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Grand Theories and Ambiguous Republican Critique: Tushnet on Constitutional Law
Published online by Cambridge University Press: 27 December 2018
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- Copyright © American Bar Foundation, 1990
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1 Precedent is insufficient because any decision can be justified by many principles, and so judges are free to decide a case in various ways depending on their reading of older ones. Invocations of craft are often little more than lyrical descriptions of a sense of professionalism, which do not specify genuine limits. A yet deeper problem, however, is that rules make sense only if we agree on what the craft is. What judges can conceive of as a decision consistent with the rules is substantially determined by the social structure of which they are a part.Google Scholar
2 An appendix to chapter 1 deals with textualism, which Tushnet criticizes on the grounds that it assumes that a single community exists (thereby giving stability to language meaning), when in fact the community is continually being recreated and can be reconstituted by different choices.Google Scholar
3 Ely, Democracy and Distrust: A Theory of Judicial Review (1980).Google Scholar
4 Wheat 316, 435–36 (1819).Google Scholar
5 South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 184 n.2 (1938).Google Scholar
6 Dworkin, Taking Rights Seriously (1977), and Law's Empire (1986).Google Scholar
7 Perry, The Courts, the Comtitution, and Human Rights (1982).Google Scholar
8 Dworkin dismisses the suggestion that U.S. judges could decree socialism under his approach. Of course they couldn't, Tushnet says—today. But the legal materials are available if judges were ever appointed who wanted to do so. But if conditions had changed to make the appointment of such judges possible, then it would not be necessary to do so.Google Scholar
9 These theories are called “formalist” because they consist of an ordered set of propositions attempting to establish clear criteria to constrain judges.Google Scholar
10 Burt, “Constitutional Law and the Teaching of Parables,” 93 Yale L.J. 455 (1984); White, Heracles” Bow (1985).CrossRefGoogle Scholar
11 Cover, “Foreword: Nomos and Narrative,” 97 Harv. L Rev. 4 (1983).Google Scholar
12 The example Tushnet gives is Steven Shiffrin, “Liberalism, Radicalism, and Legal Scholarship,” 30 UCLA L. Rev. 1103 (1983), and id., “The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment,” 78 Nw. U.L. Rev. 1212 (1983).Google Scholar
13 Michelman, “Politics and Values or What's Really Wrong with Rationality Review,” 13 Creighton L Rev. 487 (1979); id, “Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy,” 53 Ind. L.J. 145 (1977–78); Sunstein, “Public Values, Private Interests, and the Equal Protection Clause,” 1982 Supreme Court Rev. 127; id.“Deregulation and the Hard-Look Doctrine,” 1983 Supreme Court Rev. 177; id., “Naked Preferences and the Constitution,” 84 Colum. L. Rev. 1689 (1984); Fiss, “Foreword: The Forms of Justice,” 93 Harv L Rev. 1 (1978); id., “Objectivity and Interpretation,” 34 Stan. L Rev. 739 (1982).Google Scholar
14 Epstein, Takings: Private Property and the Power of Eminent Domain (1985).Google Scholar
15 Tushnet cites Robert Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1 (1971), as an example.Google Scholar
16 Perry, Morality, Politics, and Law (1988); Tribe, Constitutional Choices (1985); Kronman, “Alexander Bickel's Philosophy of Prudence,” 94 Yale L.J. 1567 (1985).Google Scholar
17 Dahl, “Decision-Making in a Democracy: The Supreme Court as National Policy-Maker,” 6 J. Pub. L 282 (1957).Google Scholar
18 Tushnet cites, e.g., the description of “structural due process” in Tribe, American Constitutional Law 1137–46 (1978).Google Scholar
19 Black, Structure and Relationship m Constitutional Law (1969); Laycock, “Taking Constitutions Seriously: A Theory of Judicial Power,” 59 Tex. L Rev. 343 (1981).Google Scholar
20 397 U.S. 254 (1970).Google Scholar
21 Mashaw, Due Process m the Administrative State (1985); Michelman, “Formal and Associational Aims in Procedural Due Process,” 18 Nomas: Due Process (eds. Pennock and Chapman) 126 (1977).Google Scholar
22 E.g., says Tushnet, in cases of alleged student misconduct, instead of working out the right procedures for expulsion, we could give students a veto power over a principal's proposed resolution, so that there would be real discussion between them (holding in reserve an incredibly formal system of hearings as an inducement to work things out) —a modestly Utopian proposal, he says, made more credible by comparison to what goes on in schools today. Likewise, it might be worthwhile to replace the police (virtually an occupying army in some areas) with neighborhood patrols (at least where it is possible to handle through politics the inevitable issues of class and race), again keeping in mind the comparison with the contemporary situation.Google Scholar
23 Besides suppressing anti-women violent pornography, such legislation would be, according to some feminists, at least as likely to be used against lesbian and heterosexual erotica produced by women.Google Scholar
