Legitimacy and Activism: Take Two

What I’ve said so far is that there is an important distinction between the requirements of the Constitution and the rules that courts apply to determine whether those requirements have been violated. In the academic literature, recent articles have called the former “operative propositions” and the latter “decision rules.” Here I am calling them “constitutional meaning” and “doctrine” in the hopes that the terminology will be a little more familiar to readers. (Any suggestions for alternatives for the book would be welcome.) And I’ve suggested that keeping this distinction in mind helps us evaluate doctrine and also handle some theoretical problems.

I’m going to start with the theory, because it helps develop the perspective I will bring to the doctrinal analysis. First up is the debate over popular constitutionalism. Popular constitutionalism, championed perhaps most notably in Larry Kramer’s recent book The People Themselves, suggests that the Supreme Court should not be the only interpreter of the Constitution, or even the most important one. The ultimate interpreter of a law, popular constitutionalism suggests, should be the lawgiving sovereign. Hence state courts have the last word on the meaning of state law, and federal courts do with respect to federal law. The Constitution, however, is not ordinary law created by the federal government; it is higher law created by the People, and the People should therefore be the ultimate authority. At the least, popular constitutionalism suggests, the Court should pay some attention to the interpretations of coordinate branches of government, which may tend to be more representative of the People.

The current Supreme Court is notoriously hostile to the idea of popular constitutionalism, and the theme of constitutional interpretation as the Court’s jealously-guarded prerogative runs through a number of recent decisions. Most notably, in its cases dealing with Congress’s power to legislate to enforce the 14^th Amendment, the Court has demanded that enforcement legislation track the Court’s practice. Section 5 of the 14^th Amendment gives Congress the power to deter or remedy violations of the other sections, the Court says, but a state practice is a violation if and only if the Court would hold it unconstitutional. Congress cannot decide that some practice is unconstitutional and prohibit it on those grounds; it must follow the Court’s lead, because only the Court has the power to decide what the 14^th Amendment forbids. Thus, for instance, Congress can legislate to deter or remedy discrimination against people with disabilities under Section 5 only if that discrimination is irrational, because it is only irrational discrimination that the Court will strike down as unconstitutional under Section 1.

Here the dispute between popular constitutionalism and judicial exclusivity is clearly joined: the popular constitutionalists suggest that Congress should be allowed to legislate according to its own interpretation of the 14^th Amendment, and the judicial exclusivists (including the Rehnquist Court) respond that Congress has no business interpreting the Constitution. The positions seem starkly opposed, but distinguishing between doctrine and meaning shows a middle way. My treatment here is necessarily brief; for those who are interested in more, I recommend a series of articles by Robert Post and Reva Siegel discussing the Rehnquist Court’s view of the Section Five power.

I said last time that the meaning of the Equal Protection Clause was something like “The government may not treat people differently without adequate justification” and that the tiers of scrutiny that have developed as a matter of doctrine were driven by various considerations about when legislatures are superior decisionmakers. A slightly different way of putting this, one that the Supreme Court has used frequently, is that the Equal Protection Clause forbids invidious discrimination—discrimination motivated by hostility or a lack of concern for the welfare of its targets. Assume for the moment that this is what the Court thinks. The next question is what doctrinal rules the Court will adopt to implement the ban on invidious discrimination. In most circumstances, the Court applies rational basis review, which is essentially equivalent to leaving the matter with more representative government actors. In some cases, it applies heightened scrutiny, which reflects the judgment that there are reasons to suspect that the other government actors cannot be trusted. The model of the relationship between doctrine and meaning I develop suggests that rational basis review is doctrine that tends to underenforce constitutional meaning—it will fail to catch some acts of discrimination that are in fact invidious. Heightened scrutiny is doctrine that tends to overenforce constitutional meaning—it will strike down some acts of discrimination that are in fact not invidious.

If this is the case, then Congress in legislating to enforce the Equal Protection clause should be allowed to deter or remedy discrimination against people with disabilities if that discrimination is invidious, not only if it is irrational. This would be so not because Congress has an independent power to interpret the Equal Protection Clause but because the tiers of scrutiny are rules that guide judicial decisionmaking and need not apply to Congressional determinations of invidiousness.

That takes us a significant way towards the popular constitutionalist results, but it does so while maintaining judicial supremacy in constitutional interpretation, something that Larry Sager recognized in the article I mentioned last time. (It is, in fact, the approach the Supreme Court used to take, until it turned away in City of Boerne v. Flores and then more emphatically in Kimel v. Florida Board of Regents and University of Alabama v. Garrett.) To get even farther, we might suppose that the Court grants Congress some independent power not in deciding what the Equal Protection Clause means, but in deciding whether a given form of discrimination is invidious. (And that would be the approach the Court took in cases like Frontiero v. Richardson, back in 1973, where it expressly relied on a congressional judgment that sex discrimination was invidious in announcing heightened scrutiny.)

But here an objection might arise: why should the Court care what Congress thinks is invidious? Shouldn’t the question be what the drafters (or, more precisely, the ratifiers) of the 14^th Amendment thought was invidious?

This is a useful objection because it brings up the second theoretical topic: originalism vs. the living constitution. This is one of the standard debates of constitutional theory: should judges be able to change the meaning of the Constitution to adapt it to the changing needs of society, or should constitutional change be reserved to the article V amendment process and the Constitution enforced according to the original understanding of its terms?

