Wednesday, August 02, 2006

The Constitution Outside the Courts: Apotheosis or Gotterdammerung?

Stephen Griffin

In the 1970s a few scholars, Sandy Levinson among them, started calling attention to how the Constitution was interpreted and enforced outside the federal judiciary. The current administration has, depending on one’s perspective, shown that this point of view is incredibly valuable or unbelievably dangerous. The recent dispute over signing statements and the report the ABA panel prepared in response is only the latest in a long string of examples courtesy of the administration that we ignore this point of view at our peril.

At one level, the collection of views that came to be called “the Constitution outside the courts” was purely descriptive. Scholars often need education in the obvious and Levinson et al. argued that the sometimes obsessive concern with what was going on in the U.S. Supreme Court caused scholars to ignore or downplay the importance of the constitutional interpretation going on in Congress and the executive branch. It is now conventional wisdom, represented most recently in Jeffrey Rosen’s article in The New Republic, that the Bush administration, largely through the efforts of Vice President Cheney, entered office with a fully formed philosophy of executive action, the “unitary executive.” While constitutional specialists paid some attention to how this doctrine became the official legal philosophy of the Republican party in the 1980s, most of the public sphere seems to have been largely unaware of this development and its likely consequences once President Bush II took the oath of office in January 2001.

At the descriptive level then, the Bush administration has been the apotheosis of the Constitution outside the courts, proof positive beyond the wildest dreams of the scholars who thought it up that everyone concerned with the Constitution ought to pay close attention to the sincerely held constitutional views of those who run what Alexander Bickel liked to call “the political branches.”

But there was also a normative side to the Constitution outside the courts, a growing conviction that the Court had gone too far in declaring itself the sole supreme interpreter in cases such as United States v. Nixon. Did Marbury really stand for this proposition, these scholars asked? If not, where and when did the Court assume its role as the dominant re-animator of the Constitution? These questions led in various directions, but the normative push against judicial supremacy, perhaps culminating in Dean Kramer’s book extolling “popular constitutionalism,” suggested the corollary that perhaps the constitutional views of the political branches were deserving of some respect . . . or even deference?

On the normative side, the Bush administration again might be playing a key role in the future of the Constitution outside the courts, but it is one bearing all the marks of a death struggle where the former gods are replaced by a new/old order – the rule of law? That is what is suggested by the arguments of the ABA Report, among other reactions to the obvious excesses of the administration. In this light, perhaps we can cast VP Cheney as Wotan (the blind eye representing hard-won wisdom replaced by a pacemaker), the god who tries to pull the strings, to find that only a free-born hero (that’s President Siegfried) can complete the quest and vanquish the dragon of fetters earlier placed on the presidency. I don’t believe I can complete this avant-garde scenario, however (where is Brunnhilde?). I’ll stop with the thought that John Yoo might be cast as Alberich, who starts the drama by renouncing the tender mercies of human feeling in a fruitless and destructive search for absolute power.

To be a little more transparent, the Bush administration has been so extreme in its quest for unfettered executive power that it has at least temporarily discredited the normative side of the Constitution outside the courts and the attack on judicial supremacy and caused lawyers and scholars everywhere to flee to the safety of Hamdan and the “rule of law.” Bush v. Gore, I hardly knew ye! But I’ll save for a later post some comments on the flight of the ABA Report back to the welcoming arms of what it calls “an independent and impartial Supreme Court.”


The Constitution does not specifically provide for judicial supremacy in the interpretation and construction of the Constitution. This concept arises from the judicial precedent of judicial review, which likewise is not specifically provided for in the Constitution.

I had the benefit of the wisdom of a renowned constitutional scholar, Prof. Thomas Reed Powell, who reigned at or near the top of constitutional academics in the 1920s, to the early 1950s.

