Balkinization: Martin Loughlin on taming the judiciary (and ending the interpretation wars)

Martin Loughlin on taming the judiciary (and ending the interpretation wars)

Sandy Levinson

For the Balkinization symposium on Martin Loughlin, Against Constitutionalism (Harvard University Press, 2022).

Martin Loughlin’s new book Against Constitutionalism is extraordinarily rich and provocative. Fortunately, this particular contribution is only one part of an extensive Balkinization symposium. As on other occasions, I will count on the “invisible hand” to provide a good overview of the entire book and its various themes. I will focus on what I think is a central concern—the question of “constitutional identity.” My now-former colleague Gary Jacobsohn—who retired from the University of Texas on May 31—has written seminal books and articles about the concept. Most recently, he has written a short, but powerful, essay, “The Exploitation of Constitutional Identity,” the lead essay in THE JURISPRUDENCE OF PARTICULARISM, Kriszta Kovacs, ed., Hart Publishers). In it he responds to a number of critics who find the idea of “constitutional identity” to have dangerous implications and suggest that we in effect drop the concept. He argues, I think convincingly, that that is to engage in willful ignorance of an important feature of many arguments about constitutional meaning—or interpretation—which is precisely that a constitution instantiates the fundamental commitments and values (i.e., “identity”) of a given society and should therefore be interpreted in congruence with this identity. For better and, undoubtedly, for worse, probably the most systematic account of this notion prior to Gary's is Carl Schmitt’s in his 1927 magnum opus Constitutional Theory. Behind every (merely written) constitution lies “ein volk,” which, among other things, is privileged, through the theory of popular sovereignty, to upend any existing (written) constitution at will. Of course, there was a similar suggestion in the Declaration of Independence, which remains a primary document in the triumph of the mysterious notion of popular sovereignty. “[W]henever any Form of Government becomes destructive of [the ends instantiated in ‘the people’], it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If one assumes that a “people’s” principles are admirable, that is one thing; but Schmitt reminds us that there are no such guarantees, which points to some obvious problems.

Why is this relevant to Loughlin’s own important book? The reason, I believe, is that he is wary of valorizing the constitutional project—or, more accurately, a particular kind of “constitutional project” that he calls "constititutionalism"--that, all importantly, treats judges as the “guardians” of the constitution and authorized to decide exactly what kinds of transcendent values instantiate the project and, therefore, limit the range of what we might call “ordinary politics,” in which values are inevitably a subject of sharp contention. He is not against the idea of “a constitution” per se. I believe that he would agree that any modern society benefits from some written understanding of such basic features as who precisely has authority to rule, how those persons are selected, and how long they are entitled to retain office prior to either leaving office (as through, perhaps, term limits) or subject to renewed appointment by, most importantly, elections. Perhaps one will want to include some procedure for termination through mechanisms like impeachment or, if a parliamentary system, votes of no-confidence or even a mechanism, akin the 25^th Amendment of the United States Constitution—though, one would hope, far better—to account for the possibility that given authorities had displayed either mental or physical disabilities that render them unfit for continued power. But, crucially, there would be no “constitutional constraints” on what the lawful authorities could do. Disputes within the polity would be handled politically. As Barack Obama reminded us, at a happier moment, “elections have consequences,” with the implication that winners ought to be allowed to put their policy preferences into law and that losers should in effect be “good sports,” hoping in the next election to displace those they consider rascals, in the hope (and with the justified expectation) that if they in fact win, they will enjoy the prerogatives of winners.

