Constitutionalism and Legitimacy

Over at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia's constitutionalism versus liberal constitutionalism.

Orin Kerr writes:

Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."

Kerr notes that liberal constitutionalism can be defended by arguing that "some limitations on democratic rule making actually enhance democratic rule making." But, Kerr notes: "This is a very popular move among academics, although it can be hard to sell to the public." Kerr also contends that another option is "to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones."

Jack Balkin contends that "Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application." Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution's text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice's preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I'm not sure we should be so obsessed with legitimacy, because I'm not sure that we'll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that's a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court's decisions. Paul Kahn's Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia's populist constitutionalism is also deeply flawed. He says he's reluctant to overturn the will of the majority, but as Balkin notes, that's just false. Scalia's brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia's interpretations are somehow more grounded than other justices' interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia's method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of "I'm more legitimate than you."

4. Our government is structured on a dilemma that the Framers couldn't fully resolve. They wanted a robust democracy, yet they also didn't really like robust majority rule. It seems fairly clear that the Framers were quite intent on limiting majority rule. We could, for example, have a much more minimalist Constitution, and entrust more to the will of the people. But we don't. The Framers were very distrustful of majority rule, and they tried all sorts of techniques to limit it. Of course, the Framers didn't want a monarchy (too strong an executive power) or an oligarchy (government by judiciary, too strong a judicial power). Nor did they want too much populism. They faced a tough problem -- what do you do when you don't like any of the available options for government? The answer: Throw it all in there, mash it up, stir it, and bake it into one of those inedible English meat pies. We have a combination of everything in our government. What it isn't, however, is a system predominantly about majority rule. The countermajoritarian difficulty is a creature of Alexander Bickel's creation -- it has a lot of resonance today because being countermajoritarian is a pejorative to most modern sensibilities. But countermajoritarianism was a feature, not a defect for many Framers.

5. Suppose you're a legal realist, and you're deeply skeptical of the judiciary interpreting the Constitution in a way that's objective and neutral (because legal realists know that such a task isn't really possible). You think that democracy is a good thing and it is better for majorities to have their way than for some unelected justices to impose their own preferences via the guise of constitutional "interpretation." There are a few options: (a) become a proponent of judicial restraint; (b) become a judicial activist because, heck, it's all illegitimate and if you're on the Supreme Court, you might as well have a bit of fun with all your powers. Whether you do (a) or (b), you should be sure to create your own theory of constitutional interpretation and play the rhetorical game of arguing that it is legitimate and captures the true meaning of the Constitution. Of course, since you're a realist, you don't really believe all the rhetoric you spew, but you need something to justify your actions rather than look like you're exercising raw power. If these are the choices, then judicial restraint seems like the least bad among a series of rather unpalatable options.

6. But all that said above, I think that (b) is actually the better option. I've stacked the deck against myself, so I've got some explaining to do. First, I agree with the Framers and their skepticism of majoritarianism. There are many reasons why we don't want pure majority rule. Majorities often don't have the interests of minorities in mind. Majorities might readily sacrifice liberties for the fears of the moment or for short-sighted gains. One of the virtues of constitutions is that they put the brakes on rapid changes, preventing a society from changing core values in a pinch. They mandate that change occurs slowly. In this respect, constitutions have a conservative function in the Burkean sense.

7. I also agree with Bruce Ackerman's critique of the legislative process, which often doesn't reflect majority will or the voice of the people. All too often, "we the people" are invoked to justify the legitimacy of legislation, but it's largely not true that laws represent populist will. Some do, but many don't. Finding the true populist will is made more difficult in the modern age by the fact that our country is so large, that government has become far more bureaucratic, that there are countless issues and limited time for most people to keep up with them all (let alone even our representatives, who require extensive staffs to keep themselves informed).

8. A key virtue of the Constitution, in my opinion, is that it is a tool that promotes freedom. Freedom, of course, is subject to many perspectives, but one of the Constitution's great attributes is that it limits government power. It ensures that people have rights, that government should be overseen and be accountable, and so on. Regardless of whether the majority wants a right to free speech, the Constitution mandates that it exist. And that's the point when it comes to rights.

