The Roberts Court counters what democratic government needs to survive, and counters the American majority, not only by overturning the decisions of the democratically elected branches, but also by obstructing the ways that a democratic people can throw out governments they do not like, entrenching existing officeholders, maximizing government power to control election outcomes, and boosting incentives to overturn democracy by aggravating the gulf between the fortunate few and the powerless many. There are available American traditions and scientific conclusions about how to protect democracy. Roberts, Scalia, Kennedy, Thomas, and Alito consistently treat protecting and promoting democracy as “not my job.”
Justices Ginsburg, Breyer, Sotomayor, and Kagan often dissent in these cases, with Justice Breyer writing extensively to argue that it is their job.1 Other top national courts, explored in chapter 4, have signaled that they take democracy, that is, its perfection and survival, quite seriously. This chapter explores the question whether the U.S. Supreme Court should as well.
In its famous Carolene Products footnote, the Supreme Court under Chief Justice Charles Evans Hughes sketched the constitutional importance of democratic process, and the conflict between democracy and discrimination. While the specific formulas in the footnote can be refined and improved, those fundamental insights are crucial to the survival of self-government. The Court under Chief Justices Hughes, Stone, Vinson, and Warren protected rights to speak, worship and vote and treated discrimination as a major scourge on the operation and future of democratic government. They saw violations of due process victimize the same people who suffered discrimination, imprisoning innocent people for the wrong skin, faith, or politics. The Burger Court, somewhat inconsistently, continued their work.
Increasingly, conservatives argued that neither the specific formulas nor the democratic philosophy of Carolene Products are implied by the Constitution, or the founders’ words, and are not part of American law. The Court rejected the implications of paragraph two in the voting rights, apportionment and gerrymandering decisions described in chapter 9.2 And it rejected paragraph three in cases regarding race.3 The Court rejected lines of decision driven by the philosophy of the Carolene Products footnote—protections for voters,4 racial minorities,5 the wall of separation between church and state,6 and protections in the criminal process.7 Conservatives argued the Warren Court imported its own values into the Constitution in those areas.8 They made the same objection to the Burger Court’s Roe v. Wade.9 Liberals respond that judges of all persuasions incorporate their own values into their understanding of the Constitution,10 and cannot avoid it.11
Ultimately the argument is about values. Conservatives argued the Warren Court was too liberal, “coddled” criminals (as if they loved killers and thieves), ignored the needs of law enforcement and the rights of victims. Some specifics look different in retrospect as many conservatives support downsizing prisons, understanding that convicting the innocent is a double problem because it leaves the guilty at large while ruining innocent lives. Nevertheless, conservatives refused to find the values that the Warren Court found in the Constitution, especially the values inherited from Carolene Products.12
In response to political scientists’ descriptions of threats to the future of self-government, conservatives on and off the Supreme Court are poised to answer in the language of a trial: “Objection; irrelevant, immaterial and prejudicial.” They approach constitutional interpretation based on what words meant in the eighteenth or nineteenth century when the provisions of the Constitution and Reconstruction Amendments were adopted. Later developments in the science of government—which the draftsmen and ratifiers did not know and could not have had in mind—cannot count.
Contrary to conservative objections, virtually all the interpretive work of American courts, including the Roberts Court, and among American commentators, including conservatives, is driven by the claim that we are and should handle our legal duties as a democracy.13 In other words, the conservative objection, from inside and outside the Court, is self-contradictory oratory designed to justify decisions motivated by conservative policy views, with a tenuous connection to the document.
The fact that everyone’s theory of interpretation is based on democracy implies that courts should protect democracy. To do less is inconsistent and incoherent. That conclusion has enormous implications. The knowledge gained in the past century about the survival and breakdown of democratic government is both relevant and crucial because many areas of law matter for the future survival of American democracy.14
That split between democratic rationalizations and the real consequences of the work of the Roberts Court is what drives our examination of constitutional interpretation and indeed the entire book.15
Looking at the real world consequences of judicial opinions would have seemed quite natural to Holmes, Brandeis, Cardozo, and lawyers trained in their shadow. The Court has long considered evidence drawn from the social sciences.16 The controversial issue is the purpose of using that information. Central to what those great justices tried to teach us was to use whatever science helped us accomplish the founders’ goals. Primary among those was to protect the democratic republic they bequeathed us.
But after the Warren Court, some on both left and right converged on theories of legal positivism. The left, especially in Congress, looked for justices who would “follow the law,” especially the law according to the Warren Court. That bequeathed us the bizarre charade of John Roberts claiming that justices are merely umpires calling balls and strikes. (Growing up in Brooklyn we had little respect for the quality of umps’ eyes, criticism now borne out by television cameras.) The positivism of the right came from its attack on the Warren Court’s insistence on racial and political equality, respect for religious obligations without governmental interference, and riding herd on the abuses of the system of justice.
The positivism either of precedent or the founders’ intentions leaves little room for the insights of other disciplines. Such positivism obscures any need to self-consciously protect American democracy. For most Americans, democracy is defined by the Constitution, a complex, if familiar blend of majority rule with checks and balances, federalism, separation of powers among the branches of government, and the Bill of Rights. All courts need to do is to follow the Constitution and ipso facto they will be protecting democracy—but arguments about how to interpret the Constitution reopen the meaning of democracy. Suddenly it is less obvious and quite contested what democracy is or ought to be and how to protect it.
Members of the U.S. Supreme Court are our storytellers in chief. Their story that their conclusions are delivered to them in the Temple of Justice straight from the Constitution is as fabricated as Mark Twain’s short story, “The Celebrated Jumping Frog of Calaveras County.” But unlike Twain’s story, the Court’s story seems indispensable to the respect it seeks. Clearly the Constitution and its creators intended the Court to play a significant role. Although modern eyes find it inexplicit, giving the Court jurisdiction for cases “arising under the Constitution” told eighteenth-century readers that this Court would check legislation for constitutionality.17 So if the important role the founders envisioned for the Court depends on the myth that its opinions come straight from the document, then perhaps the justices have to perpetuate it and the fiction that our law is independent of the study of risks to self-government—in the same spirit that we tell our children stories about Santa Claus and fairy godmothers.
