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Desperately Seeking Certainty: the Misguided Quest for Constitutional Foundations
By Suzanna Sherry
University of Chicago PressCopyright © 2002 Suzanna Sherry
All right reserved.
CHAPTER 1 - OF LAW AND LATKES
An apparently normal, middle-aged woman goes to a psychiatrist. The psychiatrist asks her why she is there.
"My family sent me," she replies. "They think I'm crazy."
"Why do they think you're crazy?" the psychiatrist asks.
"Because I like potato latkes."
"That's not crazy," says the doctor. "Why, I like latkes myself."
"That's wonderful! You should come to my house sometime.
I have closets full of them."This book is about six prominent constitutional scholars who have (figuratively, of course) closets full of latkes. Each has taken an interesting and useful idea only to become fixated on it. They have tried to build an entire constitutional structure from the ground up using very limited materials. One, for example, looks primarily to the views of the generation that wrote and ratified the Constitution, another only to its text.
We call this type of approach "foundationalism" because it seeks to ground all of constitutional law on a single foundation. We believe that foundationalism is doomed to failure nomatter how brilliant the theorist or how important the foundational idea. Latkes are delicious, but a diet of nothing but potato pancakes does not make for a healthy individual, and a diet of a single approach to constitutional interpretation does not produce a healthy constitutional regime.
Indeed, foundationalism often leads to radical results, and the six leading scholars we examine are no exception. The problem is that constitutional law is a messy amalgam of ideas and principles, some of which are in tension with one another. The foundationalist who comes in intending to sweep clean this two-hundred-year-old edifice is likely to suggest some startling changes.
What are the basic ideas and principles of constitutional law, many of which are rejected by the foundationalists? We think that most Ameri-cans--including most lawyers--would endorse the following eight propositions about the Constitution:
1. The Constitution is a written document, drafted in 1787 and ratified in 1789, with important amendments soon thereafter adding the Bill of Rights, and other important amendments added in the wake of the Civil War (as well as at other times).
2. The Supreme Court is in charge of enforcing the Constitution. Its job is to follow the law, not to bow to public opinion or to implement the personal values of the justices. In general, interpretation should begin with the meaning the words conveyed to those who wrote and ratified the various parts of it ("the framers" or "the founding generation").
3. The Constitution can only be changed through the formal, cumbersome process of amendment, specified in Article V.
4. The Supreme Court's rulings are law, and must be followed by other judges and government officials as well as by ordinary citizens.
5. Under the Constitution, the federal government has the power to legislate on a broad range of subjects, including health and the environment, workplace conditions and discrimination, drugs, and organized crime.
6. It is unconstitutional for either the federal or state governments to engage in racial segregation or to deliberately discriminate against women or racial or ethnic minorities.
7. The Constitution envisions states not merely as regional offices of the federal government but as possessing their own separate sovereignty. However, both states and the federal government must respect freedom of speech, refrain from unconstitutional searches, respect the right to remain silent, and so forth.
8. It would violate the Constitution--or so most people assume--for the government to assign spouses to people or to dictate their family size, to require them to get abortions, to deprive them of custody of their children arbitrarily, or to force them to submit to sterilization.These eight propositions are, we think, little more than common sense, and most people would find no hesitation in affirming all of them. The problem, as legal sophisticates have long realized, is that they are in tension with one another. That is, if given their full scope they would contradict each other. For instance, adherence to original intent is hard to square with rejection of racial segregation, since the same Congress that proposed the Fourteenth Amendment (barring discrimination) also maintained segregated schools in the District of Columbia. This puts the second proposition in tension with the sixth. Protecting family choices--the decision whom to marry or how many children to have--is not mentioned anywhere in the written Constitution, and thus the first three principles conflict with the eighth. And the rules of constitutional law have changed significantly over time without recourse to any formal amendment. Indeed, without such changes, most of the current understanding of government power (such as the federal gov-ernment's power to protect the environment) would be questionable.
