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... there is a Republican core to yesterday's California marriage decision. Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)
It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them, by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices, following a campaign waged by Deukmejian.
Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let's not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about "living constitutionalism." Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California's Constitution?
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Yes, says Jack, but how can one compare the honesty of a person and a theory? It's like saying that the theory of evolution is more honest than William Paley. Jack might mean that Scalia doesn't apply his theory of originalism honestly, or he might mean that no one can apply the theory of originalism honestly, or perhaps that any workable theory of originalism is dishonest. It's hard to tell. Correlatively, it's not clear whether Jack thinks that any Supreme Court justice who adopted liberal constitutionalism would be honest, or that there is something intrinsically honest about liberal constitutionalism. Maybe Jack means that a Supreme Court justice who honestly applied liberal constitutionalism would be more honest than a Scalia who dishonestly applies originalism, but that would be true by definition. Jack concludes that the principles of liberal constitutionalism aren't even liberal, which makes one wonder whether it can be so honest after all. Sloganeering is hard work.
Jack does have a point about originalism: Whatever claims have been made about it on theoretical grounds, it doesn't appear to constrain judges from striking down laws that offend their ideological commitments. The problem not mentioned by Jack is that this same complaint was a longstanding and powerful objection to the Warren Court justices' living constitutionalism. No one has been able to offer a persuasive defense of these precedents; they are now regarded as simply liberal policymaking—sometimes wise policymaking, but impossible to defend as constitutional decisionmaking. That's why Democrats can't counter Scalia by advancing a constitutional philosophy; they can only invoke a disparate group of judicial decisions that are politically popular and argue that these decisions are vulnerable to conservative retrenchment. The reason that the "evolving" and "living" constitution slogans have become a joke is that everyone thinks of them as sly references to judicial policymaking that has resulted in some of the most ideologically divisive cases in the court's history. Jack's liberal constitutionalism can't escape this problem; indeed, it is probably worse than originalism on this score, as he wrings all the determinacy out of the founding materials, leaving only some dried-out husks of principles that are too abstract to have any force.
Republicans are coasting on the now decades-old reaction to the Warren Court's excesses: "Judicial activism" is still associated with that court's elitist disregard for the political choices of the people, acting through their legislatures, and this charge is still red meat for many conservatives. Scalia does well not because he is charming but because originalism has not yet suffered the fate of liberal constitutional theory and become synonymous with judicial policymaking. Democrats should work on forging an association in the public mind between judicial activism and the rulings of the conservative majority on the court; for the lack of a positive program—for the lack of an appealing product that can compete with whatever Scalia is selling—they can only rue their judicial forbears and take comfort in the thought that originalism's time will come as well. It isn't the lack of a theory that causes Supreme Court justices to decide cases in conformity with their political preferences; it is life tenure.
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Before I respond to Orin's thoughtful post, let me back up to Dahlia's diagnosis for a second - a diagnosis that I think amounts to saying that conservatives have been broadly more successful than progressives in persuading folks that originalism is the right way to approach constitutional interpretation, and/or in making this aspect of the judicial role a voting issue in their party's favor. I'm hardly a pollster, but I'm not sure I buy this take.
A little Googling turned up, for example, this nationwide Quinnipiac poll from last summer finding that an essentially identical proportion of Republicans and Democrats ranked Supreme Court appointments as a very important factor in their presidential voting decisions. Now on the other hand, the poll also showed originalism gaining (and living constitutionalism declining) in popularity as between the two interpretive approaches since 2003. But the gain/loss was in the 4 percent to 5 percent range—a modest recent trend if that. (It's also interesting that even in 2007, a higher percentage still favored taking account of changing times over pure originalism—and to the extent the living constitutionalists are losing support, it's both to the originalists and almost equally to the undecideds. I would no doubt be reading too hopefully into the poll to note as well that interest in originalism was increasing just as the current administration was straying further and further 2003-07 from the original separation of powers we'd known and loved.)
But let's assume for a minute that trend is real - that people are inclining more toward originalist interpretation than they did back in 2003. Hard to say (beyond Scalia's raw mediagenicity) what's behind this. I tend to agree that part of it must be lack of a catchy, coherent alternative message—the presentation of which is, to be fair, always far more challenging for the party not in power. My guess is it's also made more complicated by the lingering willies many lawyers (including moderates in both parties and arguably a higher percentage of liberals) get from Orin's suggestion that the way to win appointments and influence courts "is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours?"
