There was a time when the ideas of the law, particularly constitutional law, were fully accessible to educated people. That is no longer the case. Legal thought has become an intellectual enclave inhabited primarily by academics whose efforts are directed at influencing courts. The nature and extent of that influence are unsuspected by the general public and even by public policy intellectuals.
The new theorists of constitutional law deserve to be better known than they are, not because their theories are good but because, as a group, they are influential and their enterprise involves nothing less than the subversion of the law’s foundations. Some of them are quite explicit about their intention to convert the Constitution from law to politics, and judges from magistrates to politicians. Others have no such conscious intent, but their prescriptions would have the same effect. The politics and the robed politicians, it need hardly be added, in nine cases out of ten are to be of the left-wing variety.
If they do not fully understand the extent to which the “life of the intellect” has become political rather than intellectual, many Americans do have a sense that something has gone very wrong in education. That probably accounts both for the phenomenal success of Allan Bloom’s book The Closing of the American Mind: How Higher Education Has Failed Democracy and Impoverished the Souls of Today’s Students4 and for the acid reception accorded to it in the academy. Speaking of two disciplines, Hilton Kramer said what could be said of almost all university departments:
We all know—and certainly our enemies know—that the assault on the study of the arts and the humanities … is, above all, a political assault—an attempt on the part of the radical Left first to discredit and then to do away with what in our most exalted artistic and humanistic traditions may be seen to offer resistance, either directly or by implication, to the total politicization of culture and life. We know the assault is at bottom political, no matter under what other temporary banners the assault may at times be mounted and regardless of what unexceptionable virtues it may at times be mounted in the name of.5
Kramer has perfectly described the situation in law as in many other fields.
Upon reading my description of the state of legal theory, the intellectual historian Gertrude Himmelfarb wrote me: “This is precisely the situation in literature and history—abstract, abstruse, highly methodological—the point of which is to relativize the disciplines thoroughly. Any methodology becomes permissible (except, of course, the traditional one), and any reading of the texts becomes legitimate (except, of course, that of the author). The purpose is not only to create a new privileged mandarin class who alone are competent to interpret the texts, but also to re-create the discipline de novo so as the better to politicize it, to create a tabula rasa upon which anything can be written. Original understanding is to the law what traditional, factual, documentary history is to the historian.”6
Law is a critical battleground because, like the arts and humanities, like sociology, history, political science, and other areas that have become politicized, law has the capacity to affect ways of thinking and our culture through its educative and symbolic influence. When a court, especially the Supreme Court, pronounces in the name of the Constitution upon the meaning of racial justice, sexual morality, or any other subject, a cultural lesson is taught. Most people revere the Constitution as a basic compact that defines American civic morality. A decision does more than decide a case; it adds weight to one side of our cultural war, even when the decision is in fact not supported by the actual Constitution. But law, unlike other politicized fields, such as literature and philosophy, has the power to coerce, and when the law in question is the Constitution, the coercion is absolute: The people and their democratic institutions are, for all immediate practical purposes, helpless before the authority wielded by judges. Herbert Schlossberg, writing about the influence of the new class on the bureaucracy, makes a point that applies as well to its influence on judges. Through constitutional decisions that are not related to the historic Constitution, that class “has found a vehicle for giving its values the force of law without bothering to take over the political authority of the state.”7
That is why what is being written and taught in our law schools matters. That is why it is important to understand that the spectacular efflorescence of modern constitutional theory is not a sign of vigor and health but in reality is the brilliant flower of decay.
6
The Madisonian Dilemma and the Need for Constitutional Theory
The central problem for constitutional courts is the resolution of the “Madisonian dilemma.” The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled. The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule. The dilemma is that neither majorities nor minorities can be trusted to define the proper spheres of democratic authority and individual liberty. To place that power in one or the other would risk either tyranny by the majority or tyranny by the minority. The Constitution deals with the problem in three ways: by limiting the powers of the federal government; by arranging that the President, the senators, and the representatives would be elected by different constituencies voting at different times; and by providing a Bill of Rights. The last is the only solution that directly addresses the specific liberties minorities are to have. We have placed the function of defining the otherwise irreconcilable principles of majority power and minority freedom in a nonpolitical institution, the federal judiciary, and thus, ultimately, in the Supreme Court of the United States. The task of reconciliation cannot be accomplished once and for all. The freedom of the majority to govern and the freedom of the individual not to be governed remain forever in tension. The resolution of the dilemma must be achieved anew in every case and is therefore a never ending search for the correct balance.
