Wednesday, December 28, 2011

The Cost of Fetishizing the Constitution

By Mike Dorf


My latest Verdict column examines Newt Gingrich's recent attack on the federal judiciary.  I conclude that his historical argument is basically right: Thomas Jefferson and Abraham Lincoln did question the constitutional basis for judicial supremacy, while Jefferson and FDR (as well as others) attempted to change the law in order to neuter or intimidate the federal judiciary, so as to achieve substantive results they favored.  I also conclude that Gingrich's normative views are misguided.  He places too little value (if any) on an independent judiciary.

Here I want to note how Americans' habit of fetishizing the Constitution makes Gingrich's argument appear stronger than it is.  The horrid things that Gingrich proposes to do to the federal judiciary--including dragging them before Congress to explain their decisions, impeaching those judges whose decisions Congress disapproves, stripping the courts of jurisdiction to hear categories of cases that might yield results Congress and a President Gingrich dislike, and eliminating the seats of life-tenured federal judges--are all arguably constitutional.  But that doesn't mean that any of these extreme actions should be considered by Congress as available.

Of course the Tea Party fetishizes the Constitution, but it's worth noting that liberals do too; we just tend to interpret it differently.  As I discussed in my contribution to The Rule of Recognition and the U.S. Constitution, Americans lack a vocabulary for discussing political proposals that are unthinkable but not unconstitutional.  For example, in response to Roosevelt's Court-packing plan, opponents of the plan tried to shoehorn their objections into constitutional language by invoking the "spirit of the Constitution," even as they were unable to point to any letter (even expansively construed) that could plausibly be said to be violated by the Court-packing plan.

The right answer to Gingrich and others who pander to the tri-corner-hat crowd itself has three parts: 1) That they are wrong to think that those who framed and ratified the Constitution shared their current ideological views; 2) That even if they were right about the content of the original understanding, they would be wrong to equate the Constitution today with the original understanding; and most importantly 3) Constitutionality is a minimum requirement for legislation, not the measure of its wisdom.

This last point is one that judicial conservatives accept as definitive of judicial restraint, but the current crop of Republican candidates often talk as though one need only read the Constitution to know what policies to pursue.  Gingrich's attack on the courts is an example, but one can easily find others.  See, for example, Ron Paul's take on "the issues," virtually every one of which makes constitutional claims central to his policy claims.


12 comments:

egarber said...

Suppose Obama was a left-wing departmentalist. And imagine the Court rules against the individual mandate in the Affordable Care Act.

It's absurd to think Gingrich would support presidential or congressional authority to grill via subpoena say, Thomas, on his rationale for the ruling.

This leads me to think that Newt's starting point is a desired substantive result. "Departmentalism" is simply cover for it -- code for opposing whatever angers Iowa primary voters in the culture wars.

And I'm somewhat baffled by how "historians" on that side seem to ignore Federalist 78, which says (touting judicial independence):

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Michael C. Dorf said...

Hi Eric,

I tend to agree with you, but the Departmentalists argue that Federalist 78--and Marbury, which follows the line of reasoning in Federalist 78 quite closely--simply establish that courts are competent to interpret the Constitution ALSO. Everyone took for granted, Kramer says, that the elected branches could interpret the Constitution on their own. As I say, I think they're wrong about this. Basically, Hamilton and Marshall really did believe in judicial supremacy, whereas Jefferson and (the later) Madison did not; Hamilton and Marshall won. But the departmentalist view hung around long after Marbury.

tjchiang said...

I have quite a few quibbles with the post (I think less of his historical argument than you seem to), but the general point about fetishizing the constitution I think is sound. Gerard Magliocca puts it a little more colorfully, as a belief that "the constitution can do no wrong."

CJColucci said...

Americans lack a vocabulary for discussing political proposals that are unthinkable but not unconstitutional.

Like the broccoli argument.

CJColucci said...

Americans lack a vocabulary for discussing political proposals that are unthinkable but not unconstitutional.

Like the broccoli argument.

Joe said...

In his Cooper Union speech, Lincoln said that Dred Scott should not be deemed binding for all time, but suggested more than one reason, including "a divided court" and error in the history to explain why.

If the SC, including when faced with his evidence, repeatedly upheld the ruling & the people did not amend the Constitution to change it & did not pick new justices that changed it, eventually, the ruling could stand. It just wasn't a one and done thing.

This occurred repeatedly. Furman v. Georgia --> Gregg v. Georgia is an example of how one major case did not set things in stone when further developments altered how a closely divided SC saw things.

Jefferson and FDR underlines how there are checks and balances available w/o Gingrich's heavy handed ways. Neither wanted to call judges in to be scolded, e.g.

The "fetish" point holds somewhat but there are constitutional norms that are in effect political questions. Thus, judicial independence is a norm. The court packing plan violated it, but it wasn't unconstitutional as such. But, even members of his own party felt it was problematic since it violated a CONSTITUTIONAL norm.

It's like a punishment that is not really unconstitutional but it particularly harsh. The 8A puts up a red flag an opponent in Congress can raise. Is this a "fetish"?

OTOH, some members of the Tea Party in the minds of critics are wrong on the merits or appear confused. This is a different problem.

Joe said...

Also, Jefferson thought certain things were under the discretion of the executive & one of them would be delivering commissions. Tricky.

But, what if the question was how to try a defendant or execute them? Would the executive have the power to skip a jury trial or determine on his own that the rack would be okay?

As a former lawyer, did he think judicial rulings on such points, precedent, was not binding, so over and over again the executive could skip a jury trial even if courts for forty years said "no"?

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