From this perspective, all arguments would be (merely?) “policy arguments”: Is X good or bad for the polity? None would be “constitutional”: Is it possible that X, even though good, is beyond state power or, if bad, is nonetheless “compelled”? It is no coincidence that Loughlin is a distinguished British academic, and, like Brian Christopher Jones in his recent book, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness, seems altogether satisfied with the classic Westminster model of parliamentary sovereignty. He is therefore a critic of the far more pervasive, in the world today, model of “constitutional sovereignty,” where “the constitution” goes far beyond the minimalist conception set out above. “Constitutions” can be quite congruent with democracy; “constitutionalism,” on the other hand, end up challenging democracy, defined as genuinely popular rule. Ronald Dworkin would serve as an epitome of the “constitutional project” that Loughlin wishes to undermine. Not only does Dworkin’s constitution “take rights seriously,” but he also valorized the judiciary as a unique “forum of principle” in which “Herculean figures” would seek uniquely “right answers” to the conundrums posed by taking rights seriously and feel altogether free to impose those answers on the general public without fear or favor or, importantly, genuine concern for actual consequences. That, to put it mildly, is not a project that Loughlin wishes to commit to. More importantly, he argues that no one else should go down that path. Instead, he presents himself as a quite radical democrat. “Here the people rule,” a slogan that was part of the American justification for seceding from the British empire, continues to have real impact for Loughlin.

As anyone even minimally familiar with my own work (and hobbyhorses) knows, I strongly agree that the United States Constitution is seriously, perhaps even fatally, undemocratic, so I am predisposed to be sympathetic to the underlying thrust of Loughlin’s critique. My 2006 book Our Undemocratic Constitution focused on the almost byzantine set of institutional structures established in 1787, and amended only slightly thereafter, that were designed, and continue to operate, to make the passage of legislation exceedingly difficult. Few of the American Founders defined themselves as “democrats” in any modern sense, and they succeeded, admirably or not, in placing significant stumbling blocks in the way of what many would define as the prerequisites of “rule by the people” (perhaps beginning, most obviously in the current century, with the fact that capture of the White House in no way requires registering majority (or even plurality) support of “the American people” (assuming there is such a thing). It is enough to get a majority of the electoral vote, designed, we were told in Federalist 68, to assure that wise “electors” would serve as guardrails against the selection of an unfit president by a passionate or simply ignorant demos. That obviously turned out to be a bad joke.

But Loughlin is not significantly interested in such institutional deformities and the exquisitely difficult issues presented by interpreting the triumph of a particular particular party as a “mandate” to upend existing legal norms. Is unicameralism desirable, for example, in large and fractionated societies? I am a fan of New Zealand and Nebraska, both of which operate with only a unicameral legislature; I am unconvinced, though, that my home state of Texas, with 28 million people instead of New Zealand’s and Nebraska’s considerably smaller populace, should be under the political thumb of a single house. And, of course, the Texas governor has a strong veto power, absent in parliamentary systems like New Zealand, Israel, or the United Kingdom.

Instead, Loughlin focuses, as does Ran Hirschl in his influential book Juristocracy, on the accretion of power by judiciaries all over the world, especially those who take as part of their modern remit “reading” their local constitution in light of often unwritten (or “unenumerated”) provisions that, nonetheless, are thought necessary to enforce or maintain the “fundamental values,” the deepest commitments—what Philip Bobbitt in his influential work has labeled a particular “ethos” that are believed to define the polity whose guardianship is placed with the judges themselves. To be sure, and Loughlin discusses this in his final chapter, in the modern world, there are many who reject the particularism suggested by the term “ethos” in favor of “universal human rights” whose transgression requires judicial intervention and, perhaps, even the use of military force as part of the “responsibility to protect” the victims of transgression. Both views, though, express fundamental mistrust of “politics,” the site of vulgar self-seeking and often intellectually indefensible compromises, in favor of Dworkinian “principle” and a very strong role for presumptively wise and "principled" judges. I have argued that the current majority of the Supreme Court, especially Justices Thomas, Alito, and Gorsuch, have provided the most truly “Dworkinian Court” in our history. That is, they are undoubtedly sincere that they have discerned the one-true method of giving meaning to the Constitution, whether “originalism” or “textualism,” and they are blithely indifferent to the consequences of dictating their unique solutions to the rest of the polity. It is this reality of aggressive “constitutionalism” that Loughlin opposes and not only (or perhaps at all) because he necessarily opposes the substantive values that the conservative majority is imposing. We are, after all, living in the aftermath of the dramatic rejection by the liberal Warren-Brennan Court of the mantra of “judicial restraint” that had constituted the foundation of “constitutionalism” as enunciated by Oliver Wendell Holmes and his devoted follower Felix Frankfurter. I should acknowledge, perhaps, that I wrote my own dissertation in 1968 on Holmes and Frankfurter and was immensely critical of their restricted notion of judicial authority to give meaning to the Constitution. Consider, though, that a major book published in the past year is Brad Snyder’s comprehensive and completely admiring biography of Frankfurter tellingly titled Democratic Justice, and Frankfurter's arguments no doubt resonate differently today from what was the case more than half-a-century ago.

