Judicial Technocracy Part Five: Constitutional Interpretation and Democracy

One could argue, maybe with only a hint of exaggeration, that the single greatest innovation of the American political experiment is the creation of a written constitution that contains both a description of the fundamental laws and of the structure of government. While we tend to take for granted not just the political virtue but sheer necessity of constitutionalism to political legitimacy, just as we take for granted the mutual interdependence of democracy and law, conventional wisdom always considered the making of an explicit catalogue of the laws imprudent. Thus, we would certainly find Socrates’ suspicions about writing counterintuitive at least: “And when they have been once written down they are tumbled about anywhere among those who may or may not understand them, and know not to whom they should reply, to whom not, and if they are maltreated or abused, they have no parent to protect them; and they cannot protect or defend themselves” (Phaedrus, 275d). Socrates’ aversion to writing is even more acute when it comes to the writing down of laws—this seems to be the reason why the only dialogue that does not feature him as Plato’s primary interlocutor, The Laws, is the only one devoted to the writing of a constitution. The paltry act of writing, and the meager powers of words to capture the totality of what tradition pronounces, has always encouraged the view that writing is more a profanation of the laws than a sign of its venerability.

At the crux of Socrates’ objection to writing is that, unlike philosophical dialogue, the meaning of whatever is written becomes calcified, failing to discriminate different audiences and their varying objections. However, the problem specific to the American constitution is almost exactly the opposite—once written down, the law becomes susceptible of wide ranging interpretation, permitting it to consistently say different things to different people thereby undermining the uniformity of meaning necessary for political stability. So if the classic problem of a written constitution is that it transforms the living tradition of a political community into the dead letter of the law, the American problem of the constitution is that it transforms what is intended to be plainly intelligible into that which is alive to wildly heterogeneous exegesis. The somewhat ridiculous debate regarding whether the constitution is “living” or “dead”, ridiculous precisely because no one in fact holds the latter view, can be transformed into the serious debate regarding the tension between the constitution as a body of promulgated law and as a text that signifies an infinite web of meanings.

The problem of constitutional interpretation in America becomes compounded by at least two interrelated factors. First, our constitution as a technical artifact, a statement of law made by men and based on reason, was also meant to be an object of veneration given its relation to the fundamental moral principles articulated in the Declaration and elsewhere. Therefore, one can reasonably expect that whenever questions of constitutional ambiguity arise some will look for clarification in the same principles that animated the document’s construction and guides its subsequent application. However, irrespective of how important these premises may be to shedding light on the constitution’s less lucid language, they are not contained specifically within the text like the laws themselves. To an unusual extent, debates about the technical meaning of legal language in American constitutional dispute often invites deeper and more theoretical contention regarding political philosophy. Socrates preferred the living dialogue of philosophical exchange to the spiritless law, but did not anticipate the possibility of a metamorphosis of the latter into the former.

We see the force of this problem even in the work of constitutional jurists who are so insistent on reading the language of law in light of its “intrinsic” or textual properties to the total exclusion of considerations “extrinsic” to the wording itself that they prioritize “cognitive” content as a way to avoid referencing legislative intent. For example. Blackstone argued that the language of a constitution should generally “be understood in their usual or most known signification” meaning their “general or popular use”. Still, he also conceded that in instances where “words happen to still be dubious” it was permissible to investigate the “reason and spirit of it” or the “cause which moved the legislator to enact it”. Of course, Blackstone only considered the recourse to intent legitimate in rare instances and never as a substitute for whatever meaning the “propriety of grammar” could give the text, but it’s still instructive to note that some reference to considerations extrinsic to the text, however sparingly relied upon, are incredibly difficult to consistently avoid. Moreover, legislators make laws at least partially on the basis of their own view of the law’s constitutionality, and that prism of assessment is necessarily informed, in one way or another, by their understanding of what is fundamentally good about the American regime. To fully interrogate the meaning of the intent behind a legislative act often opens up a Pandora’s box of philosophical questions that prove more complicating than clarifying.

