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Judicial Independence and the American Constitution
A Democratic Paradox
By Martin H. Redish STANFORD UNIVERSITY PRESS
Copyright © 2017 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-1-5036-0184-0
CHAPTER 1
The Foundations of American Constitutionalism
INTRODUCTION
When we embark on the task of answering constitutional questions or teaching constitutional law, most of us start from the sensible position that our Constitution is interpretable positive law whose dictates must be respected. This requires acceptance of three basic premises: first, that the written document is our supreme positive law; second, that the judiciary is empowered to interpret it; and third, that the judiciary's interpretation represents the final word as to its meaning. We must start here; otherwise, there would be no purpose in engaging in the study of our founding document and the rules of governmental ordering that it sets forth, nor could we place any faith in the study of Supreme Court case law defining and demarcating the boundaries of federal power contained within our Constitution. Upon this foundation we have built entire worlds of doctrine and constitutional theory.
It may come as something of a surprise, then, that a number of highly respected constitutional scholars have, in recent years, sought to undermine both premises. These scholars are appropriately labeled "modernists" because they remind one of the architectural modernists who defiantly spurned tradition in favor of naked — and aesthetically displeasing — functionalism in the early twentieth century. Architectural modernism was known for its determined rejection of history and tradition, free from the "idealization and imitation of some past era." It disclaimed ornamentation and symbolism, which for centuries had been rightly understood as central to architecture's identity as a practical and necessary craft of urban design that was also, at its roots, an aesthetic practice steeped in artistry.
Similarly, two sets of modernist constitutional commentators have proposed theories that reject the long-accepted tradition of American constitutionalism on the basis of different forms of naked functionalism. In one camp, self-described "constitutional realists" have variously claimed varying positions on one basic assertion: that constitutions are composed of those laws, norms, and practices that principally define the relationship between the people and their government and delineate the nation-state's power structure. On the basis of this premise, they argue, the American Constitution is simultaneously both more and less than the piece of parchment upon which our nation inscribed our supreme law in the late eighteenth century. It is less, insofar as there are provisions of the Constitution that are neither respected nor closely adhered to, and that have thus been effectively written out of the Constitution by oversight or indignity. It is more, insofar as other laws and movements — powerful and meaningful ones that the American public views as fundamental to our relationship with our government, but that were never codified in the document at the founding or thereafter by formal amendment — are nonetheless appropriately deemed to possess constitutional status. Surely no one can dispute, for example, that on a purely practical level, the Civil Rights Act of 1964 has had a more profound impact on social and governmental ordering in the United States than, say, the Third Amendment or the Emoluments Clause.
In another contrarian modernist camp are those scholars who, while not denying the unique supremacy of the Constitution, nevertheless challenge the premise that our constitutional regime provides for a judiciary that is uniquely empowered and specially equipped to serve as the final arbiter of constitutional interpretation. Whether by legal or originalist argument or by observational or normative means, these "departmentalists" and "popular constitutionalists" contend that the constitutional democracy the Framers devised was not built to support effective, enforceable judicial review. Departmentalists make the descriptive originalist argument that the Constitution envisioned all three branches as possessing equivalent power, and that allowing the judiciary's interpretation of the Constitution to bind the other two branches upsets the balance of coequal power. Popular constitutionalists, on the other hand, make the normative argument that judicial supremacy is deleterious to the democratic vision of American constitutionalism. Observing that judicial review and supremacy were not explicitly provided for in the Constitution, and that courts often act in concert with majority views, despite their freedom from democratic oversight, these scholars understand our constitutional system to accept majoritarian authority over constitutional meaning and enforcement.
This is uncharted territory to be sure; constitutional realists, departmentalists, and popular constitutionalists are nothing if not innovative. But there is a reason that this territory has remained uncharted for so long: those who would depart from the premises that have long served as the undergirding of American constitutional law fundamentally misunderstand the unique virtues of American constitutionalism. Our Constitution was specially designed with an eye to protecting the people against tyranny in all its possible forms (including the majoritarian form), and theories that either obscure the nature of the Constitution or misunderstand its structural guarantee undermine America's most meaningful and significant contribution to political theory. In this chapter, I urge a return to a sort of traditionalism because this view uniquely understands that our Constitution (1) was written down, (2) in a single place, (3) to enshrine a constitutional democracy that would effectively balance our competing interests in celebrating majority interests with the need to protect minority rights.
