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 25th
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.