Living Constitutionalism and Judicial Decisionmaking: Some Puzzling Implications

Jack defines living constitutionalism as follows (critique to follow):

Under this model of living constitutionalism, successive generations may not reject the Constitution’s text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. …

This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law’s relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run.

It also involves a system of judicial review but not a system of judicial supremacy. This distinction is crucial: Courts act as a stabilizing force, and hold officials (and especially executive officials) accountable to law, but they never have the last word. The purpose of judicial review in this model is to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities , and to prevent quick and drastic changes in those constitutional values unless there has been extended and sustained support for change that is reflected in long term changes in constitutional culture.

Moreover, in this model judges do not have to do anything special or out of the ordinary to participate in the process of living constitutionalism. They don’t have to be politicians or moral theorists or divinities like Dworkin’s Hercules or philosopher kings. They don’t have to be smarter, or wiser, or more moral or more farsighted than anyone else. All they have to do, once they get appointed, is to try to decide the cases according to law, in the best way they can . If they just go about doing their jobs, they will, in spite of themselves, participate in the gradual translation of changing constitutional politics into constitutional law. Meanwhile the job of people like me, and Dahlia, and Eric, and everyone else, is to criticize how they interpret the law and to try to persuade other people, and them, that our interpretations of the Constitution are the best ones and that they should agree with us .

I emphasized three features of this theory in the passage.   (1) The purpose of judicial review is to protect the values of temporally extended majorities.  (2) All judges do is decide cases according to the law.  (3) Observers can criticize them for failing to decide cases according to the law.

If I understand Jack correctly, the first feature is the structural aspect of living constitutionalism, while the second and third features are something like normal judging and criticism that occurs within that structure.  The lynchpin of the system is that “political” appointment to the judiciary of people with (unavoidable human, partisan) biases that are appealing to the elected officials who select them, plus lifetime appointment, result in the protection of the values of the temporally extended majorities; but the judges themselves just decide cases in what seem to them in the appropriate manner, and the rest of us criticize those judges for violating legal craft values when they do.  This system as a whole provides stability while also “changing with the times” in a manner that approximates public values: hence it maintains its legitimacy for the public, which wants just those things.

Jack warms my heart by comparing constitutionalism to markets:

Suppose for example, that we want to design an efficient market. We ask how its design and incentives produce certain types of results, and if it does not, we redesign the market and shape the incentives. We do not spend very much time giving advice to people in the market about how to behave so as to produce efficiency; rather we assume that efficiency arises from the sum of their interactions, and not from each of them following our advice about how to behave. In fact, it may be a mistake to focus primarily on advising individual people about how to behave in the market, although educating people about costs and benefits, might be a good idea; so too much be educational campaigns to shape people’s values and preferences. Another example of a focus on systems is our Constitution’s separation of powers. It tries to preserve republican government by balancing contrasting interests, under the assumption, as Madison put it, that enlightened statesmen (the sort who would respond to good advice) will not always be at the helm.

I take Jack to be saying that we should distinguish between constitutional design (designing an efficient market) and individual case outcomes (advising someone to charge a certain price).  We should recognize that a market may be efficiently designed even if some individuals make bad pricing or purchasing decisions; we should recognize that a constitution may be legitimate even if some judges make bad decisions.

Alas, I don’t think the analogy works.  If a business sets prices too high, it loses its customers and folds; if it sets prices too low, it loses its shareholders and folds.  When it vanishes, another firm takes its place.  The business’s bad decision doesn’t have any effect on the overall structure of the market-the system of property and contract rights that are enforced by courts-or even the market’s output.

When a Supreme Court justice makes a decision, however, that justice does affect the system.  Jack wants courts to protect the values of temporally extended majorities: that’s part of the “structure.”  But justices can change this structure if they want to.  They can, for example, make it harder or easier for Congress to pass laws (for example, by adopting narrow constructions of statutes, inventing new rights, etc.), in this way making it harder or easier for the temporally extended majority to have its way.