The traditionalist view of American constitutionalism, however, was a premise rather than a reasoned conclusion. Literature explicating the traditionalist view is sparse because it went without saying that our Constitution was ... well, our Constitution. But if one asks, "What is the American Constitution?" we can find the answer by examining how it came to be and why the government was formed the way it was formed. What were its causes, and what were its aims? This ought not be an "originalist" inquiry, in which we seek to discern original intent or original meaning purely by way of excavation and historical research. An originalist inquiry inherently gives rise to often insurmountable archaeological difficulties, and would require a different kind of scholarly methodology than is consistent with our lawyerly training. The historical origins of our constitutional system lend some clarity in defining the borders of our constitutional framework, but simple reverse engineering does more of the theoretical work. Traditionalist theory considers the broad animating purpose of the Constitution and concludes, based on an assessment of clues derived from historical context and the document's structural design elements, that the American method is a very particular type of constitutionalism, uniquely defined by its countermajoritarianism.
One might properly describe this theory as "premodern," because it presents a defense of the traditionalist view that probably could not have been fashioned prior to the modernist revolution. Modernist constitutionalism presents arguments that American constitutionalism is not fundamentally defined by a singular written proclamation of the supreme positive law of the land, entrenched against majoritarian choices and pathology by inclusion of a prophylactically insulated judiciary empowered with the final say as to the document's meaning. But both types of modernism misconceive the nature of the American system. The premodern theory revives the traditionalist view, advancing its underlying values by considered rejection of modernist alternatives. The premodern view fortifies traditionalism by articulating the essence of American constitutionalism through exploration of the logical missteps at the heart of modernist theories and the dangerous nature of the consequences that would ensue if their views were accepted.
The Framers made a conscious decision to write our Constitution down. This was an intentional break from the British tradition, and it represented an affirmative choice. Founding Era America's resolution to break from the British tradition of "unwritten" constitutionalism was truly striking and should play a meaningful role in forming a present-day understanding of the American Constitution. America's decision to break from the British model has been hailed as the impetus for a great constitutional revolution, and many in the nineteenth century trumpeted the work of the Founders as out-of-nowhere, momentary brilliance. But the truth is that, in the words of one scholar, the American Constitution came to be in a manner no different from other constitutions around the world: it was "a result of actual circumstances of the past and present, and not a product of abstract political theorizing." In fact, the idea of employing a single written document has been attributed to the existence of state constitutions and corporate charters at the time of the framing. The Constitution "was no empty product of political theory," but was rather "a growth, or ... a selection from a great number of growths then before the Convention."
The animating force behind this growth was the pervasive fear of tyranny. The Federalist paints a picture of a Founding Era obsession with the dangers of tyranny; Hamilton and Madison saw it lurking behind every corner and under every bed. Each measure the Founders took in the course of building the new federal government was aimed at safeguarding the young nation and future generations of Americans from oppression in any form — tyranny of the majority, of the minority, of an aristocracy, of plutocracy, or of the intellectual elite. When the Framers gathered in Philadelphia in 1787 to reconstitute the federal government, they sculpted a constitutional document that would provide for checks and balances between the branches of government, would be entrenched against simple majoritarian change, and would serve as the supreme law against which the validity of government action could be measured. The written Constitution and the fact of its writtenness inescapably demonstrate the Founders' unique understanding of humankind's potential for both flourish and folly.
The Constitution is positive law. It does not merely set forth and structure the exercise of public power; rather, it establishes and imposes on the polity a set of rules and norms. Moreover, it designates enforcement mechanisms against both its subjects and its implementers. For a nation primarily concerned at the Founding with prophylactic avoidance of tyranny in a largely heterogeneous society, the writtenness and countermajoritarian entrenchment of the Constitution are both logical and fundamental. There was real structural brilliance to the constitutional regime that was created with the ratification of our Constitution. For Americans, the Constitution performs four vital and overlapping functions. The document is descriptive, aspirational, structural, and checking. The descriptive Constitution sets forth the aspirations and purposes of our constitutional regime. The structural Constitution sets up the processes of our government. And the checking Constitution preserves the democratic process through the supermajoritarian limitation on majority rule.
