an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
At the end of their dialogue on the theory and structure of the U.S. constitution Randy Barnett and Sandy Levinson raise an interesting point. Both agree that for Americans their constitution is “beloved” but they also acknowledge that in the rest of the world it is not.
They do not speculate why that division of opinion has come about. In this short post I do.
It is true that the fortunes of American constitutionalism abroad have sagged in recent years but it is important not to exaggerate what the rest of the world finds wanting in what Americans think of as a universal ideal.
Today virtually everyone agrees with the basic organizing principles of government the Americans introduced in 1789: accountability of rulers to their subjects; separation of the powers of the legislature, executive and the courts; division of powers between national and regional governments; and (in 1791) entrenchment of a constitutional bill of rights. Democracy, the independence of all three branches of government, federalism and the practice of judicial review are now widely accepted as the basic tools to counter arbitrariness and abuse of power in government.
In terms of the broad structure of government, the American model still sets the standard. There are differences in the styles and specific guarantees that are included in modern constitutions but for the most part these reflect the time and place where they were written and are more a matter of responding to local needs than being explicitly anti American.
It is more in the theory and practice of constitutional law that outsiders have come to the conclusion that American constitutionalism is not a practice to be emulated. One feature of the American model of constitutional democracy that many outsiders find particularly regrettable is how personal and partisan it has become, especially among the judges who sit on the Supreme Court. To an outsider, the U.S. constitution looks like the product of judicial politics. Within broad parameters judges are essentially free to do their own thing. Each judge has the power to insist on holding onto his or her understanding of the constitution.
From the moment of their nominations everyone knew (and even worse tolerated) that justices Scalia and Thomas would favour a (historical) method of analysis that would consistently lead to conservative results. Clinton’s nominations of Ginsburg and Breyer were intended to introduce more liberal and pragmatic theories of the constitution and restore some (political) balance to the Court. Bush came back with Roberts and Alito and Obama countered with Sotomayor and Kagan
Because each judge is free to organize his or her analysis using different resources, a single, unanimous judgment is a rare event. (Brown is the big exception). Multiple opinions are the norm. A judge like Frankfurter is entitled (and in some quarters celebrated) for his deferential approach as is Holmes for his pragmatic aphorisms and Hugo Black for his fidelity to the words on the page. In no other court on the planet have judges constructed such distinct judicial profiles.
From abroad, this pluralist approach to constitutional interpretation looks a lot like a conversation between competing cults. It proceeds in the same way as the debates between the major schools of Islamic jurisprudence over the content of Sharia law. There is a fixation on the language of the text and an acceptance that multiple theories of interpretation are legitimate and within the prerogative of each judge to employ.
As Barack Obama put it in defending his nomination of Sonia Sotomayor, deciding controversial constitutional cases in the United States is a bit like running a marathon. The law and traditional tools of legal analysis can take you a long way but they can never supply a definitive answer. In the final analysis it is a judge’s values, concerns, perspectives on the world and the “breadth and depth of one’s empathy” that determine how she or he will vote. Such was his justification for adding a female, Hispanic voice to the Court.
In other parts of the world, it is also understood that constitutional texts rarely provide definitive answers on the most contested and hotly disputed issues of the day. It is recognized that in most cases each side can point to some part of the constitution to support their claims. But instead of encouraging each judge to do his or her own thing, in other countries more effort is made to find common ground. When judges are unable to agree on the way the words of the text should be read they frequently have resort to what is called (usually pejoratively in the United States) a balancing approach.
When judges try to resolve a dispute by balancing the two sides of a case, it is as if they use the scales of justice to find the right answer. In effect, they put the two parties on opposite sides of the balance and, with a principle of proportionality, take the measure of each. In the end, the outcome of a case depends less on defining the meaning of words and more on evaluating the weight of the conflicting interests of the people involved.
Increasingly the balancing model of judicial review is seen to be a better way to make a constitution the best it can be than the pluralist, judge centered approach of the Americans. Over the last 50 years it has done a much better job defending liberty and rooting out the discriminatory prejudices of our past. When outcomes are compared on a case by case basis, the rights and freedoms that the judges in Washington say are protected by the U.S. constitution consistently fall short of what is guaranteed in other parts of the world.
In the first decade of its existence, South Africa’s Constitutional Court showed just how much better the balancing model can be. In a series of rulings on capital punishment, gay rights, and the circumstances in which Governments have a constitutional duty to provide basic services to their citizens, eleven judges of very different ages and experience, black and white, Christian, Muslim and Jew, Khosa and Afrikaner, Communist and Conservative used the principle of proportionality to calibrate the scales and were able to agree on the result. Moreover, on each occasion the Court took the time to explicitly reject the approach the U.S. Supreme Court used when it rendered its judgment on the same issues.
Even on such highly charged issues as the death penalty, gay marriage and the prevention of AIDS and domestic violence, the judges in Johannesburg never allowed their personal prejudices or legal theories to affect their judgment. In each case they took the measure of the competing interests that were on opposite sides of the scales and came to a unanimous agreement on where the balance should be struck. Capital punishment outlawed. Gay marriage guaranteed. And an obligation on Government to protect those subject to its jurisdiction whenever it can do so at comparatively little cost.
The contrast with how Americans have handled these issues couldn’t be greater. In the U.S. state executions have been carried out on average roughly once a week for the past 25 years, women still only get an intermediate level of protection against discrimination and gays get practically none at all.
To observers outside the U.S. the rulings of the South Africans are a more appropriate object of veneration. They show how, when it is done properly, judicial review can remove arbitrariness and injustice from government. They show legal thinking at its best.
They also explain why fewer and fewer people in the rest of the world think of the American model of constitutionalism as something to be esteemed. To the contrary, when the jurisprudence the U.S. Supreme Court is compared with the rulings of other established courts around the world, the Americans almost always come off second best.
To an outsider, it looks as if Americans have lost their way. They have removed law from the centre of their constitution and put judicial politics and personality in its place. Rather than looking at the American constitution as something to be beloved, from offshore it looks like it has been betrayed.