CONSTITUTIONAL THEORY (Update)

Richard Posner, a leading academic-judge of the era, chose "Against Constitutional Theory" as the title of his 1997 James Madison Lecture on Constitutional Law at the New York University School of Law. Defining "constitutional theory" as "the effort to develop a generally accepted theory to guide the interpretation of the Constitution," he contrasts it with "inquiries of a social scientific character into the nature, provenance, and consequences of constitutionalism" and "commentary on specific cases and doctrines." He notes that "[c]onstitutional theorists are normativists; their theories are meant to influence the way judges decide difficult constitutional cases." What, then, is Posner's objection to constitutional theory? It is "that constitutional theory has no power to command agreement from people not already predisposed to accept the theorist's policy prescriptions." Although "constitutional theory" may often be "rhetorically powerful," it nonetheless "lacks the agreement-coercing power of the best natural and social science." At bottom, it is just not very helpful to the person grappling to make decisions as a judge or other official sworn to uphold the Constitution.

An immediate question is how "constitutional theory" as defined by Posner differs from " constitutional interpretation ", which is surely relevant to, and indeed constitutes, constitutional performance. In the initial Encyclopedia of the American Constitution, Paul Brest, writing on "constitutional interpretation," sketched a taxonomy of the legal arguments that have guided judges in giving content to the Constitution. Similarly, Philip Bobbitt in two books, Constitutional Fate and Constitutional Interpretation, has extensively elaborated what he terms the "modalities" of constitutional argument—text, history, structure, doctrine, prudence, and appeals to our constitutional "ethos." These modalities constitute the parts of speech, as it were, of the particular grammar of "constitutional law-talk," a proposition that Posner could scarcely deny.

One difference between the basically taxonomic approaches of Brest and Bobbitt and "theory," as described by Posner, may be the overtly normative thrust of the latter. To be sure, both Brest and Bobbitt are normativists to the extent that they would presumably declare "out of bounds," and thus illegitimate, modes of argument that defy standard notions of legal grammar, such as emphasizing the norms of revealed religion or, indeed, offering as a reason for a particular decision the probability that it would enhance the judge's prospects for relection, in many states, or promotion within the federal judiciary. Such moves would be as inappropriate as saying "I are going" or "Threw the ball Jack to I." Just as the latter would reveal the speaker as inept in English grammar, offering the ostensible "arguments" described above would illustrate the same degree of failure to grasp the structure of legal grammar. That being said, an important part of the Brest-Bobbitt project, and of other writers influenced by them, is to suggest that there does not exist a single royal road to "correct" constitutional interpretation, anymore than there is only one way correctly to convey a given idea. To that extent, the "modalities" are not agreement-forcing.

Instead, constitutional adjudicators may well find themselves tugged in different directions by the various modalities, with text leading in one direction, attention to history leading in another, and decided case law in yet a third. This means, among other things, that such modal analysts are unlikely to fall victim to Posner's jibe that constitutional theorists "cannot resist telling their readers which cases they think were decided consistently with or contrary to their theory," since they do not assign to one given approach a dominance that will necessarily resolve conflicts. It may be possible, of course, to condemn some particular ineptness in applying one of the modalities, such as purportedly history-based decisions that simply ignore relevant historial materials (see, e.g., dred scott v. sandford (1857)) or a doctrinally oriented opinion that offers unusually tendentious readings of the cases relied on (see, e.g., employment division, department of human resources of oregon v. smith (1990)). This, however, is very different from saying, as does Robert Bork, that original intent provides the only legitimate basis for constitutional judgment; or, as does John Hart Ely, in his enormously influential Democracy and Distrust (1980), that courts, though usually required to defer to decisions made by politically accountable branches of government, can nonetheless interpret the fourteenth amendment as authorizing them to engage in "representation-reinforcement" of otherwise vulnerable minorities who are victimized by prejudice but not, say, to protect the right of women (who constitute a majority of the population) to reproductive autonomy.