According to James McHenry, a Maryland delegate to the Constitutional Convention, “Mrs. Powel [sic] of Philadelphia” asked Dr. Franklin whether “we got a republic or a monarchy—A republic, replied the Doctor, if you can keep it.”18 Franklin’s challenge is fundamental to constitutional reasoning and interpretation. Can any theory of constitutional reasoning and interpretation that does not take account of our ability to maintain a republican form of government be valid or coherent?19
Beginning late in the nineteenth-century, judges and scholars argued about the extent to which courts should defer to Congress. Gradually debate shifted to arguments about how to interpret the Constitution. Judges and scholars have justified their conclusions about what the Constitution means by examining its text, history, structure, precedent, or the consequences of decisions, among other forms of argument. Inevitably they disputed which method was better or more legitimate. Several Supreme Court justices made the issue central to their arguments.20 Phillip Bobbitt, at the University of Texas, became a principal scholar of the competing approaches to constitutional interpretation. He provided an entertaining overview of who used what methods, and the arguments for and against each. Scholars continue to elaborate and improve on the well-worn ways of thinking about constitutional argument that Bobbitt described. This chapter is built on the justifications for those different forms of constitutional argument, claims about why they are legitimate ways to understand the Constitution. I will canvass, in turn, the arguments Bobbitt described, and some others, for the light they shed on Dr. Franklin’s challenge.21
All forms of constitutional discourse presuppose that competing methods differ, and that the justification for each do not also justify the other competing methods. That assumption cannot withstand analysis. The same justifications underlie the competing hypotheses.22 Proper operation of each method requires insights from the others. No method of constitutional discourse can stand alone. All acceptable choices rest on theories of democracy.
All interpretation starts with the language of the Constitution. Rehnquist, Scalia, and a legion of conservative scholars have argued that nothing counts except the text and original history.23 As some liberal writers delved into constitutional history, conservatives took it as a sign of victory and are waxing triumphant, claiming we’re all textualists.24 Of course, trying to understand the text is common ground. The real dispute is about how much the text answers without being supplemented by other methods of analysis.25 As textualists and their critics all understand, the power of textualism depends on the determinacy of the language of the Constitution, whether we can identify underlying assumptions about how it would be understood, and the inferences we are willing to make from the language.26
However, what is the source of our obligation to obey a two-century-old text, let alone nothing but the text? There are very few circumstances in which we are required to honor contracts we did not sign or otherwise agree to, entered into hundreds of years before we were born. Americans are not obligated to support the British Crown regardless of what colonists might have signed. One of the many reasons why slavery was such an abomination was that contracts of purchase and sale among white men supposedly obligated other people and their descendants to serve them in perpetuity. Writings do not legitimate themselves.
The “rule of law” might seem to support obedience to constitutional text, but if that were enough, we would be obligated to serve the Queen, slaves to serve their masters, and to honor contracts that we have learned to reject. The dry legalism of following any contract as written does not reflect the way Americans actually address obedience to constitutional text.27
American theories of obedience to constitutional text are rooted in theories of popular sovereignty and democratic government.28 There is no unanimous way of making that connection.29 But textual models in this country find their way home to some conception of democracy. The conservatives themselves make that point.30 We are all shaped by the language of the consent of the governed in the Declaration of Independence, so it is easy for many to jump to a contractual theory of constitutional law in which consent was supplied in the ratification process.
That contractual theory points to the real bite of the textual argument about the proper way to read the text. If the Constitution was a contract among people in 1788, then popular sovereignty combined with the contract theory suggests the words should mean what they did then, if that is possible and we can agree on what counts to define the founders’ meaning. Text functions as the agent of democracy when it is followed. Anything else would vary the constitutional text. Historical meaning embodies an original agreement. Such historical approaches to text therefore join “originalism” to textualism—the text should be understood historically. That leads to the discussion of the role of history and original meaning in the next section. The two ideas, textualism and originalism, are closely tied in modern practice.
They are not, however, enough to explain why such “original” consent to the document by a portion of the population in 1788 binds us now. Women and slaves were excluded from the voting population so that even in 1788 the document spoke for considerably less than a majority of the population.31 There is no clear way that the consent of contemporary Americans can be expressed other than by assumption.32
The legitimacy of the Constitution is better based on contemporary justice, a conclusion shared by scholars on both sides of the political spectrum.33 It could not have withstood that standard before the Reconstruction Amendments eliminated slavery and made provision for the vote of black men and the Nineteenth Amendment made provision for the vote of women. Reality often falls short of constitutional standards but the Constitution now protects fundamental human rights, protections emulated around the globe. One essential part of justice is self-government.34 Insofar as the Constitution creates a democratic government, it is a legitimate text.
Starting from popular sovereignty, however, supports a different kind of textualism, based on present rather than ancient meaning. That way of thinking makes the people judges of the meaning of the document.35 Thus political philosophy links textualism and democracy in these two different ways—as proper because it is democratic, and as the expression of popular sovereignty, even though those ideas can lead down different forks of meaning.
