Monday, October 21, 2013
Michael Perry's recent post about the possible convergence between magisterial morality and constitutional morality with respect to capital punishment brought me back to thinking about the ways in which the Supreme Court of the United States itself functions as a magisterium of sorts (or, as Steven Smith has explained, an anti-magisterium).
There is little doubt about the Court's magisterial pretensions in at least some areas of constitutional law (equal protection and substantive due process come most quickly to mind, but free speech seems to be another obvious area as well). Yet one difficulty the Court faces is the perception that its magisterial pronouncements are occasionally best understood as registering changes in culture that have already taken place rather than as faithfully transmitting a sacred legal deposit from the past.
As my Richmond colleague Corinna Lain has encapsulated this phenomenon in the title of her recent Georgetown Law Journal article, there are many areas of contemporary constitutional law in which the Supreme Court engages in Upside-Down Judicial Review. As Corinna explains, upside-down judicial review flips the so-called countermajoritarian difficulty on its head: "Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. Here marks the start of a distinctly majoritarian, upside-down understanding of judicial review."  Furman v. Georgia is one of Corinna's case studies. She documents how "four of the five Justices in Furman's majority based their decision in whole or in part on the notion that the death penalty was already on its way out the door. The Supreme Court was just turning out the lights."  And she shows how these Justices' perceptions matched those of contemporary commentators.
Michael Perry's argument for the present unconstitutionality of capital punishment is not an argument from majoritarianism. But the argument incorporates reference to changing practices by examining whether capital punishment is "(a) excessive and (b) evidenced as such by the fact that it is unusual (i.e., in the Samuel Johnsonian sense of 'not common; not frequent; rare')." Rejecting Professor John Stinneford's explication of "unusual" in the Eighth Amendment to mean "contrary to long usage," Professor Perry contends that the question is not whether capital punishment was unusual in the past, but rather "whether capital punishment has become unusual, whether it is unusual now."
I have not done the sort of investigation and analysis that would warrant confidence in formulating a critique of Professor Perry's argument on its own terms. But putting the aside the question of whether the argument misfires, it is worth asking whether the way in which it takes aim at its target can lead to a "magisterial" justification for killing the death penalty. It seems not. If the Supreme Court were to follow Professor Perry's logic in justifying constitutional abolition of the death penalty (and to be honest and open about doing so in its opinion),its pronouncement would not be magisterial in the sense of exercising a living teaching authority under the Constitution as much as it would be more or less mechanically registering the verdict of the times.
To be clear, providing a "magisterial" justification for the unconstitutionality of the death penalty is not an explicit goal of Professor Perry's analysis. Whether his argument can or cannot accomplish that, however, is simply an interest of mine (and hopefully of others interested in the nature of constitutional pronouncements by the Supreme Court).
Which brings me to Professor Hobbs of Wellesley, to whom I have been introduced by Philip Rieff, and about whom I otherwise know very little personally (though his web bio reveals a very productive and respected scholar of hermeneutics). Hobbs is a professor of religion quoted by Rieff to describe Hobbs's account of the relationship between "religion" and "values." In the quotation that follows, I substitute "constitutional law" for "religion" in Rieff's quotation of Hobbs.
One Professor Hobbs, professor of [constitutional law] at Wellesley, tells us all we need to know about values in a few invaluable sentences: "[Constitutional law] no longer needs God or gods. It has a theological structure that embodies the values of each culture. When the culture changes, then the [constitutional law] changes. Values have to keep up. That's all there is to it." [Rieff, My Life Among the Deathworks, at 11.]
Rieff continues, now in his own voice: "Is that all? Keeping up can be lowering. All depends on who and what the Joneses of value are." To what extent does this modified quotation from Professor Hobbs describe the constitutional values enforced by the Supreme Court of the United States? And "who and what [are] the Joneses of value" in contemporary constitutional law?
[ed. note--post updated with link to Professor Hobbs's web bio]