"Staying the Course" in Reforming the Constitution

American democracy is driven by the engine of judicial constitutionalism. At the core of this engine is judicial supremacy. According to the doctrine of judicial supremacy, the Court (almost always) gets the last word in resolving hot-button constitutional controversies. Of course, the absolute last word rests with the people should they wish to overrule the Court through Article Five. The problem with Article Five, however, is that it costs too much time and money to be effectively navigated. When a formal mechanism of constitutional change becomes ineffective, smart people stop using it. As a result, informal practices of constitutional transformation develop and take its place. Judicial supremacy is one of those practices and when citizens embrace judicial supremacy it morphs into judicial constitutionalism. Judicial constitutionalism insists, even as it simultaneously it denies, that the Constitution says what the Court says it says. (Whoosh! Try repeating that five times quickly.) Chief Justice Hughes bluntly puts this point: “We are under a Constitution, but the Constitution is what the judges say it is." Once we realize the inevitable truth of Chief Justice Hughes’ sentiment, there is no going back to more a more forgiving era when it seemed that there were clearly identifiable methods for ascertaining the Constitution’s meaning. Arguably then, the conviction that the Constitution has identifiable, determinate, objective meaning is now shattered. And all the king’s horses and all the king’s men can’t put Humpty Dumpty back together again.

Yet, in many circles, the Constitution is still venerated. Because the Constitution is venerated and because the Court has taken the place of an effective constitutional provision for change, judicial constitutionalism informally arises and becomes an entrenched practice. It becomes so entrenched as to be subliminal. Although scholars, disgruntled politicians, special interest groups, and talking heads lampoon the Court when they disagree with its decision in a particular case, few join the chorus of those of us calling for the elimination or reformation of the practice of judicial supremacy.

Such entrenched veneration prevents many thoughtful people from even considering that something might be systemically wrong with the American practice of judicial constitutionalism. Turning a blind eye to the defects in the Constitution is potentially dangerous. If there is something wrong with the Constitution, we need to identify it and then with luck fix it. The United States has survived for over 200 years, and with any luck it will survive at least another 200 years. It makes no sense to resist to the possibility that the American Constitution needs to be jump-started. At the very least we need to take seriously the proposition that American constitutionalism doesn’t come close to warranting the veneration we perfunctorily give it.

Why do republican democrats fall so easily into constitutional denial every time someone suggests that our Constitution is broken? Wouldn't it be remarkable if a Constitution designed by the lights of past constitutional framers should be workable today? Of course, we can insist that it is workable, but saying so doesn’t make it so. And since reflection and self-criticism should be a frequently used weapon in a democrat’s arsenal, why not periodically review our progress towards perfecting or at least improving American constitutionalism. Jefferson favored “a little rebellion now and then.” Perhaps that's neither feasible nor desirable, but critical self-reflection surely is. More starkly, Jefferson also thought that we should regard “each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”

Yet, so many informed Americans have little patience with suggestions for serious attempts at reforming the Constitution. This is a mixed blessing; it’s both good and bad. It is good because it reveals that the populace takes constitutionalism seriously. It is bad because it shows that the populace has not yet been sufficiently exposed to the culture of constitutional democracy, which should valorize persistent, reflective criticism of governmental practices, especially criticism of constitutionalism. Not taking dissent seriously is fatal to a vibrant democracy even when dissent targets its basic charter. Dissent and criticism are valuable first in helping us understand how our current government operates and second in keeping alive the possibility that at some time in the future we will be in a position, if necessary, to transform our current system into a better one. Reformative criticism should apply to each of the branches of the government and to the culture of politics through which American citizens select their leaders and hold them accountable. There is room at the table for self-critical examination of American society and constitutionalism in general. Picking out the Court, for criticism, is neither conceptually nor normatively more important than self-criticizing the other faces of American self-government. Neither is it less important.

Many no doubt will remain unpersuaded. They will say we have enough work to do here and now: war, disease, poverty, the loss of constitutional rights, and so forth. Let’s not worry about significant holistic transformation. Leave the future to fend for itself. This reaction is disappointing and demoralizing. More important, leaving the future to fend for itself means no one will fend for it. And if leaving the future to fend for itself means resisting significant reformative self-criticism, we deprive ourselves of appreciating the current value of reflecting on ideals we wish to embrace now. However, perhaps all we can ever really do is to take care of business now.

In any event, since my interest lies in pursuing ways to end judicial constitutionalism, I want to suggest some possibilities for reforming the role of the courts in American society. One possibility, which should be mentioned and dismissed first, is this: “Stay the course”: As Dr. Frankenstein implored Fritz, his assistant, who enjoyed tormenting the monster, “Leave it alone, Fritz. Leave it alone!” Of constitutional reform we can join Dr. Frankenstein and say: “Leave it alone!” We can “stay the course” and attempt to convince judicial candidates of the importance of adopting the “correct” methodology and of developing the “appropriate” judicial self-discipline. The scare quotes indicate the poverty of such a view. In an essentially contested constitutional democracy, the correct methodology even together with judicial discipline will have radically indeterminate meaning across persons. This strategy has been tried before and every time it has been tried, it failed. There is little reason to have any confidence that it will work today.

Fortunately, there are other possibilities with differing degrees of attractiveness: (1) a legislative override, (2) electing justices, (3) recalling justices, (4) constitutional courts, (5) referenda to override a judicial decision, (6) term limits, and (7) random selection of appellate judges to serve as justices, and so forth. Instead of being mired in endless, unwinnable debates over the correct interpretive methodology, judicial restraint, deference, identifying “clear mistakes” and a plethora of other prospects keeping the constitutional academy busy, some of us should seek alternatives to staying the course.

The above are only starters. Before any attempt at systematically exploring these possibilities becomes plausible, we must overcome what is usefully called “utopia-phobia.” Utopia-phobia is a knee-jerk rejection of any proposal to seek out holistic constitutional reform. Although overcoming utopian-phobia requires more analysis than is possible here, succinctly put the charge of “utopianism” is often used as a great big stop sign preventing us from seeing beyond contemporary strategies or the possibilities of creating new ones to meet future problems about which we can now only speculate. One recommendation: the next time you hear a proposal for holistic reform, wait before you complain “That’s quixotic.” Assess the degree of the problem and the attractiveness of the remedy. In this manner, we might be able to understand whether utopian proposals should play a role in the pursuit of constitutional meaning.

Above all, face up to your own constitutional denial--we all suffer from it--and realize that the greatest fidelity to American constitutionalism requires detecting imperfections contained in the document crafted 200 hundred years ago in "another country."