How the Constitution *in fact* gets rewritten, thank God

    A final, at least for now (as we disperse to celebrate "Independence Day"), contribution to Kevin's and my conversation (for which I am terribly grateful) about why, in my view, textualism gets it wrong, gets it wrong all the way down, like *all* the way down.   Here is an excerpt from some of my unpublished remarks on the occasion of honoring Henry Monaghan; my topic was the thesis of Henry's landmark article, "Stare Decisis and Constitutional Adjudication":         

 

   Answers cannot be any better than the questions to which they reply, and Immanuel Kant famously contended that all questions of human reason and speculation can be reduced to the following three: “What can I know? What ought I to do? What may I hope?” I would like to bring these three questions to bear on just a few of Henry Monaghan’s conclusions or suggestions about what I would encapsulate as legality, used here as an umbrella term for considerations bearing on legitimacy, constitutionality, precedent, stare decisis, judicial review, and more.

            “What can I know?”   I will begin by simply asserting what philosopher Bernard Lonergan, among others, has demonstrated: Much of Western theory, practice, and common sense has been riddled by roughly the same mistake, specifically, that knowing is like taking a good look with the eye of the mind. The mind has no eye, and knowing is not much like taking a good look. Knowing is a compound of potentially cumulative acts, and knowing what I ought to do – Kant’s second question – is not exempt from this fact about how we humans know, if we are to know at all.  The fact that knowing is not a simple act but a compound act applies, as it were, even when the knowing is done in service or in the name of law. Legal knowings are compound acts, each of which needs to be performed properly.

            To make these general points particular, recall Holmes’s influential contention on the first page of The Common Law: “The life of the law has not been logic: it has been experience.” Holmes was parodying Lord Coke, of course, who had taught instead that “reason is the life of the law; nay, the common law itselfe is nothing else but reason.” Holmes’s trick with his logic-versus-experience false dilemma was to block a third possibility, the one Coke and the larger tradition, including Edmund Burke, for example, meant by reason: not mere experience, not mere logic – but, instead, reason or intelligence rooted in experience, yes, but also unfolding itself through acts of understanding and acts of judgment, including acts of potential self-correction, in the crucible of a living tradition. Experience, in other words, is only a starting point in the life of the law, as in any rational, non-random life; experience takes or makes its place in law, as in the rest of life, based on reasonable judgments about whether our understandings of what we ought to do or not do are correct.

What I would suggest, still more concretely, is that the common law method as it actually functioned in the main – but certainly not as it was caricatured as a closed collection of axioms, syllogisms, and conclusions – is an exemplification writ large of the method of human practical reason writ small: it is potentially progressive, cumulative, and self-corrective, proceeding by acts of experience, through acts of understanding, to acts of judgment, and finally to acts of choice of value.   In other words, what above all recommends the common law is the fact that its method is more or less isomorphic with the method of human intelligence. The common law was methodical in the way any true human knowing is methodical. Generalizing, then, I would suggest that any system of law should be evaluated in large part by its success in embodying the method of human intelligence. Human intelligence not only discovers what is; it also discovers what is valuable or good, and these it proposes to the will to be pursued, including in the name of law.

            It is in this context, then, that I propose to take the measure of Monaghan on constitutional stare decisis. With respect to stare decisis in general, I would begin by suggesting that, when understood and applied in an appropriately flexible way, it gives effect to the human potential for progressive and cumulative judgments and then instantiations of value. I put to one side for the now the question of what I mean by the malleable term “appropriately flexible,” and turn directly to the question Monaghan confronted in his article “Stare Decisis and Constitutional Adjudication.” I am broadly sympathetic to Monaghan’s approval of constitutional stare decisis, first of all for the reasons I have given based on human cognition, though also, and relatedly, for the justificatory reasons identified by Monaghan himself, system legitimacy and the legitimating of judicial review, among others. In addition, however, I would also underscore and even bolster Monaghan’s thesis that “in the end, the written Constitution cannot sustain the absolute primacy of text over gloss” (770) and, further, that “originalism must confront a constitutional adjudicatory process in which, after two centuries, the original understanding of text is simply a factor in the process of decisionmaking, a factor to be considered and balanced against other factors. Indeed, frequently the text acts operates as little more than a boundary marker restraining judicial lawmaking. In each instance, the case law overwhelms the text and historical understanding.” (772) This it does because the questions raised by human intelligence and answered methodically outstrip the ability of the text to provide an answer.