Language has consequences for democratic government. Clear and specific provisions are more likely to bind judges to the people’s constitutional commands, certainly a plus in drafting.36 That research supports Justice Scalia’s concern that interpretation of nonspecific language in constitutions is hard, contestable, and contested. Those who see in constitutional language a warrant for change are also right, even though their approach is on a collision course with his. Flexibility requires less specific provisions but promotes constitutional endurance, which is also something draftsmen of a democratic constitution should, and did, consider.37 Justice Scalia’s attempt to squeeze the flexibility out of general language is as contestable and contested as the interpretations he opposes. It cannot be otherwise. As he has repeatedly made clear, his own approach is based on his belief that his method constrains judges, rather than on the language itself.38 Democracy is, after all, a method for reaching conclusions in the face of disagreement. It is important to add that those arguments—about the effects of specificity, flexibility, and constraining judges—are all arguments based on the consequences for democratic government.
Notice the surprising result—textualism does not exist in a vacuum but actually depends on other ways of thinking: democracy, popular sovereignty, and consequentialism.
Historical methods for understanding the Constitution are also rooted in democracy, popular sovereignty, and ownership of the Constitution.39 James Madison based his understanding on the compact among the people and with their new government. Madison suggested the ratification process would be the most authoritative source for the original meaning of the Constitution. It was an agreement among the sovereign people; this was their constitution.40 Discussion leading to ratification reflected some of the people’s voices—although numerous voices argued at cross-purposes. Nevertheless, to the extent that it can be compiled and understood, historical meaning is consistent with democratic principles, and can help to settle the meaning of the document.41
Originalists differentiate between the intent of those who participated in the drafting and the public meaning of the document to the man in the street in 1788, if indeed the mass of readers actually had specific understandings of the clauses they read that could be ascertained.42 Either works; fidelity to both intentional and public meaning versions of historicism in constitutional law are based on democratic principles.43
Difficulties with historical methodology are not significant to the argument of this chapter or the book, but worth noting. Records of legislative history were not kept before the Philadelphia Convention.44 At best people sometimes had a generalized awareness of whatever problem led to legislation. Nevertheless, from the first Congress, participants drew on their conflicting memories of why provisions were included or excluded. Madison was still preparing his Notes, our primary record of the Convention, when he died just short of the fiftieth anniversary of his great work—they were first printed soon after. THE FEDERALIST PAPERS, whose authors were personally involved, are brilliant and unique in their thorough exposition. The authors published THE FEDERALIST PAPERS as arguments to encourage ratification, but their eighteenth-century influence, either on people’s preferences or their understanding, is questionable. Period dictionaries were rudimentary, written across the Atlantic, or yet to be constructed.45 In fast-moving discussions, dictionaries are almost necessarily incomplete and lag behind the times.46 Treatment of the Constitution in the founding generation reflected a multitude of methods. And they certainly did not show the consensus on which so many originalists have built their theories. Plain meaning was one of the competing traditions about how to read legal texts.47 Original history is enlightening and often persuasive, but it is questionable that it alone can be dispositive.
Popular sovereignty did not cease in 1791. When Madison found that the people disagreed with him about the meaning of the Constitution, even though he participated in writing and ratifying the document, he relented, pointing to the people’s right to interpret the document as they chose.48 Madison thought the first Bank of the United States unconstitutional when proposed in 1791, but as president he signed the bill in 1816 for the Second Bank of the United States. It was the people’s constitution, whatever the language may have meant in 1787.
Putting aside flaws in originalist methodology, the central point here is that turning to original history is fundamentally about popular sovereignty, about democracy.
Precedent is judge-made law and neither liberals nor conservatives have much respect for law made by judicial foes. They attack each other’s doctrinal innovations, while justifying their own decisions by citing the other judges they profess to admire. So, in practice, doctrine is a method for interpreting the Constitution, but it is usually under fire.
The modern argument about the legitimacy of judicial review stems from the work of Alexander Bickel, who had been a law clerk to Justice Frankfurter when Brown v. Board was under consideration. Bickel became a prominent professor at Yale Law School. In THE LEAST DANGEROUS BRANCH, an influential study of the Supreme Court, Bickel wrote about the “counter-majoritarian difficulty,” created by the fact that when courts declare something unconstitutional, they are reversing the work of the elected branches of government.49 Federal judges and a large portion of the state judiciary are appointed. So when they find something unconstitutional, they are saying no to the people’s representatives. That, for Bickel and many of his followers, is undemocratic.
Bickel’s argument is influential on both sides of the aisle. Liberals and conservatives differ in their views about how and when the courts should defer to the elected branches. Neither, however, is prepared to do away with judges—this country’s first administrative officials—or with judicial review.
Just as Bickel’s argument is based on a conception of democracy, the argument about the proper exercise of judicial review also rests on democracy.50 An appropriately restrained judiciary is rooted in this concern that it is the people’s will, not the Court’s, which ultimately should control.51 Indeed that point was echoed in the Convention when James Wilson spoke of the degree of unconstitutionality which would lead the Court to refuse to support the other branches.52
The response of the “judicial process” school of thought is that doctrine reflects a process for accomplishing constitutional intentions. Process controls the independent will of the judges and organizes them in realizing the principles of the document. Reasoning from precedent gives priority to the past over change.53 That is a strength because judicial process can steer the legal vehicle toward what the Constitution was designed to do. If it does, the judicial process serves as the people’s agent.54
The judiciary also draws legitimacy from its constitutional charge, which is rooted in popular sovereignty and democracy.55 Federal judges are removed from direct accountability to the people by the appointment process. But Madison and others continually pointed to the republican principle as the necessary basis of the appointment process.56 They argued that we could have institutions resting on the shoulders of other institutions if they ultimately rested on the people. As it is, presidents, who nominate, and senators, who confirm judges, are popularly elected.
This argument is not logically reversible. Judicial review is authorized by the Constitutional Convention and the Constitution and thus by democracy. But what the Court does with judicial review is not necessarily consistent with democracy or popular will, hence the counter-majoritarian difficulty. Once again, reaching conclusions about the requirements of the Constitution goes back to democracy, regardless of which side one is on.
