Sunday, May 16, 2010
Brother Steve S. says he has a few "clarifying questions" for me. First, he asks whether I regard precedent as a constitutional source of meaning. My views on the authority of precedent in constitutional interpretation are embarrasingly orthodox: I hold the view widely shared by liberals and conservatives, originalists and "living constitution" theorists, that precedent is considerably less wieghty in Supreme Court constitutional interpretation than it is in statutory interpretation. Moreover, it is a source of constitutional meaning only secundum quid. This is necessarily so in view of the fact that the Constitution can be misinterpreted even by its authoritative interpreters. Of course, that does not mean that precedent cannot legitimately be cited and relied on in constitutional interpretation. But its bindingness on the Supreme Court, as the court of last resort in federal constitutional interpretation, depends on a number of factors. Like most constitutional theorists, I believe that a Justice should never vote to reaffirm a constitutional holding he believes to be incorrect merely because the Court held as it did. He needs to have compelling reasons for favoring an erroneous precedent over the Constitution itself. Of course, on the question of what count as compelling reasons there is disagreement, not only among academic constitutional lawyers, but also among Justices. Clarence Thomas's standards are a more demanding than Antonin Scalia's and Stephen Breyer's. So Thomas is more willing than Scalia and Breyer to overturn incorrect decisions (or, perhaps more accurately, he is willing to overturn more incorrect decisions). For what it's worth, I incline in Thomas's direction.
Steve's second question concerns which Justices serving since the Warren Court meet the standards by which I would judge a jurist to be a faithful constitutionalist. In particular he inquires whether there are any Justices who were appointed by Democratic presidents who would qualify. He suggests Hugo Black as a possibility. I think that's right. I certainly have some criticisms of Black's juridprudence (I think he badly misinterpreted the Establishment Clause, for example), but his basic approach was constitutionalist, and he recognized that judicial usurpations of legislative authority (even in causes he himself favored: see his dissent in Griswold v. Connecticut) are betrayals of the Constitution in whose name the usurping Justices purport to act. Another Warren era jurist whose basic approach was constitutionalist (increasingly so as he gained seniority on the Court) was Byron White. White, like Black, sometimes cast votes to uphold legislation that he would have voted against as a legislator or in a referendum. Contrast that with the juridprudence of William O. Douglas or William J. Brennan.
Steve makes the following very interesting observation: "If I were to faithfully apply Robby’s standard (given my current understanding of it), I would conclude that the overwhelming majority of these justices are not constitutionalists in Robby’s sense. This would mean that Robby’s understanding of proper constitutional interpretation differs from that of the overwhelming majority of the justices over an extended period." The most influential liberal constitutional theorist of our time, Ronald Dworkin, in a famous article entitled "The Moral Reading of the Constitution" claimed that Supreme Court Justices and most other jurists purport to adhere to the approach I support, while in practice going beyond the text, logic, structure and original understanding, as he thinks they in fact should do. He exhorted the liberal Justices to stop claiming to be sticking to the traditional sources of constitutional meaning and start proclaiming the rightness of doing what they actually do. Of course, they haven't taken his advice, and they won't. That is hardly inexplicable. After all, their legitimacy in the public mind depends on their claim that they are simply applying the law as written---not acting on the basis of moral or political judgments or convictions that they import into the enterprise of constitutional interpretation. So, with Dworkin, I would say to Steve that my approach to constitutional interpretation is fairly closely in line with what most Justices claim to believe. My advice to the Justices would differ from Dworkin's, however. He says to them, in effect, "start preaching what you practice"; I say to them, "start practicing what you preach."
There is no need for more than a brief comment on Steve's references to my "subjective understanding" of constitutional interpretation, and my "personal theory" of constitutional interpretation. The terms "subjective" and "personal" in this context are merely rhetorical devices and do no analytical or argumentative work. My opinions are my opinions. Their being mine (which is all that "subjective" or "personal" can mean in this context) is neither here nor there. I do not defend them by appeal to my own authority. The question is whether they are sound or unsound, right or wrong. If Steve thinks they are unsound, he should state the reasons for his opinion (which, qua his, will be "subjective" and "personal" in the same analytically unimportant sense).
