Wednesday, August 02, 2006
The Constitution Outside the Courts: Apotheosis or Gotterdammerung?
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.
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!
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.Post a Comment
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.