24 I confine my observations about concern for citizen character here to the importance of morality and religion for the founders and for many contemporary originalists. One could also argue, however, that the founders' liberalism contained other important character-shaping elements. As examples, I would cite Tocqueville's discussion of free institutions and individualism in 2 Democracy in America, bk. 2, and Martin Diamond's essay “Ethics and Politics: The American Way,” in Horwitz, ed., The Moral Foundations of the American Republic (1977) (“Diamond, ‘Ethics’”).Google Scholar
25 Consent takes two forms here. First, it refers to the requirement of consent in altering the decision-making process or substantive guarantees specified in the Constitution. Second, it refers to the requirement of consent in the ordinary operations of government, especially the accountability of government officials, directly or indirectly, to majorities through elections.Google Scholar
26 For the latest convincing statement of original intention, adding to earlier work by Robert Cord and Michael Malbin, see Bradley, Church-State Relationships in America (1987).Google Scholar
27 It is true, of course, that preferential aid might disguise itself as nonpreferential aid and that it is a factual question whether a given practice is truly nonpreferential. It is also true that an absolutely pure equality of all religions is impossible, as the example of human sacrifice shows, and as is shown by our choice of “In God We Trust” as opposed to “In the gods we trust” on our coins. Nonetheless we have a tolerably accurate idea of what the framers understood by the principle of nonestablishment, and have few practical problems conforming to it.Google Scholar
I concede, however, that the religion clauses of the First Amendment are not completely theoretically coherent, for reasons I suggest in chap. 3 of Essays on Faith and Liberal Democracy (1987). E.g., I do not believe that they succeed as well as the framers thought in achieving neutrality on differences between different religions. But 1 do not believe that the meaning of the clauses as they understood them (the principles, not putative applications) could legitimately be set aside on the grounds that their goals could be achieved better if the clauses were read differently (even if such a reading existed, which I doubt).Google Scholar
28 That might require a separate theory of constitutional decision-making for such cases—an interesting project, but not one that must be resolved here, in the context of a discussion of judicial review.Google Scholar
29 Although I believe it is a wrong one for reasons set out in the minority report on the Virginia Resolution, believed to have been written by John Marshall. This minority report is found in John Marshall: Major Opinions and Other Writings, ed. Roche (1967).Google Scholar
30 274 U.S. 357, 372 (1927).Google Scholar
31 For a discussion of this as a typical ploy of modern constitutional interpretation, see my “How the Constitution Was Taken Out of Constitutional Law” 10 Harv. L.J. & Pub. Policy 597 (1987).Google Scholar
32 I am making two points here. The second one is that even if the amendment is ambiguous, the conservative originalist like me does not consider this to justify judicial review, since our position is that only clear-cut constitutional violations justify judicial review. Tushnet's functional equivalence argument cannot be plausibly held to represent the clear-cut meaning of the Fourteenth Amendment.Google Scholar
The prior point concerns the original intention of the equal protection clause. The wording does not explicitly say what matters call for “equal” treatment. But we know from the Constitution that it cannot mean equal in everything. Most important, both section 2 of the amendment and the Fifteenth Amendment indicate clearly that equality of voting rights was not guaranteed. One presumes, therefore, that equal protection is not guaranteed with respect to the category of “political rights” in general. The best candidates for what is protected are (a) “security of person and property”—on the basis of the connotations of the word “protection”—and (b) “civil rights”—on the basis of extrinsic sources of the framers' intent, especially the congressional debates, which emphasized the rights described in Corfield v. Coryell and in the Civil Rights Act of 1866. Neither of those categories would include public education.Google Scholar
33 Legacy of Suppression (1960); or, even better, see Berns, The First Amendment and the Future of American Democracy (1985).Google Scholar
34 19 Howard 393 (1857).Google Scholar
35 If this most radical view is accepted, then all supposed knowledge and speech are meaningless, and the most accurate reflection of reality is to be found in existentialist authors—not the inconsistent ones like Sartre or Camus, who find some “meaning” in bravely facing the meaninglessness of reality, but ones like Kafka, who wrote stories where people are put on trial without knowing the charge and in the end die like dogs. In such a world trying to talk to anyone else is, like everything else, a waste of time.Google Scholar
36 Dartmouth College v. Woodward, 4 Wheat. 518 (1819).Google Scholar
37 For my view of Marshall, see The Rise of Modern Judicial Review chs. 2–3 (1986).Google Scholar
38 For the record, it might be worthwhile to point out that American institutions may have been destabilized much less by our economic system and its tendencies than Tushnet suggests and much more by quite different factors, e.g., intellectuals who have been unhappy with American political and economic institutions. Religion, e.g., an essential part of the founders' “package” of political institutions—if you attend to the entire regime and not just the federal Constitution—may have been undermined even more by intellectuals' pride than by capitalists' avarice.Google Scholar