Almost everyone has a quarrel with at least some judicial decisions--ei-ther the Court appalls us by recognizing the right to an abortion in the first place or by limiting the right too much, by giving the federal government too much power or too little, by protecting flag burners or by protecting cross burners. We ourselves have serious criticisms of many specific decisions. Yet, however unsatisfactory we may find aspects of the current law, it does fit at least in a general way with the way most people understand the Constitution--it does not, for example, make the federal minimum wage or antidiscrimination laws unconstitutional, nor does it require the government to enact these laws; at the same time, it forbids the government from engaging in racial segregation or censoring books.
Thus current constitutional law is an uneasy compromise between the constitutional law we expect the Supreme Court to give us and the constitutional methods we expect it to use. This vision of constitutional law as an evolving compromise is often described as a "pragmatist" approach. For pragmatists--including, we believe, most past and current Supreme Court justices--each new case presents the need (and the opportunity) to weigh text and history, precedent and policy, principle and consequences. No single factor is dispositive, and the persuasiveness of the result ultimately depends on a blend of statesmanship and workman-like lawyering.
Living with contradictions is not disturbing for most working lawyers, who realize that as a human product, the law often finds itself pulled in several directions by seemingly valid mandates. As one scholar puts it: "Doctrine is destined to stay messy and sometimes illogical, exactly as are the values it is designed to protect and we inconsistent humans who embrace those values." We live with the contradictions through a messy process of accommodation. Case law slowly evolves from the foundation of original intent and text, and over time the rules of constitutional law are modified to fit a changing society without breaking faith with the framers and the text they bequeathed us. The result can be found in any constitutional law textbook today--an enormous body of legal doctrine, full of fine distinctions, balancing tests, and all kinds of other devices annoying to purists.
Not surprisingly, there are those who find this compromise unprincipled. Viewing themselves as Luther-like reformers, they seek to remake a corrupted church from the foundations upward. Like Luther, each claims that a pure vision of the Constitution requires a far-reaching reconceptualization of existing institutions.
Each of the six major figures on whom we focus in this book has recently attempted such a Reformation of American constitutional law. They span the ideological spectrum. Three are conservatives: Antonin Scalia, Robert Bork, and Richard Epstein. Two--Bruce Ackerman and Ronald Dworkin-- are liberals, and one (Akhil Amar) is a populist who is liberal on social issues but tough on crime. Some of their conclusions are startling indeed: the Constitution was silently amended by Franklin Roosevelt's New Deal (Ackerman). The federal government is free to engage in racial discrimination (Bork). Constitutional law is in large part a branch of moral philosophy (Dworkin). The Thirteenth Amendment's ban on slavery prohibits child abuse and limits the right to freedom of speech (Amar). The minimum wage is unconstitutional (Epstein). People can be punished for their political positions by being deprived of government jobs (Scalia).
In reaching these remarkable conclusions, all six scholars claim to rely squarely on the true meaning of the Constitution, whether reflected in the text, the original understanding, or simply the correct moral philosophy. They all reject the messy evolutionary process that has created modern constitutional doctrines in favor of what they view as a strictly logical and principled analysis based on indisputable foundations. We sympathize with their desire for logical order and their discomfort with the untidy reality of constitutional doctrine. We too would like a neat theory that reduces constitutional law to a reliable formula, eliminating any need for judicial creativity and making all of constitutional law internally consistent. But we think no such formula exists, and in this book we will show, if nothing else, that none of these six figures has found one.
Most of the book is devoted to demonstrating where each foundationalist scholar goes wrong, and to suggesting that the main problem is not the scholar's ideas, but his fixation on them--in other words, his foundationalism (and where it takes him). Sometimes foundationalism leads to radical--or at least peculiar--results. Chapter 4, on Richard Epstein, and chapter 5, on Akhil Amar, illustrate this tendency. At other times a foundationalist scholar cannot tolerate the results his own theory dictates, and abandons it at key points (as do Robert Bork, discussed in chapter 2, and Antonin Scalia, discussed in chapter 3). Or else he adds so many wrinkles to the theory that it no longer functions as an interpretive blueprint but instead seems merely a rationalization of favored results (both Amar and Bruce Ackerman, discussed in chapter 6, fall prey to this flaw, as does Ronald Dworkin, discussed in chapter 7). The end result, however, is always the same: no single grand theory can successfully guide judges or provide deter-minate--or even sensible--answers to all constitutional questions. Only an amalgam of theories will do.