Law professors adopting a taxonomic approach are primarily concerned that their students are introduced to the array of argumentative possibilities and can use all of them effectively, as any given case might require. A professorial "theorist" as described by Posner would, on the other hand, be far more likely to spend time praising some decisions and condemning others by reference to their fit with the professor's favorite approach.

One must acknowledge that legal academics have always been in the habit of grading judicial handiwork. Most of the pre-judicial writings of felix frankfurter, whether in the law reviews or in The New Republic, attempted to separate acceptable judicial wheat from the all too common chaff emanating from the "Old Court." No one referred to this as "constitutional theory," however. "Constitutional theory," as a self-conscious development within the legal academy, is almost certainly the consequence of the reinvigoration, following the apparent triumph in 1937 of Frankfurter and his devotees and the judicial retreats linked with that episode, of a significantly "activist" judiciary linked with brown v. board of education (1954) and then many other cases identified with the warren court. Brown is central, though, because there Frankfurter joined Warren's opinion, and he and his devotees had to explain its propriety.

It is no coincidence, then, that the first major book clearly identified as a work in "constitutional theory," in Posner's sense, is alexander m. bickelThe Least Dangerous Branch (1962). Bickel, a graduate of the Harvard Law School who clerked for Frankfurter (and who, as clerk, wrote a famous memorandum to Frankfurter, subsequently published in the Harvard Law Review, justifying the invalidation of school segregation), identified what he termed the "countermajoritarian difficulty"; that is, the purported anomaly of the politically nonaccountable Court invalidating legislation passed by majoritarian political institutions, and attempted to set out the (relatively uncommon) circumstances under which the Court would indeed be entitled to intervene. Many things might be said about Bickel's argument, including the fact that he did not talk about any of the other notable "countermajoritarian difficulties" in our political system, ranging from bicameralism; the staggeringly antimajoritarian basis of political representation in the U.S. senate (reflected, to at least some extent, in the electoral college) ; the presidential veto power; and such accepted practices (far more pervasive, indeed, in our own time than even in the 1950s) as the use of the filibuster in the Senate to prevent a legislative majority from working its will. In any event, Bickel was willing to defend Brown (though not, later in the decade, such decisions as baker v. carr (1962), where Frankfurter had dissented), and the combatants in the great theory wars—devoted to defending or attacking one or another normative view of the judiciary's role as presumptive "ultimate interpreter" of the Constitution (itself a highly tendentious term of the Court's creation)—were off and running.

Although important sallies continue to be delivered in these wars, the most important contemporary work in what might well be described as neotheory of the Constitution involves moving away from normative, methodologically driven inquiries of the type described above to broader, more historically grounded inquiries into the actual operation of the American constitutional order. Exemplary in this regard is Stephen M. Griffin's American Constitutionalism: From Theory to Practice (1996). Like Posner, Griffin rejects the obsessive emphasis on judicial review and concomitant attempts to construct a single master method that would at once resolve the "countermajoritarian difficulty." Instead he asks to what extent is it truly plausible to view the Constitution, especially as interpreted by courts, as playing a significant role in channeling the great socioeconomic changes over the 200 years since its adoption. Griffin answers: Not much. As a descriptive practice, constitutional interpretation has changed to accommodate felt necessities of the times, as, indeed, oliver wendell holmes, jr. , suggested so memorably in The Common Law (1881). To the extent that the Constitution can be assigned a significant role, the reason lies in basic structural features of the American order, including bicameralism, equal state membership in the Senate, or the dates established for inauguration of Presidents or the convening of Congress, provisions that have almost never been the subject of litigation, and so have lacked interest to legal academics for whom the agenda is set by the litigation practices of the Court. This interest in the implications of basic constitutional design has generated another important branch of contemporary constitutional neotheory, much influenced by so-called social choice or "positive political theory" within political science. These theorists assume that politics is carried on by rational individuals, where "rationality" is defined as the maximization of individual goals and sensitivity to the incentives generated by given institutional designs.