The debate is a standard, but I think it is quite overblown. As Jack Balkin has recently suggested on this blog, there’s a difference between the meaning of a constitutional provision and its range of application. (A comment on that post suggested that this is similar to Gottlob Frege’s distinction between sense and reference, which I think is actually quite a good way of putting it for those with a background in analytic philosophy.) That is, a constitutional provision saying that the President must have attained 35 years of age will make some people eligible in 1789 and other people eligible in 2000. A provision directing Senators to dress in “the latest fashions” (that one doesn’t exist) would direct one style of dress when ratified and another one now. Or more generally: if the application of a constitutional provision depends on current circumstances, the outcomes of cases under that provision will change as time passes without any sort of change in its meaning. With provisions like that, we can follow the original understanding while not reaching the same results that the ratifiers would have

The big question, of course, is which constitutional provisions are of that sort. The one the Court has identified most explicitly is the 8^th Amendment’s cruel and unusual punishment clause, which, it has said, reflects the evolving standards of decency that mark the progress of a civilized society. Originalists tend to think that we should be asking instead what was considered cruel and unusual in 1789. But anyone writing a constitution intended to endure for the ages would be unlikely to intend that approach. It will give you a set of prohibitions almost certain to lose fit with societal understandings. Either society will get more sensitive—no one would think of drawing and quartering anymore—and the 8^th amendment will become irrelevant; or it will become less sensitive—we’ll come to see that drawing and quartering really isn’t so bad—and the amendment will start to seem an annoying and pointless restriction. Neither of these alternatives makes a lot of sense. And it’s worth noting that when the constitution writers did think that highly specific practices were so bad that they should not be allowed, they’ve been able to list them—no ex post facto laws, no bills of attainder, no quartering of troops in houses in peacetime. No slavery. No alcohol—that one didn’t really stand the test of time, but it’s certainly specific. Cruel and unusual punishment doesn’t sound like those.

But that’s a relatively minor example. The Equal Protection Clause is a bigger one. As I’ve mentioned already, the Supreme Court has repeatedly said that the meaning of the Equal Protection Clause is that states can’t discriminate invidiously. They can’t treat people differently without a legitimate reason. An originalist would say that in order to figure out what the equal protection clause prohibits, we need to ask what the drafters and ratifiers thought it prohibited. What did they think was invidious discrimination? What did they think was a legitimate reason for differential treatment?

Let’s consider a couple of answers to these questions. The drafters almost certainly did not think that the equal protection clause prohibited segregated schools. The same congress that drafted the equal protection clause was running a segregated school system. They almost certainly did not think it prohibited bans on interracial marriage. And they almost certainly did not think it required states to allow women to practice law, or pursue most professions.

The more interesting question is why they thought that these forms of discrimination were not invidious. For segregated schools, the answer probably has two components. One, they thought that blacks and whites were different enough that integrated schools were simply impossible. Two, relatedly, they thought that segregation was not stigmatizing or intended to promote notions of racial superiority—and if integration is just impossible, this is perhaps plausible. For marriage, they had available a substantial body of scientific literature telling them that interracial unions would produce monsters. And for excluding women from the practice of law, as Justice Bradley put it, concurring in a decision that allowed Illinois to do just that, they had the rationale that, “the natural timidity and delicacy of the female evidently unfits her for many of the occupations of civil life.” So what are women to do? Well, Bradley went on to explain that “[t]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

None of the rationales I’ve just listed is something that’s within the mainstream of public opinion today. None of them looks legitimate. If someone tried to defend discrimination on these grounds, the response would be that he’s racist, or sexist, or just plain crazy. So what is the Supreme Court to do? Originalism seems to suggest that it should enforce these understandings anyway: it should say, sorry, this is what the Constitution means, and although these attitudes may seem reprehensible or factually wrong, fidelity to the Constitution requires us to continue to apply them. There is an opinion that takes much this approach, but it is not one that the Court relies on much nowadays. It is Dred Scott, where Taney invoked the supposed racism of the Framers to conclude that blacks could never be citizens entitled to invoke diversity jurisdiction.

But the argument against this approach is not just guilt by association. If you think about what the ratifiers would have expected to happen to value-laden provisions like the Equal Protection Clause over the course of time, I think it’s much more likely that they would expect future understandings of invidiousness to govern. If the equal protection clause prohibits only what its drafters thought at the time was invidious, it will rapidly become either irrelevant or unduly constraining, like a time-bound 8^th Amendment. It would be a more sensible constitutional provision if it let subsequent generations come to their own conclusions about what is invidious. This is, of course, a supposition that historical research might defeat, but I have never seen a defense of originalism that attempts to do so, and the scholarship I have seen, like Jeff Powell’s The Original Understanding of Original Intent, tends to support it.

The distinction that I have relied on so far is basically the distinction between the meaning of a constitutional provision and the range of its application. Jack pointed out that we can adhere to the original meaning, or original understanding, while not retaining the same range of application. I add the suggestion that this interpretive approach might very well be what the ratifiers expected would happen. This is not quite the same thing as the distinction between meaning and doctrine. That distinction comes in at a later stage in the argument, in order to explain how doctrine can change—the level of scrutiny applied to sex discrimination can increase, for instance—without the meaning of the Constitution changing. Once it decides that sex discrimination tends to be invidious, that is, the Court can change its doctrine in response without altering constitutional meaning. The general point is the same: the outcome of cases can change, and the doctrinal rules the Court applies can change, without there being any change in the meaning of the Constitution. Thus, originalism and the living constitution are not in fact the mutually exclusive alternatives that people tend to suppose.

That concludes the preview of the theory part of the book. If you’re still reading, thanks—I’m not doing a great job of keeping this short, and I have some worries about how accessible it is, though I think that this blog has a pretty technically sophisticated readership. Tomorrow I will put together the perspectives of this post and the previous one and take a look at some cases.