The second interpretive problem that arises from the American constitution is that not only will questions of political philosophy almost necessarily arise but that questions of interpretation have a tendency to mutate into impenetrable debates regarding competing hermeneutical methods. It’s difficult enough that our popular access to the constitution is made problematic by the recourse to our foundational philosophical principles, but to add yet another layer of esoteric remove, regular citizens must also steep themselves in abstruse theories regarding the ontological status of any text that claims to bear meaning. It is both remarkable and instructive that Ronald Dworkin could begin his response to a series of lectures by Justice Scalia this way: “Justice Scalia has managed to give two lectures about meaning with no reference to Derrida or Gadamer or even the hermeneutic circle…” If the health of our democracy presupposes that our citizenry is adequately informed about basic constitutional controversies, and such knowledge presupposes an acquaintance with the latest tributary to run from the deep river of Parisian Heideggerianism, then our experiment in self-governance is doomed to fail from a lack of intellectual fashionableness. The real problem here is the technocratic habit to recast debate about common sense principles into abstract ones about methodology—the increasingly indecipherable character of constitutional debate, in part driven by the technocratic impulse to devise theories about the methods for comprehending more theories, ends up justifying an even more technocratic judiciary since entry into debate requires specialized credentials. Technocracy begets more technocracy and the constitution that enshrines the popular will of the people becomes insensitive to its influence.

It is certainly true that Madison designed the judicial branch to function as a ‘will in the community independent of the majority” (Federalist #51); Hamilton was insistent on this independence since “When the deliberative powers or judicial powers are vested wholly or partly in the collective body of the people you must expect error, confusion, and instability”. However, Hamilton also insisted that “To avoid an arbitrary discretion in the courts it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them”(Federalist #78). Therefore, independence could only serve as an “excellent barrier to the despotism of the prince” if it confined itself to the “steady, upright, and impartial administration of the laws” (Federalist#78). In his dissenting opinion in Baker v. Carr (1962), Justice Frankfurter complained that his colleagues’ insistence on debating the proper theory of representation compelled them “to choose among competing bases of representation-ultimately, really, among competing theories of political philosophy”. Likewise, Justice Clarence Thomas, also writing a dissent in a similar voting rights case in 1994, took exception with the fact that “we have immersed the federal courts in a hopeless project of weighing questions of political theory”. In contradistinction to this call for cautious judicial restraint, Dworkin not only believes that judges must move beyond the narrow “rule book “ conception of law that is blind to the substantive issue of justice but that each court “must define the best conception of democracy for itself”. Dworkin views the court not as highly proficient legal technicians but philosopher kings who reign in intellectual judgment over the untutored opinions of the many.

The Supreme Courts’ technocratic inclinations have been partly exacerbated by a technical innovation—the Judges Bill of 1925 gave the court complete and unchecked discretionary certiorari power over the cases they decide. The seeds for this shift were planted with the Court of Appeals Act in 1891 which effectively transformed the court from an appellate court charged with reviewing lower court decisions to a panel for adjudicating major political and philosophical controversy—newly liberated from the less than glamorous drudgery of being a court of last resort the Supreme Court now understands itself as a grand council for stewarding national debate. In fact, even the famously conservative Justice Scalia has remarked that the Supreme Court is not “just the central organ of legal judgment” but also “the center stage for significant legal debate”.

The problem here is twofold: first, the Judges Bill transferred a power traditionally reserved to Congress under Article III, the power to regulate the Court’s jurisdiction, to the Court itself. With very limited mandatory jurisdiction left, virtually all of the cases the Court hears come from the discretionary issuance of writs of certiorari which themselves require no justification, oral or written, to be provided to Congress or to the people Congress represents. This completely undermines one of the primary sources of the departmental weakness that balances the judiciary’s independence—given the austere restrictions on its capacity to proactively design a politically motivated agenda it can only do so much harm. However, the Court is routinely sent nearly ten thousand requests for writs of certiorari a year and only chooses to hear roughly one percent of them—this effectively means they can choose to decide whatever kind of case, or pronounce upon whatever kind of controversy, they so desire. Powerful empirical evidence for the shift in the Court’s own understanding of its mission can be found in the way in the way it now delivers decisions: as Michael Schwartz has argued (Our Fractured Supreme Court, Policy Review, February/March 2008), the number of dissenting positions issued since the early 1940’s has increased seven times while unanimous positions, or even opinions of the court sans dissenting or concurring positions has all but disappeared. In other words, the Court has become so enamored with its deliberative importance it no longer seems to take seriously its job to settle concrete legal disputes by setting unambiguous precedent. The Court proclaims publicly on many issues but now seems impotent to render the kind of legal or philosophical judgment that decisively settles any dispute—they create chaos among the legal profession hungry for specific guidance and frustration among a citizenry that finds fundamental debates like abortion pilfered from the public theater and then, without any real satisfaction, speciously declared solved.