There is, of course, more to the Court’s constitutional function than defining in so direct a fashion the rights of the individual against the state. There is the related task of maintaining the system of government the Constitution creates. The Court must often discern the powers of Congress and those of the President when the claims of each come into conflict, as, it appears, they increasingly do. Similarly, though the Court has largely abandoned the role, there is the job of defining the respective spheres of national and state authority. These questions of governmental structure, competence, and authority are, of course, closely related to the resolution of the Madisonian dilemma and may in fact amount to much the same thing. When the President and Congress come into a conflict requiring resolution by the Court, or when such a dispute arises between the national and a state government, it is usually because the contending bodies would decide an issue in different ways. It matters greatly to the individual, therefore, which arm of government has legitimate authority in a field that affects him. It matters not only in terms of the result that one branch of government ordains but, since different governmental bodies have constituencies of different sizes and compositions, it matters to the citizen’s chances of participating in decision-making.
The functions assigned the Court impose a need for constitutional theory. How is the Court to reason about the resolution of the disputes brought before it? If we have no firm answer to that question, it will not be possible to know, or even rationally to discuss, whether judicial decisions are within the range of the acceptable. In resolving the Madisonian dilemma, courts must be energetic in protecting the rights of individuals while being equally scrupulous to respect the rights of majorities to govern. Should judges make serious mistakes in either direction, they abet either majority or minority tyranny. Should they make serious mistakes in structural issues, they also alter the balance of freedom and power. Modern debate about constitutional th
eory, however, is less about structural questions and the allocation of authority between arms of government than it is about the individual’s right to be free of democratic governance.
We need a theory of constitutional adjudication, then, that defines the spheres of the majority and the individual in a sense that can be called “correct.” If there is no correct solution, there is no dilemma to be resolved; there is no way to assess the work of the courts; there is no way to choose among a constitutional theory that calls for complete majoritarianism, one that demands unlimited power for the judiciary, and a theory that insists upon freedom so extreme that it approaches anarchy. This means that if there is no single correct solution, there must be at least a limited range of outcomes that can be called correct. That, in turn, means that any theory worthy of consideration must both state an acceptable range of judicial results and, in doing that, confine the judge’s power over us. It is as important to freedom to confine the judiciary’s power to its proper scope as it is to confine that of the President, Congress, or state and local governments. Indeed, it is probably more important, for only courts may not be called to account by the public. For some reason unintelligible to me, Lord Acton’s dictum that “Power tends to corrupt and absolute power corrupts absolutely”1 is rarely raised in connection with judges, who, in our form of government, possess power that comes closer to being absolute than that held by any other actors in our system. The theory must, therefore, enable us to say what is the limit of the judge’s legitimate authority.
In the following chapters we shall examine the leading academic theories of constitutional law, starting with the traditional and once dominant theory of the original understanding. We then turn to the competing theories, all of them revisionist in one way or another. No single revisionist theory has established dominance. One of the more entertaining features of the literature is that the revisionists regularly destroy one another’s arguments and seem to agree only on the impossibility or undesirability of adherence to the Constitution’s original meaning.
7
The Original Understanding
What was once the dominant view of constitutional law—that a judge is to apply the Constitution according to the principles intended by those who ratified the document—is now very much out of favor among the theorists of the field. In the legal academies in particular, the philosophy of original understanding is usually viewed as thoroughly passé, probably reactionary, and certainly—the most dreaded indictment of all—“outside the mainstream.” That fact says more about the lamentable state of the intellectual life of the law, however, than it does about the merits of the theory.
In truth, only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American Republic.
The Constitution as Law: Neutral Principles
When we speak of “law,” we ordinarily refer to a rule that we have no right to change except through prescribed procedures. That statement assumes that the rule has a meaning independent of our own desires. Otherwise there would be no need to agree on procedures for changing the rule. Statutes, we agree, may be changed by amendment or repeal. The Constitution may be changed by amendment pursuant to the procedures set out in article V. It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges. Though that has been done often enough, it is in no sense proper.
