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
I am glad the search for cosmic theory has enlisted so many able participants. Whether it be the living constitutionalism of William Brennan, the originalism of Robert Bork, the political process theory of John Hart Ely, the textualism of Hugo Black, the minimalism of Cass Sunstein, the cost-benefit pragmatism of Richard Posner, the active liberty of Stephen Breyer, or the moral readings of Ronald Dworkin, the contribution of each must be respected. And even this is admittedly an arbitrary and far too abbreviated list. These estimable thinkers have two things in common. One is that they have enhanced our understanding of the world’s most fascinating legal document and most powerful court. The other is that in their ultimate quest they have fallen very short. Why has theory so failed us? Perhaps it is because the Constitution is not at bottom an abstraction. It is by nature less amenable to theory than to the experience that ground-level governance represents. Moreover, the Constitution was designed to resist answers and incorporate tensions rather than yield its secrets to a single or comprehensive viewpoint. The problem is that cosmic constitutional theories can falsely suggest simple answers to intractable problems, thereby abetting judicial hubris. The theories supply ingredients of appropriate constitutional interpretation, but only ingredients. To see them as answers is to succumb to the notion that a document as complex as the Constitution can somehow be bottled and pasteurized.
Some of the theories themselves have become finely spun, however, and I do not see their shortcomings primarily as ones of oversimplification. Rather, their failure stems from the fact that the attraction of constructing cosmic theory is itself too great. The temptation to go grand has blinded the theorists to humble thoughts. It has led to the subordination of the most basic and honorable of all judicial traditions, that republican virtue of judicial restraint. In some cases, the theorists have paid little more than lip service to the notion that judges should refrain from promoting their personal views of what is right and good. Living constitutionalists, for example, have other priorities than keeping the progressive instincts of the courts in check.
The more surprising development is that theories whose professed purpose was to constrain the courts have done anything but. And the hard and dispiriting reality is that such diverse doctrines as originalism, textualism, minimalism, pragmatism, and process theory, all propounded in varying degrees with a measure of restraint in mind, have at best failed in their announced purpose and at worse left restraint in an even more embattled state. The result has been to strip the courts of their mantle and to leave them in what is frankly a more nakedly political state. . . . . . But in shortchanging restraint, the cosmic theories have led us to overlook our own shortcomings.
Today there are few surprises. More often than not, if someone says that a given result was reached by a vote of five to four, the listener can name the five and the four. This has been true for some time. The Four Horseman on the New Deal Court were called that for a reason, just as the trio of Brennan, Douglas, and Marshall tripped off the tongue for a reason too. What seems different now is not that certain justices vote together frequently, for that is hardly surprising, but that the lineups no longer coalesce around the historic dividing line of activism and restraint. In other words, justices of all persuasions can appear to migrate between activism and restraint depending on their personal beliefs. “And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?” Whatever the explanation, it seems clear that cosmic theory has helped to spawn, or at least has done little to restrain, constitutional interventionism that is startling in both frequency and degree, and widely practiced on all sides.
Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory’s triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts’ eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious. This state of affairs is exactly backwards. In a democracy, courts protect individual rights and personal liberties, but they are not, and should not be, the primary agents of social change. It is the people at the ballot box who should decide, not the people wearing black robes—the many, not the few.
Not all activism is equal. Some landmark decisions stray far more from constitutional text and from traditional subjects of judicial competence than others. Similarly, not all theories are equal. Some make far more of an effort to rein in runaway judicial rulings than others. But notwithstanding the valiant efforts to capture the American constitution in transcendent theory, no one can now plausibly make the claim that judging is impersonal, that constitutional rulings are dispassionate, or that decisions exhibit a respect for the bedrock principles of constitutional restraint even close to what the Framers envisioned or what the spirit of self-governance requires.