A Hayekian Perspective on Earl Warren

*The following is adapted from a recent paper I wrote for Supreme Court Watch*

We may seek to better understand the judicial role in a spontaneous order, and the inherent difficulties of such a position, by using Hayek’s theory elucidated in his book Law, Legislation, and Liberty to evaluate the judicial philosophy and performance of Chief Justice Earl Warren.

While Chief Justice Warren’s approach to judicial decision making appears unorthodox and inconsistent, in that he had no great reverence for precedent, respect for other government institutions, or formal method of constitutional interpretation, his judicial philosophy seems, in the final analysis, to have been a coherent one. Warren believed that the Constitution was the embodiment of a set of ethical values that were fundamental to the existence and continuance of a good society, and that he, as a judge, was vested with the power to protect those values against any threat. He decided his cases, therefore, on the basis of his understanding the ethical structure underlying the Constitution as much as on the explicit language of the Constitution.

Warren presented his view of constitutional law in his essay, The Law and the Future. There, he explained that “our legal system is woven around the freedom and the dignity of the individual,” and that, through our constitutional system, “the fundamental law [is] above the will of the government.” Warren viewed the Bill of Rights as an enumeration of the natural rights of human beings, and thus these amendments could be used to defeat government attempts at encroaching upon the fundamental rights of individuals, no matter what form they took. Moreover, Warren viewed the American legal system as an attempt to institutionalize a sense of justice and fairness inherent in human nature, and that loyalty to the fundamental tenets of the system, rather than merely the explicit expressions of it, required adherence to the demands of this justice. 

This is not to say that these principles could not change. In fact, Warren recognized that the pursuit of justice was a continuous process, and that the Bill of Rights would need to be revised in the face of changing circumstances. “We will pass on,” he said, “a document [that] will not have exactly the same meaning it had when we received it from our fathers.” Through a regular application of the principles embodied in the Bill of Rights, the document could be improved, “burnished by growing use.” 

Warren, in this and other writings, used sufficiently broad and vague language so as to not arouse much attention from other jurists of the time. Regardless, two essential themes of his jurisprudence were sufficiently clear in them. The first of these was Warren’s “identification of the language in the Bill of Rights with the protection of the natural rights of man against the arbitrary actions of government.” The language he used to articulate this belief was broad: “he set no doctrinal limits on the protection of individual rights against the state, and he mentioned no institutional limits on the power of the judiciary to protect these rights.” The second of these themes was the need for regular and creative application of the language in the Bill of Rights to new situations. The purpose of such an exercise was to ensure that the meaning of that language could evolve along with the society it governed, and to ensure that its full meaning at any particular time could be known through extensive elucidation. 

As mentioned, many of the cases for which the Warren Court is known were landmarks precisely because they overturned established precedents, thereby disrupting the expectations of the individual elements which comprised American society. These cases reflected Warren’s belief that the principles embodied in the language of the Bill of Rights were meant to change with time. While these cases were no doubt disruptive of the social order at the time they were decided, their aim was almost always to create a new set of expectations for the members of society going forward. Indeed, when Chief Justice Rehnquist surprisingly upheld the constitutionality of the Miranda warning requirement, he did so on the basis of such warnings having “become embedded in routine police practice to the point where the warnings have become part of our national culture.” Furthermore, Hayek himself admits the difficulty of interpreting and articulating the rules implicitly governing spontaneous orders; judges are liable to err, and when they do so, it seems not inappropriate that subsequent judges attempt to rectify the mistakes of their predecessors. Warren did not ground his landmark decisions in his own subjective value judgments, but in an ethical system that he discerned underlying the American legal culture, which may well be a part of those inarticulate principles to which individuals spontaneously adjust their behavior to generate social order. 

Still, this type of decision-making hints at constructivism, and Warren’s belief that he knew better what principles and practices society should be based upon than the spontaneous development of society to that point had manifested may make his judicial philosophy incompatible with the proper role of a judge in a spontaneous social order. Nevertheless, there are other elements of Warren’s judicial philosophy that Hayek might have approved of. The belief in natural rights, for example, was an element that may be considered a beneficial trait of a judge for the free development of a spontaneous social order. Warren’s further willingness to defend this natural law against by the enacted law of other governmental bodies is another aspect required of a good judge operating in a spontaneous social order. 

In conclusion, Chief Justice Warren cannot be viewed with unqualified approval from a Hayekian perspective. But an analysis of his judicial philosophy, along with his judicial record, reveals the difficulty any judge may face in trying to conform to the requirements of a spontaneous social order. What should a judge do when he believes that the precedents he is supposed to follow do not accurately reflect the principles on which society is based without disrupting the expectations that have been formed from the language of those past decisions?