By the structure of the Constitution, American lawyers and jurists mean the separation of powers among the president, the Congress, and the courts; federalism, the division of powers between the federal and state governments; and democracy, the provisions for the election of the executive and legislative branches of government. Philip Bobbitt defined structural arguments as “inferences from the existence of constitutional structures and the relationships that the Constitution ordains among the structures of government.”57
We make such inferences all the time. In 1819, for one example among legions, Chief Justice John Marshall famously extrapolated from the very fact that the Court was interpreting a Constitution to the latitude of congressional powers: “we must never forget, that it is a constitution we are expounding . . . a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”58 In another famous example, the Court, in 1867, extrapolated from our federal system that we have a right to travel.59 In 1983, the Burger Court extrapolated from the separation of powers to specific allocations of executive and legislative power.60 The Rehnquist Court used the fairly limited protections given to the states by the language of the Tenth and Eleventh Amendments to buttress its conception of federalism and a much more expansive notion of states’ rights.61 And, as Justice Breyer put it, democracy “resonates throughout the Constitution.”62
Structural interpretation benefits from the same insight: it enforces the popular will as expressed in the Constitution. The people created and adopted the Constitution, and the Constitution they adopted includes provisions which structure the ways that government is to work. The Court can do no less than to respect the work and the thinking embodied in those provisions.
Alexander Bickel and Philip Bobbitt have criticized structural argument to the extent that it does not embody permanent protections that are immune to human and judicial will.63 Structural argument is a weak protection for the popular will expressed in the Constitution. No doctrine, of course, is practically immune to human will. More important here, their criticism reinforces the point that structural arguments are efforts to implement the people’s Constitution; they seek to realize and protect it. Once again, the Constitution and arguments about its meaning stand on the back of democracy.
From its earliest days, the Constitution has been understood in light of its presumed purposes, whether national power in Gibbons,64 democratic authority in McCulloch,65 economic progress in Charles River Bridge,66 or, unfortunately, slavery in Prigg v. Pennsylvania.67
“Compelling government interests” are about consequences dangerous to our country and our democratic society—fighting crime, protecting national security, and similarly important purposes together with the inevitable vacuous interlopers.68 The Court “balances” constitutional rights against presumably bad consequences. It announces that the government has a “compelling government interest” to avoid that bad consequence. That becomes its explanation for not carrying out constitutional language to the full extent of its logical consequences. Justice Scalia dislikes that approach because of a consequence he claims to find still more devastating, that balancing is vague enough to free the judiciary to act as it pleases.69 But there has never been a period in the history of the Court in which it has not been concerned with the consequence of its decisions.
Sometimes, instead of the language of balancing, the Court simply defines constitutional language to avoid the problem or ostensibly bases its decisions on the text. But textual decisions incorporate consequences sub rosa. The Court avoids what it does not like, whether through the language of compelling interests or through definitions that miraculously skirt what the justices believe bad. By burying consequences in lexical argument the justices appear to stand against means-ends thought. But any trip to hear an argument at the Court makes plain the obvious—that they are deeply interested in the consequences. The Court’s explanation of its decision in Circuit City v. Adams, for example, elaborately defined the word commerce in two sections of a 1925 statute so that they had opposite meanings and reached a result precisely contrary to the original relation of the two sections of the statute. It makes no sense, of course, until one identifies the majority’s purpose to encourage, indeed require, arbitration to the maximum extent possible. The justices buried their purposes behind cascades of language as they often do. They seldom blind themselves, however, to their own purposes.70
Instrumental constitutional reasoning flows smoothly from democracy. Consequences can threaten the republic, its democratic system, or any of the people’s purposes expressed in their Constitution. Ignoring consequences puts all that at risk. As the Court wrote in a 1963 decision, affirming power to enact a draft and enforce military service, the Constitution “is not a suicide pact.”71 The Court’s concern with consequences was based at least in part on protecting American democracy.
Judicial restraint is also based on the consequences of judicial activism for democracy. James Bradley Thayer, a famous nineteenth-century Harvard Law professor, prominent Supreme Court justices, and Alexander Bickel, who provided its most prominent modern statement—all argued the Court should avoid finding legislation unconstitutional because doing so would be undemocratic, or counter-majoritarian.72 The Constitution says nothing about restraint.73 The theory of restraint is based, instead, on the consequences of activism, on the risks to the Court and to popular constitutionalism. Consequentialism joins judicial restraint in the pragmatism of Judge Richard Posner, and he too is explicit about their basis in democratic thinking.74
Thus both with respect to protecting democracy and to shaping notions of the judicial role, consequentialism in constitutional law often expresses democratic principles and is questionable if it does not.75
Perhaps the most contentious method of constitutional discourse is ethical or philosophical argument. Many commentators argue that such ideas are unavoidable to make sense of the document.76 Examining which judges turn to their ethical beliefs is chimerical—they all do. Examining whether they should is equally chimerical—judges cannot help it. More helpful would be criticism directed toward their choice of arguments.
Opponents insist that there are adequate and appropriate methods of constitutional discourse that do not invite moral argument. They express horror at the possible directions moral argument might take, whether to Marxian communism or a Nietzschean superman.77 Of course most observe the use of moral arguments only in opponents and never in themselves, reflecting a common human lack of self-awareness.
In fact the Constitution is built on the philosophical views current in eighteenth-century America. Democracy remains part of American political philosophy and liberty remains a core American value.78 Both are proclaimed in the Declaration of Independence, protected in the Bill of Rights, and celebrated by justices on all sides of the spectrum.79 Of the liberties that mattered to the nation’s founding generation, none were as important as self-government.80 Self-government in turn is central to liberty, equality, and human dignity; it is a part of what has come to be known as human rights. Without self-government, the people are subordinated to their masters.81 To understand our Constitution without democracy as a core component is neither ethical nor coherent. It leaves us insisting on the implications while burying the premise. And it risks a core value of the American way of life.
