PHILOSOPHY AND THE CONSTITUTION

The Constitution is one of the great achievements of political philosophy; and it may be the only political achievement of philosophy in our society. The Framers of the Constitution and the leading participants in the debates on ratification shared a culture more thoroughly than did any later American political elite. They shared a knowledge (often distorted, but shared nevertheless) of ancient philosophy and history, of English common law, of recent English political theory, and of the European Enlightenment. They were the American branch of the Enlightenment, and salient among their membership credentials was their belief that reasoned thought about politics could guide them to ideal political institutions for a free people. They argued passionately about the nature of sovereignty, of political representation, of republicanism, of constitutionalism; and major decisions in the ferment of institution-building that culminated in 1787 were influenced, if never wholly determined, by such arguments. The final form of the new federal Constitution embodied radically new views about the location of sovereignty—now located "in the people" in a stronger sense than any philosopher except Jean-Jacques Rousseau would have recognized—and about the function of the separation of powers and bicameralism.

Philosophy has never again played the role it played at the founding of the Republic, except perhaps in inspiring some abolitionist constitutional theory. To be sure, "philosophy" in a loose sense has always influenced politicians and judges, who are part of society. The Supreme Court in the late nineteenth and early twentieth centuries expressed in its decisions a laissez-faire "philosophy" compounded of Darwinism, a version of natural rights theory, and conservative economic beliefs. When the Court abandoned that "philosophy," they adopted another, more progressivist and pragmatic, and more attuned to, though at most only loosely connected with, the renascent empiricism among academic philosophers. Occasionally, the Court has adverted to specific philosophical doctrines, from john marshall in fletcher v. peck (1810) to george h. sutherland in united states v. curtiss-wright export corp. (1936) (on the necessary existence of sovereign power). Individual Justices like oliver wendell holmes may have been influenced by philosophical reading and by contact with professional philosophers. But, on the whole, while "philosophy" has had an influence, philosophy has had little—except to the extent that the "philosophy" of the present is always shaped in part by the philosophy of the past. (The decreased influence of philosophy has not lessened the relevance of philosophical issues.)

There are a number of reasons for the decreased influence of philosophy. In the open society the Framers helped to create, their style of argument, dependent on a relatively homogeneous and classically educated elite, could not maintain its political importance. Also, political philosophy itself became less unified. Widely divergent views were united under the umbrella of the Enlightenment by common opposition to entrenched privilege and hieratic religion. Once common enemies were vanquished, philosophical comrades parted company.

Another reason for the decreased influence of philosophy is that philosophy admits of no binding authorities, while law does, and does essentially. The Framers were creating a new political system. No one since then, except to some extent the reconstruction Congresses, has had that luxury. Later contributors to our constitutional development have always had to interpret, and to attempt to maintain at least the appearance of continuity with, what has gone before.

Curiously, while recent philosophical thinking has had little discernible influence on constitutional law, the reverse is not true. The decisions of the warren court and the public discussion they generated certainly contributed, probably significantly, to the revival of interest among American philosophers in social and political questions, a revival that became apparent in the civil rights era of the 1950s and 1960s and that is still in full flower.

Whatever the influence or lack of it of philosophy on constitutional law, philosophical discussion among academic constitutional lawyers may have reached greater intensity in the 1980s than at any time since the 1780s. Constitutional law, like law in general, raises deep and perplexing philosophical questions. The questions that arise most immediately are questions of political philosophy, and of these the one that has generated most discussion is what is known as the "antimajoritarian difficulty": how can it be appropriate for the enormously consequential power of judicial review to be vested ultimately in nine individuals who are not chosen by the people and who are not politically accountable to anyone at all? The problem is especially vexing when the Court, in the space of three decades, has outlawed segregation, forbidden religious activity in the public schools, required reapportionment of the state legislatures and local government, created a constitutional code of criminal procedure, established a right to abortion, and found in the equal protection clause a command that government shall not engage in sex discrimination.

There are three principal types of answer to the question how a democratic society can countenance such judicial power. The first answer, and the natural answer for any lawyer, is the claim that the Supreme Court has this power because the Constitution says it does. But the Constitution does not say that, at least not explicitly. The power of judicial review is nowhere explicitly granted. Now, in a sense, the lawyer's answer is still right. The Constitution as it has been interpreted from 1803 to the present does create the power of judicial review. The propriety of some form of judicial review is disputed by no one. Even so, it is noteworthy that at the very foundation of American constitutional law we encounter the problem of constitutional interpretation.