9. I believe that the Constitution should be interpreted according to one's guiding vision of the good society. Many scholars have attempted to find some kind of neutral procedural approach toward constitutionalism -- but as Laurence Tribe persuasively pointed out in Constitutional Choices, the flight from substance is futile. It is more honest if a justice is up front about the substantive vision behind his or her interpretation of the Constitution.

10. But what limits or constrains constitutional interpretation? We don't want rule by oligarchs on the Supreme Court. There must be some constraining factors on how robustly justices can interpret the Constitution. I think that some kind of originalism or textualism is appropriate. Justices shouldn't interpret the Constitution blindly, completely ignoring the text. Nor should they completely repudiate the history of the document. So looking to what the Framers intended should be instructive, but not necessarily controlling. It is also useful to look to history -- as Bruce Ackerman notes, the meaning of the Constitution has shifted over time, and it is impractical (and normatively undesirable) to go back to the original meaning. Different moments in history have radically reshaped our vision of the Constitution. All this, however, doesn't do a lot to limit constitutional interpretation. Indeed, I don't think that there are firm ways to create such limits. A major limiting factor is a justice's own attempt to be coherent, to appear to have fidelity to a theory of constitutionalism, to be able to articulate reasons for his or her decisions that the legal community and the general public find compelling (or at least acceptable).

11. Another limiting factor is the ability of the people to amend the Constitution. Here is where there's a big flaw in the Constitution. It's way too difficult to amend. While it shouldn't be easy to amend (or else it dissolves into nothing but majoritarianism), it currently is close to impossible to change. As a result, as Bruce Ackerman has pointed out, we've amended the Constitution through interpretation -- it's easier to get the change we need that way. Otherwise, we'd be too bound by the dead hand. But part of the problem with this is that once the Supreme Court has decided something, it too strongly trumps the majority. A Constitution should put the brakes on popular will, it should slow down the process of change, but it can't be too constraining. Our Constitution currently is too constraining. The only way to let out the steam is to interpret the Constitution is some pretty funky ways. When these interpretations don't spark the ire of the people over time, then they are accepted. Although controversial at the time, Brown v. Board of Education is largely accepted today. When interpretations conflict with popular will over the course of a long time, these interpretations are often (though not always) chipped away at or overruled.

12. The solution seems to me to be to make the Constitution easier to amend (not too easy, but not nearly as difficult as it is now). A key factor in the process of changing the Constitution is that it should be slow -- there needs to be some time for deliberation and cooling off so that the Constitution doesn't just reflect the whims of the moment. If the Supreme Court decides something that strongly cuts against popular will, and it remains this way for a while, then the people should be able to change it. Supreme Court opinions are currently showstoppers. They shouldn't be. Making the Constitution easier to amend will lessen the impact of Supreme Court decisions. The Court won't be the final word. This also addresses (in part) the legitimacy problem. It may be that the quest for legitimacy can never be satisfactorily satisfied, but if the Constitution is easier to amend, the legitimacy of a judicial interpretation becomes less important. It also opens up the possibility for legitimacy to be conferred after-the-fact. If a Supreme Court decision stands the test of time (i.e., isn't reversed via amendment), then it is at least something the people can live with. That's not quite as pure a legitimacy as those seeking legitimacy would like, but it's probably about as much legitimacy as one might get in a post-realist age.

Posted by Daniel J. Solove at 05:32 PM | Comments (5) | TrackBack

Science, Math, and the Essence of All Things

Last week Thomas Jefferson had Professor James Hackney of Northeastern University School of Law as our last speaker in our colloquium series. His talk focused on his book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (featured at this past year’s AALS conference) and about his next steps on this topic. The book traces the way that science lurks behind the law and how law and economics has used the appearance of a scientific approach to justify its claims on jurisprudence. As the book’s site puts it “Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries.” Now Science News reports that the June issue of the European Mathematical Society Newsletter has a debate over whether “new mathematical truths discovered or invented?” (annoyingly, the link to the Newsletter does not have the recent issue available as yet)