I know whose world I'd want to live in. The thing is, in addition to freedom from Scalia's social vision, that world also includes an interest in the quaint idea (not to repeat myself) that there's still any distinction between law and politics. Orin may be right that a results-driven message sells better than even a divinely packaged theory; indeed, I'd wonder if what attracts at least some to "originalism" is not the method but the substantive image of some simpler time it conjures. But I bet I'm not alone in balking at the idea of pitching an approach to legal interpretation as all about the results.
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Deb and Dahlia, I think Scalia's argument resonates because it is rooted in populism. My sense is that this leaves liberal constitutionalists with two basic ways to sell the competing product. First, try to out-populist the populists. And second, focus on the results.
To see why, let's start with a paragraph by Professor Brown that Deb describes as one of her favorite sound bites about liberal constitutionalism:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exerciseits right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
The problem with this, I think, is that "expanding" the "rights-bearing terms of the Constitution" is a complex way of saying that judges should introduce new limits on what the elected branches can do. The basic claim, as I understand it, is that democracy becomes more legitimate when judges remove undesirable options from "the People." But that's a pretty hard argument to make to the public. Notions of democratic legitimacy are usually based on the consent of the governed, not the consent of the judges.
In contrast, Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."
What does this mean for those who want to sell liberal constitutionalism to the public? I think it leaves open two basic options. The first is to try to beat Justice Scalia at his own game: Argue that limiting choices actually leads to better democracy. The idea here is that some limitations on democratic rule making actually enhance democratic rule making. This is a very popular move among academics, although it can be hard to sell to the public. The problem is that it's tough to reach consensus on why limiting choice is good for people and which choices should be limited. Theories abound from John Hart Ely through Justice Breyer and onward, but it's hard to pick just one theory above the rest. (Should we go with "Representation Reinforcement" today? Or "Active Liberty"?) The argument quickly splinters into many distinct academic claims, making it hard to coalesce around a single message.
The second option is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours? I think this is usually the most effective way to sell liberal constitutionalism. The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones. A lot of people will respond, sensibly enough, that good results beat out the potential for bad ones. This approach wins no prizes for theory, but my sense is that it often proves pretty effective in the court of public opinion.
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Deborah. You are reading me exactly right. ACS has done tremendous work on this front, and I am not slagging legal academics here at all. But between John Roberts' whole "umpire" thing and Scalia's little red bat-phone to the Framers, it seems to me progressives are being badly out-sold. At the risk of yet another wretched baseball metaphor, my problem here is with the pitcher, not the pitch.
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In case you living constitutionalists missed it, Dahlia just threw down the gauntlet at the end of her latest account of the many charms of Justice Scalia on his book tour.
The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's [originalism] argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's "living constitutionalism"—the notion that the Constitution evolves with social norms—have become too easy for him to parody. Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one.
I admit, Dahlia, my first reaction was, yeah, Justice Scalia is camera-ready for sure, but it's hardly fair to say there's no one offering an opposing view. There's Justice Breyer's book, as you mention. And the highly dynamic American Constitution Society (ACS) exists in significant part just for the purpose of developing charismatic opposition. Indeed, when I dashed over for a quick peek at the ACS Web site to see whether it had something to be invoked in its defense, I quickly came to the collection of papers by con law glitterati (including, inter alia, our own Jack Balkin) from a relatively recent symposium ACS sponsored on just what "living constitutionalism" is all about. One of my favorite sound bites was from Vanderbilt Professor Rebecca Brown, who put it with her usual eloquence:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exercise its right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
But then I went back and reread your condemnatory paragraph and realized—your complaint isn't so much about substance, it's about salesmanship. No matter how smart Breyer may be, his "imagine a spherical cow"-type of hypothetical colloquialisms are just too rarified to break through the noise. The liberals have plenty of theories, but none has taken an undisputed place at the top. And the occasional Alan Dershowitz-type notwithstanding, profs are just profs. We need a justice or, say, a presidential candidate who can declare one concrete version of living constitutionalism the winner and wrap it up in a stylish new package that serves a progressive constitutional agenda for the new millennium.
Am I reading you right—is it more the who than the what? And then the biggie—is the only remedy in your view a new face on the bench? Or do you think there's just something about sales that liberals haven't learned?