In 2004, I gave one of the responses to Justice Stephen Breyer's Tanner Lectures at Harvard---lectures later published as a book entitled "Active Liberty." To give Steve S. and anyone else who might be interested a fuller sense of why I believe what I do about constitutional interpretation, here are my comments:
When Dennis Thompson called a few months ago to invite me be a commentator on Justice Breyer’s Tanner Lectures, he made it clear that my task would be to ensure a lively discussion by disagreeing with Justice Breyer in as fundamental a way as possible. I assured him that this would pose no problem. Although I have sometimes applauded Justice Breyer’s opinions, I have generally found myself cheering for the other guys when the Supreme Court has divided along ideological lines. I am, by contemporary standards, a conservative, indeed the kind of conservative—or perhaps I should say “old-fashioned liberal”—who is critical of what conservatives and old-fashioned liberals today regard as the judicial usurpation of democratic legislative authority. Our complaint is that liberal jurists, under the guise of giving effect to constitutional guarantees, frequently displace the judgments of the people and their elected representatives because they disapprove of those judgments on moral or political grounds. Although they claim to speak and act in the name of the Constitution, the sources of their disapproval are, we believe, extra-constitutional. So, as we see it, they are illicitly removing from the domain of democratic deliberation and decision issues properly belonging there—properly, that is, by reference to the framework and principles of the Constitution itself.
On the account of the matter that seems most satisfactory to me, courts are authorized to exercise the power of judicial review to displace a legislative determination only where the law or policy in question is inconsistent with norms fairly derived from the text of the Constitution, its logic, structure, or original understanding. Where a law or policy is not inconsistent with such norms, then courts are bound to uphold it as constitutionally valid, however much the judges dislike it, or consider it to be undesirable, unwise, or even unjust. (There are, of course, issues about the role of precedent and the question of how to deal with past interpretative mistakes, but we can lay those aside for now.) Now, as Ronald Dworkin has astutely observed in the course of criticizing these strictures on judicial conduct, almost all judges pay lip service to them—however freely they may depart from them in practice. Judges who are criticized for usurping the authority of the people and their elected representatives by invalidating legislation without a legitimate constitutional warrant almost always deny that their actions are dependent on personal moral or political convictions that they bring to the interpretative enterprise. They claim to lay these convictions aside in deciding cases, and to rule on the basis of what they find in the Constitution, not what they put there. Their defense, in short, is “the Constitution made me do it.” In my view, the invalidation of legislative determinations is legitimate only where this claim is actually true.
There are, of course, many cases that are difficult. Often, reasonable, careful, and well-informed judges and commentators can reasonably disagree about the bearing of constitutional norms on a law or policy under review. I have no problem with that. My problem is with the licensing, either formally or by accepted practice, of judicial decision making on the basis of judgments about which reasonable people of goodwill disagree, where the Constitution itself cannot fairly be said to settle the issue. Except in what the distinguished Scottish legal philosopher Neil MacCormick calls the interstices in which everyone would concede that certain measure of discretion is necessary and unavoidable in judicial decision making, and where deference to legislative judgment is not a practical possibility, I think that judges should stick to text, logic, structure, and original understanding. That, I think, is what it means to be guided by law. The more expansive view of judicial sources—and judicial power—strikes me as undermining the very idea of the rule of law, and, in the context of American constitutional law, of democratic republican government.