Our object is not to suggest that the scholars' ideas are worthless, but to change the focus of constitutional scholarship. We are not the first to criticize these scholars--indeed, several have spawned cottage industries attacking them--but we are the first to draw parallels among the scholars and to place primary blame on their common foundationalism rather than on their individual shortcomings.
Our principal target is not the inevitable flaws in the work of individual scholars but a widespread trend in constitutional scholarship. Our six scholars are both influential and representative of legal academia in general. One leading younger constitutionalist, for example, names among the six books he considers "the most valuable works of constitutional scholarship written in the modern era"--which he claims "will certainly shape and affect all [his] future work"--books by three of our six scholars. For several decades, many of the nation's most prominent constitutional scholars have set the agenda for the development, explanation, and justification of constitutional jurisprudence. And that jurisprudence has turned on grand theories of constitutional law: finding just the right foundation on which to build an entire constitutional edifice.
We, along with a growing number of constitutional scholars, believe that foundationalism--whether originalist, textualist, or some other brand--is a misguided and ultimately futile approach. This book is therefore meant as a multipronged attack on foundationalism, undertaken in the hope that we can persuade constitutional scholars to focus less on devising grand theories and more on solving particular constitutional conundrums.
In particular, constitutional scholarship, on and off the Court, has come to focus more and more on originalism. As one scholar notes, originalism's attractiveness comes in part from the failure of its opponents to provide any alternative: "It takes a theory to beat a theory." We disagree: showing that a type of theory is fatally flawed should be enough to defeat it--and that is what we try to show about foundationalism in the next six chapters. In chapter 8, we give a preview of what we hope is a pragmatic alternative to grand theory, an idea we plan to develop more fully in our next book.
This book is also a broader attack on a phenomenon that has come to pervade legal scholarship--the idea that novelty is the ultimate test of the worth of an idea. It is no coincidence that all our subjects are both leading scholars and far off the beaten path in their ideas. Earlier generations of legal scholars built on existing scholarship, often producing work that broke new ground--sometimes brilliantly--without severing all ties to their inherited traditions. Although some constitutional scholars still follow their example, many of the most prominent scholars do not. Indeed, today it sometimes seems that proposing counterintuitive theories is the fastest way up the academic ladder. This perverse incentive is likely to create exactly the scholarship we describe in this book: original, creative, even brilliant, but unfortunately quite obviously wrong. The Constitution(s) described by our six scholars would be virtually unrecognizable to the typical American judge, lawyer, or citizen. And of course, each scholar's Constitution is unrecognizable to the others.
Thus we critique these six prominent constitutional scholars, of varying political and theoretical persuasions, in order to illustrate what we view as the two most important flaws in mainstream constitutional scholarship: foundationalism and a penchant for novelty.
These constitutional scholars may be the last bastion of foundationalism in law. In the late nineteenth century, what has come to be called "classical" legal thought dominated the legal academy. Like our modern constitutional foundationalists, classical legal scholars believed that law was a comprehensive system that could provide unique right answers to every question, and that those answers could be derived from a small number of abstract principles. In most fields of law, the classical scholars' approach has been replaced by a less formalist view of legal analysis. But in constitutional law, it seems, formalism has now regained its appeal. In a sense, these six scholars represent the modern incarnation of Christopher Columbus Langdell and his contemporaries.
We begin with the conservatives. Chapter 2 examines the conventional form of originalism advocated by Robert Bork and other, less well-known, scholars. Bork, who taught at the Yale Law School for many years, was the solicitor general who, in the famous 1973 "Saturday Night Massacre," firedArchibaldCox--the Watergate special prosecutor--after two higher-ranking Justice Department officials resigned rather than do so. Later put on the lower federal bench by President Reagan, Bork's nomination to the Supreme Court in 1987 caused a political uproar; the Senate ultimately rejected him. He is now at the American Enterprise Institute, having resigned his judgeship in the wake of the Senate battle. Justice Antonin Scalia, the subject of chapter 3, taught law at the University of Chicago and the University of Virginia before President Reagan nominated him to a federal court of appeals in 1982 and then to the Supreme Court in 1986. He is the intellectual leader of the right wing of the current Supreme Court, and his version of originalism recognizes and attempts to remedy the defects of Bork's less sophisticated views. Chapter 4 covers the constitutional scholarship of Richard Epstein, who has spent most of his career at the University of Chicago Law School and is justifiably considered one of the most talented legal thinkers in the country. Unlike Bork and Scalia, Epstein makes only a token bow toward the original understanding. He focuses instead on an economic and libertarian approach to the Constitution.