Prof. Powell presented the James S. Carpentier Lectures at Columbia in April and May of 1955, titled: “Vagaries and Varieties in Constitutional Interpretation,” published by Columbia University Press in 1956. His first lecture “Establishment of Judicial Review” fills 23 pages. For those who are convinced of the concept of judicial supremacy and the constitutional underpinnings (or lack thereof) of judicial review, I urge they read it. It starts:

“Those of you who recall how Topsy characterized her own genetic process may not be offended if I find a similarity between her origin and that of what we know as ‘judicial review.’ Such review of acts of a coordinate legislative body or executive authority was not conceived in terms of any of the early, post-1776 state constitutions, in the Articles of Confederation, or in the Constitution of the United States. Like Topsy, it just ‘growed.’

“For some time, however, the conception had been in the air before and after the Constitutional Convention of 1787. The possibility was not unknown to a considerable number of the members of that somewhat informally constituted political caucus or assembly, and research by Charles Beard has shown that a majority of the leading delegates favored the subjection of legislation to judicial inquiry and possible control, and that they assumed it was implicit in the institution they were proposing for adoption. At any rate, whether favored or opposed, it was open as a possibility in the system. There was nothing in the proposal as approved by Congress and sent to the several states that in any way whatsoever, otherwise than by silence, negatived the power of the courts over legislation as it ultimately developed.

“The absence of a grant of such a power to the judiciary might of course be deemed equivalent to a denial or prohibition under the familiar conception that the new national government is a creature solely of the Constitution with no inheritance from predecessors. Unlike the states, which are deemed to be successors of British authority, the nation is filius nullius and has only such powers as find warrant in the words of the 1787 or 1789 charter. There is no ‘necessary and proper’ clause broadening the powers of the judiciary as there is in the grant to Congress. So it could be only by inference or by conceptions outside the written word of the fundamental document that the power of judicial review could be assumed. I intentionally use the word ‘assumed’ in two different senses: first, as inferred or implied, and second, as acquired by force or stealth and not as a duly vested donee.”

This introduction is just a tease of what follows. Those who studied under and knew Prof. Powell were impressed by his wit and wisdom, which they can “hear” from reading his lectures. Just consider the wit and wisdom of his title for these lectures.

If you can get the book, read it with care. Consider the views of textualism and originalism as developed over the years and in vogue today. Are there any longer any “Vagaries and Variations in Constitutional Interpretation”?

Although somewhat askew of the current topic, I wonder to what extent things would be different if the branches of government, the executive in particular these days, were faced with a public better versed in the constitution.

Among the many admissions implicit in the Administration's request for protections from conviction for war crimes, the most interesting may be the Bushies' dawning realization that the clever theories they have devised to alchemize crimes into non-crimes will turn into pumpkins if the DOJ ever falls into the hands of Americans with dubious motives -- i.e., the Democrats. Proponents of the unitary executive may be running up against the problem that, when they re-write the Constitution outside the courts (and the halls of Congress), they write on water. Some constitution!

... Apotheosis or Gotterdammerung?


As always, I commend Steve for his interesting remarks (and I look forward to his forthcoming post on the ABA report). As to his major arguments: As a descriptive matter, "the Constitution outside the courts" literally can't go away, because one can't understand the ordinary operations of American politics in terms of the traditional (at least within the legal academy) focus on courts alone. Even if, by stipulation, courts ultimately get involved through appellate procedures, etc., ordinary Americans are far more likely to be the beneficiaries or victims of non-judicial actions of the modern administrative state. I warmly commend Ed Rubin's recent book, "Beyond Camelot: Rethinking Politics and Law for the Modern State" (Princeton U. Press, 2005) for an incisive, if occasionally vexing, overview of the modern realities of the legal system.

Steve may be on to something, though, as to Bush's discrediting what I hae termed a "protestant" model of legal authority, which involves rejecting judicial supremacy. I am not ready to sign on to the high "catholicism" of the ABA report; I strongly agree with Walter Dellinger's op-ed, the subject of another thread on this blog. But as I've written with regard to the aftermath of Bush v. Gore, it's obvious that the public has become committed to some version of judicial supreamcy and that those of us who are "protestants" are distinctly swimming upstream these days.

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