Or, to go way back to the beginning of the discussion, when Dahlia was criticizing the Supreme Court for (presumably) making a bad decision in Heller, and Jack wrote a response describing how living constitutionalism works, I (and Dahlia) thought that Jack meant that Dahlia shouldn’t bother criticizing the Supreme Court for allowing political biases to influence decisionmaking.  If she doesn’t like the way judges decide cases in a manner that reflects their political biases, she should join a social movement and effect political change through politics.  Now it is clear that Jack didn’t mean that Dahlia should stop criticizing the justices.   Jack says that Dahlia should go ahead and criticize the opinions; perhaps she’ll persuade the justices to change their minds.  But Dahlia should recognize that the system as a whole remains legitimate, and that she’ll get her day when her political views prevail at the polls.

I think, however, that Jack’s theory has more radical implications for Dahlia’s job than he says.

To see why, suppose that our system is legitimate precisely because, as Jack says, it allows temporally extended majorities to entrench their political preferences beyond their time in power.  And let’s say that such a system is not just legitimate; it’s actually best or as good as one can hope for (perhaps that’s why its legitimate).

Now consider Dahlia’s worry that the (future) Heller decision will entrench a politically conservative outcome, one that we won’t be able to eliminate until many decades of liberal hegemony occur-long enough to build up a liberal majority in the Supreme Court, while maintaining liberal domination in the political branches.

And suppose that the current conservative majority reads Dahlia’s critique and says, by golly, she’s right.  Let’s not find a gun right.  Let’s instead exercise judicial modesty and allow contemporary political majorities to craft gun control policy on their own.

If Jack is right, then these judges are doing poorly-not at the case-outcome level, but at the systemic, living constitution level-by following Dahlia’s advice.  After all, if they forsake their opportunity to entrench current conservative opinion, then it will be much easier, than it would otherwise be, for the next generation of liberals to implement their liberal agenda.  The justices will be thwarting the political agenda of the currently entrenched majority, and in this way undermining the system of living constitutionalism that Jack celebrates-the system in which parties take turns in power and stability is maintained because parties can partially entrench their policies through the judiciary.  They will be failing to serve their political role of “stabilizing force,” which is so necessary for maintaining constitutional legitimacy.  It would be as though Republican elected officials all started voting Democratic: they’ve had a change of heart and they don’t give a damn for the opinions of the people who elected them.  Democrats would be happy in the short run but everyone would feel uneasy about such an outcome.  Dahlia shouldn’t want to give justices bad advice; she shouldn’t want them to act like my imaginary elected officials; she should want the justices to maintain the legitimacy of the constitutional system by serving as a “stabilizing force.”

Dahlia (Dahlia!, are you paying attention?), who may, like the rest of us, have partisan views, but also is public spirited, and surely wouldn’t want to undermine the legitimacy of our living constitution, should give the justices good rather than bad advice.  She should praise conservative justices for entrenching conservative political opinion; praise liberal justices for entrenching liberal political opinion (should we live long enough to witness this happy eventuality); and criticize mavericks who cross party lines.  Dahlia, you have been doing everything backwards!

Such a conclusion is not as crazy as it might seem (though it is crazy).  In fact, an academic paper proves that, if you accept certain (apparently reasonable) assumptions, the best supreme court is one in which justices engage in partisan activism (to hit you between the eyes with this point, the authors call their paper a defense of ” unprincipled judicial activism”).  (See here ; and for some criticisms by me, here .)  The ingenious point of the authors, James Rogers and Georg Vanberg, is that activist supreme court justices, in effect, merely elevate the level of supermajoritarianism in our law-making system.  A high level of supermajoritarianism prevents mere majorities from passing laws that transfer resources from minorities to majorities, while allowing laws to go through that benefit everyone (an old Buchanan & Tullock argument).  The authors don’t acknowledge the implications of their paper for public-spirited journalists and critics, but they are exactly as I state above.  If the legitimacy of our system depends on justices acting on their political biases because they were appointed just because they have those biases, then we should encourage justices to act on their biases rather than say “gotcha!” whenever they do.  It  would be a terrible thing if they rose above partisanship, a real mistake for them to assume the mantle of impartiality.  Any justice who got religion would need to be subjected to immediate deprogramming.

Does Jack believe this?  He does hedge his bets by saying that even as justices work to protect the values of temporally extended majorities, they should do so in “as legally principled way as possible,” but the very fact of hedging in this way indicates that he is aware that the implications of his theory for judicial decisionmaking are radical rather than modest.