            Monaghan’s admirable candor about how methodical human intelligence sometimes subordinates even portions of written text denominated “Constitution” leads him to acknowledge that “[t]he central problem is this: to accord status to stare decisis requires an acknowledgment that originalism plays a purely instrumental role by contributing to the establishment of legitimate government, which in turn promotes stability and continuity.” (772) He continues: “Neither originalism nor the constitutional text has mystical qualities that compel a return to the fold in the face of transforming departures from the original understanding.” (772) This further candor leads Monaghan to offer tentative affirmative answers to these hard questions: “[I]f the Court legitimately may prevent inquiry into original understanding in order to maintain transformative change, does this concession also license prospective disregard of original understanding when the Court is satisfied that change is necessary to maintain systemic equilibrium? Moreover, should the Court reject the precedent itself in favor of still further change when to do so will achieve the important values?” (772) Monaghan might make his own a favorite metaphor of Lonergan’s: the wheel of method not only turns, it also rolls along.  

            These remarkable concessions by Monaghan, at the expense of originalism in favor of stare decisis and what I have referred to as the methodical unfolding of human intelligence, are followed quickly by a caution that “in the end any temptation to dismiss the Constitution of 1789 from our view seems to be a mistake. Paul Brest is surely right in stating that ‘the written Constitution lies at the core of the American ‘civil religion.’” (773)

            This leads me back to Kant’s third question: “What can I hope?” Well, here I’m not going to pull any punches, and I’ll be brief: What I hope is for "us" to do collective justice of the sort deliberately BLOCKED by “our Constitution” and the embarrassing panoply of "religions" with which it systematically saddles and stymies our ability to live together how Christ teaches us to live together, or, more pointedly, to expose as idolatry what Michael Novak, a great, great, great enthusiast of the Constitution, boasted was an “empty shrine” at the Constitution's core.  The much-praised Godlessness of the Constitution sets our collective sights literally hopelessly low. So, while I agree that we should keep the Constitution in view, above all in constitutional adjudication, the first place where "gloss" should overtake "text" is by adding God (assuming arguendo that Omnipotence can take the form of "gloss," an assumption for which there is support in the defenseless baby in the manger in Bethlehem of Judea) and the possibility of God’s social recognition by the state both in public worship and by prudent conformity of human law with higher law.

            To move toward my conclusion.  I’m not delusional, so, yes, I recognize that nothing like what I've just described is about to happen, perhaps not before the great eschatological rectification of it all.  Meanwhile, I agree with Jeff Powell that fidelity to the Constitution is generally worthwhile because of its capacity to instantiate in us what Powell has referred to as the “constitutional virtues,” but I do so with my stated preference for methodism (with a lower-case m) over the virtue of acquiescence, as Powell calls it following Madison. As theologian David Tracy has observed, “when literate cultures are in crisis, the crisis is most evident in the question of what they do with their exemplary written texts.” Textualism would be Exhibit A. It proposes, as Justice Scalia says, that the text of the Constitution (and of other enacted law) be treated as “objectified intent” to be unlocked with the help of dictionaries, those schedules of probable meanings that are no one's meaning.   “There is always the temptation in law,” as Joseph Vining has observed, “ to approach a statute [or the Constitution] as if its words had meanings in themselves and by themselves,” but, as Tracy notes, “texts are not dictionaries. In texts, words do not have meaning on their own . . . .   We converse with one another. We can also converse with texts. If we read well, then we are conversing with the text. No human being is simply a passive recipient of texts. We inquire. We question. We converse. Just as there is no purely autonomous text, there is no purely passive reader. There is only that interaction named conversation.” The alternative known as textualism evinces, as Vining also observes, an “authoritarianism” justified by “maintaining the supremacy of democratic politics and legislative authority.” But there are values higher than democracy and fidelity to a given manmade text, and it is action in conformity with correct practical understanding.    

            On the last page of “Constitutional Adjudication and Stare Decisis,” Monaghan asks whether, if what he has argued is correct, “the political order [is] the ground of the constitutional order rather than vice versa,” and then, in a footnote, asks even more pointedly, “have we in effect reformulated our notion of what a constitution is, returning to the pre-Revolutionary War idea that . . . a constitution is essentially a description of the fundamental political arrangements?” My own answer to these questions that Monaghan leaves unanswered is “I hope so.” What can I hope: To quote Bernard Lonergan: “The state can be changed by rewriting the constitution. More subtly but no less effectively it can be changed by reinterpreting the constitution or, again, by working on men’s minds and hearts to change the objects that command their respect, hold their allegiance, fire their loyalty.” (212)

        "What can I hope?"  It's a question I wouldn't bury by the legal but lawless authoritarianism of another "ism" called textualism.  And not just for my sake, but for the common good God intends.