Legitimacy and Activism in Constitutional Interpretation

I'm an assistant professor at the University of Pennsylvania Law School, where I teach constitutional law and conflicts. I am now writing a book about legitimacy and activism in constitutional interpretation, and Jack has kindly offered me the opportunity to preview the argument here. The topic is timely now because as the Roberts hearings get underway, we are again hearing a good deal about legitimate judicial behavior and its supposed antithesis, judicial activism. I hope it will still be timely in a year or so when the book comes out, but in the meantime, here's part one of the preview. (This part, you will see, basically sets out the project; the next part will give you a quick look at my conclusions.)

I started writing this book because I was disturbed by the increasing volume and stridency of the criticism of judges—in the context of the debate over the proposed federal marriage amendment, the Terry Schiavo case, and recent Supreme Court decisions such as Lawrence v. Texas. In particular, I was struck by the fact that Mark Levin’s Men in Black became a best-seller. Men in Black is one of the classic criticisms of activist judges—not classic in the sense that it’s a good statement of the position (for that I would recommend Scalia’s dissent in Casey) but rather in the sense that it demonstrates so plainly the incoherent and partisan nature of most of the invocations of judicial activism. Levin says, for instance, that Plessy v. Ferguson is activist because it upheld a state law (racially segregating rail cars) that violated the plain text of the Constitution, and that Eisenstadt v. Baird is equally activist, because it struck down a state law (denying contraceptives to single people) even though the text of the Constitution doesn’t say that married and single people must be treated the same. The text in each case is the Equal Protection Clause, which prohibits states from denying “the equal protection of the laws.” It doesn’t say anything about marriage, but in fact it doesn’t say anything about race, either. The plain text simply doesn’t tell you very much about what kinds of discrimination are prohibited. You need some kind of theory for that, and Levin doesn’t have one.

Neither do most of the people, and certainly most of the politicians, you will hear decrying judicial activism. Most of the criticism turns out to be what activist judging itself is supposed to be: entirely result-driven. It boils down to nothing more than an expression of disagreement with a particular decision. Now, there’s nothing wrong with saying that Supreme Court decisions are mistaken. But calling them activist is somewhat different, because it suggests that they’re not just wrong, but also illegitimate—that the judges in the majority have betrayed their duty to the Constitution. That’s a serious charge, and I think it’s very alarming that it’s made so often, and so carelessly, in popular political discourse.

So my hope for this book is that it will serve as an antidote to the loose talk about judicial activism. What I try to do is to come up with a different perspective on legitimacy in constitutional interpretation, and then to consider various cases and lines of doctrine from this perspective, and also a couple of more theoretical questions. I start by developing an account of constitutional decisionmaking that’s more realistic than the “plain text” rhetoric.

Obviously very little Supreme Court doctrine is actually drawn directly from the text of the Constitution. The Constitution has no tiers of scrutiny; it doesn’t mention the word “endorsement” (or “privacy”); it makes no distinction between content-based and content-neutral restrictions on speech. The idea that legitimate judging is simply enforcing the plain text of the Constitution won’t get you very far in deciding actual cases, and it is wildly at variance with contemporary practice. Doctrine contains many rules that you cannot find in the Constitution itself.

So where does doctrine come from? My explanation, which I try to support with a couple of case studies in the evolution of doctrine, is that the Supreme Court initially tries to hew fairly closely to the text of the Constitution, or what we could call the true meaning of a particular constitutional provision. As time goes by, however, and the Court gains more experience with the kinds of problems that arise under that particular provision, it develops progressively more refined doctrinal tests. These tests are not necessarily designed to ensure that the Court gets the case right according to the true meaning. They might be designed to skew error distribution, in the way that the “beyond a reasonable doubt” standard skews errors by ensuring that guilty people go free more often than innocent people are convicted. They might be designed to leave the constitutional question primarily with an electorally-accountable body, even if that means that the Court will uphold a fair number of laws that are unconstitutional if measured against the true meaning of the Constitution, rather than the doctrine. They might be designed to essentially eradicate particular forms of government action that might in theory be innocent but in fact have frequently been used for improper purposes. Or they might be designed as clear rules that it is possible for lower courts to apply and other governmental actors to follow, even if the Constitution imposes something more like a standard. All these reasons might be legitimate explanations for doctrinal rules that depart from the true meaning of the Constitution.

Thus, for instance, I would suggest that the true meaning of the Equal Protection Clause is not the complicated body of doctrine courts apply, but something like “The government may not treat some people worse than others without adequate justification.” What is an adequate justification is a value-laden question, one that for reasons of institutional competence and electoral accountability will ordinarily be left with representative bodies. Heightened scrutiny for particular forms of discrimination comes about when the Court decides that, for one reason or another, the legislature cannot be trusted to decide that question.

This kind of distinction between the true meaning of the Constitution and the rules that courts apply has been fairly widely noted by law professors. Akhil Amar’s 2000 Harvard Law Review Foreword “The Document and the Doctrine” explored it, as did Richard Fallon’s 1997 Foreword and subsequent book “Implementing the Constitution.” An early Harvard Law Review article by Larry Sager, entitled “Fair Measure” and a more recent one by Mitch Berman in the Virginia Law Review, entitled “Constitutional Decision Rules” are also important contributions. An article of mine in the same vein, which previews many of the arguments of the book, is coming out in the Virginia Law Review in November; it is called “Constitutional Calcification.”

What I hope is relatively novel about the book is not my explanation of this distinction but the uses I make of it. First, I use it to create a standard for assessing the legitimacy of judicial decisions. The standard is fairly forgiving: all I ask is that the doctrine that generates a particular decision be a plausible way to implement a plausible understanding of the true meaning of whatever constitutional provision it claims to enforce. One part of the book adopts this standard and asks what kinds of explanations can be offered for controversial Supreme Court decisions such as Brown, Roe, Adarand, Lawrence, and Kelo. It also asks what went wrong in reviled decisions such as Dred Scott, Plessy, Lochner, and Korematsu.

Another part applies this distinction to theoretical issues, namely the debates over originalism vs. the living constitution and popular constitutionalism vs. judicial exclusivity. Paying attention to the distinction between doctrine and constitutional meaning, I argue, shows that both these disputes can be largely dissolved: we can reach an answer that it is consistent with the theoretical demands of both sides, though perhaps not with the political preferences of either.

So that’s what the book sets out to do. I hope it sounds like an interesting project. In order to keep the posts a readable length, I will save the conclusion for tomorrow’s post. In that one, I will give you short takes on some of the cases I’ve mentioned, and a slightly longer discussion of my thoughts on the two theoretical debates.