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Rich Schragger responds to Jack Balkin:
Because Jack was so kind as to respond to my prior post, I thought I’d pile on once more. I must admit that I am still a bit puzzled by Jack’s line between prescription and description. Jack’s account of living constitutionalism as a system seems again to conflate is and ought – in that sense it is quite panglossian. His analogy to the market (and his embrace of “structure”) is instructive; as long as the system is working, all is well with the world. But that seems to me to be a defense of constitutionalism, not a defense or a specific articulation of a constitutional theory. Indeed, it seems to me to be a defense of the rule of law, which is also fine, in that it gives us reasons for why we should consider decisions by a constitutional court “law.” But I’m still not sure what follows from an account that understands constitutional change as a process that turns politics into law over time. From what I can tell, such a process is legitimate not because it enhances certain basic values, or because it is a correct reflection of democratic will, but because it works.
In other words, Jack’s account (like many process accounts of constitutional legitimacy) needs to rest upon some more foundational value. For Jack, the system is legitimate if it “preserves rule of law values, maintains the benefits of constitutional government, and is roughly responsive to democratic politics.” I’m not sure exactly what this means, though. I assume that Jack would say that our current constitutional system achieves roughly these ends, but did it during slavery, or before women got the vote? In a world of Dred Scott, does one have a legitimate system of constitutional government? How would one know, unless the mechanisms of legal order had collapsed altogether, or the system had become so infused with corruption that it was untenable, or had become so evil that it was morally indefensible?
For those of us who believe that a constitutional regime is legitimate when it advances certain ends, the fact that politics will –as a systemic matter – turn into law over time is not enough. “Law” must be consistent with (some set of) constitutional commitments; it cannot simply be the name we give to political judgments (filtered through professional norms) that produce a roughly functional “rule of law” system.
As for living constitutionalism, it doesn’t seem to me that it fails if it doesn’t account for constitutional change. The tradition of common law adjudication has always “kept up with the times” with little loss of legitimacy. The idea of reasoning from general principles to particular outcomes in light of new evidence and new technologies is deeply embedded in the Anglo-American legal tradition. Whether a court is appropriately engaged in such an enterprise will turn on its articulation and defense of the general principles themselves. Originalism sometimes offers the false hope that we can put aside our differences about the content of those principles. By asserting that the framers “intent” takes care of all disputed questions and the court need only to “discover” it, originalism gives the appearance of judges behaving neutrally and lets them avoid articulating and defending their particular constitutional commitments. Both insiders and outsiders to the constitutional system can critique individual judicial opinions on that basis--which is what I took Dahlia to be doing when she expressed concern about the Justices's lack of consistency in the Heller case.
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Jack's got it right when he writes: "
In short, consultation of foreign or international sources will not inevitably nudge interpretation of a constitutional term to the left or to the right -- any more than would consultation of historical context or contemporary legal practice in the United States. That fact counsels shifting away from blanket condemnation of foreign consultation, and toward demands that it be conducted with no less methodological rigor than is expected in historical exegeses and 50-state surveys.
* Here's Mr. Dooley on interpretation: "I niver r-read th‘ constitootion an I niver seen anny wan that r-read
it, but it must be all right, for an’ because ‘twas made wan hundherd
years ago or more be min that is now dead an’ in their graves. ... Could thim pathriots do wrong? Did they know what was best f’r
us afther fightin’ f’r our liberties? I should smoke a ham."
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Richard Schragger is another Slate contributor who teaches at UVA law school. He sent in this email in an effort to clarify where you and I differ Jack.
In his post concerning the “living Constitution” Jack takes Dahlia to task for her naiveté – how can a “living constitutionalist” believe that constitutional law-making is anything other than a mixture of constitutional law and constitutional politics (with the latter more dominant than the former)? This explosion of the law/politics divide is too all-encompassing—and it doesn’t give us much traction on the important question—which is: What does the Constitution require? Jack offers an externalist perspective on constitutional change and calls it the "living constitution" -- but what he is offering is a description of how political/historical forces shape courts and other institutions of government – an account that may or may not be accurate but is, in any case, not what lots of opponents of originalism mean when they speak of the “living constitution.” Jack’s description also doesn't answer the question of whether the Court is actually engaged in making law. What I think Dahlia cares about (or, more accurately, what I care about) is the Court from an internalist perspective: We think that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time.