Balkinization

Constitutionalism: It's Political, It's Legal-- It's Two Mints in One!

Dahlia Lithwick and Eric Posner question my political science-style account of living constitutionalism, in which popular mobilization and partisan entrenchment in the judiciary play a major role in shaping constitutional change. Dahlia doesn't like the normative implications of my account, while Eric largely agrees with the account descriptively but thinks it makes judicial review superfluous. Let me respond to Dahlia in this post, and respond to Eric in a later post.

Dahlia's major concern is that she's not so sure she likes political and social movement guided constitutional development. "[A]rguing against the way the gun lobby came to dominate/shape the constitutional conversation over the second amendment . . .," Dahlia writes, "I was wondering aloud where the best locus of constitutional change might be." Dahlia's preference is that courts should be the locus of constitutional change, not social movements, or, as she calls the ones she does not like, "special interest groups."

This is a false dichotomy. The locus of constitutional change occurs in both places in a sporadic (rather than continuous) interaction. History teaches us that courts normally do not engage in significant changes in constitutional doctrine without lengthy prodding from a sustained campaign by social movements and political parties, using not only litigation, but also political mobilization and cultural and social persuasion. The long march of progressivism that led to the New Deal revolution and the even longer march that led to the Civil Rights revolution are two obvious examples, but the same could be said of almost every important transformation in constitutional doctrine in the country's history. If Dahlia likes the achievements of living constitutionalism, she had better give props to the ~~special interest group~~ social and political mobilizations that preceded them.

Brown v. Board of Education did not arise full blown from the head of Earl Warren; it was the result of a several decades long campaign, well documented by historians, in which the Supreme Court made only sporadic and not always helpful appearances. World War II and the Truman Administration were crucial events in the process, and indeed, Truman asked the Court to overrule Plessy v. Ferguson four years before it actually got around to doing so. State courts and state legislatures, especially in the North, were also particularly important in this lengthy process of changing constitutional culture leading up to Brown. (Indeed, Dahlia's characterization of the Court in Heller as just popping in after a lengthy absence neglects all the litigation that has gone on in the state courts, which usually precedes the U.S. Supreme Court's entree into a new area. But I digress.)

Dahlia sounds as if she thinks it's a bad idea to have social movements and political parties out there shaping constitutional culture without careful and regular guidance by wiser courts. But whether she likes it or not, that is the only way that courts ever start paying attention to novel constitutional claims, including the ones she likes. This is the lesson of American history. If she wants courts to be involved in constitutional development of doctrine, she also wants social movements and political parties to get involved early and often. That is because courts generally won't get involved until political success changes the composition of the judiciary or changes the political culture (and constitutional culture) in which courts make their decisions.

Perhaps what Dahlia is really saying is that she wants courts-- and particularly the U.S. Supreme Court-- to get involved earlier and more often in consideration of novel constitutional claims. But courts usually don't get involved in developing new constitutional doctrines-- whether it is gun rights or gay rights-- until political forces are strong enough to make them sit up and take notice. The great irony of the Carolene Products doctrine that the courts will look out for "discrete and insular minorities" is that no group gets recognized as "discrete and insular" and therefore deserving of judicial protection until it has gained the attention of political majorities. Until it gains some political clout, a minority group is usually simply ignored. Blacks got increasing attention from the courts after they became swing voters in the 1930s (and therefore were no longer loyal Republicans-- the black vote greatly assisted in Truman's 1948 victory, for example), and after Jim Crow became an embarrassment to American foreign policy during the Cold War. Blacks made progress in the courts, in other words, because they made political progress through a halting and agonizingly slow process. (Of course, the one place blacks made little or no progress was in the South, and the Civil Rights revolution essentially imposed a national majority's views about race, displacing those of a regional majority.)

The Court's sex discrimination decisions of the 1970's followed an enormous groundswell of support for sex equality in popular culture and social movement mobilization (not to mention passage of the ERA by overwhelming margins in both houses of Congress in 1972.). From 1921 in Adkins v. Children's Hospital until the 1970's, the U.S. Supreme Court pretty much stayed out of the gender equality business (there are two cases, Goesaert in 1948 and Hoyt in 1961, both treating sex equality claims dismissively.). Indeed, the case of gender equality is very similar to the case of gun rights about which Dahlia complained in her original piece: The Court waits until there is a groundswell of support in the country, driven by social movement mobilization, and then it gets involved.

There is no plausible account of living constitutionalism that does not involve the Court taking signals from what is going on in popular culture, social movement mobilization, and politics, and responding through doctrinal development. If you are a living constitutionalist, you have to accept this reality. (Indeed, you have to accept this reality even if you are an originalist!) Popular constitutionalism and partisan entrenchment drive doctrinal development. Doctrinal development, in turn, shapes the direction of social movement and political activism, sometimes by changing facts on the ground, sometimes by shaping popular consciousness, sometimes by opening up new channels and opportunities for constitutional claims; and sometimes by spawning backlash and countermobilizations that attempt to discipline the courts and change their direction. (If Dahlia thinks that an earlier intervention by the Court denying individual rights under the second amendment would have nipped the powerful gun rights lobby in the United States in the bud, I believe she is wrong. It probably would have only fanned the flames of social movement activism. The Court's early denial of gay rights in Bowers didn't put an end to the gay rights movement; it only made the movement more determined to succeed, as it eventually did in Lawrence.). Constitutional politics influences constitutional courts; and in turn constitutional courts influence constitutional politics-- both by what courts do and by what they don't do.

