Tuesday, April 10, 2012

Burkean Constitutionalism

By Mike Dorf

Today I am attending a one-day conference at Columbia Law School on "Burkean Constitutionalism." The conference is being organized by my friends and former colleagues Philip Hamburger and Tom Merrill. In addition to the academic types, Justice Samuel Alito will be joining us for at least some of the discussion. Justice Alito was dubbed the "Burkean Justice" by Adam White (also a conference participant), writing last year in The Weekly Standard. The conference raises at least two key questions: 1) What is Burkean Constitutionalism? and 2) Is it a good idea? In this post, I shall preview my presentation, framed around those questions.

Edmund Burke is sometimes regarded as the father of "classical conservativism," although as a number of people have noted, Burke was actually a Whig, which means that he was by our standards "liberal" or "progressive" in important respects. (Carl Bogus wrote an excellent article, Rescuing Burke, explaining this point.) But no matter. Today "Burkeanism" is simply a signal for something like the following view: Social institutions are highly complex and often reflect the accumulated but tacit wisdom of long experience. Therefore, proposals for rapid, radical change should be met with skepticism, because they will frequently have unintended and undesirable consequences. The French Revolution, which Burke discussed in Reflections on the Revolution in France, is generally taken as the archetype of how disregard for the virtues of gradualism can go awry.

Okay, but what is Burkean constitutionalism? In his catchily titled article, Bork v. Burke, Merrill argued that Burkeanism is a conservative alternative to originalism. There Merrill described Burkeanism as conventionalism, and in his paper for today's conference he expands on that idea in the following way: As a Brit, Merrill notes, Burke was familiar with a small-c constitution, in the sense of long-established practices, but not with what we Yanks have, a capital-C Constitution, in the sense of a written document. Merrill's idea is that, in interpreting the large-C Constitution, Burkean judges and Justices ought to be especially deferential to laws and practices that implement the small-c constitution. In this view, long-established practices should (generally) be upheld, even if they conflict with the original understanding. Merrill suggests several advantages of Burkean constitutionalism over originalism but arguably the central one is that Burkeanism is stable, whereas originalism can be enormously destabilizing.

As Merrill's contrast makes clear, his version of Burkeanism is a position in an intra-conservative debate. Yet a number of liberals have embraced some version of Burkean constitutionalism. The most enthusiastic is probably David Strauss (another conference participant), whose book, The Living Constitution, associates the common law method of constitutional interpretation with Burke. The association works at two levels. First, Strauss argues that the common law method itself is a legitimate form of lawmaking because of its pedigree. Second, Strauss argues that case-by-case gradualism is itself Burkean.Merrill does not accept common-law constitutionalism as a form of Burkeanism, but his objection strikes me as stipulative rather than substantive. Burke did not articulate views about the U.S. Constitution, and so any effort to define Burkean Constitutionalism will necessarily involve some imagination. Merrill and Strauss simply translate Burke to the American context in different ways. It is not obvious that either of them is "right" in any external sense.

Nonetheless, there is a case to be made that Strauss is wrong because he is trying to have his cake and eat it too. Matthew Steilen's review of Strauss's book in Legal Theory makes that case. Strauss wants us to believe that the common law method is conservative (in the Burkean sense) but capable of making important adjustments to protect liberal rights. Yet, Steilen argues, the great common law judges (think Cardozo as the archetype) were always best at disguising important breaks with prior precedent as a form of continuity. The common law method, to produce liberal results, doesn't work the way Strauss says it does--or so Steilen argues.

I think Steilen is onto something but I think Strauss is basically right anyway. Decades of political science literature shows us that the Supreme Court does not venture wildly beyond the center of gravity of political opinion--and so in normal times, the Court will not use its adjudicatory tools to decree radical change. Gradualism really is the order of the day for the Court.

What about the difference in perspective between Merrill and Strauss? A decision can be Burkean in Strauss's sense but not in Merrill's (and vice-versa). Brown v. Board is a good example. Strauss devotes a chapter of The Living Constitution to showing how the Supreme Court developed the principle of Brown over time in a gradualist fashion. So he is right that the decision was Burkean in his sense. But the case was not Burkean in Merrill's sense, because in 1954 Jim Crow was well established in the South. It was part of the small-c constitution in much of the country. And so Merrill's version of Burkeanism is tripped up by the same stumbling block that has undone a couple of generations of originalists: Fairly applied, it produces the wrong result in the most important case of the 20th Century.

So do I cast my lot with Strauss? Yes and no. I think that he provides an excellent descriptive account of the frame in which American courts (especially the Supreme Court) make decisions. One would have to be especially obtuse to deny that American courts apply the common law method in constitutional decision making. But I don't think that gets us very far.In a forthcoming review essay in the Harvard Law Review, I argue that Strauss's book cherry-picks examples of cases with happy endings in an effort to show that the common-law method leads to good results. But the common law method simply is how the courts decide cases, and that leads to lots of bad results as well. What distinguishes the good from the bad results is almost certainly something other than the common law method.

My forthcoming essay also reviews Jack Balkin's recent book, Living Originalism. The essay, not to mention the book, makes a complicated set of moves that I will not attempt to summarize here. Instead, I want to focus briefly on Balkin's tacit Burkeanism. Balkin argues (correctly in my view) that social and political movements are the real drivers of constitutional change over time. The role of the courts is chiefly one of mopping up--of using legal tools to rationalize the change that the People make more directly. Balkin then asks whether the game is worth the candle. If the People ultimately make constitutional law and the Supreme Court is not strongly countermajoritarian, why bother with judicial review at all? Balkin's answer is that judicial review adds another “veto point” at which legal change can be blocked, thereby restraining simple majoritarianism and “creat[ing] a bias toward preserving the constitutional values of the political status quo.”

Balkin here alludes to Burkean virtues of American constitutionalism: Our baroque system of federal lawmaking ensures that the status quo will be preserved, absent the sort of extraordinary effort needed to run the Article I, Sec. 7 gauntlet. For Burkeans who are suspicious of rapid change, our system of federal lawmaking--which effectively requires super-majorities to enact legislation--should be attractive, as it preserves the status quo against change substantially more effectively than, say, English-style parliamentary government, in which the Prime Minister's program will be enacted based on a simple majority in the House of Commons.Balkin is also right that adding judicial review as another veto gate effectively renders the system as a whole still more Burkean--or at least that is its effect when judicial review is invoked to invalidate legislative innovations. When, by contrast, judicial review is used to invalidate old laws (e.g., Brown, Roe, Lawrence v. Texas), it is difficult to characterize the Court's action as adding a "veto gate" for laws (typically state laws) that were enacted decades earlier.

Thus, Burkean constitutionalism--conceptualized as a form of conservatism--ends up being suspicious of just those instances of judicial review that conservatives regard with suspicion, even as conservative Burkean constitutionalists would be willing to license the courts to strike down legislative innovations (like a health-care mandate or, in an earlier era, child labor laws). I cannot say for sure that this is how Professor Merrill himself would apply his version of Burkean constitutionalism, but the logic of his argument points in this direction.To my mind, this invocation of Burke to validate most conservative judicial review while questioning most liberal judicial review would all seem a bit too neat, even if I found the results it produces attractive, which I do not.

Accordingly, count me a dissenter from Burkean constitutionalism. I agree that our constitutional system in general and much of judicial review in particular exhibit Burkean characteristics. That is at best a mixed blessing. Self-consciously working to make judicial review more Burkean would be going too far.