Hamilton certainly believed that the often hyper-technical character of constitutional interpretation would preclude easy public access to the details of the ensuing debates since such access would presuppose a knowledge of “rules and precedents” that would require “long and laborious study” to master (Federalist #78). The existence of an independent judiciary is, at least partially, a response to the problem that the complex body of law necessarily means that there “can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges”. However, he also tell us that the “rules of legal interpretation” are essentially identical to the “rules of common sense” and that even when legal “maxims” have a “precise technical sense” it is still the case that the “natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction” (Federalist #83). In The Common Law, Holmes understood that sometimes these densely specialized problems might even require judges to “renovate the law” and to exercise the “sovereign prerogative of choice” to determine its meaning but he also understood this power to be legitimately exercised “only interstitially”, or in the small spaces of ambiguity that require some judicial remedy. In this sense, judges are certainly technicians but certainly not technocrats and their work is always guided by Madison’s “fundamental maxim of republican government which requires that the sense of the majority should prevail (Federalist #22). Moreover, the people may not have the deepest or most erudite knowledge of the constitution but as the “granters of the commission” they “alone can declare its true meaning” (Federalist #49).

Even if it is the case that our novel, maybe inimitable form of constitutional republicanism has a tendency to collapse the distinction between philosophy and law, or to understand disputes about the law as provocations to philosophical debate, Madison still maintained that the two were distinct. On the one hand, he seemed to believe that the problem of an abiding respect for written law could be solved if there were a greater dispensation of reason to the public: “In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato” (Federalist #49). On the other hand, there seem to be limits placed on the on the power of reason alone to rescue us from political tumult: “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob” (Federalist #55). The famous Platonic view that the popularization of philosophic enlightenment would cure what ails us presumes that we are merely rational beings and therefore, that political disagreement, and contests of honor, are nothing but the sum result of irrational error and miscalculation. However, if we are, as Madison often intimates, a combination of logos and eros, of reason and passion, then our deepest problems can never be exclusively philosophical in character nor alleviated by a singularly philosophic remedy. The attempt of a judicial technocracy to wrest the most volatile of political disputes from the legislature and by extension from the people themselves, is a consequence of the misbegotten view that our problems have much more to do with logos than eros, that they can be solved and the public satisfied with the right philosophical calculation, and that they are the race of philosopher kings who will deliver us from the darkness and superstition we visit upon from ourselves.

It is hard to resist the conclusion that the gradual sequestering of debate over constitutional interpretation from the theater of public dialogue is based on a distrust, if not contempt, for the prudence and common sense of ordinary citizens. In this sense, it is truly and deeply technocratic borrowing from Hobbes an utter disdain for “the erroneous opinions of the Vulgar” (De Cive, Ep. Ded.). Even if the understanding of our constitution requires some comprehension of the remarkably philosophical principles of our founding, it is also the case that such principles were espoused as “self-evident” which means, among other things, that they are consistent with the intuitive and pre-philosophical experience we have of ourselves as free moral beings. Thus, one can say that these principles are both lofty and common insofar as they are the moral firmament upon which our government is constructed but accessible to man as man in all times. However else judicial restraint is defined, it must include a recognition that even our most theoretical disputes about the constitution are, if properly framed, open to the informed civic participation of the people, and therefore, the first principle of judicial judgment is an appropriate deference to their common sense and will.

In response to the classic tension between democracy and law, our framers wisely placed the law above the government (Federalist #53) but not above the people; they intended the constitution to be the authoritative statement of the law but never intended the law itself to be exhaustively authoritative in every aspect of our moral lives. The limits of the law and the limits of government are a necessary if unprecedented concession to the limits of citizenship to fully satisfy the soul; the purpose of our law, minimally conceived, is to afford us the freedom and protection to pursue the consummation of our trans-legal and trans-political longings. The extraordinary problem of judicial technocracy today can be discerned in our highest Court’s contradictory tendency to make the law architectonic but to also fashion the law into nothing other than a propadeutic to philosophy. The way in which we make, debate, and obey our laws surely tells us much about our being but we must also remember, as Socrates teaches, that “the law only wishes to be a discovery of being” (Minos, 315a). The often turbid waters of constitutional interpretation necessarily and sometimes appropriately generates opportunities for grand philosophical dispute. However, the primary function of law, at least from the perspective of its gatekeepers, is lucid authority. And when such controversies do inevitably arise, our justices must carefully heed the legislative intuitions and conclusions of the public represented by those who made the law, not only because such respect for consent is demanded by democracy, but because it is demanded by the fact of their human dignity, which makes democracy both possible and defensible.

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