So what is Loughlin’s conception of a modern polity? It is, I believe, an irreducibly pluralistic entity comprised, as Holmes described it in his Lochner dissent, by “people of fundamentally differing views.” Thus, what Holmes called “the “accident”—the sheer contingency—"of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” Holmes had been wounded three times in the American Civil War; he was well aware of the reality of fundamental disagreement, and he was famous (or notorious) for valorizing those who fought on both sides of that conflict as exhibiting what he called “the soldiers’ faith.” Just as soldiers was called upon to risk (and lose) their lives in behalf of dubious causes, so were judges also under a duty to obey their own masters outside the judiciary. As he himself put it, on his tombstone could be inscribed “Here lies the supple tool of power.”

To be sure, and much to the late Robert Bork’s consternation, Holmes also suggested that judges could overturn laws passed by legislators if “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” So even Holmes’s argument in Lochner, with its reminder that judges were under a duty to uphold laws that they might find “tyrannical,” had its limits! And one could define much post-World War II American (and not only American) constitutional law and theory as a search for those “fundamental principles” for which judges were supposed to serve as essential guardians.

In the absence of faith in the existence of such “fundamental principles,” though, however derived, Loughlin believes that deference to the play of politics, however inelegant, is preferable to what I suspect he might well label judicial fiat. He is a critic of contemporary latitudinarian “interpretation,” whatever its political valence. “In the age of constitutionalism, the claim that the constitution establishes a permanent framework of fundamental law that expresses the regimes collective identity” is a seemingly necessary condition (p. 137). To adopt a phrase that Barack Obama was much enamored of, courts are entitled to say, presumably with some frequency, “this is not who we are,” regardless of the contrary evidence that might be displayed by the passage of legislation or declarations by a presumably lawfully-elected president; as a consequence, such legislation and executive declarations can be struck down as deviations from the idealized conception of political identity discerned by the judges. And, it should be clear, what Loughlin calls, and condemns, as modern “total constitutions” go well beyond simply setting up basic mechanisms by which political contests will be resolved (assuming, of course, resolution is actually possible). Instead, modern constitutions are thought to address all aspects of the social order. Perhaps there are protected realms of “privacy” or individual autonomy, but it turns out that they, too, are subject to legal definition (and limitation) and not themselves subject to mere political contestation.

So I return to the question raised at the outset. Does the “constitutional project” require a commitment to a certain form of “constitutional identity.” If one is a nationalist of any kind, then the identity is contained in the DNA of the given nation (or, as with Schmitt, “volk”). There is no logical bar to defining identity, in important aspects, as importantly religious, as we see in contemporary Turkey, Poland, Hungary, Iran, Israel, and India, among other important countries on today’s world scene. Against such sectarian visions, of course, we find considerably more secular challenges, with which I am almost completely sympathetic. But both visions have overtones of what Loughlin (p. 130) calls a “total constitution,” which he defines as “the sense that the adopted constitution now expresses the constitution of society” as a whole. He criticizes, for example Mattias Kumm, for in effect “constitutionaliz[ing] all political and legal conflicts” p. 131) by, in Loughlin’s words, “establishing the general normative standard for the resolution of all legal and political conflicts. The court now acquires the authority to pronounce on ‘what constitutional justice requires.’”

