Monday, December 08, 2008

Who's Afraid of the Shadow Constitution?

There is a tendency in constitutional scholarship to posit the existence of a shadow constitution lurking behind the written constitution. Sometimes the shadow constitution refers to natural law. In other cases, the shadow constitution consists of presuppositions, postulates, or tmpphp9cwxfb1.jpgaxioms which give the United States Constitution meaning or provide the necessary elements in constitutional reasoning. The basic idea behind the shadow constitution is that the written constitution is insufficient to yield answers except in uninteresting cases in which meaning is never challenged, such as the clear rule that each state has no more nor less than two senators to represent them in Congress. (I have argued in Constitutional Revolutions and elsewhere that no constitutional provision completely defies hypothetical circumstances where their meanings would be radically altered.) That aside, because the Constitution cannot do all we ask of it, constitutional scholars invent theories and concepts to render the actual Constitution viable. Even so-called textualists and originalists cannot escape hypothesizing a shadow constitution. The question usually skirted by shadow constitutionalists is just how we identify the shadow constitution in cases of reasonable disagreement. Without an answer to this question shadow constitutionalists are just whistling in the dark.

Not only does reasonable disagreement apply to controversial constitutional decisions, it also applies to the methodological and theoretical foundations of constitutional law. While there exist relatively easy cases whose truth is fairly obvious, the more interesting controversies involve intractable conflicts in the so-called "culture wars" as well as fundamental disagreements in the philosophy of constitutionalism. Yet, American constitutionalism persists in pretending that there exist right answers--even sometimes one right answer--to constitutional controversies. This blindness is required by the arcane notion that a relatively modest distinction between law and politics warrants a separate branch of unelected, life-tenured, officials to determine the compatibility of legislative conduct and the Constitution.


Blogger Patrick S. O'Donnell said...

I happen to believe something on the order of Natural Law principles serve as philosophical and moral presuppositions (or, properly understood, as axioms) that buttress the Preamble and the Bill of Rights but I don't belive in what you term a "shadow constitution" as defined: "the written constitution is insufficient to yield answers except in uninteresting cases in which meaning is never challenged, such as the clear rule that each state has no more nor less than two senators to represent them in Congress." These natural law principles (in a very loose sense, I suppose we could call them the 'theoretical foundations' of constitutional law) are simply too general and abstract to perform the kind of work this conception of a shadow constitution would ask of them. And these natural law principles are best seen in the so-called liberty-bearing provisions of the Constitution and serve to account for what Lawrence Sager calls a "justice-seeking account of constitutional practice" (and accords with his statement that 'to function effectively as the political conscience of a democratic people, a constitution's liberty-bearing precepts must be spare, durable, and relatively nonnegotiable').

With Sager, I (apparently) have a far more optimistic (some might say naive because idealized) and collaborative picture of the judicial branch in mind. As he notes,

"there are structural features of a constitutional judiciary that make it a promising environment for the contestation of rights. An appreciation of those features has led an extraordinary number of modern democratic states to adopt written constitutions and empower some judicial entity or entities to enforce the constitution. [....] There are at least three qualities of constitutional courts and judges that hold distinct epistemic promise. First, constitutional judges are, in at least two senses, impartial. In most modern constitutional regimes, high court judges are not elected and hence are not vicariously attached to the immediate interests--personal or political--of members of their political community. Morevoer,...judges are obliged by the protocols of adjudication to attend to comparatively general and comparatively durable principles--principles that apply to a variety of different circumstances. As a result, judges are affected in a variety of conflicting and diffuse ways by the cases before them [first of all, because the formal nature of the principles finds them serving as side-constraints, thus not to be used in any deductive sense with regard to application or action; secondly and relatedly, their generality or universality means they need not mandate uniform treatment, indeed, they may require differentiated treatment: the indeterminacy of principles leaves room for differentiated application; thirdly, and due to this role as side-constraints, principles applied to cases require judgment and deliberation (i.e., they are not action-guiding in any algorithmic sense); lastly, principles may of course conflict in application and thus often involve trade-offs]. [....]

Second, constitutional judges pursue a function that is specialized and redundant. They are like quality control inspectors in, say, an automobile plant. [....] [T]he quality control inspector has only the job of assuring that the cars which leave her plant are well built. Her role is focused and singular and comes on top of the efforts of the people who actually put the cars together. Constitutional judges are like that. Their mission is singular--to identify the fundamentals of political justice that are prominent and enduring in their constitutional regime and to measure legislation or other governmental acts by those standards. And their mission is redundant--they enter the process only after legislators have themselves considered the constitutional ramifications of proposals before them.