Even the opponents of ethical or philosophical arguments concede the legitimacy of examining those that influenced the founders, although some, like Justice Scalia, prefer to avoid even that much.82 Beyond that boundary, other than occasional resort to religious texts, American recourse to ethical and philosophical values has been consistently focused on equality and self-government.83 Democratic philosophy is part of the Constitution, part of American values, and should have a large place in American law.
Regardless of whether the use of ethical and philosophical models is proper,84 the crucial point for the argument in this book is that the use of those ideas in the United States draws from democracy. Whatever the merits of the “noninterpretivist” position, or the accuracy of the noninterpretivist label, human rights and any legitimate ethical traditions in this country have democratic underpinnings. They point in the same democratic direction as all the other approaches to constitutional reasoning in use in this country.
It should not be a surprise that American traditions are democratic. This is as true among conservatives among whom approved ethics are absorbed into traditions, as among liberals among whom approved traditions are absorbed into ethics. Traditionalism was at the center of much of the work of the Burger Court.85 For the most part, traditionalism has not been in favor on the Rehnquist and Roberts Courts.86 Nevertheless members of the Rehnquist Court sometimes defined state rights and state action in terms of traditions of what states do,87 and Justice Scalia has defined due process as traditional governmental behavior.88
Traditionalism does not immediately call popular sovereignty to mind. Tradition could just be efficient, a justification for stare decisis, or respect for what has already been done. But as a practice of constitutional interpretation, as interpreted by Justices Harlan, Powell, and other members of the Court, traditions we should respect are popular, not elite, notions about what the people want to do with their own legal systems, as evidenced by what they have been doing.89 Like everybody else, traditionalists justify their approach by democratic values, telling us we should respect the popular will as reflected in their traditions.
Ask a democratic people for their traditions and get a democratic response.
Philip Bobbitt wrote in 1980: “[N]o sane judge or law professor can be committed solely to one approach. Because there are many facets to a single constitutional problem and . . . many functions performed by a single opinion, the jurist or commentator uses different approaches as a carpenter uses different tools, and often many tools, in a single project.”90 The only argument is among those who would exclude some methods or insist on the absolute priority of others. Conversely decisions are stronger when different methods point in the same direction.
In all forms, the legitimacy of constitutional argument rests on democracy. Democracy drives theories of constitutional reasoning.91 They are linked by their common justification. Where original historical materials are sufficiently clear or understandable, they are surely appropriate. Structure is the pattern of the text. Doctrine is authorized by its language. Ethical reasoning is unavoidable where the text calls for forms of fairness or justice or the meaning is otherwise tied to ethics. It is unavoidable for the continued legitimacy of the Constitution for a people who did not write and ratify it. To an extent then each method implies the others. There are separate arguments about technique, sources, and appropriate inferences. But arguments about the legitimacy of any of the common practices of constitutional reasoning likely implicate the others, if not all.
This brings us to the major point of this review of the practices of constitutional reasoning—that to argue for one or more methods without arguing for the democratic premise is both incoherent and unjustified, since all are implications of the same ethical source, the imperative of self-government. All sides of the argument about constitutional reasoning treat at least some of the implications of democracy for constitutional argument as true. The implications are treated as true because the premise, democracy, is treated as true. That premise, democracy, is common ground, recognized as morally valid and valuable. For all sides, democracy is a fundamental constitutional value, unless of course some sides are merely feigning attachment. But even that yields an important result, that this country is committed to democracy and its role in constitutional reasoning, regardless of the vagaries of particular commentators.
If judges impose their will on the law, as Justice Scalia and Professor Bickel recognized, then there may be good reason to cabin their discretion, as Justice Scalia constantly demands, but in a democratic direction.
So far we have been arguing that democracy is a premise of every approach to constitutional reasoning. It is incoherent to argue for the conclusions while denying the authority of the democratic premise. This section comes at the issue in reverse, from one conclusion to another by parity of reasoning, by analogy. Courts and commentators make structural inferences from constitutional provisions regarding the three branches of the federal government and the relations between the federal and state governments. Constitutional language describing the electoral system should be the basis for democratic implications by parity of reasoning. In both ways, democracy deserves protection.92
Federalism is an inference from the existence of different levels of government—national, state and local—and the provision for those relationships in the Constitution itself. Article I, section 8 sets out the powers of the national government. Article I, section 10 restricts state governments. Article IV is known as the states-relations article because it provides some of the rules for the interrelations of states, the admission of new states, and the requirement of republican government. The Tenth Amendment is, as Rehnquist has remarked, literally a truism, and the Eleventh Amendment language is only about federal courts and diversity jurisdiction, but the Court has read them well beyond their language as stating “the spirit” of federalism. These provisions create a set of parallel governments with different responsibilities and limitations. There are no constitutional provisions that define federalism apart from the specifics. The Court infers federalism from all these sources, and then uses and protects it. Whether any or all of the court’s inferences are appropriate is not the point; the point is that federalism is an inference from the structure of government set up by the Constitution.93
Similarly, the separation of powers is an inference from provisions for Congress in Article I, the executive in Article II, and the Courts in Article III. The Constitution nowhere mentions the separation of powers or provides a rule of construction apart from the specifics.94 Nevertheless, the Court has concluded that the separation of powers provides a set of principles to be applied in constitutional disputes.95
By parity of reasoning, the same should be true for democracy. One of the structures of the Constitution is its democratic character and the electoral process it carefully maps. The Constitution provides how representatives shall be chosen in Article I,96 how senators will be selected in the Seventeenth Amendment, and the election of the president in Article II97 and the Twelfth Amendment. It prohibits denying the vote by race, sex, or age for those eighteen or more, and prohibits making the right to vote contingent on paying a poll tax.98
Examining the democratic character of the Constitution, Charles Black, in a book well known to professors of constitutional law, explained that principles we treat as flowing from the First Amendment would flow as well from that fundamental democratic structure of the Constitution.99 Justice Hugo Black insisted that the one-person-per-vote requirement was dictated by the democratic structure of Article I.100 The Court had generalized the point in United States v. Carolene Products.101
There is no warrant for honoring the spirit of federalism or the structure of the separation of powers while ignoring the democratic structure of the Constitution. Democracy is a fundamental structure in the text, and, by parity of reasoning, deserves to be treated as such.102
To protect democracy requires a look at the consequences of our decisions. I examined consequential interpretation briefly above to make clear that that approach too expresses democratic values. Having found democratic values throughout the interpretive armory, it is time to examine whether consequential interpretation poses special problems. To consider consequences requires us to do more than read the language in the document. There are serious issues to study and judge. Evaluative choices are more obvious when we have to balance constitutional language with its consequences, though all forms of interpretation are riddled with the assumptions judges make that conceal their many choices.103
Some positivists and originalists see their mission as avoiding choices. They prefer to see choices as having been made for them so that they can assume the stance of umpires behind the plate, saying, “Don’t blame me; I just call ’em as I see ’em.” But by ignoring democracy, justices effectively reject it. That is not a moral choice.
