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Tyranny of the Judiciary

Under the guise of following the Constitution, our legal elites usurp it.
Warren Court

Making Our Democracy Work: A Judge’s View, Stephen Breyer, Knopf, 288 pages

The Conservative Assault on the Constitution, Erwin Chemerinsky, Simon & Schuster, 336 pages

The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History, Jill Lepore, Princeton University Press, 224 pages

 A Constitution of Many Minds, Cass R. Sunstein, Princeton University Press, 240 pages

Four recent books show that “originalism”—the Madisonian doctrine that the Constitution should be interpreted as it was explained by Federalists during the ratification debates—continues to be deeply unfashionable in elite circles, even as the idea reaches a wider popular audience than ever before thanks to the Tea Party and other grassroots groups. From Harvard Law School to the Supreme Court, many of our most prestigious legal scholars are anti-Madisonian to the core.

Take Erwin Chemerinsky, dean of the University of California, Irvine School of Law. His The Conservative Assault on the Constitution is a paean in favor of judicial usurpation.

Then again, one must be careful here. Chemerinsky would not agree that “usurpation” is the right word, because nothing that he advocates is in his view inconsistent with the Constitution, rightly understood. That is because the Constitution, rightly understood, simply yields the outcomes he prefers.

So, for example, Chemerinsky recounts his father’s painful death. From his account, Chemerinsky concludes that the courts ought to read the Constitution as extending a right to physician-assisted suicide—or perhaps physician-administered homicide. His argument to that effect is entirely policy-based. In fact, the Constitution of his book’s title is simply the version of constitutional law that Chemerinsky wishes the courts, led by the Supreme Court, to impose.

As he puts it, “The real question that should have been addressed by the Court is whether the right to physician-assisted death is so basic to autonomy that it should be deemed a fundamental right. Put another way, is this right sufficiently analogous in its importance to the privacy rights that the Court has previously protected that it should be deemed a fundamental right?”

Notice the difference between “protected” and “deemed.” To “protect” something implies its preexistence, one would think, while to “deem” a horse a cart would involve a certain metaphysical leap. This type of language, which avoids outright saying what is really going on, pervades Chemerinsky’s book. There are several sections where my own originalism leads me to agree with what he is saying about the way particular cases or lines of cases should have been decided, but his approach is repellant throughout. The constitutional system is, in the minds and in the hands of Erwin Chemerinsky and his ilk, the great scam by which the rubes are led to accept having a credentialed few give them the law that is “good” in the name of the Constitution.

For me to characterize it thus no doubt would lead Jill Lepore of the Harvard history department to put me on “the far right.” Her book on the Tea Party, The Whites of Their Eyes, is intended as a negative reflection on the temerity of ordinary people who have dared to become more actively involved in politics than people with their political leanings really ought to be.

In this thin (in more ways than one) tome, Lepore takes the approach she used in her Bancroft Prize-winning The Name of War to its self-destructive extreme. Into fewer than 170 pages she shoehorns narratives from 1773, the 1970s, and 2009-10. The point here is to describe the Boston Tea Party and of the radically different ways that series of events was recalled at the time of the American Revolution Bicentennial before finally explaining the unacceptability of today’s Tea Party movement.

Anyone au courant with the latest scholarship on the Revolution will recognize most of what Lepore says about the Tea Party, as well as the impulse that leads her to give so much space to, for example, African-American poet Phyllis Wheatley. The sections on more recent events say more about the way that our Betters think of us.

Lepore attended several Tea Party functions in Boston as an observer. People inferred from her Harvard association that she was hostile.  Her approach is to report long snatches of political conversation verbatim—which leaves the impression that the common citizens with whom she came in contact were imperfectly informed.

One could of course take the same approach toward people on Lepore’s side of the political aisle. It would be a cheap shot.

Often, Tea Party activists told her that they wanted constitutional government. She says that the Constitution kept women from voting prior to the 19th Amendment, which of course it did not; it simply left the matter to the states (some of which had women voting long before the 19th Amendment). Originalism has nothing to do with women voting, despite Lepore’s sneering comments.

Some of the Tea Party people are also devout Christians. As Lepore dismissively notes, “People on the far right often argue that the idea of a ‘wall of separation’ between church and state wasn’t built until the 1830s and 1840s.” But this isn’t solely a position of the “far right”—one wonders whether Lepore has ever heard of the University of Chicago’s Philip Hamburger, whose Separation of Church and State shows that the Tea Partiers’ position is, in fact, a very hard one to dispute. Everson v. Board of Education (1947) rests on no firmer foundation than the fact that in that particular year, a Chemerinsky-style Supreme Court majority considered “a wall of separation” desirable—and Lepore types on the Supreme Court have retained it since.