Given a document, and given agreement that its commands are to be put into practice by legal institutions, how do we decide what it commands? How do we decide what it means? Neither the words alone nor anything we know about the writers' intentions is likely to answer straightforwardly all the questions time will bring forth. For that matter, is it the document we are primarily concerned to interpret, or the political and doctrinal tradition proceeding from the document that we are concerned to interpret and to continue? And how are interpretation and continuation related?

It is important to distinguish between the document and the tradition and to ask how our commitments to each are interrelated. For example, we are firmly committed, by our allegiance to the tradition, to certain doctrines, such as the effective application of the bill of rights to the states and of the equal protection clause to the federal government, which can be deduced from the document only by extremely generous canons of interpretation. Some argue that if we are committed to these doctrines, then we must accept and continue to apply those generous canons. But that conclusion does not follow at all. Law, like any tradition, can sanctify mistakes.

The problem of interpretation does not arise only at the stage of justifying judicial review. It arises also at every application of judicial review. What is the Court to do with this power? The lawyerly answer, and again clearly the right answer in some sense, is that the Court should enforce the Constitution. But once more, how do we decide what the Constitution means?

The lawyerly exponent of judicial review also invites, by appealing to the Constitution, the most fundamental question: why do we care about the document or the tradition at all? It may be that to ask this question is to go beyond the domain of the lawyer as lawyer; but lawyers and judges are people, and every person who bears allegiance to the document or the tradition must face this question. Note, however: even though all lawyers and judges must face this question of political philosophy in deciding whether to carry out their roles, it does not follow that they must also appeal to substantive political philosophy in the course of carrying out their roles. Whether they must do that, and whether they could avoid doing that if they tried, are further issues.

The difficulties with the lawyerly justification and exposition of judicial review have prompted two other main theories of judicial review. In one theory, judicial review is justified by the need to protect individual rights against infringement by majoritarian government. Exponents of this theory have drawn heavily on a neo-Kantian strain of contemporary American political philosophy in attempting to elucidate individual rights and the limits of the majority's legitimate power. In the other theory, judicial review does not purport to limit but merely to purify the democratic process. Judicial intervention is necessary to protect political speech and participation and to prevent distortion of the process by majority prejudice, but all in the name of more perfect majoritarianism.

Opposed as they are on the significance of individual rights, these two theories share an ambivalent relationship to the Constitution and the interpretive tradition. Whence comes the notion that individual autonomy should be protected, or that majoritarian democracy should be purified but not otherwise limited? Is it just that the Constitution says so? The Constitution says neither of these things explicitly; and it says both too much and too little to make either of these views a completely satisfactory reading of the document as a whole.

On the other hand, if someone claims to read the Constitution as protecting individuality (or purified majoritarianism) because of the independent moral weight of those values, why does the historical document come into it at all? Is not every appeal to the Constitution by a proponent of independently grounded values of autonomy or purified majoritarianism in some sense mere manipulation of other people's allegiance to the Constitution for itself?

We see that the questions raised by the lawyerly approach to judicial review are not so easily avoided. Still, the competing approaches we have noted alert us to dimensions of the problem not previously apparent. First, if the justification for judicial review is to promote general values such as autonomy or purified majoritarianism, that may help us decide how specific bits of the Constitution should be interpreted. Second, the tradition may refer to certain goals—justice, autonomy, democracy—which the tradition itself views as having a value and grounding outside and independent of the tradition. If the tradition commands allegiance both to its own specific content and to external values, it contains within itself the seeds of possible contradiction. What does faithfulness to the tradition then require?

As of the 1980s, the newest philosophical interest of academic constitutional lawyers is in hermeneutics. Whether there are answers here, and whether any such answers will influence the course of constitutional law, remains to be seen. Hermeneutics may bring new insight into the various meanings of the idea of operating in a tradition. Barring some remarkable feat of philosophical bootstrapping, hermeneutics will not answer the most fundamental philosophical question about constitutional law: why care about the tradition at all? And there is a final irony. Because the political community is made up of individuals who must confront this fundamental question, the community must confront it also, even though from another perspective it is by shared allegiance to the tradition that the community is defined.

Donald H. Regan
(1986)

Bibliography

Dworkin, Ronald (1977) 1978 Taking Rights Seriously. Cambridge, Mass.: Harvard University Press.

Ely, John H. 1980 Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press.

Laycock, Douglas 1981 Taking Constitutions Seriously: A Theory of Judicial Review. Texas Law Review 59:343–394.

Tribe, Laurence H. 1978 American Constitutional Law. Mineola, N.Y.: Foundation Press.

Wood, Gordon S. 1969 The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press for the Institute of Early American History and Culture at Williamsburg, Va.