And third, constitutional judges, as an aspect of the practice of common law adjudication, engage in what some philosophers [well, Rawls in particular] describe as reflective equilibrium. A thoughtful judge has to move back and forth between general propositions and specific cases, with the goal of finding those general propositions that seem satisfactory as the basis for her decisions over the run of cases. Judges have to settle on propositions that both account reasonably for past decisions and chart an attractive course for future decisions. This, broadly speaking, is stare decisis doing its job. [....]

Constitutional judges are emphatically not not a natural or constructed elite, endowed with unquestionable expertise. But their role--their function--may well give them a distinct epistemic advantage. [....]

[In short], [c]onstitutional adjudication embodies a distinct process that is itself fair and democratic, fair and democratic in a way that popular institutions cannot realistically be." (From Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice, 2004).

12/08/2008 5:17 PM  
Blogger Robert Justin Lipkin said...

I can't respond to all of Patrick's thoughtful post. Let me just pick on Sager instead as I do in recent piece entitled "What's Wrong with Judicial Supremacy? What's Right About Judicial Review? Legislators are often inclined to sign on to a bill that they believe to be unconstitutional or just not good policy. But justices also are inclined to decide cases not because there's a neutral, impartial standard that they are enforcing, but rather because they identify their own idiosyncratic values with that neutral, impartial standard. At least there's accountability for legislators, but not alas, for justices. Hence, if accountability must play a significant role in democratic theory, I'll take my chances with legislators.

Finally, in a free society reasonable disagreement--consisting of essentially contested concepts (Gallie), the burdens of judgment (Rawls), and the distinction between deliberative and dedicated constructs (me)--will be dispelled only in the most uninteresting cases. Thus, appeals to natural law will fail to bring consensus and therefore will have a limited role, if any, in resolving controversial moral or constitutional conflicts. But, of course, much more needs to be said about all these issues.

12/09/2008 3:10 PM  
Blogger Patrick S. O'Donnell said...

I've yet to read Professor Lipkin's paper, which I should probably do before commenting further (I was going to read it even if Larry Solum did not give it his imprimatur at the Legal Theory Blog: that he in fact did so is not at all surprising), but I sometimes do what I shouldn't, and this is one of those times.

Professor Lipkin's argument is in august company: Larry Kramer, Mark Tushnet, and Jeremy Waldron come to mind (if I'm not mistaken) as among those of late decrying what they perceive as the lack of democratic accountability with the judiciary (and the Marxist in me should be predisposed to find their critques of the highest judicial branch persuasive). I'll only state here that I think the notion of accountability being relied on is democratic in a loosely populist sense and that one can articulate a Liberal or Republican theory of accountability or, better, a moral and epistemological defense of accountability in the *spirit* of the Federalist papers that may be "indirect" compared to its populist (or legislative) counterpart (so perhaps more about justification and legitimacy than accountability sensu strictu or in the conventional sense), but one no less valuable for a democratic polity that relies on constitutional law and order. I would, in part, endeavor to elaborate something on the order of a Rawlsian defense of the Supreme Court as an "exemplar of public reason" (cf. Rawls's 'The Idea of Public Reason' in James Bohman and William Rehg, eds., Deliberative Democracy: Essays on Reason and Politics, 1997: 93-141; I don't think the essays suffices for a full defense, but it's a start). At any rate, I'm quite sympathetic to these recent critiques: I just find the cures proffered to be worse than the diagnosed afflictions and thus the Confucian (or even the Platonist) in me trumps the Marxist on this question. The ubiquitousness of "pathologies of deliberation," the susceptibility to cognitive biases, shortcomings in reasoning (via formal amd informal logical fallacies), the proclivity for passions that subvert the aims of rationality, indeed, the widespread "pathology of normalcy" (Erich Fromm), together suggest we should not be enchanted by the siren call of recent variations on the theme of the "will of the people."

Also, I generally agree with the remarks about political conflict and disagreement, seeing that as something we have to live with, rather than everywhere and always something in need of being overcome.

Finally, I'll admit that I'm out of my league, as I lack the background and training that would allow me to engage in a vigorous debate with Professor Lipkin on some of the questions broached here: hence my easy deference to Sager. My thoughts on these topics are largely intuitive and rather inchoate at present, but perhaps some day I can flesh them out further and Professor Lipkin and I can continue this discussion (thereby deserving the generous characterization of my post).

12/09/2008 5:31 PM  

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