Constitutional Thinking

A Critical Analysis of Constitutional Law

Mark V. Tushnet

• Publisher: University Press of Kansas
• Year: 2015
• ISBN:
  9780700621033
• Topic: Law
• Subtopic: Public Law
• Index: Law

The first paperback edition of a classic of American constitutional theory. The book is divided into two parts. In Part I Professor Tushnet appraises the five major competing "grand theories" of constitutional law and interpretation, and, argues that none of them satisfy their own requirements for coherence and judicial constraint. In Part II the author offers a descriptive sociology of constitutional doctrine and raises critical questions as to whether a grand theory is necessary, is it possible to construct a coherent, useful grand theory, and is construction of an uncontroversial grand theory possible?Professor Tushnet's new Afterword is organized in parallel fashion to the original text. Part I offers a new survey of the contemporary terrain of constitutional interpretation. Part II provides an extended discussion of the most prominent of contemporary efforts to provide an external analysis of constitutional law, the idea of regime politics. This includes discussion of major court decisions, including Bush v. Gore and Citizens United.

I

THE CRITIQUE OF GRAND THEORY

1

The Jurisprudence of History

IN 1985 PUBLIC controversy erupted over apparently esoteric questions of constitutional theory. Attorney General Edwin Meese III gave a widely publicized speech criticizing the Supreme Court and arguing that the Court should return to a “jurisprudence of original intention,” in which it would construe the Constitution precisely in line with the intentions of the framers. Three months later Justice William Brennan delivered an equally well publicized speech, generally taken to be a response to Meese, that rejected such a jurisprudence as impossible.¹ Meanwhile a less widely noted controversy over following precedent has been simmering. Liberals who formerly admired courts for rejecting restrictive precedents began to see the wisdom of adhering to the beleaguered rulings of the Warren Court, whereas conservatives began to say that it was all right to turn the clock back (and overrule recent decisions) if the clock was telling the wrong time.² Two Supreme Court decisions enforced older precedents that, it was conceded, had little to commend them, but following the precedents was almost reason enough.³

These two controversies reflect continuing concern about the vitality and propriety of the two least controversial grand theories, neutral principles and originalism (sometimes called interpretivism). According to the neutral principles theory, “the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved … [resting] on grounds of adequate neutrality and generality, tested not only by the instant application but by others that the principles imply.”⁴ According to the originalism theory, judges “should confine themselves to enforcing norms that are stated or clearly implied in the written Constitution.”⁵ Such norms are found by interpreting the text with recourse when necessary to the original intent of the framers. These are of course only initial formulations, but they state the theories in general terms. Roughly, they tell judges to do what the Constitution says and to do that in good faith, committing themselves to the logical implications of what they decide.

Many theorists believe that originalism and neutral principles provide the necessary framework for their activity. For example, Michael Perry has said that any constitutional theory must be principled in the required sense, and John Hart Ely, in his more expansive moments, treats his theory as “the ultimate interpretivism.”⁶ These theories are responsive to the liberal tradition’s need to control people’s attempts to secure the most they can for themselves, without regard for others. We will see that these two theories are plausible only on the basis of assumptions that themselves challenge important aspects of the liberal tradition.

Originalism attempts to implement the rule of law by assuming that the meanings of words and rules used in the past can be retrieved without distortion in the present; neutral principles does the same by assuming that we all know, because we all participate in the same culture, what the words and rules used by judges mean. The only coherent basis for the requisite continuities of history and meaning is found in the communitarian assumptions of the republican tradition; indeed, only these assumptions can provide the foundations upon which both originalism and neutral principles ultimately depend. The republican tradition places society prior to individuals by developing the implications of the idea that we can understand what we think and do only with reference to the social matrix within which we find ourselves. The liberal account of the social world is inevitably incomplete, for it proves unable to provide a constitutional theory of the sort that it demands without depending on communitarian assumptions that contradict its fundamental individualism.