Seeing the choices as having all been made has other strange consequences as well. The founders worked hard to develop “government of the people, by the people, and for the people” that “shall not perish from the earth.”104 The founding generation was familiar with the concept, and its use in court, that necessity might require courts to adjust the rules.105 Alexander Hamilton wrote, “Necessity is admitted in all moral reasonings as an exception to general rules.”106 The founders were students of the science of politics; they expected it to improve, and they expected later generations would better understand the principles of government they were trying to build into the Constitution than they did. To read the language of the Constitution as if all that were excluded, to read it as a frozen text, imputes assumptions to the founders that demeans and would have been anathema to them.107
That points to the larger problem. Positivists who look only at the implications of their words, as if their meanings were unchanged over the centuries, have to interpret the law amorally. Positivism does not get around moral choices. That form of positivism means judges choose to act amorally—they are making the choice that they “should” apply rules regardless of the consequences. That is a choice, nonetheless, an unfortunate choice, about moral values.
Neither judges nor commentators actually avoid choices among values. Positivism and originalism has been a veil obscuring the real choices justices make. Kathleen Sullivan made clear long ago that judges claim their arguments opportunistically.108 At bottom are their values. Whatever their methodological claims, we can discern their values.109 Values and the consequences they rank are inescapable, as even Chief Justice Rehnquist and Justice Scalia admitted in more candid moments.110
The real choice is whether values are frankly discussed and their application subject to direct criticism or hidden behind false claims of modesty. Other legal cultures are more frank about applicable values. The constitutional courts of countries like Germany and South Africa take it as an obligation to carry the values of their constitutions into their adjudication of other issues, including their development of private law.111 Some legal cultures describe as “transformative constitutionalism” their use of constitutional values beyond the four corners of the provisions in which they may be explicit or implicit “to [transform] a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.”112
That said, democratic consequentialism sometimes has surprising conclusions. In new democracies, such as the United States before the Civil War, rigid adherence to text may be justified if it avoids war or a coup.113 On the other hand, the bold decisions of the John Marshall Court were much more successful at holding the country together than the Taney Court’s dedication to the proslavery aspects of the original bargain.114 Rigidity can do a great deal of damage where the Court sets dynamics in motion that can tear the fibers of democracy.
The Roberts Court has plenty of latitude to protect democracy when and if it chooses to do so. The Supreme Court of the United States is not in the perilous position of the early Court. Chief Justice John Marshall held a federal statute unconstitutional only once, in Marbury v. Madison. He had a good political sense of the limits of power. Chief Justice Taney also held a federal statute unconstitutional only once, in Dred Scott. The reaction to that decision demonstrated both the error and the weakness of the Court.
But the modern Supreme Court has no such problem in dealing with the requirements of democracy. The Warren Court’s reapportionment decisions, for all the lingering objections of Justices Scalia and Thomas, have become a normal part of the political system. The Court’s power in the area of campaign finance is manifest. This is not the pre–Civil War Court which had to see whether anyone would obey its dictates regarding the rules of democracy; although there certainly are areas where Court decisions are undoubtedly honored “in the breach,” like strictures against government participation in some religious activities.115
Judges and justices will be poor scientists, historians, humanists, and interpreters. Perhaps no one is truly neutral. Judges certainly are not. No doubt they will abuse the best guides. They have been doing that for most of the Court’s history. But missing the crucial questions will not help.
To put it another way, since we cannot sidestep the question of the values to choose, democracy has a strong claim on us. The country was born proclaiming the right of self-government. The Preamble to the Constitution proclaims the “blessings of liberty” of which the principal one, the revolutionaries claimed, was the franchise.116 The fundamental value—at the root of all the practices and at the root of the originalists’ moral claim—is democracy. There is no excuse for ignoring the consequences for democratic government.
Application of democratic values cannot make the Court less true to the original meaning, purpose, or intent of the Constitution than the Roberts Court’s conservative constitutional straitjacket. At bottom, the Roberts Court’s call for a jurisprudence of crumbled language amounts to a call to ignore the very values on which this government is founded.
There are, however, different versions of democratic theory. On some issues it is not sufficient to say that the Constitution is founded on democratic principles, the modern version of the “republican principle” about which the founders wrote and spoke. That is the expressed view of Justices Thomas, Scalia, and the late Justice Harlan.117 It will be necessary to resolve, or battle over, what democracy means and how to achieve it.