Perhaps the most crucial clause of the Constitution for Griffin and other practitioners of "neotheory" is Article V, which sets out an exceedingly difficult process of formal constitutional change. (Indeed, in Levinson (1995), political scientist Donald Lutz compared the U.S. Constitution to the constitutions of every state and of more than thirty other countries and determined that the U.S. Constitution has the highest "index of difficulty" in regard to formal amendment.) The consequence is that many of the most significant changes over the past 200 years have taken place outside of Article V. That is, there may be far more constitutional "amendments"—in the sense of changes in constitutional practice that cannot plausibly be derived from the original text or the formal amendments added to it—than the twenty-six (or twenty-seven, depending on one's acceptance of the purported twenty-seventh amendment, proposed in 1789 and declared ratified only in 1992) set out as textual additions to the original 1787 Constitution. More to the point, to limit one's definition of "amendment" only to these textual additions is to adopt a basically atheoretical approach to the problem, explaining away, by stipulative definition, what is in fact the great mystery of American constitutionalism, which is how, adopting Chief Justice john marshall's language in mcculloch v. maryland (1819), the system has actually "adapted to the various crises of human affairs." These other "amendments" are unwritten, at least in the text of the Constitution itself (as against presidential statements, statutes, judicial opinions, and the like), but no analyst of American constitutionalism could possibly make sense of what has happened since 1789 without taking them into account.

Both Yale's Bruce Ackerman and Harvard's Laurence Tribe, among the most eminent of contemporary writers on the Constitution, agree, for example, that the treaty clause of the 1787 Constitution is best read as covering such acts as the north american free trade agreement (NAFTA) or the General Agreement on Trades and Tariffs (GATT). Yet these extraordinarily important developments in international trade were "ratified" not by two-thirds of the Senate, as required by the clause, but, rather, by a majority of each house of Congress. For Tribe, this is enough to render unconstitutional both NAFTA and GATT. Ackerman, however, though agreeing with Tribe as to the meaning of the 1787 Constitution, and agreeing as well that no formal Article V amendment has changed the treaty clause, argues that a non-Article V amendment was affected by the response of the United States to the exigencies of world war ii and the de-facto ratification of these new procedures by the American electorate. Indeed, Ackerman makes similar, even more important, arguments in regard to the so-called reconstruction amendments following the civil war and then the new deal. He denies, for example, that the Fourteenth Amendment can be legitimately viewed as a simple Article V change of the Constitution. And, agreeing with conservatives that the New Deal violated the original Constitution and that, of course, no formal amendment changed Congress's powers to shape the national economy, Ackerman nonetheless argues that the New Deal represented what he calls a "constitutional moment" that legitimately transformed the operative Constitution. Tribe denounces such ideas a "free-form" theory unbefitting a disciplined legal analyst.

However unconventional Ackerman's approach may be, it responds to the fundamental reality identified by Griffin and others, the brute fact that the meanings ascribed to the Constitution have radically changed over time though there have been so few formal amendments. Those who resist "free-form" theory often either end up simply ignoring the most significant single episode in post-1787 constitutional history, the process by which the Fourteenth Amendment became part of the Constitution, or, as with the New Deal, are forced to argue that the Old Court unaccountably failed to understand the Constitution and that the New Deal court simply "restored" the Constitution to its original meaning (or, at least, the meaning given it by Marshall in gibbons v. ogden (1824)). Or, as with GATT and NAFTA, Tribe, the author of the most significant treatise in constitutional law in the twentieth century, is forced to take a position that, in context, not only is reminscent of a disgruntled john w. davis railing against the New Deal, but also is one that would almost certainly be rejected by any Court to which it was presented, not least because of the political earthquake that would follow a declaration that, indeed, one-third plus one of a grotesquely malapportioned Senate is constitutionally entitled to reject such fundamental aspects of the modern globalized economy. This does not, of course, mean that Tribe is "wrong"; his arguments are well within the rules of acceptable legal grammar, just as were the arguments against the New Deal or, for that matter, the propriety of Brown. Nonetheless, there is an unbridgeable chasm between Tribean constitutional theory, at least in this instance, and the actual practices of American political institutions, including courts that offer often strained "interpretations" designed in effect to ratify the de-facto amendatory changes.