Originalism and neutral principles are two powerful theories, but they cannot stand on liberal premises. Because the republican tradition rejects the premises that make theory necessary, it need not develop an alternative theory. The most it must do is elaborate the ways in which we are dependent on one another not just for peace or material well-being but for meaning itself. Yet just as the republican tradition correctly emphasizes our mutual dependence, the liberal tradition correctly emphasizes our individuality and the threats we pose to one another. It may be that we live in a world of tension, in which no unified social theory but only a dialogue between the traditions is possible. Constitutional theory is then either impossible or unnecessary.

Originalism and Historical Knowledge

Attorney General Meese supports the jurisprudence of original intent for two basic reasons.⁷ First, that jurisprudence treats the Constitution like a contract. When the framers created our government by writing the Constitution, they limited the government’s powers in the same document. Courts can enforce their agreement by figuring out what limits the framers intended to place on the government that they created. But, according to Meese, if courts depart from the intent of the framers, they are assuming a power to restrict government that they were never given. Second, the jurisprudence of original intent is the safest way to avoid judicial tyranny. By confining the judges to the words of the Constitution as understood by the framers, we ensure that they will not go too far; we bar them from making decisions that in a democratic society are properly made by a political majority.⁸

Treating the Constitution like a contract seems sensible, yet doing so is difficult to defend cogently.⁹ First, the argument faces an embarrassment: the framers themselves do not appear to have held an originalist theory of constitutional interpretation.¹⁰ Influenced by the republican tradition, they believed that the meaning of the Constitution’s terms was so clear to a fair-minded reader that the Constitution did not need to be interpreted in any subtle or sophisticated way.¹¹ An originalist approach to constitutional interpretation was not part of the contract the framers entered, and courts that adopt such an approach cannot justify it merely by invoking the framers’ intent.¹² They must go beyond the contract to find the principle that the contract should be interpreted according to the framers’ intent. If they can go beyond it for that, why not go beyond it for other things as well?¹³

Further, few people today believe that phrases like due process of law or the freedom of speech have the kind of plain meaning that the framers believed they had. This may be the result of greater sophistication about language and law, or the outcome of a long process by which a self-interested elite has hoodwinked the public, or the product of cultural decline. Whatever its source, our skepticism would surely be triggered by judges who said that they were simply enforcing the plain meaning of the Constitution.¹⁴

A second problem with the contract argument is that none of us entered the contract. The framers did, and it might be fair treatment of James Madison to enforce the contract against him. But he died a long time ago, and it is not obvious that it makes sense to think that people alive today are somehow parties to a contract in a way that would make it unfair to us to interpret the Constitution without regard to the framers’ intentions.¹⁵ Bruce Ackerman has tried to explain why an originalist theory is attractive for contractlike reasons.¹⁶ He distinguishes between two forms of politics. Ordinary politics is dominated by private interests, bargaining, compromise, and the like. Constitutional politics, in contrast, occurs during periods of heightened democratic consciousness, when the public is alert to and seeks to advance the public interest in a relatively principled way.¹⁷ For Ackerman, the fact that the Constitution’s most important provisions were adopted during these special periods explains the fact that the Constitution prevails over ordinary legislation adopted during times of ordinary politics.¹⁸

Ackerman’s argument rests on the proposition that they—the citizenry during constitutional periods—were better than we—the citizenry during times of ordinary politics. This seriously overestimates the differences between them and us. Democratic consciousness and ordinary horse trading always coexist, and their proportions do not shift as dramatically as Ackerman suggests. Ackerman calls his use of history “egregiously selective.”¹⁹ but it is more than that. Actually, he selects aspects of the past of which he approves and ignores those of which he disapproves. For example, he identifies “two peaks” of heightened democratic consciousness, the initial framing of the Constitution and the adoption of the Reconstruction amendments. The distinction between normal politics and constitutional politics cannot easily be sustained even as to these peaks.

