Dean Paul Brest of Stanford, where Ely also teaches, has written that “the controversy over the legitimacy of judicial review in a democratic polity … is essentially incoherent and unresolvable”79 since “no defensible criteria exist” “to assess theories of judicial review.”80 Therefore, he concludes, “the Madisonian dilemma is in fact unresolvable.”81 One might suppose that a constitutional theorist who concludes that no defensible theory of judicial supremacy exists would at least entertain the idea that the institution is illegitimate and should be dropped. That is, there being no way to justify judicial power, courts should simply accept whatever legislatures produce. That is not Brest’s conclusion, however. Instead, he lists a number of useful criteria the Court should employ in exercising the function of judicial review.
Having abandoned both consent and fidelity to the text and original understanding as the touchstones of constitutional decisionmaking, let me propose a designedly vague criterion: How well, compared to possible alternatives, does the practice contribute to the well-being of our society—or, more narrowly, to the ends of constitutional government? Among other things, the practice should (1) foster democratic government; (2) protect individuals against arbitrary, unfair, and intrusive official action; (3) conduce to a political order that is relatively stable but which also responds to changing conditions, values, and needs; (4) not readily lend itself to arbitrary decisions or abuses; and (5) be acceptable to the populace.82
Our actual constitutional order accomplishes these things, often by leaving such matters as responses to changing values and needs to the people and their elected officials. The difficulties with Brest’s view are not only that, once the real Constitution is abandoned, the judge has no authority to impose any standards on legislators, but also that his set of criteria, agreeable though they may sound, are so vague, as he concedes, that judges are given virtually complete discretionary power to run the nation.
Another Stanford law professor, Thomas Grey, once urged courts to depart from the written Constitution on the theory that there is an unwritten law, a natural law, that judges should enforce. He sought to have it both ways, holding that judges can set aside democratic decisions because the Constitution is law and yet that judges are free to jettison that law by exceeding the Constitution’s limits to enforce “deeply held but unwritten ideals.”83 Grey’s arguments for a Court that departs from the historical meaning of the Constitution are essentially result-oriented: the results of departing from the Constitution are, as he sees it, politically good. Moreover, judges are best equipped to identify and enforce unwritten ideals, and the Founders intended judges to do just that. Those good results, one must suppose, if Grey thinks the historical record relevant, included not only Roe but such manifestations of the natural law as Dred Scott and Lochner. Moreover, if the Founders intended judges to apply natural law, they certainly kept quiet about it. Many historians are not even sure the Founders as a group contemplated any form of judicial review, even review confined to enforcement of the text, much less review according to an unmentioned natural law. No one at the time suggested any such power in the courts, and early courts made no claim that such a power had been delegated to them.
Grey gives us an idea of what his natural law, enforced through the Supreme Court-created right of privacy, can do for us. His own view appears to be that “one can discern the attitude most conducive to enshrinement of sexual freedom among our constitutional rights”84 in “three disparate modern prophets”:85 Norman O. Brown, Michael Foucault, and Bertrand Russell. These gentlemen had not previously been regarded as constitutional theorists, but Grey’s lengthy discussion of them strongly suggests that he thinks their call for celebration of Eros and the unlimited pleasure of the body should be elevated to constitutional principle. He forecasts, however, that the Supreme Court will reach the same results by responding to those conservative concerns for order and social stability that produced the contraception and abortion decisions! In any case, Grey agrees with such decisions and thinks it better to say that “their major premises come from such extra-textual sources as judicial precedent and the practices and ideals of social life.”86 Constitutional adjudication is viewed as guided, and correctly so, “in a relatively few cases, by the words of the Constitution.”87
Grey leaves no doubt that the American people will not be consulted before their culture, morals, and ideas of the proper “practices and ideals of social life” are swept away by judges. One doubts somehow that this is what Madison and his colleagues had in mind.
Constitutional law becomes nothing other than moral philosophy, and that of a most peculiar kind, in the writings of David A. J. Richards of New York University law school.88 Richards solves the Madisonian dilemma by contending that the central premise of our constitutional order is not democratic rule but moral principles of justice.
[C]ontractarian theory explains why judicial review is not suspect, being, as it is, countermajoritarian. Majority rule is not the basic moral principle of the constitutional order. The basic moral principles are the principles of justice, including the principle of greatest equal liberty. Majority rule is justified only to the extent that it is compatible with this deeper moral principle. To the extent that judicial review enforces the requirements of a greatest equal liberty in a way that majority rule cannot, judicial review is morally justified.89
According to Richards, neither the text of the Constitution nor the history of its adoption can give real content to constitutional rights, so we must turn to a theory of human rights. This rests on two fundamental assumptions: “first, that persons have the capacity to be autonomous in living their life; second, that persons are entitled as persons, to equal concern and respect in exercising their capacities for living autonomously.”90 Richards gets further constitutional principles from John Rawls’s A Theory of Justice.91 It might seem odd that it is necessary to turn to a book published in 1971 to find the meaning of a Bill of Rights ratified in 1791, but that may be done, it seems, because Rawls is a contractarian and so were many of the philosophers with whom the Framers were familiar. This takes account of neither the fact that the members of the ratifying conventions may not have thought they were enacting any philosopher’s views nor the fact that contractarian philosophers can come to very different conclusions. Robert Nozick, another modern contractarian, disagrees basically with Rawls.