What is the meaning of a rule that judges should not change? It is the meaning understood at the time of the law’s enactment. Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean. If Congress enacted a statute outlawing the sale of automatic rifles and did so in the Senate by a vote of 51 to 49, no court would overturn a conviction because two senators in the majority testified that they really had intended only to prohibit the use of such rifles. They said “sale” and “sale” it is. Thus, the common objection to the philosophy of original understanding—that Madison kept his notes of the convention at Philadelphia secret for many years—is off the mark. He knew that what mattered was public understanding, not subjective intentions. Madison himself said that what mattered was the intention of the ratifying conventions. His notes of the discussions at Philadelphia are merely evidence of what informed public men of the time thought the words of the Constitution meant. Since many of them were also delegates to the various state ratifying conventions, their understanding informed the debates in those conventions. As Professor Henry Monaghan of Columbia has said, what counts is what the public understood.1 Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like. Almost no one would deny this; in fact almost everyone would find it obvious to the point of thinking it fatuous to state the matter—except in the case of the Constitution. Why our legal theorists make an exception for the Constitution is worth exploring.
The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court. To be sure, there are differences in the way we deal with different legal materials, which was the point of John Marshall’s observation in McCulloch v. Maryland that “we must never forget, that it is a constitution we are expounding.”2 By that he meant that narrow, legalistic reasoning was not to be applied to the document’s broad provisions, a document that could not, by its nature and uses, “partake of the prolixity of a legal code.” But he also wrote there that it was intended that a provision receive a “fair and just interpretation,” which means that the judge is to interpret what is in the text and not something else. And, it will be recalled, in Marbury v. Madison Marshall placed the judge’s power to invalidate a legislative act upon the fact that the judge was applying the words of a written document.3 Thus, questions of breadth of approach or of room for play in the joints aside, lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words.4
We would at once criticize a judge who undertook to rewrite a statute or the opinion of a superior court, and yet such judicial rewriting is often correctable by the legislature or the superior court, as the Supreme Court’s rewriting of the Constitution is not. At first glance, it seems distinctly peculiar that there should be a great many academic theorists who explicitly defend departures from the understanding of those who ratified the Constitution while agreeing, at least in principle, that there should be no departure from the understanding of those who enacted a statute or joined a majority opinion. A moment’s reflection suggests, however, that Supreme Court departures from the original meaning of the Constitution are advocated precisely because those departures are not correctable democratically. The point of the academic exercise is to be free of democracy in order to impose the values of an elite upon the rest of us.
If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presum
ably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law.”5 It is here that the concept of neutral principles, which Wechsler said were essential if the Supreme Court was not to be a naked power organ, comes into play. Wechsler, it will be recalled, in expressing his difficulties with the decision in Brown v. Board of Education,6 said that courts must choose principles which they are willing to apply neutrally, apply, that is, to all cases that may fairly be said to fall within them.7 This is a safeguard against political judging. No judge will say openly that any particular group or political position is always entitled to win. He will announce a principle that decides the case at hand, and Wechsler had no difficulty with that if the judge is willing to apply the same principle in the next case, even if it means that a group favored by the first decision is disfavored by the second. That was precisely what Arthur M. Schlesinger, Jr., said that the Black-Douglas wing of the Court was unwilling to do. Instead, it pretended to enunciate principles but in fact warped them to vote for interest groups.8
The Court cannot, however, avoid being a naked power organ merely by practicing the neutral application of legal principle. The Court can act as a legal rather than a political institution only if it is neutral as well in the way it derives and defines the principles it applies. If the Court is free to choose any principle that it will subsequently apply neutrally, it is free to legislate just as a political body would. Its purported resolution of the Madisonian dilemma is spurious, because there is no way of saying that the correct spheres of freedom have been assigned to the majority and the minority. Similarly, if the Court is free to define the scope of the principle as it sees fit, it may, by manipulating the principle’s breadth, make things come out the way it wishes on grounds that are not contained in the principle it purports to apply. Once again, the Madisonian dilemma is not resolved correctly but only according to the personal preferences of the Justices. The philosophy of original understanding is capable of supplying neutrality in all three respects—in deriving, defining, and applying principle.
The Tempting of America Page 19