Consider James Madison. During the debates in Virginia over the adoption of the Statute for Religious Freedom, a predecessor of the establishment and free exercise clauses, Patrick Henry was Madison’s main adversary. Madison’s friend Thomas Jefferson wrote to Madison from France that people on Madison’s side might well pray for Henry’s death. Adopting a less drastic course, Madison deployed his skill at ordinary politics to ensure Henry’s election as Governor, thus removing him from participation in the legislative debates.²⁰ As the states were debating the ratification of the Constitution, Madison maneuvered its presentation so well that the antifederalist opponents of ratification charged, probably wrongly but certainly credibly, that Madison had interfered with the mails to delay debates over ratification in North Carolina until momentum had been built by ratification in New York.²¹

The Reconstruction amendments were forced through by a Congress that effectively deprived many white southerners of the possibility of democratic choice in the matter, by insisting that the states ratify the fourteenth amendment as a condition for the withdrawal of military government.²² Finally, one might be skeptical about the claim that ordinary politics today displays a lack of democratic awareness; the debates over such central issues as abortion and desegregation are probably about as informed by democratic awareness as were those at the time of the framing. Ackerman’s attempt to explain why we should be bound by what the framers did by invoking their relatively greater democratic awareness is unpersuasive.

This leaves us with the argument that originalism is the best available way to prevent judicial tyranny. For about thirty years, roughly from 1940 to 1970, the argument from judicial tyranny was unpersuasive as well. Originalism had a bad reputation, largely because, allied as it was to politically conservative positions,²³ it seemed too vulnerable to the criticism that a strict adherence to originalism imposes “the dead hand of the past” on us. It seems to require that we find legislation valid unless it violates values that are both old-fashioned and seriously outmoded.

Originalists deflect this criticism by invoking the specter of judicial tyranny.²⁴ Sometimes they argue that only originalism is consistent with democracy. But within the liberal tradition democracy means majority rule tempered by some sort of judicial review; originalists cannot persuade by stipulating a particular definition of democracy when what is at stake is precisely what sort of judicial review is consistent with a liberal idea of democracy.²⁵

Another defense of originalism is more powerful. Of course, the argument goes, originalism does mean that we will be subject to the risk that the legislature will develop novel forms of tyranny. Empirically, however, novelty in tyranny is relatively rare, and because the framers were rather smart, they managed to preclude most of the really troublesome forms of tyranny in the Constitution that they wrote. Some risk of novel forms of tyranny remains, but that risk is significantly smaller than the risk of judicial tyranny that would arise were we to allow the judges to cut free from interpreting the text. In this sense, according to the originalist, we are indeed better off bound by the dead hand of the past than subjected to the whims of willful judges trying to make the Constitution live.

This pragmatic argument is fairly powerful. Of course it can be challenged on pragmatic grounds. For example, Michael Perry has argued that the record of the Supreme Court in modern times provides substantial support for the view that the Court’s use of nonoriginalist modes of interpretation has been, on the whole, beneficial to our society.²⁶ This approach has the advantage of putting the applicable political judgments out in the open, but it has some obvious disadvantages. Many people disagree with Perry’s assessments of recent decisions, and changes in the composition of the courts make it difficult to sustain Perry’s confidence that nonoriginalism will be used only in behalf of the interests he favors.

There are other reasons to question the pragmatic justification for originalism. It rests in part on an empirical claim about novelty that is suspect in light of social change. The possibilities of innovative legislative tyranny are in fact great because the social and material world in which we live has changed drastically since 1789. Wiretapping provides a standard example of innovation that originalism can accommodate only with great difficulty.²⁷ The drafters of the fourth amendment obvio...

Table of contents

• Front Cover
• Series Page
• Title Page
• Copyright Page
• Contents
• Foreword to the Paperback Edition
• Preface
• Introduction
• I THE CRITIQUE OF GRAND THEORY
• II THE CONSTITUTION OF SOCIETY
• Conclusion
• Afterword to the Paperback Edition
• Index of Cases
• General Index
• Back Cover