Rawls essentially asked what the social contract would look like if framed by persons in the “original position” behind a “veil of ignorance” as to their individual fates in the society they were planning. Assuming that all persons would be highly risk-averse, Rawls concludes that the social contract drawn up would be very permissive and egalitarian. There is no conceivable reason to think that judges in our actual society are entitled to go about putting matters where they would have been if a Rawlsian social contract had been entered into. But Richards assumes just that and derives “the postulate of constitutional morality that legally enforceable moral ideas [must] be grounded on equal concern and respect for autonomy and demonstrated by facts capable of empirical validation.”92 He observes that “humans use sexuality for diverse purposes” and concludes that:
For the same reasons that notions of the unnatural are constitutionally impermissible in decisions involving contraception, abortion, and the use of pornography in the home, these ideas are also impermissible in the constitutional assessment of laws prohibiting private forms of sexual deviance between consenting adults.93
Because sexual autonomy is profoundly related to basic self-respect, Richards arrives at “the principle of love as a civil liberty.”94 In passing, he finds a constitutional right to die,95 a “good argument” that dress and hair length are protected options as “basic life choices,”96 and that, perhaps, “soft drug use could be regarded as a form of autonomous control of internal psychic space and attitudes, and thus be fit within the rubric of [basic life choices].”97 Since he thinks there is a constitutional right to die, it is not ap
parent why hard drug use should not also be permitted.
Richards thinks criminalization of homosexual conduct is like punishing heresy:
Homosexuality is today essentially a form of political, social, and moral dissent on a par with the best American traditions of dissent and even subversive advocacy. For this reason, traditional liberal principles must protect this way of life from the worst American impulses of repressive nativism. Those that support criminalization find today in homosexuality what they found before in the family planning of Sanger, the atheism of Darwin, the socialism of Debs, or the Marxist advocacy of the American Communist Party.98
Not surprisingly, he finds that the suppression of hard-core pornography is “obnoxious in principle to the central moral purpose of the First Amendment.”99 Thus, “pornography can be seen as the unique medium of a vision of sexuality, a ‘pornotopia’—a view of sensual delight in the erotic celebration of the body, a concept of easy freedom without consequences, a fantasy of timelessly repetitive indulgence. In opposition to the Victorian view that narrowly defines proper sexual function in a rigid way that is analogous to ideas of exremental [sic] regularity and moderation, pornography builds a model of plastic variety and joyful excess in sexuality. In opposition to the sorrowing Catholic dismissal of sexuality as an unfortunate and spiritually superficial concomitant of propagation, pornography affords the alternative idea of the independent status of sexuality as a profound and shattering ecstasy.”100
Richards also writes, following to its logical conclusion the Warren Court’s “fundamental interest” jurisprudence of the equal protection clause, that there is “no convincing moral justification for the refusal to constitutionalize the right to certain basic services.”101 He mentions school funding as a subject the courts should control, referring to the “rhetoric of local control” as a “moral harlequinade” and to “our moral immaturity as a people.”102
The Constitution, as reconstructed by Richards’s moral philosophy, requires that persons be judged in terms of their individual characteristics according to which moral discriminations can be made. “By contrast, viewing people in terms of morally irrelevant characteristics is to treat people as objects or tools having generalized characteristics that one may manipulate to advance one’s purposes or ends.”103 Thus, race, sex, and homosexuality are not proper bases for legislative classification. But all of this gives way in the case of reverse discrimination (which he calls “preferential racial classifications”104). Evidently, only white males may be “treat[ed] … as objects or tools having generalized characteristics.” It will hardly come as a surprise that the death penalty is unconstitutional since, despite popular support for a punishment that the Constitution clearly assumes to be available, “it fails to accord with the moral principles of punishment.”105
So it is with others who purport to interpret the Constitution according to moral philosophy. Of these, one of the best known is Ronald Dworkin, who once taught at Yale law school and now teaches both at Oxford and the law school of New York University. Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers. One of his key distinctions, for example, is that between concepts and conceptions. He employs it to make the death penalty unconstitutional despite the fact that the Bill of Rights threw protections around the imposition of the punishment and thus clearly showed that the death penalty itself was constitutionally acceptable.106 The eighth amendment, which is part of the Bill of Rights, states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”107 But the fifth amendment, equally part of the Bill of Rights, three times assumes the availability of the death penalty: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury …; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; … nor be deprived of life, liberty, or property, without due process of law….”108 When the fourteenth amendment was ratified in 1868, it contained the same requirement of due process for depriving a person of life. All of this, however, does not deter Dworkin:
It would be a mistake for the Court to be much influenced by the fact that when the clause was adopted capital punishment was standard and unquestioned. That would be decisive if the framers of the clause had meant to lay down a particular conception of cruelty, because it would show that the conception did not extend so far. But it is not decisive of the different question the Court now faces, which is this: Can the Court, responding to the framers’ appeal to the concept of cruelty, now defend a conception that does not make death cruel?109
The distinction between a concept and a conception is merely a way of changing the level of generality at which a constitutional provision may be restated so that it is taken to mean something it obviously did not mean. Why should we think that the ratifiers of 1791 legislated a concept whose content would so dramatically change over time that it would come to outlaw things that the ratifiers had no idea of outlawing? Even if we agree to call what they adopted a concept that might change in content, what is it that can legitimately work such a change? Can it be a change in the attitude of the American people? That will not do, because the American people, as shown by the laws they enact, generally favor capital punishment. And if they should come to feel it unacceptably cruel, they would have only to repeal the death penalty statutes. The Constitution does not require any state to have a death penalty. It does no good to dress the issue up as one in moral philosophy, because such philosophy gives no clear answer. Arguments have been made both ways and none is conclusive. Moreover, nothing in the Constitution empowers a judge to force a better moral philosophy upon a people that votes to the contrary. The only thing that has changed is that modern liberal elites dislike the punishment. That is no reason to declare that the Constitution bans it.
Dworkin’s constitutional theory is perfectly congruent with the political positions of modern liberalism in its more extreme varieties. He thinks that reverse discrimination by government is constitutional, even that private reverse discrimination is lawful despite the 1964 Civil Rights Act, that there is a constitutional right to engage in homosexual conduct, and that laws limiting contraception are unconstitutional.110
Professor Mark Tushnet of Georgetown law school, after criticizing all theories of judicial review, added: “I am invariably asked, ‘Well, yes, but how would you decide the X case?’… My answer, in brief, is to make an explicitly political judgment: which result is, in the circumstances now existing, likely to advance the cause of socialism? Having decided that, I would write an opinion in some currently favored version of Grand Theory.”111 Tushnet is at least candid about the fact that he would as a judge make a political decision and then deceive us. But also implicit in his statement is his confidence that Grand Theory can be made to reach any result. Indeed it can. The law school theorists we have examined prove that.
Bruce Ackerman of Yale law school says Bickel expresses “the central legal conclusion toward which the American academy had been struggling for generations: that, somehow or other, we must transcend the Framers’ vision if we are to make our Constitution fit the needs of a modern democratic society.”112 Referring to the kind of theoretical efforts examined in this chapter, Ackerman states that “they all proceed from a common supposition—that classical conceptions of constitutional interpretation are so radically deficient as to be beyond hope of lawyerly reconstruction.”113 This apparently means that the Constitution’s interpretation has undergone radical shifts in the past that cannot be accounted for by classical or lawyerly reasoning. That is certainly true, and to some of us it is a cause for regret. But Ackerman attempts to relieve our sorrow by assuring us that the Constitution may legitimately undergo “structural amendments” that bypass the amendment process specified in article V of the Constitution. Concentrating o
n the judicial activism of the 1930s Court, described in Chapter 2 of this book, Ackerman argues that the Court’s retreat was caused by such a structural amendment. Such amendments need not be passed by the cumbersome procedures set in place by article V. Instead, in certain “constitutional moments,” the American people “place a constitutional meaning upon a sustained series of electoral victories and legislative successes that is very different from the meaning ordinarily attached to any single episode.”114
Thus Ackerman draws from the 1930s historical experience the lesson that when “a series of decisive victories at the polls permits the newly triumphant spokesmen of the People to proclaim their new higher law from all three of the branches” of government, there has been a legitimate ratification of a structural amendment to the Constitution.115 He does not answer why, if the triumphant spokesmen of the People have enough power to influence all three branches of government, they do not have enough power to change the Constitution using the amendment process set forth in article V. Instead, Ackerman would have Supreme Court Justices watch the political scene closely, and if Congress and the President have, for some length of time, strongly agreed with an unconstitutional policy result, the Supreme Court may legitimately act as if a structural amendment has taken place. Although he accurately describes political and constitutional events in the 1930s, Ackerman’s theory is, at bottom, an invitation for coup by judiciary. An eager Court may too easily decide that it stands at one of Ackerman’s “constitutional moments” and proceed to amend the Constitution.
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