Perhaps Dahlia is worried that courts have relatively little influence or work to do in this account, because most of the action occurs in the political arena. But she need not worry. Courts still have plenty to do in this process. They have to hear cases and decide them, creating new doctrinal distinctions that become the basis for later litigation and contestation. Above all, courts translate constitutional politics into constitutional law. It is not as if they have a choice. They really cannot help themselves, or more correctly, the sum the work of Justices on a multimember court like the U.S. Supreme Court cannot help but produce this effect. The Justices do this not because they are wiser, or more noble, or more restrained, or more farsighted, or more principled, or more sober than the rest of us. Rather, they translate constitutional politics into constitutional law because of how they get their jobs and because they inhabit professional roles in which they must continually hear claims and articulate their answers in terms of the forms, practices and arguments of elite legal culture.

This is the way our constitutional system actually works. If you like all the achievements of living constitutionalism, as I assume Dahlia does, take a good look at how they actually happened. Understand the process. Don't imagine it's all about wise courts guiding the unwashed masses.

All of which brings me back to Heller. "When the court is simultaneously finding new fundamental rights and curling its lip over the very idea of levels of scrutiny," Dahlia writes, "living constitutionalism has become unmoored from any constraint at all." Bad court. Bad bad court. What then does she think of Lawrence v. Texas, in which the Court announced a new right and pointedly refused to articulate the level of scrutiny that applied to it? Is it her view that Lawrence was wrongly decided because the Justices were too eager to respond to the "so-called homosexual agenda" and enforced the rights of homosexuals without spelling out all the details? Was it "unmoored from any constraint at all"? Quite the contrary. In Lawrence, as in Heller the Court is making its first inroads into a new area of doctrinal development, prodded by changes in constitutional culture and successful political mobilizations. Dahlia and I just like one set of claims better than we like the other. It is worth noting, by the way, that the language of scrutiny does not make a regular appearance in the Supreme Court's doctrines until the 1960's; before then courts decided all sorts of rights claims without the three-and-counting tiers of scrutiny that help create the delusion of apolitical precision in our constitutional law.

All of this leads to the sixty-four dollar question, which both Dahlia and Eric pose: If this is how the system actually works in practice, why do we need constitutional courts at all? Why not leave all constitutional development to the political process entirely? A great question, and one that every living constitutionalist-- including Dahlia herself-- must answer. I'll offer the beginnings of my answer to that question later in the week.

Posted 6:43 AM by JB [link]

Comments:

Right on, Jack. We can't let the the dead hands of the founders/framers/ratifiers (as selectively cherry-picked by all varieties of originalists) pull the triggers of devastation. But I'm confused. I thought you had segued from a living constitutionalist to a variational originalist in recent years. Are you swinging back or are you on the fence, sort of like a mugwamp?

# posted by

Shag from Brookline : 7:56 AM

Given that Article III limits Courts to cases and controversies brought before them, the judiciary is structurally a reactive institution. It takes a great deal of conflict generating enough cases to reach the Supreme Court to force interpretations of the Constitution.

# posted by

Bart DePalma : 8:17 AM

I think this account of constitutional change is going to make sense for some constitutional provisions, but not for others. As I see it, proper interpretation-based constitutional change depends on a change in the assessment of reference-yielding facts. And which facts are the reference-yielding facts depends on the meaning (i.e., original sense) of constitutional language. For instance, if we think that the "privileges or immunities of citizens of the United States" means the privileges or immunities that in general characterize American civil liberty today, then it'll of course be reasonable to pay attention to developments in what civil rights Americans generally have today. But such a response is sensible only if that's the actual meaning of "privileges or immunities of citizens of the United States." If instead the Constitution uses a term that involves a different sort of reference-yielding fact, then it won't be appropriate to use political developments to fill in the applications of the clause. If, for instance, "cruel" means "deliberately inflicting a great deal of pain," then we can disagree with the Founders about the application of the 8A based on our differing assessments of what punishments deliberately inflict a great deal of pain, but not just on the basis of the success of social movements to ban certain punishments.

# posted by

Chris : 8:31 AM

LAZARUS RISING

Maybe in a few years another Lazarus may rise from among SCOTUS’ current clerks to reveal the full story of the Heller Second Amendment case. Such a revelation might include the manner in which the 69 briefs that were filed were read and digested by the clerks and their Justices, or not. Might there have been committees of the clerks categorizing the positions in these briefs to save the time of their Justices? Did any one clerk or Justice read in their entireties all 69 briefs? If not, perhaps a cigarette package warning-type should accompany SCOTUS decisions to the effect that the Justices, or some of them, may not have actually read the briefs submitted.

How tall would the pile of 69 briefs in Heller be? How many words? We need relevant statistics. (Perhaps big law firm review methods can be utilized to convert into conventional billable hours the time it might take for a thorough reading and review of all 69 briefs.) I can image a lowly clerk assigned by his/her Justice to read all of the briefs and memorandize them on a short timeline asking for a gun to end his/her misery.

Most likely the decision in Heller will not emulate the unanimous Brown v. Board of Education decision. Heller may produce an Uzi of supporting, dissenting and supporting/dissenting opinions. Hopefully the decision will not provide for “all deliberate speed.”

# posted by

Shag from Brookline : 8:37 AM