According to ScienceNews, one of the participants, Rueben Hersh of the University of New Mexico, “rejects the Platonic view, arguing instead that mathematics is a product of human culture, not fundamentally different from other human creations like music or law or money.” So as Hackney’s work makes a case that law and economics is not as objective as it seems, this group of articles about math suggests that even the science (or here related math) that provides the cover Hackney describes, lacks the objectivity it claims. The recent work on governance by Robert Ahdieh, Orly Lobel, and Mike Madison among others may be a response to the idea that law is not so objective. Rather it may be that the law seeks objectivity but faces complex and less than ideal situations. Governance ideas may fill that gap. We shall see.

Image: Title page of the second edition of Nicolaus Copernicus' De revolutionibus orbium coelestium, printed 1566
Source: WikiCommons
License: Public Domain

cross-posted at Madisonian

Posted by Deven Desai at 12:08 PM | Comments (9) | TrackBack

Judges Citing Literature

Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a "literary" citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd's data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I'll refer to as "the Movement") is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that "the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation." If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking; (2) "central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"; and (3) citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

Let's begin with the first claim: Whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell's 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell's book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge's mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

On to the second claim: "Central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"

I quarrel with the argument that a "central" claim of the law and literature movement is to make judges more empathetic or ethical, or to give them "knowledge about how to solve real world problems." I don't think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific "solutions" to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.

While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd's quote from Martha Nussbaum doesn't suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn't mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view -- it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.

Finally, it's time to turn to the third claim that I've parsed out of Todd's essay: Citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.

What exactly does the lack of citations to literature mean? First, even if a literary work had a "direct impact" on a judge's decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: "For the reasons stated in Dickens' works, I hereby conclude that this case should be decided in favor of the 'little guy'"? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn't cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don't necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.

The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn't hold any particular authority over the judge. It's not precedent. It doesn't provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There's no easy way to measure this.

So that ends my critique, but on the positive side, I did find some really interesting facts in Todd's article:

* "In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell."

* "On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again."

* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction."

* "About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants."

* The most frequently cited authors are "George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each)."

* "[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations."

* "In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions."

I'm pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.

Posted by Daniel J. Solove at 12:02 AM | Comments (2) | TrackBack

Is Baseball the Fairest Sport?

As Spring Training continues, the Boston Review recently published a letter from John Rawls to Yale Law Prof. Owen Fiss singing the praises of baseball. It's not hard to see the connections between Rawls's theory and his criteria for excellence in a sport:

The game does not give unusual preference or advantage to special physical types, e.g., to tall men as in basketball. All sorts of abilities can find a place somewhere. . . .

[A]ll plays of the game are open to view: the spectators and the players can see what is going on. Per contra football where it is hard to know what is happening in the battlefront along the line. Even the umpires can’t see it all, so there is lots of cheating etc. And in basketball, it is hard to know when to call a foul.

[B]aseball is the only game where scoring is not done with the ball, and this has the remarkable effect of concentrating the excitement of plays at different points of the field at the same time.

Finally, there is the factor of time, the use of which is a central part of any game. Baseball shares with tennis the idea that time never runs out, as it does in basketball and football and soccer. This means that there is always time for the losing side to make a comeback.

No sudden death OT for philosophers! And let's not forget George Will's observation that baseball is an ideal meritocracy because of its long season.

Nevertheless, I wonder if Rawls would have revised his views in light of the steroid crisis, a topic with some philosophical overtones.

Photo Credit: D.F. Shapinsky.

UPDATE: As the first commenter notes, Rawls does not claim these views as originating with him; rather, the letter from which they are quoted recalls a conversation Rawls had with First Amendment scholar Harry Kalven. As Rawls puts it in the letter, "although I only saw Kalven once to talk to . . . . I distinctly recall the conversation because he brought out to me many splendid features of the game which, though obvious, require his sort of brilliance to see the significance of. For example, he gave these reasons for why baseball is the best of all games."

Posted by Frank Pasquale at 08:39 AM | Comments (6) | TrackBack