That may be less of a problem than it first appears. Logic may push the different versions toward a common core, or different versions may appear to be flawed approaches to a central meaning. Pure majoritarianism may not be a contender if it is no more sustainable in fact than it is coherent in theory.118 And the conflicting definitions of democracy may be less of a problem because the evidence and the sources of breakdown political scientists have uncovered converge toward common conclusions. That has been the case with much of the history of the breakdown of democratic regimes. That has been the argument of this book – that history and modern scientific scholarship push us toward some central understandings of what is necessary to preserve self-government.
Democracy can be understood on continuums from least to most inclusive of the population, and from least to most competitive.119 A dictatorship is neither inclusive nor competitive. The United States in 1800 was competitive, but women, slaves, and many propertyless whites did not have the franchise. One could therefore define democracy by the objectives of inclusion and competition. Breyer has offered a relatively inclusive and participatory approach to democracy,120 from which Thomas and Scalia demur, arguing that democracy is too imprecise to be used as a standard for judicial decision making.121 Judge Posner, avoiding both positions, has suggested an inclusive but otherwise relatively minimalist definition of democracy based on the work of Joseph Schumpeter.122
I have tried to respond to their skepticism by seeking to ascertain what is necessary to keep even a minimalist system of elective government alive.123 As described in chapter 6, many political scientists would collapse the continuum because less inclusive democracies are fragile and easily succumb to autocracy. Therefore, as described in chapters 1-8, prescriptions to keep elective government alive require a democracy that is based on principles of equality and universality, one that is inclusive and competitive. Keeping elective government alive requires procedural protections for the mechanisms of democracy and for the safety of the people, and it requires a wide distribution of resources among the population, a democracy whose character is shaped by “a broader sense of ‘we,’” and one which controls the use of force. These propositions bring us close to the assumptions and efforts of the founding generation of the United States about what it would take to keep their experiment alive.
Some confuse democracy with pure majoritarianism. The original Pennsylvania Constitution of 1776 was a purely majoritarian government; it had virtually no checks or balances at all, lodging all governmental power and authority in a unicameral legislature. But pure majoritarianism collapses easily. The seizure of the Egyptian government by the Muslim Brotherhood demonstrates how easily pure majoritarianism destroys itself—the Brotherhood was elected by a majority and then claimed all the power, including the ability to define the shape of future elections to protect their hold on power. The Egyptian experience also reinforces the conclusion that democracy depends on inclusion; exclusion breeds a reaction to take or hold power or, as in Egypt, both. At the time of writing, the Egyptian military was moving to exclude the Muslim Brotherhood entirely, effectively teaching them that peaceful electoral participation does not work either. That is likely to restore autocracy and enlarge support for violence both in Egypt and, sympathetically, in much of the Muslim world.
Democracy is better understood as including the requisites of ongoing democracy so that no temporal majority can exclude the possibility of being replaced by a different coalition or amalgam of voters.124 That is the version Americans are intended to have, indeed the version of democracy the founders worked hard to create. It includes protections of the vote, speech, press, assembly, petition, association, and all manner of protections against the abuse of the powers of government for the purpose of terrifying and controlling the population. Logically and functionally that version of democracy is most coherent and durable. It receives the most support from political science and fits well with both American and international traditions of democracy. Just as clearly it excludes mechanisms to weight the votes of some and devalue the votes of others in order to hold on to power.
For those reasons, contrary to the position of Thomas and Scalia, and contrary to the decisions of the Roberts Court, there is a lot in democratic theory and in the science of protecting elective government that have clear implications for which legal rules are consistent with the survival of elective and democratic government.
Majoritarian democracies, minority rule, and minority-respecting democracies cannot always be distinguished in practice because of the power of political shenanigans to shift a small percentage of voters and thus shift the balance of power from a majority to a minority.125 This was perhaps most obvious in the presidential elections of 1876 and 2000. In 1876 the election was thrown in doubt by allegations of election fraud in Louisiana, although fraud was probably a problem in other states as well. The presidential election for the entire nation depended on the accuracy of the vote totals in Louisiana. Similarly, the 2000 presidential election depended on the accuracy of the vote totals in Florida. Gore had won the popular vote regardless of the Florida totals but a few votes in Florida determined the national presidential election. And if the winning party could then entrench its position with more exclusionary or vote-shifting tactics, future majorities could be effectively disenfranchised. There have been efforts to translate the 2000 presidential election victory into Republican dominance via the exclusion of some voters in subsequent elections.126 Thus the distinction between majority or minority rule and minority-respecting democracy blurs in actual electoral politics. And courts determine just how much, as they have in the recent series of voting rights decisions.127 Thus judicial adherence to democratic principles is crucial to the survival of self-government.
Frederick Schauer, a prolific and widely admired constitutional scholar, has argued that whether the judiciary should be involved is separate from the question what the shape of democracy should be.128 Even if all theories of constitutional reasoning depend on the idea of democracy, it could still be that the courts are lousy interpreters of the democratic spirit of the Constitution, and indeed the evidence in this book and elsewhere certainly supports that claim much of the time.
It is only a partial—and not very satisfactory—response to point out that courts also do poorly as historians, including constitutional historians, and that the courts constantly misunderstand the law as well.129 The Supreme Court, by constitutional design, is a generalist institution and has all the strengths and weaknesses of generalists. It can take a broad view and see many aspects of problems. But it does not have a specialist’s knowledge of most fields, including most areas of law.
It is not clear, however, that Schauer’s question about judicial competence presents a realistic option. Courts in the United States have always been involved in and are continuously impacting who can be elected in the United States.130 Were that question to be considered, it is not clear that there is any way to extract the courts—the line between issues on which the courts should and should not become involved would remain not only as a typical problem of legal line drawing but as outcome determinative between competing factions.