Now, the problem of judicial usurpation is not an inherently liberal problem. Conservative judges can, and have, usurped democratic legislative authority in causes dear to them, too. This is the standard account of the Lochner era, an account shared today (with only a few dissenters) by liberal and conservative commentators alike. Some say that the conservatives of the Rehnquist court have gone back into the business in cases involving federalism, property rights, and affirmative action. However that may be, conservatives themselves—conservatives like me—complain about liberal judges usurping the authority of the people and their elected representatives in a variety of areas, including most notably those involving religious non-establishment and issues of abortion, pornography, and sexual morality. There are also, famously, some issues in criminal procedure. Our complaint against the courts is not that we necessarily disagree with the substantive regime of law and policy their decisions effectively put into place in preference to the regime favored by Congress or the state legislatures (though many of us frequently do disagree—sometimes vehemently); our complaint is that the Courts have, without valid constitutional warrant, stripped us and our fellow citizens of our right to participate in deciding what the law ought to be. Our fundamental concern at the level of constitutional law is with what we perceive to be a judicial disregard for what Justice Breyer calls “active liberty,” which in the American context might also be called “republican liberty”—the right to participate in a meaningful way in deliberating and resolving important issues of justice and the common good. As Jeremy Waldron rightly says, republican liberty extends not merely to the trivia and ephemera of life, but to profound issues of meaning and value, including questions of rights, wherever the people have not already committed themselves to a resolution of the matter one way or another by enshrining a principle governing it in their fundamental law, i.e., the Constitution.
Having said all this, you will perhaps sympathize with my feelings of unease (albeit unease mixed with a certain delight) when I began reading Justice Breyer’s lectures. By the second page, I found Justice Breyer saying that despite the importance of negative liberty in the Constitution, “at its core is a blueprint for ‘ancient’ active liberty, which [the Framers][ might have called ‘public liberty’ and which we might call ‘democracy.’” “Wow,” I said to myself, “that’s terrific.” He then quoted
Now I wanted to cheer. But then I remembered my promise to Professor Thompson. I am supposed to be the guy who disagrees, and disagrees fundamentally. Now what the devil do I do?
Well, I kept reading, and kept cheering for most of a hundred pages. It was really in Section Four, entitled “Recapitulation,” that my brow began to furrow, as the doubt set in. Had all the talk about active liberty, judicial modesty, and respect for the will of the people been mere sugar coating for the bitter old pill of judicial usurpation of democratic legislative authority? Justice Breyer himself anticipated the worry. In section Five, entitled “A Serious Objection,” he spoke of the “fear that, once judges become used to justifying legal conclusions through appeal to real-world consequences, they will too often act subjectively and undemocratically, substituting an elite’s views of good policy for sound law.”
Of course, this is exactly the allegation made against the conservative judges and justices who struck down state and federal worker protection and social welfare laws during the so-called Lochner era; and it is the allegation I and other critics of contemporary make against the judges and justices who are responsible for the substantive due process, equal protection, free speech, establishment clause, and criminal procedure cases about which we protest. These are cases in which laws and policies enacted by the people or their representatives working through constitutionally authorized or prescribed democratic processes were invalidated by courts in the name of norms that cannot (or so we critics say) fairly be derived from the text, logic, structure, or original understanding of the Constitution. As such, we believe that the decisions stand condemned, as the Lochner era cases were condemned, as instances in which courts have usurped democratic legislative authority and undermined democracy.
As I mentioned in my comment yesterday, it is noteworthy that in all of these cases, critics of the decisions include not only those who oppose the regime of law effectively put into place by the courts’ invalidation of the outcomes produced by democratic political processes, but also by a significant number of people who favor what the courts favor as a matter of public policy, and would vote for that way if they were sitting in a legislative body in which the matter were being deliberated.
