Tuesday, April 01, 2008

It May Live, But Does It Work?

Guest Blogger

Rich Schragger

Because Jack was so kind as to respond to my prior post, I thought I'd pile on once more. I must admit that I am still a bit puzzled by Jack's line between prescription and description. Jack’s account of living constitutionalism as a system seems again to conflate is and ought – in that sense it is quite panglossian. His analogy to the market (and his embrace of "structure") is instructive; as long as the system is working, all is well with the world. But that seems to me to be a defense of constitutionalism, not a defense or a specific articulation of a constitutional theory. Indeed, it seems to me to be a defense of the rule of law, which is also fine, in that it gives us reasons for why we should consider decisions by a constitutional court "law." But I'm still not sure what follows from an account that understands constitutional change as a process that turns politics into law over time. From what I can tell, such a process is legitimate not because it enhances certain basic values, or because it is a correct reflection of democratic will, but because it works.

In other words, Jack’s account (like many process accounts of constitutional legitimacy) needs to rest upon some more foundational value. For Jack, the system is legitimate if it "preserves rule of law values, maintains the benefits of constitutional government, and is roughly responsive to democratic politics." I'm not sure exactly what this means, though. I assume that Jack would say that our current constitutional system achieves roughly these ends, but did it during slavery, or before women got the vote? In a world of Dred Scott, does one have a legitimate system of constitutional government? How would one know, unless the mechanisms of legal order had collapsed altogether, or the system had become so infused with corruption that it was untenable, or had become so evil that it was morally indefensible?

For those of us who believe that a constitutional regime is legitimate when it advances certain ends, the fact that politics will –as a systemic matter – turn into law over time is not enough. "Law" must be consistent with (some set of) constitutional commitments; it cannot simply be the name we give to political judgments (filtered through professional norms) that produce a roughly functional "rule of law" system.

As for living constitutionalism, it doesn’t seem to me that it fails if it doesn’t account for constitutional change. The tradition of common law adjudication has always "kept up with the times" with little loss of legitimacy. The idea of reasoning from general principles to particular outcomes in light of new evidence and new technologies is deeply embedded in the Anglo-American legal tradition. Whether a court is appropriately engaged in such an enterprise will turn on its articulation and defense of the general principles themselves. Originalism sometimes offers the false hope that we can put aside our differences about the content of those principles. By asserting that the framers “intent” takes care of all disputed questions and the court need only to "discover" it, originalism gives the appearance of judges behaving neutrally and lets them avoid articulating and defending their particular constitutional commitments. Both insiders and outsiders to the constitutional system can critique individual judicial opinions on that basis--which is what I took Dahlia to be doing when she expressed concern about the Justices's lack of consistency in the Heller case.


Your position seems to me to confuse liberty in the personal rights sense with liberty in the democracy/self-rule sense. You're privileging the first at the cost of the second.

Your use of the Dred Scott case highlights this distinction. It's true that the system failed to produce an outcome we today consider morally or constitutionally correct (though two recent books have challenged even that). But there are two problems with your example:

1. There's no evidence that the Dred Scott opinion actually meets a reasonable test of "living constitutionalism".

2. If it does meet such a test, it does so for the class represented in the political system, namely white males.

If we're going to base the appropriate approach to constitutional interpretation on "legitimacy", I think we need a deeper look at what legitimacy is, and why it's important.

"Legitimacy" is essentially a mental state in particular people with respect to a law or system of law, where the people regard themselves as having a normative obligation to obey the law even if they don't like it, even if it can not be effectively enforced against them. This makes it clear why legitimacy is important: If most people are obeying most laws without compulsion, the state can reserve it's quite limited capacity to coerce obedience for the marginal instances. Whereas a state which is not legitimate in the eyes of a substantial fraction of the population will either find itself quite overwhelmed, or be forced to resort to extreme measures to coerce obedience. Secret police, brutality, these are the normal tools of 'illegitimate' states for a reason.

This also makes something else clear about legitimacy: People are never going to trouble themselves over the legitimacy of laws they *like*, the election victories of candidates they supported. Legitimacy in the eyes of the *winners* is a given. It is legitimacy in the eyes of the *losers* we have to be concerned about.

This is what troubles me about the notion of defining legitimacy of constitutional interpretation based on it's tracking democratic majority opinion. (Setting aside for the moment my doubt that living constitutionalism actually does so track public opinion.) Legitimacy defined as agreement with the majority is a winners' legitimacy, which does not imply that the losers will view the outcome as legitimate. But it's precisely legitimacy in the eyes of the losers we must be most concerned with, if we want a stable, peaceful society.

Brett, I agree with you on the need for legitimacy. That's why nobody contends that every single Court opinion actually establishes a new interpretation of the indeterminate language. Look at it in the same way that Madison accepted the Bank: it was ratified over a long period of time by substantial majorities, was accepted by the public, and was beneficial to the nation. When that happens with a judicial opinion, we can identify that opinion as having been "ratified" by the nation as a whole.

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