Neither of these tomes provides much grist for the intellectual mill. Not so Cass Sunstein’s A Constitution of Many Minds. Here President Obama’s Czar for Information and Regulatory Affairs offers up notably interesting accounts of three modes of constitutional thinking: traditionalism, populism, and cosmopolitanism. What they have in common, he says, is that each relies on the idea that concepts approved by many minds are due a certain level of respect at the threshold.

Out of Harvard Law School, Sunstein clerked for the late Supreme Court justice Thurgood Marshall. While Marshall ranked as one of the 20th century’s most eminent American attorneys, his work as a judge reflected little other than his (and perhaps his clerks’) personal policy preferences. Perhaps unsurprisingly, then, Sunstein repeatedly says that a particular approach is to be preferred only as the outcomes it yields are to be preferred.

In other words, “we” will measure various approaches to the Constitution, and we’ll rely on the one that gives us the best results. This is of course what Chemerinsky says disqualifies originalism. Lepore implies the same. The “we” of Sunstein’s book includes author and reader, but in practice it includes justices, members of the Supreme Court bar, and professors at a very few law schools. (In fact, with the recent retirement of Stanford’s Sandra O’Connor and death of Stanford’s William Rehnquist, precisely two law schools claim members on the Supreme Court: Yale and Harvard.) If these people persuade each other that the outcome demanded by the Constitution the people ratified would be sub-optimal, they can just reach their preferred outcome anyway. As they will. But then, as in Chemerinsky’s title, they’ll blame it on the Constitution.

Sunstein traces this approach to Thomas Jefferson. He does so in a way completely unrelated to the actual Thomas Jefferson. As other left legal scholars have done, Sunstein cites an 1816 letter in which Jefferson told a Virginia constitutional reformer that Jefferson had known the constitution’s authors, and that their knowledge was markedly less extensive than the current generation’s knowledge.

Yet Jefferson was not referring to the authors of the U.S. Constitution, but to the men who wrote the Virginia Constitution of 1776. He was not saying that judges should use the framers’ imperfection as an excuse for judicial legislation, but instead wanted to have a new constitutional convention in Virginia to perfect the state constitution. Jefferson was no proponent of amendment by judges. Quite the opposite. It’s hard to believe that law professors mischaracterizing his texts this way do not know what they are doing.

What is one to make of these arguments? Justice Stephen Breyer calls the general approach Making Our Democracy Work (which is the title of his new book). Breyer tries to show the laity that his preferred approach will make our democracy work in the way that it can work best.

Breyer’s chief objective is to lead the public to accept the Supreme Court’s decisions, whether they believe them to be right or not. Any resistance to the Court’s performance is, to Breyer, contrary to “the rule of law.”

When a Stuart king’s courtier said the king was the law speaking, he was thought to advocate tyranny. Breyer echoes the unanimous Supreme Court of Cooper v. Aaron (1958) in equating Court rulings with the Constitution. In fact, he lauds the Court’s behavior in that case, in which the Court extended the Supremacy Clause’s statement that the Constitution, laws made pursuant to it, and treaties are “the supreme law of the land” by adding “decisions of this court” to the list.

One might have thought that this enumeration was a truism, as the Court’s members are bound by their oath to uphold the Constitution. But Breyer tells us that the first rule—the first rule—of constitutional interpretation must be non-originalism.

Breyer seems not to understand originalism. He frequently refers to the “framers’ detailed intentions,” when from 1787 to the present the standard Madisonian approach has stressed the ratifiers (the lawmakers who gave the Constitution effect), not the framers (who merely wrote the Constitution).  He also asks what he takes to be hypothetical questions an originalist cannot answer, such as whether local ordinances regulating firearms are constitutional, without realizing that originalism rules out the Incorporation Doctrine (that is, application of Bill of Rights provisions against state governments).

Although Breyer goes to great lengths to demonstrate that judicial review was part of the original understanding, apparently that is the only aspect of the historic record that counts. Breyer follows Chemerinsky in using words such as “reaffirms” to describe the Court’s behavior in inventing new rights, and this nod toward history seems intended merely to give the average citizen the impression that the judges are only doing what the ratifiers instructed them to do.

For Breyer, the question comes down to this: “Why would people want to live under the ‘dead hand’ of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?” This is all facetious, of course, because if you do not want an eighteenth-century constitution and you are honest, you should say so. What these people do instead is say they are following the Constitution, even as they ignore it. The whole enterprise is a great scam.

Kevin R.C. Gutzman is professor of history at Western Connecticut State University and the author of James Madison and the Making of America.



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