One should note that Ackerman's account of historical change, though significantly descriptive, also has a significant normative dimension. He wants to offer an account by which we can recognize "authorized" non-Article V amendments—that is, the results of "constitutional moments" and the particular kind of mobilized polity linked to such moments—and, concomitantly, reject other changes as illegitimate because they do not represent an authoritative, albeit unconventional, declaration by the sovereign "We the People." Whether "constitutional theory," even in its "neo" variety, can escape normativism is an important question. (Whether it should, even assuming it can, is, of course, another question.)

Another important aspect of Ackerman's work, reflected as well in Griffin's call for a new approach to constitutional analysis and a different conception of constitutional theory, is the emphasis on the crucial role of nonjudicial actors within the political system. The innovative actions of Presidents and legislatures, and of state governments, create new political realities to which courts must respond (even if the response, as in important areas of foreign affairs, is to declare that these are political questions left to the discretion of political decisionmakers). Moreover, at least one strand of argument among contemporary constitutional theorists concerns the claims made by the Court for its own supremacy as a constitutional interpreter. Constitutional "protestants," who emphasize the legitimacy of multiple interpreters of the Constitution, contend with "catholics" who view the Court as indeed its "ultimate interpreter." Yet other theorists have begun emphasizing (and sometimes questioning) the difference between the interpretive freedom accorded the Supreme Court and the extraordinarily diminished freedom allowed the judges who serve in what the Constitution terms "inferior" courts, who are often expected to be almost literally unthinking satraps of their institutional superiors. If Supreme Court Justices swear loyalty to the Constitution, it appears that they expect their hierarchical inferiors to swear loyalty to themselves. Indeed, Posner, the Chief Judge of the Seventh Circuit Court of Appeals, wrote a famous article in The New Republic entitled "What am I, a Potted Plant?," taking issue with this notion.

The post-Brown fixation with "constitutional theory as the search for a definitive method of constitutional interpretation by judges on the Supreme Court" allowed its practitioners to avoid coming to terms with the actualities of the American polity, beginning with the fact that judges on the Court are only one, and not at all the most important, set of actors with responsibilities to think seriously about their constitutional duties. Even more to the point, knowledge of these actualities requires immersion in such disciplines as history, both American and comparative, and a number of the social sciences. Whether American legal academics are willing so to immerse themselves remains an open question.

Sanford Levinson
(2000)

(see also: Amendment Process (Outside of Article V); Constitutional Dualism; Nonjudicial Interpretation of the Constitution; Originalism.)

Bibliography

Ackerman, Bruce 1991 We the People: Foundations. Cambridge, Mass.: Harvard University Press.

——1998 We the People: Transformations. Cambridge, Mass.: Harvard University Press.

Ackerman, Bruce and Golove, David 1995 Is NAFTA Constitutional? Harvard Law Review 108:799–929.

Bobbitt, Philip 1982 Constitutional Fate. New York: Oxford University Press.

——1991 Constitutional Interpretation. Cambridge, Mass.: Basil Blackwell.

Eskridge, William and Levinson, Sanford 1998 Constitutional Stupidities, Constitutional Tragedies. New York: New York University Press.

Friedman, Barry 1998 The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy. New York University Law Review 73:333–433.

Griffin, Stephen M. 1996 American Constitutionalism: From Theory to Practice. Princeton, N.J.: Princeton University Press.

Levinson, Sanford, ed. 1995 Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton, N.J.: Princeton University Press.

Posner, Richard 1998 Against Constitutional Theory. New York University Law Review 73:1–22.

Symposium 1997 Fidelity in Constitutional Theory. Fordham Law Review 65:1247–1818.

Tribe, Laurence H. 1995 Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation. Harvard Law Review 108:1221–1303.