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Constitutional Convention

Over at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia’s constitutionalism versus liberal constitutionalism.

Orin Kerr writes:

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.”

Kerr notes that liberal constitutionalism can be defended by arguing that “some limitations on democratic rule making actually enhance democratic rule making.” But, Kerr notes: “This is a very popular move among academics, although it can be hard to sell to the public.” Kerr also contends that another option is “to forget about theory and instead focus on results. . . . 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.”

Jack Balkin contends that “Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application.” Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution’s text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice’s preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I’m not sure we should be so obsessed with legitimacy, because I’m not sure that we’ll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that’s a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court’s decisions. Paul Kahn’s Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia’s populist constitutionalism is also deeply flawed. He says he’s reluctant to overturn the will of the majority, but as Balkin notes, that’s just false. Scalia’s brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia’s interpretations are somehow more grounded than other justices’ interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia’s method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of “I’m more legitimate than you.”

4. Our government is structured on a dilemma that the Framers couldn’t fully resolve. They wanted a robust democracy, yet they also didn’t really like robust majority rule. It seems fairly clear that the Framers were quite intent on limiting majority rule. We could, for example, have a much more minimalist Constitution, and entrust more to the will of the people. But we don’t. The Framers were very distrustful of majority rule, and they tried all sorts of techniques to limit it. Of course, the Framers didn’t want a monarchy (too strong an executive power) or an oligarchy (government by judiciary, too strong a judicial power). Nor did they want too much populism. They faced a tough problem — what do you do when you don’t like any of the available options for government? The answer: Throw it all in there, mash it up, stir it, and bake it into one of those inedible English meat pies. We have a combination of everything in our government. What it isn’t, however, is a system predominantly about majority rule. The countermajoritarian difficulty is a creature of Alexander Bickel’s creation — it has a lot of resonance today because being countermajoritarian is a pejorative to most modern sensibilities. But countermajoritarianism was a feature, not a defect for many Framers.

5. Suppose you’re a legal realist, and you’re deeply skeptical of the judiciary interpreting the Constitution in a way that’s objective and neutral (because legal realists know that such a task isn’t really possible). You think that democracy is a good thing and it is better for majorities to have their way than for some unelected justices to impose their own preferences via the guise of constitutional “interpretation.” There are a few options: (a) become a proponent of judicial restraint; (b) become a judicial activist because, heck, it’s all illegitimate and if you’re on the Supreme Court, you might as well have a bit of fun with all your powers. Whether you do (a) or (b), you should be sure to create your own theory of constitutional interpretation and play the rhetorical game of arguing that it is legitimate and captures the true meaning of the Constitution. Of course, since you’re a realist, you don’t really believe all the rhetoric you spew, but you need something to justify your actions rather than look like you’re exercising raw power. If these are the choices, then judicial restraint seems like the least bad among a series of rather unpalatable options.

6. But all that said above, I think that (b) is actually the better option. I’ve stacked the deck against myself, so I’ve got some explaining to do. First, I agree with the Framers and their skepticism of majoritarianism. There are many reasons why we don’t want pure majority rule. Majorities often don’t have the interests of minorities in mind. Majorities might readily sacrifice liberties for the fears of the moment or for short-sighted gains. One of the virtues of constitutions is that they put the brakes on rapid changes, preventing a society from changing core values in a pinch. They mandate that change occurs slowly. In this respect, constitutions have a conservative function in the Burkean sense.

7. I also agree with Bruce Ackerman’s critique of the legislative process, which often doesn’t reflect majority will or the voice of the people. All too often, “we the people” are invoked to justify the legitimacy of legislation, but it’s largely not true that laws represent populist will. Some do, but many don’t. Finding the true populist will is made more difficult in the modern age by the fact that our country is so large, that government has become far more bureaucratic, that there are countless issues and limited time for most people to keep up with them all (let alone even our representatives, who require extensive staffs to keep themselves informed).

8. A key virtue of the Constitution, in my opinion, is that it is a tool that promotes freedom. Freedom, of course, is subject to many perspectives, but one of the Constitution’s great attributes is that it limits government power. It ensures that people have rights, that government should be overseen and be accountable, and so on. Regardless of whether the majority wants a right to free speech, the Constitution mandates that it exist. And that’s the point when it comes to rights.

9. I believe that the Constitution should be interpreted according to one’s guiding vision of the good society. Many scholars have attempted to find some kind of neutral procedural approach toward constitutionalism — but as Laurence Tribe persuasively pointed out in Constitutional Choices, the flight from substance is futile. It is more honest if a justice is up front about the substantive vision behind his or her interpretation of the Constitution.

10. But what limits or constrains constitutional interpretation? We don’t want rule by oligarchs on the Supreme Court. There must be some constraining factors on how robustly justices can interpret the Constitution. I think that some kind of originalism or textualism is appropriate. Justices shouldn’t interpret the Constitution blindly, completely ignoring the text. Nor should they completely repudiate the history of the document. So looking to what the Framers intended should be instructive, but not necessarily controlling. It is also useful to look to history — as Bruce Ackerman notes, the meaning of the Constitution has shifted over time, and it is impractical (and normatively undesirable) to go back to the original meaning. Different moments in history have radically reshaped our vision of the Constitution. All this, however, doesn’t do a lot to limit constitutional interpretation. Indeed, I don’t think that there are firm ways to create such limits. A major limiting factor is a justice’s own attempt to be coherent, to appear to have fidelity to a theory of constitutionalism, to be able to articulate reasons for his or her decisions that the legal community and the general public find compelling (or at least acceptable).

11. Another limiting factor is the ability of the people to amend the Constitution. Here is where there’s a big flaw in the Constitution. It’s way too difficult to amend. While it shouldn’t be easy to amend (or else it dissolves into nothing but majoritarianism), it currently is close to impossible to change. As a result, as Bruce Ackerman has pointed out, we’ve amended the Constitution through interpretation — it’s easier to get the change we need that way. Otherwise, we’d be too bound by the dead hand. But part of the problem with this is that once the Supreme Court has decided something, it too strongly trumps the majority. A Constitution should put the brakes on popular will, it should slow down the process of change, but it can’t be too constraining. Our Constitution currently is too constraining. The only way to let out the steam is to interpret the Constitution is some pretty funky ways. When these interpretations don’t spark the ire of the people over time, then they are accepted. Although controversial at the time, Brown v. Board of Education is largely accepted today. When interpretations conflict with popular will over the course of a long time, these interpretations are often (though not always) chipped away at or overruled.

12. The solution seems to me to be to make the Constitution easier to amend (not too easy, but not nearly as difficult as it is now). A key factor in the process of changing the Constitution is that it should be slow — there needs to be some time for deliberation and cooling off so that the Constitution doesn’t just reflect the whims of the moment. If the Supreme Court decides something that strongly cuts against popular will, and it remains this way for a while, then the people should be able to change it. Supreme Court opinions are currently showstoppers. They shouldn’t be. Making the Constitution easier to amend will lessen the impact of Supreme Court decisions. The Court won’t be the final word. This also addresses (in part) the legitimacy problem. It may be that the quest for legitimacy can never be satisfactorily satisfied, but if the Constitution is easier to amend, the legitimacy of a judicial interpretation becomes less important. It also opens up the possibility for legitimacy to be conferred after-the-fact. If a Supreme Court decision stands the test of time (i.e., isn’t reversed via amendment), then it is at least something the people can live with. That’s not quite as pure a legitimacy as those seeking legitimacy would like, but it’s probably about as much legitimacy as one might get in a post-realist age.


Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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