In chapter 5 we begin our discussion of the more liberal scholars with Akhil Amar of the Yale Law School. A generation younger than the other scholars, Amar has already made his mark in legal scholarship with several books and dozens of articles. He, like Scalia, presents a sophisticated version of originalism that pays careful attention to both text and context. Amar's additional emphasis on populism and majority rule leads him to liberal results on most constitutional issues but to a decidedly conservative approach to the rights of criminal defendants. We turn in chapter 6 to another liberal Yale law professor, Bruce Ackerman, who is also an originalist and a populist, but a more subtle one than his younger colleague. His approach to constitutional law distinguishes between two types of politics: ordinary politics and constitutional politics. It is only when Americans are engaged in constitutional politics that their decisions represent the true will of the majority, which then dictates the correct interpretation of the Constitution. Unlike the other scholars, Ackerman does not believe that constitutional politics must produce a text--a written constitutional amendment--to be effective and binding on future generations. He thus lavishes attention on an event largely neglected by the other scholars (and roundly criticized by Epstein): the New Deal. Chapter 7 examines the constitutional thought of one of the premier modern legal philosophers, Ronald Dworkin. Dworkin, who splits his time between Oxford and the New York University Law School, is something of a liberal counterpart to Epstein. Like Epstein, he pays at least lip service to the original understanding, but his primary approach to constitutional interpretation is philosophical. He argues that the Constitution, correctly interpreted, embodies a particular political philosophy--his own.
Dworkin, of course, is not alone in seeing his own philosophy reflected in the Constitution. A close examination of the work of these scholars reveals that, regardless of the specific foundational principle, its application usually seems to produce results that mirror the scholar's political views. Thus Bork and Scalia find that an analysis of text and history yields a conservative interpretation while Amar and Ackerman use other historical evidence to produce liberal interpretations of the same language.
In the last chapter, we return to this and other problems with foundationalism. The key problem is that each foundationalist is engaged in an ultimately futile search for certainty, purity, and consistency: a sort of "unified field" theory of the Constitution. They all have what one academic has wittily called "the endemic disease" of academics--"a hardening of categories that transforms a lower-case theory into an upper-case Grand Theory." But constitutional law is a complex human creation, not an elegant intellectual puzzle. Each theorist, by focusing on only a single aspect of the multifaceted Constitution, reduces its complexity by sacrificing accuracy. The six scholars are much like the blind men and the elephant. Each man feels only a part of the elephant, and thus describe very different things: the trunk feels like a snake, the tusk like a horn, the legs like a tree, and the tail like a broom. But the whole elephant is none of these things--or, rather, is all of them at once--and each man misses the mark in his description. So it is with our six foundationalists, who each ignore all but a favored aspect of the Constitution.
The worst part of it is that they do not even accomplish their aim of producing certainty: the theories are so malleable that a judge adopting any one of them could reach virtually any result. Moreover, the search for a single, certain foundation for constitutional law is not only futile and detrimental to a healthy constitutional regime, but unnecessary. Like the elephant, constitutional law works in practice despite its contradictions in theory.
We close by suggesting the directions that constitutional scholarship might more profitably take. We enjoy constitutional theory--and indeed have written some ourselves--but it is not the most useful form of constitutional scholarship. We like latkes, too, but we don't eat them for every meal.
Excerpted from Desperately Seeking Certainty: the Misguided Quest for Constitutional Foundations by Suzanna Sherry Copyright © 2002 by Suzanna Sherry. Excerpted by permission.
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