Knowledge And Decisions

Most decisions in most aspects of life cannot be demonstrated conclusively to third parties — particularly not to third parties lacking the experience, the training, or the personal stake of those involved. More fundamentally, the validity of a test, or any other criterion, is an empirical question, not a question of plausibility to observers. Empirically, general tests of intelligence have had far higher correlations with subsequent job performance — however measured — than such alternatives as tests of particular skills used in particular jobs, individual biographical or career information, job interviews, or references.¹⁰ There is no reason for judges to have known this, nor can “expert” testimony necessarily fill in the gaps for them, since nothing is more certain than the testimony of opposing experts, while the ability to weigh conflicting testimony may require as sophisticated an understanding of an alien field as deciding the initial question itself. The Griggs decision, written by conservative Chief Justice Warren Burger, effected a major centralization of decision making, making bureaucracies and courts the determiners of employment fitness, and transforming a once-voluntary agreement into an officially prescribed action, controlled by people who pay no consequences for being mistaken.

Although Griggs was a landmark decision, in another sense it was not a new trend but an extension of an existing legal trend toward the concentration of decision-making power in government in general and in the nonelected organs of government in particular. What was new, beginning in the 1980s, was a developing resistance to such trends, reflected often in cutbacks in the scope of earlier activist decisions or, in some cases, in reversals of these earlier decisions of the post-New Deal era, including the Warren Court years. A landmark in this new trend was the 1995 case of United States v. Lopez, in which blanket extensions of Congressional legislative power under the commerce clause of the Constitution were called to a halt for the first time in more than half a century.

The specific issue in the Lopez case was whether Congress had the authority to forbid the carrying of guns in the vicinity of schools. There was nothing in the Constitution authorizing Congress to pass such legislation and, moreover, the Tenth Amendment forbad the exercise of federal powers not specifically authorized.¹¹ Yet, for decades, adventurous extensions of federal power had been justified and validated by the courts, using Congress’s authority to regulate “interstate commerce” as an escape hatch from the constraints of the Tenth Amendment. Even a farmer who grew wheat on his own land for his own consumption was held to be engaged in interstate commerce, and was thus subject to federal edicts.¹² With such an elastic definition of interstate commerce, the floodgates were open — and remained open for decades. Therefore the simple, common sense conclusion that someone carrying a concealed weapon near a school is not engaged in interstate commerce came as a thunderbolt more than half a century later — and squeaked by the court with only a five-to-four majority.¹³ The narrowness of the vote suggests again that developments since 1980 in the law, like social and economic developments, represent no clearly decisive changes, though they have the potential to become such.

One measure of how far the general public’s sense of the law has changed over the years is that much editorial discussion of the Lopez decision focused on whether it was a good idea to ban guns near schools. Such bans have in fact been enacted by many state governments, which have every constitutional right to do so. The real issue was the scope of federal power under the Constitution, but this issue — on which freedom itself ultimately depends — was often lost in the shuffle, not simply because media journalists did not go into deeper legal issues, but also because courts themselves, especially during and since the Warren Court era, looked upon many cases as policy-making exercises based on moral philosophy rather than being based on a Constitutional legal system. Strong negative reactions from the media and from the law schools to the recent trimming back or reversal of judicial activist decisions of the post-New Deal decades have included denunciations of the very idea of overturning precedents — often made by people who applauded the Warren Court’s overturning of precedents of older vintage. This too makes a clear-cut change in trends difficult to see or predict.

POLITICAL TRENDS