Realistically, the question becomes whether courts would resolve issues that affect democracy better if they ignored democracy or took it seriously. Taking democracy seriously meant, most prominently, ending whites-only political primaries, requiring one-person-one-vote reapportionment so that voters are equally represented in legislatures, and securing the right of African Americans and other racial minorities to vote. My own judgment is that the only period in which the Supreme Court did reasonably well in deciding those issues is the period in which the justices took democracy seriously.
Although the political systems and cultures in countries like Canada, Germany, India, and South Africa differ from American systems and cultures, these countries are broadly democratic; and even though U.S. courts might well reach different answers on particular issues, evidence from the courts in Canada, Germany, India, South Africa, and the European Union suggests that explicit consideration of the future of democracy can usefully inform decisions. Canada, Germany, South Africa, and the European Union have constitutional language that requires courts to look at the consequences for democracy of at least some of their rulings. And each of those courts takes the future of democracy seriously.
A related question is the form in which the courts might consider the evidence. Obviously, where the political science is well established and the conclusions widely shared, this problem is easier to handle. Where the political science is contested, the relevance of political science to law is much more doubtful.
Frye v. United States set the rule dominant from 1923 to 1993, that scientific evidence would be admitted only if “the thing from which the deduction is made . . . [is] sufficiently established to have gained general acceptance in the particular field in which it belongs.”131 That changed for the federal courts in 1993 when the Supreme Court decided in Daubert v. Merrell Dow Pharmaceuticals that:
[T]he trial judge must determine . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.132
Under the Frye rule the question was general acceptance by people in the field whether or not their judgment had a sound scientific basis. That would make it difficult to introduce material if there were disagreements in the relevant field. Under Daubert, general acceptance is no longer required but scientific validity and proper application to the facts are required, although the Court admitted that acceptance might be relevant.133 Daubert implies that courts will deal with contested science but will use rules of science to decide what should be trusted.
David Faigman comments that in Daubert the “scientific revolution finally had reached the law.”134 But that is not to say that the information will prove understandable, or usable, by courts. Scientific information is and will continue to be difficult for courts to evaluate.135
Part of the problem is judicial unfamiliarity with science. Daubert assumed the use of trial testimony to help the courts. John Monahan and Laurens Walker propose that written briefs discussing written papers would be a better substitute: “Courts should place confidence in social science research to the extent that the research (a) has survived the critical review of the scientific community, (b) has used valid research methods, (c) is generalizable to the legal question at issue, and (d) is supported by a body of other research. Finally . . . appellate courts should also not be bound by trial courts’ conclusions about empirical research.”136 The Monahan and Walker formulation has the virtue of directing attention to the body of social scientific literature in more carefully stated and well-organized presentations than the testimony of expert witnesses.137
A second and less tractable difficulty flows from the preconceptions and lack of preparation of jurists. The current Supreme Court has values that are somewhat inconsistent with where the science presented here would take it. Such dissonance always makes it difficult to communicate accurately.
Despite both difficulties, knowledge should produce better answers than ignorance. Obviously it does not always work. But in general, John Stuart Mill still seems right, that over time, the opportunity to learn leads to better answers.138
A democratic constitution should be interpreted in a democratic way. Voting, civil, political, and equal rights flow directly from a democratic interpretation of the Constitution. The language is there. The actions of the government are at issue. We merely need to interpret it to protect the future of the American republic. And that path has been cleared before.
Social scientists have been pointing the way toward important steps to preserve and protect democratic self-government. The Supreme Court’s handling of the economic questions explored in chapter 9, disputes between private parties about their obligations under state or federal law, runs counter to the warnings from social science and was not reasonably required by statute or precedent. The Court simply used its interpretive muscle to suit its patrons. That is a misuse of the constitutional authority of a court in a democracy. Democratic values should inform its conclusions about government behavior, about its own behavior, and about the regulation of private behavior.
Courts in much of the free world treat their constitutions as creating values that should bear on law regulating private transactions. This is known as the direct horizontal effect of the constitution.139 Those courts treat it as part of their responsibility. In the United States, the Supreme Court has sometimes understood that responsibility, conforming the law of libel to First Amendment values, the law of private remedies to due process values, and the law of property and the law of private political associations to equal protection values.140 Examples could be multiplied. The issue, as stated in Shelley v. Kraemer is the responsibility of the courts. Where the values are important, the court has the responsibility to shape law by those values, balancing private rights and needs as appropriate without losing sight of the courts’ democratic responsibilities. It does this not because the private parties are governmental, but because it is government in its judicial authority that prescribes the rules. The Court should handle economic rules in light of constitutional values because it is important to the future of self-government. The Supreme Court is not free to foul the democratic future of the United States to feed the thieves at its feast.
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The major positive development has been gay rights, in which the Court has been part of the national change of heart.141 The emergence of gay men and lesbian women, as well as of transgendered and bisexual individuals, has made it possible for them to come out of the closet and take active roles in politics. The ability to advocate is a necessary step to make voting power effective. Justice Kennedy has made possible one bright spot on an otherwise exclusionary landscape.
The Court’s recent decision overturning parts of the Defense of Marriage Act,142 however, came one day after the court’s decision ending the most effective form of federal supervision of voting rights in the states of the former Confederacy. Based on the evidence at the hearings, the Court likely traded one form of inclusion for another.143
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Interpretive methods based on claims of deference to democracy—without a method for protecting democracy—generate law without logic, mind, or soul and reveal the partisanship of the Court. The approach defined in the 1938 Carolene Products footnote and elaborated over a half century from the Hughes Court through the early Burger Court is far more positive than the lip service that the Rehnquist and Roberts Courts have paid to democracy while undercutting its foundations.
To protect democracy, constitutional law needs to be able to absorb the insights of science. Failing that, the Court is “counter-majoritarian” in the most fundamental sense—it leaves us defenseless against the enemy within.