Now, whenever judges—be they conservatives, liberals, or something in between—invalidate legislation, they invariably claim that they are not bringing independent moral and political judgment to bear in determining their rulings. They are, they say, laying their own moral and political convictions or preferences aside, and acting on the basis of rules and principles they have discovered in the Constitution. But in case after case, this seems dubious. The outcomes, as in cases such as Lochner and Roe, seem clearly to depend on premises about which reasonable and well-informed citizens of goodwill disagree, and which no one can plausibly claim the Constitution itself settles. Now, Professor Dworkin, who has most cogently made the point about the reliance of courts on independent moral judgment in these cases, is famously willing to bite the bullet on this and urge judges to proclaim their willingness—and, indeed, the desirability—of bringing independent moral judgment to bear (within certain constraints) in “giving meaning” to such “majestic generalities,” as he calls them, as the free speech, due process, and equal protection clauses. But there is a reason that judges who, as he says, plainly practice something like his “moral reading” of the Constitution always conceal what they are doing behind the claim that “the Constitution made us do it.” That reason is the concern about undercutting, or at least being seen to undercut, democratic republican government.
Now, Justice Breyer criticizes the leading alternative to the moral reading, namely, originalism in constitutional interpretation. And he makes some good points against it. The question I would raise is whether these points give us good reason to jettison originalism, or whether they should cause us rather to distinguish types of originalism, and to reject the narrowest sort (which aims to glean the subjective expectations of the framers of constitutional provisions) in favor of a more sophisticated version that attempts to recover the publicly understood meaning of the principles embodied in constitutional provisions. I think (and certainly hope—since I think that the idea of fidelity to law is at stake here) that it is the latter; but we can talk about that. The critical question I want to raise about Justice Breyer’s effort to provide a workable alternative to originalism is whether broad judicial appeals to purposes and consequences of the sort Justice Breyer is encouraging us to endorse can be squared with his entirely laudable desire to ensure that the will of the people is honored and, indeed, given the pride of place in what he rightly calls “our democratic constitution.” At the heart of my worry is a philosophical logical proposition that I articulated yesterday. It is that “consequences” are (predicted) facts, which, as such, yield no normative conclusions whatever apart from an evaluative standard. Now, if consequences are to play the role in constitutional interpretation that he would have them play, then conclusions (such as the conclusion that this or that law is invalid as a violation of the Constitution) that appeal to consequences will have to be informed as well by the evaluative standard. But where does that come from? Is it drawn from the Constitution’s language, its logical implications, the structure of the document, the original understanding of its framers and ratifiers? Or is it brought to the interpretative enterprise, as Dworkin would (sometimes and within constraints) allow and encourage? If the latter, then the fear of democracy being compromised and undermined is legitimate. If the latter, have we not simply returned to originalism, albeit perhaps in a more sophisticated form?
And then to the question of purposes: As I said in my comment, I am not at all reassured by Justice Breyer’s example of the school vouchers matter. Indeed, his use of the example confirms my worry that his way of appealing to consequences and purposes transfers to the judiciary decision making authority properly vested by the Constitution in the hands of the people acting through the processes of republican democracy. From the range of possible purposes that could be ascribed to the establishment clause, he chooses one, and in my judgment, an artificially narrow one, that will be plausible only to people who, quite independently of the text and history of the Constitution, are ideologically committed to a certain view of the proper relationship of religion and government. Now, as I said yesterday, I don’t want to make too much of this particular example, for Justice Breyer went out of his way to say, speaking of his dissent in the voucher case, “I am not here arguing that I was right. I am arguing that the opinion ought to identify a critical value underlying the Religion Clauses, consider how that value applies to modern day
Again, I am not suggesting that purposes don’t matter, or should never matter, in judicial deliberation and the resolution of cases. I am suggesting that there are important ways in which a concern for “active liberty” should shape and constrain the examination and identification of purposes by courts. When these ways are taken into account, the result may very well resemble the very view—namely, originalism—to which Justice Breyer poses the purposive approach as an alternative. But whatever we call it, the result would tend to be a weightier counsel of deference to democratic institutions. Sometimes, as with abortion, pornography, and some areas of religion, this will discomfit the left; other times, as with federalism, property rights, and perhaps affirmative action, it may discomfit the right. But it would behoove both sides—who, after all, sing the praises of active liberty in their political rhetoric—to evince a serious willingness to pay its price.