The prophylactically insulated judiciary is the beating heart of the structural brilliance that defines American constitutionalism. Indeed, once the nation chose to adopt a Constitution that was to be in written form, mandatory, and countermajoritarian, it was essential that the final say as to the document's meaning and the authority to enforce its provisions be vested in the insulated judiciary. It was thus no accident that a nation born of a revolution fought for political accountability chose to make one of the three branches of its fledgling national government completely insulated from public accountability: only by including an entirely insulated judicial branch could this democratic republic be protected from itself. Democracy inherently embodies a belief in human flourishing, in the people's ability to control their own destinies by participating and believing in representative government. But by establishing a politically unaccountable coequal judiciary branch, the Framers acknowledged that human flourishing could not be optimally accommodated if majorities were permitted to rule unchecked. Concerned primarily with thwarting the threat of tyranny in any form, the Framers created a Constitution that enshrined as supreme law a uniquely American form of what is best described as "skeptical optimism" — optimism that an empowered majority could achieve both great prosperity and personal growth, tempered by recognition that majorities tend to oppress minorities. To implement this skeptical optimism, the Constitution was structured around the political apparatus of countermajoritarian checking of majoritarian power. The choice to include an insulated judiciary was a meaningful one, and that judiciary's ability to provide prophylaxis was the key to achieving the Constitution's devised ends. Without a countermajoritarian judiciary armed with the power of judicial review, the entire design of our national government would be meaningless, or worse. Without the insulated judiciary authoritatively interpreting the Constitution, the structural Constitution would create an appearance of countermajoritarian checking of majoritarian impulses that in reality would amount to nothing more than illusion.
The first section of this chapter describes the traditional conception of American constitutionalism. Traditionalism depends upon historical context to define the principle at the core of our form of constitutionalism and depends upon reverse engineering from the structural Constitution to pinpoint the apparatus fundamental to converting that idea into political philosophy. Much of the explanation of traditionalism relies on straightforward examination of the historical context within which the Constitution came into existence and the structures embedded in it. In this way, the analysis can focus on the core principle animating our constitutional regime without reliance on the type of archaeological excavation required to advance an originalist argument. The traditionalist model of American constitutionalism is the common sense explanation for our structural Constitution. The system delineated by our unique written document can only be explained by the notion that the core of American constitutionalism is a skeptical optimism that balances representative governance against meaningful countermajoritarian checks designed to control that government.
The section that follows explores the two prominent modernist attacks on the traditional view of American constitutionalism. By "modernist" is meant the revisionist views of American constitutionalism proposed in recent years by a number of highly respected constitutional theorists. This section first examines constitutional realism and its argument that the entrenched, written Constitution does not comprise the totality of higher law in the United States. It then proceeds to confront the modernist theories, known as "departmentalism," that question, not whether the written Constitution represents the full extent of our higher law, but rather whether American constitutionalism requires or even permits ultimate majoritarian enforcement and interpretation. The section explains why departmentalists are wrong to oppose the idea that countermajoritarian judicial supremacy is fundamental to American constitutionalism, and how popular constitutionalists err in arguing that majorities are better suited to interpret our supreme law.
The third section explains the meaning of "premodern" constitutionalism. American constitutionalism is properly defined, not only by skeptical optimism and countermajoritarianism, but also by the two activating mechanisms that have come under modernist attack. The Constitution is a written document that serves descriptive and prescriptive purposes, provides for mutual checking of powers among the branches, and balances the ideals of human flourishing against the evils inherent in human nature. The written document is entrenched against the choices of temporary majorities, and the prophylactically insulated judiciary is designed to protect constitutionally guaranteed minority interests. The premodern model of constitutionalism advocated here urges a revival of traditionalism based on a critique of and reaction to the problems associated with all forms of modernism, as well as the troubling consequences that would inevitably flow from adoption of either of them.
(Continues...)
Excerpted from Judicial Independence and the American Constitution by Martin H. Redish. Copyright © 2017 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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