92 U.S. 214, 217-18 (1876).

Strictly as a question of judicial craftsmanship, Minor scarcely deserves condemnation. It doesn't deserve admiration either, especially from a modern perspective that quite rightly values democratic self-governance and sexual equality as fundamental human rights. But the notion that Minor was wrongly decided strikes me as unsupportable.

I freely admit that I am inclined to reject the entire enterprise of determining whether a judicial decision was "right" or "wrong," in a mathematical or logical sense as opposed to a pragmatic or social sense. Law is at once an art, an applied craft, and a branch of rhetoric. But it is not a mechanical process. All answers in law are provisional in the sense that they are right only until a better answer arises.

Right and wrong may reside elsewhere. Here perhaps:

Now that is truth and beauty. Law, by contrast, is neither. Law is what permits the state to endure in practice, and nothing more pretentious.