A Subversive Strand of the Warren Court

I. IntroducttionThe choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular state of affairs, whether through explicit legislation or by some other affirmative mode of exercising state power. A de facto approach focuses on a given empirical state of social affairs and, in its strongest form, imposes constitutional norms whenever a review of the social order discloses that constitutional rights or norms are not extant, regardless of the source of their denial.To help understand the distinction, think of the right of a woman to abort her fetus recognized in Roe v. Wade.1 A de jure approach to identifying the denial of her right would focus on whether the government had done anything affirmative to block her ability to exercise her choice to abort; a de facto approach would ask whether she in fact was able to exercise her right, regardless of whether the source of any burden was "private" or "governmental." While not articulating its decisions in this terminology, the Court's decisions in Maher v. Roe,2 upholding a state's refusal to fund medically "unnecessary" abortions through Medicaid while funding childbirth, and Harris v. McRae,3 upholding a federal ban on abortion funding, are vivid examples of the de jure approach. So long as the government didnot place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation.... The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.4Conversely, a de facto approach would have found a constitutional violation on the basis of a woman's inability to exercise her constitutional right and therefore would have required government funding of the abortion procedure.Stated in terms of its possible application to identifying violations of individual constitutional rights, the de jurelde facto distinction is related to, though not identical with, the difference between affirmative as opposed to negative rights. It is also implicated in the state action requirement in equal protection, due process and individual rights contexts. A de facto approach encompasses an affirmative rights approach, but it is not limited to individual rights issues. Its general application would also severely curtail the application of the state action doctrine as a limit on the application of constitutional norms.5The de jurelde facto distinction is not always as polar as I treat it. In many cases, one could interpret the de facto approach as a variant of a commitment to the de jure approach. That is, a de facto standard of review could be seen as a way to flush out state action when it is difficult to prove, or, as in the school desegregation cases discussed below, as a way to relax causation standards when state responsibility has already been established. Alternatively, a de jure standard could constitute a particular position with respect to the interpretation of the existing social order, a subset of de facto analysis. Although one can mediate the polarity in particular contexts, the de jurelde facto distinction nevertheless marks an important lens through which to see the limits of and alternatives to dominant constitutional interpretation.In order to understand the significance of the turn to de facto modes of constitutional review in the various doctrinal areas in which the Warren Court applied it, we must first comprehend the historical and doctrinal background within which members of the Court would have conceptualized what was at stake in constitutional interpretation. …