Though by any account Loughlin is a major “senior” figure in the British legal academy, I suspect that his book is most likely, at least in the United States, to be embraced by a distinctly younger generation. I think it is fair to say that what typifies the clash within the American academy over the past several decades is the search for a “method of constitutional interpretation” that will justify the judicial embrace of one’s favorite substantive notion of what I’m terming the “constitutional project.” John Hart Ely’s Democracy and Distrust was openly motivated by a desire to create a way of justifying most of what the Warren Court had done to open up clogged aspects of American democracy. Concomitantly, he notably dissented from Roe or even Griswold inasmuch as he thought they hearkened back to the days of Lochner as subjected to definitive critique by Holmes’s dissent. Originalism was developed as a way of justifying the conservative critique of the Warren Court, at least initially, though, as Keith Whittington has emphasized, once conservatives in fact got control of the judiciary in the Reagan era and its aftermath, it became the foundation of a theory of “judicial engagement” (nee “judicial activism”) to safeguard especially property rights against almost all incursions. Jack Balkin’s Living Originalism, my own favorite among books on “constitutional interpretation,” responds to many other self-declared originalists and offers a version of originalism that more than adequately defends what most political liberals desire from their courts. Devotees of Roe in particular could follow Jim Fleming’s Dworkinian elaboration (which I think he does better than Dworkin) of “fundamental rights” and, as importantly, judicial authority to vindicate those rights against attack. There is no reason to believe that those “interpretation wars” are coming to any sort of end, save, perhaps, through exhaustion.

But Loughlin is not enlisting in that war, on any side. Rather, joining relative youngsters like Sam Moyn, Niko Bowie, or Ryan Doerfler—as well as the now retired Mark Tushnet—Loughlin wonders why we should place such confidence in courts and judges at all. Once one recognizes that almost all important political conflicts involve what the philosopher W. B. Gallie famously called “essentially contested concepts,” what is it that licenses judges to resolve these contests any differently from those reached in the “political process,” especially (and this is a gigantic assumption), if the political process is thought in fact to be fair? If, as is altogether plausible, one is not willing to grant that assumption, as I would not, then one immediately has to ask why one would expect federal judges to stand firm in behalf of one’s favorite values that, by definition, cannot necessarily prevail in the Holmesian “marketplace.” After all, they themselves are the “winners” in the existing political process by virtue of their managing (and that appears to be an increasingly appropriate word) to be appointed and then confirmed for lifetime positions with the support of active and well-financed social movements who see the nominees as their potential champions. To say, altogether correctly, that the “market is rigged” does not establish that one should trust judges to do any substantial unrigging!

Martin Loughlin’s Against Constitutionalism would be an interesting book at any time. But it is especially important at this time. A recent Quinnipiac poll indicated that only 29% of the American public approve of the current Supreme Court. Not surprisingly, “Nearly 7 in 10 Americans (68 percent) think that the Supreme Court is mainly motivated by politics, while 25 percent think that the Supreme Court is mainly motivated by the law.” To be sure, distinguishing “law” from “politics” has been at the heart of the legal academic and jurisprudential enterprise for more than a century, and one can be confident that it will never achieve a consensus resolution. But “academic disputes” are now at the center of political controversy, and one can predict that the call for reining in judicial power, quite independently of critiques that the judges are simply implementing the “wrong” theory of interpretation, will take on greater impact in the future. Anyone wishing to preserve judicial authority, particularly that labeled “judicial review”—Loughlin does not really address the problems of “statutory interpretation,” which empirically are probably more important than the relatively few overtly “constitutional” cases—will have to contend with the gauntlets that he has eloquently thrown down.

Posted 9:30 AM by Sandy Levinson [link]