39 George Orwell has some interesting remarks on this tendency in an essay on James Burnham. He sees it rooted in intellectuals' worship of power.Google Scholar
40 In this respect, Tocqueville takes a kind of middle position, arguing strongly for the irreversible character of the historical movement toward democracy, but at the same time writing a book so that his readers can help to choose one better form of democracy rather than another worse one.Google Scholar
41 A review of contemporary literature emphasizing republicanism in the Founding noted by Tushnet is Shallope, “Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography,” 29 Wm. & Mary Q. 49 (1972), and id, “Republicanism and Early American Historiography,” 39 Wm. & Mary Q. 334 (1982).CrossRefGoogle Scholar
When I say that Tushnet “relies” on it, I am not saying that Tushnet simply accepts republicanism. As I note below, Tushnet does finally distance himself from it as well as from liberalism.Google Scholar
42 Diamond, “Ethics” (cited in note 24).Google Scholar
43 The terms “virtuous republicanism” and “liberal republicanism, “ and much of the analysis of Montesquieu, is drawn from Pangle, Montesquieu's Philosophy of Liberalism (1973). Storing's analysis of the Antifederalists is contained in What the Antifederalists Were for (1981).Google Scholar
44 A theory of community that is open to foundation on any ground, irrespective of its content, is no more useful than a theory of happiness that includes the “delight” a Klansman might take in burning blacks. Tushnet sees the problem with skepticism about human ends, but uncertainly. He does say at one point that “although we do know that there is Truth, we cannot now know what it is”; but then almost immediately he adds: “If Truth is historicized, how are we to live now? Everything is up for grabs, but we ought not to grab at everything. We can only do our best, do what we can to transform ourselves and our society so that Truth can be made real. Inevitably we will have to abandon the false security of theory and open ourselves to the risk of tragic error as we take political action” (at 145). But what does this mean? If there is any hope that by transforming ourselves and our society Truth can be made real, if there are any standards for the political action we are to take, doesn't that imply that Truth is not, after all, radically historicized or unknowable? Isn't this another example of the practical impossibility (short of withdrawal from speech) of radical skepticism or historicism?Google Scholar
45 “Worship differs from speech, then, by manifesting a commitment to a community less encompassing than the whole society” (at 261); “This principle is attractive precisely because it allows the law of religion to gloss over the fact that religious communities stand apart from, and in many ways stand in opposition to, the wider community of which they are simultaneously a part” (at 262).Google Scholar
46 See especially the fourth and last book of Vol. 2, in which he examines the ways in which an excessive desire for material well-being may lead to excessive centralization of political power and a new form of democratic despotism.Google Scholar
47 And the chief problems of the present order, e.g., those rooted in race, do not seem to be ones which can be discussed adequately in terms of the reductionist capitalism/socialism dichotomy. Look, after all, at the widespread existence of racism in history, often in quite precapitalist societies and apart from fundamentally economic concerns.Google Scholar
48 On the importance of continuing conversation about the right issues, note Glen-don, Abortion and Divorce in Western Law 140 (1987): “The eventual implications for legal theory of a slow and painstaking attempt at reconstruction of moral philosophy will long be unclear. But it does not seem too soon to say that although modern law cannot establish or enforce a single vision of virtue, it can play its part in promoting the potentially self-correcting processes of dialogue and dialectic.”Google Scholar
49 One final epistemological problem that I cannot develop in this article: One of the puzzling elements of Tushnet's book is his reliance (in his discussion of pornography) on the concept of “noncognitive deliberative capacities, “which he opposes to “instrumental rationality.” I am not sure what he means by this—it depends on what we mean by “cognition” and “deliberation.” Traditional realist thought (e.g., Thomistic epistemology) acknowledges forms of reason other than the discursive (step by step) operation of reason, e.g., the vision of or grasp of reality directly (“intellectus” as opposed to “ratio”) and “co-natural knowledge” (knowledge not through concepts, but through our inclinations, the inner bents and propensities of our being), although these are still operations of the intellect. Given Tushnet's apparent interest in coming to a deeper understanding of “practical reason” in Aristotle (at 161 n.52), perhaps he might also find traditional epistemology of interest in developing a clearer statement of what he means by “noncognitive deliberative capacities.”Google Scholar