Constitutionalism and Legitimacy

constitution5a.jpgOver 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.

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7 Responses

  1. Orin Kerr says:

    Dan writes:

    I believe that the Constitution should be interpreted according to one’s guiding vision of the good society.

    And he then writes:

    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.

    Dan, why do you think both of these are true? Do you have some notion that judges should run the country a little bit but not a lot? And if so, why?

  2. This is a phenomenal post, and coheres with many of my own views on legitimacy, and majoritarianism. I particularly endorse 4, 6, and 7. Far too many Burkean conservatives and textualists-originalists beg the question by pointing to the anti-democratic nature of judicial review, as if the latter resolves the inquiry.

    The anti-democratic nature of judicial review is, rather, the point of departure for the ethical discussion we ought to be having. This is because, as you point out, many of the Framers — and in particular Madison — were absolutely terrified of naked majoritarian rule. I’m constantly reminded of Churchill’s aphorism here: democracy is absolutely the worst form of government we could possibly have, except for all the other forms that have ever been tried.

    The key in Churchill’s point is to recognize the deep tension in majority rule — not that it isn’t superior to totalitarianism, of course, but that the history of democratic rule can hardly be said to paint a particularly rosy picture of the ways in which minority and marginalized communities have been at least disenfranchised and at most brutalized through majority rule in the West. People love to glorify Athens, but we should not forget that Socrates was sentenced to death precisely because he championed unpopular views, and worse yet, he sought to teach those views.

    The countermajoritarian _feature_, as you note, was one way of grappling with the spectacularly difficult buck-stopping problem you note above. Whatever the problems with active judiciaries — and there indeed many problems — simply pointing to their antidemocratic nature is no answer at all because many of the Framers relied upon precisely that nature as a means of addressing their (quite legitimate, I tend to think) significant fears about majoritarian tyranny. I could say more, but I’ll stop here (for now!).

  3. Of course, one of the biggest advantages of going with Option (b) is that no-one can criticize your opinions as being inimicable to your stated method of constitutional interpretation. If the Justice defines it with Prof. Solove’s incredibly nebulous “one’s guiding vision of the good society”, well, then it is what he/she says it is and who can argue.

    Justice Scalia has articulated a methodolgy which at least is subject to critique as to how well he stays consistent to it (No surprise – I think he does a good job of it). Justices Breyer, Ginsburg et al are immune to such reviews because post-reality is whatever they say it is.

  4. Orin,

    There is a lot of space in between total rule by oligarchical judges versus some limited control by judges. I don’t want judges making rules for every issue, but I do want judges making rules in some important situations. The key question is: How often?

    To some extent, my views are somewhat similar to Alexander Bickel’s. He argued that the Supreme Court only had limited political capital, but that when it chose to use its political capital, it should do so. He believed basically in strong and potent action by the judiciary, only on a very limited basis. That’s different from many judicial restraint theories, which argue for very weak action by the judiciary in nearly all cases (Thayer is an example). In other words, Bickel believed in a strong judicial review but used infrequently. Other proponents of judicial restraint believe in a weak judicial review generally (a heavy dose of deference in most cases). I believe in a strong judicial review used to a moderate, but not infrequent degree. I disagree with Bickel’s assessment of how low the Court’s power and political capital are; I think that the Court can be more involved than Bickel did. But Bickel and I disagree primarily as to degree.

    With a Constitution that can be amended more easily, this will be a constraining factor on justices. Right now, when the Court interprets the Constitution in a way the public dislikes, there’s little the public can do. It takes decades to replace to Court’s personnel and to pressure changes in the law. A process to more easily amend the Constitution lets the public have much more of a say. The justices are no longer the last word.

  5. Orin Kerr says:


    Can you warn me next time? Your comparing yourself to Bickel nearly made me snarf my beer.

  6. Correcting the Record on Scalia says:

    Whatever the merits of this massive post, one point, repeated by Dan and Balkin, cries out for correction. Critics of Scalia’s approach love to drag out the statistics regarding his alleged propensity to overturn majority will, and then say “see, what a hypocite.” Originalism is not about letting the majority rule. Rather, its about letting the majority rule where the Constitution has not spoken on the issue at hand. Where the majority has ruled in a manner inconsistent with the text, there is nothing in Originalism that requires that the statute be sustained. This distinction has been pointed out to Balkin many times – see, for example, Ed Whelan’s numerous evicerations of Balkin on Bench Memos. Still, Balkin repeats his favorite non-sequitor again and again. While Balkin is a charlatan, it saddens me when a more respectable – albeit far too long-winded here – scholar like Dan repeats the same silly ACS, Balkin-like canard. So Dan, your gargantuan post indicates to me that you think fairly seriously on these issues – can it possibly be true that you are not aware of the distinction I have identified here?

  7. Maz2331 says:

    The Constitution is not immutable, as it can be amended with enough suppport. Otherwise, it needs to be obeyed, regardless of current opinion.

    Every restriction in there was done for a very important reason – to keep razor-thin majorities from trampling on minorities’ rights. Further, the concept of Federalism reserving some issues to the states and others to the Federal level was brilliant.

    The whole “amended the Constitution through interpretation” basically means that any provision can be a dead letter at any time. By doing so, we basically say “it’s okay to break the law if we want to, by just pretending it’s not there.” That wouldn’t work for a murderer before a jury, and shouldn’t work for ignoring a Constitutional restriction that 51% of Congress may feel is outdated or quaint.

    The “too difficult to change” argument is similarly bunk. It has been changed, and only takes 2/3 of both houses of Congress and ratification by 3/4 of states. Anything that is such a pressing issue should easily pass such a test.