Commentary Magazine


Notes on the Constitution

I

Two diverging traditions in the main-stream of Western political thought—one “liberal,” the other “conservative”—have competed, and still compete, for control of the democratic process and of the American constitutional system; both have determined the direction of our judicial policy at one time or another.

One of these, the contractarian tradition, began with the moderate common sense of John Locke. It was pursued by Rousseau, and it long ago captured, and substantially retains possession of, the label liberal, although I would contest its title to it. The other tradition can, for lack of a better term, be called Whig in the English 18th-century sense. It is usually called conservative, and I would associate it chiefly with Edmund Burke. This is my own model.

These two traditions—contractarian and Whig—converge in their attitudes toward revolutionary activity. Both, for example, are hostile to any civil disobedience designed to redress grievances that is premised on the iniquity or inutility of the political system—that attacks the entire system rather than flaws within it. But except for this significant but delusive convergence, the two traditions tend to go separate ways.

The liberal contractarian model rests on a vision of individual rights that have a clearly defined, independent existence predating society and are derived from nature and from a natural, if imagined, contract. Society must bend to these rights. As John Rawls, the most recent philosopher of this tradition, says, these rights are lexically prior. They condition everything, and society operates within limits they set. Deduced from premises that cannot be questioned closely, they must themselves be deduced by pure reason.

The Whig model, on the other hand, begins not with theoretical rights but with a real society, whose origins in the historical mists it acknowledges to be mysterious. The Whig model assesses human nature as it is seen to be. It judges how readily and how far men can be moved by means other than violent—that is to say, how far they can be moved by government. The values of such a society evolve, but as of any particular moment they are taken as given. Limits are set by culture, by time- and place-bound conditions, and within these limits the task of government informed by the present state of values is to make a peaceable, good, and improving society. That, and not anything that existed prior to society itself and that now exists independently of society, is what men have a right to. The Whig model obviously is flexible, pragmatic, slow-moving, highly political. It partakes, in substantial measure, of the relativism that pervades Justice Oliver Wendell Holmes’s theory of the First Amendment, although not to its ultimate logical exaggeration. Lacking a catechism of shared values, such as religious societies may cherish, it has no choice but relativism. The alternative is the tyranny of some of us over the others.

Without carrying matters to a logical extreme, indeed without pretense to intellectual valor, and without sanguine spirit, the Whig model rests on a mature skepticism. It places enormous reliance on the political marketplace, which may in some measure be, as Holmes was pleased to say, a marketplace of ideas, but one where ideas and the vote are not the only bargaining units. It is a market that is in continuous, not only quadrennial or biennial, session. As was true even for Holmes, the Whig system is not altogether value-free. The unexamined life, said Socrates, is not worth living. Nor is it bearable. To acknowledge no values at all is to deny a difference between ourselves and other particles that tumble in space. The irreducible value, though not the exclusive one, is the idea of law. Law is more than just another opinion, not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.

The contractarian model, in contrast, is committed not to law alone, but to a parochial faith in a closely calibrated scale of values. It is moral, principled, legalistic, ultimately authoritarian. It is weak on pragmatism, strong on theory. For it, law is not so much a process, and certainly not a process in continual flux, as it is a body of rules binding all, rules that can be changed only by the same formal method by which they were enacted. The relationship between the individual and government is defined by law, as is the entire public life of the society and, indeed, the society itself. Law has its origins in a contract, an imagined legal transaction. The concept of citizenship is, therefore, central, defining the parties to the original contract and the membership of the society.

This concept of contract was basic to Chief Justice Roger Brooke Taney, who wrote the decision of the Supreme Court in the Dred Scott case and who was a liberal. It was basic to the Earl Warren Court, which used virtually the same language Taney had used. The repetition was unwitting, but not accidental. For in the contractarian model, citizenship is the relationship between some individuals and the state. The United States would correspond much more closely to the contractarian model today if its constitutional development had taken place under the privileges-and-immunities-of-citizens clause of Section 1 of the Fourteenth Amendment, instead of, as it did, under the due-process and equal-protection clauses. There would have been a more theoretical evolution of abstract rights, tending to the absolute and presumed to have an independent prior existence, rather than the pragmatic development that did occur. Words and concepts, such as those of due process and equal protection, are only words and concepts, to be sure, but they breed attitudes, they tend toward a mind-set, they influence future thought and action.

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In the political process, majoritarianism is everything for the liberal contractarian. The vote is all important, the franchise must be universally available, absolute equality of the vote and equality of the size of constituencies are essential. Speech must be wholly untrammeled, for it is the engine of the majoritarian political process. A bright line is drawn between speech and conduct, because conduct is not politically significant. It has no part in the formation of law, which is entirely legislative and litigious and depends on speech alone. It is also no accident, then, that the Warren Court loosened those procedural and jurisdictional rules which require concreteness, actuality, and immediacy in the clash between state law and a supposed higher federal law, before permitting litigation of the validity of state law itself. In the political process of self-help that violates the local law in order to invoke the higher authority (a process invited by the rules that were relaxed by the Warren Court), conduct rather than mere speech is critical. The Warren Court permitted litigation at earlier stages, thus disinviting what the rules have a tendency to invite, disobedience of local law. Do not engage in self-help, the Warren Court was saying: litigate at the earliest possible opportunity. And, otherwise, vote.

Majoritarianism, like the market theory of the First Amendment, presents a dilemma and a paradox in contractarian thought. To use the economist’s term, it presents a problem of market definition. A realistic majoritarianism makes sense only in the smallest kind of city-state constituency. The town meeting is the paradigm. James Madison thought that in a small constituency real and coherent and continuous majorities are possible, and that they are dangerous because they are likely to tyrannize the minority. For this reason he thought well of the Union, which enlarged the American constituencies to national size, thus making majorities less coherent. For contractarian theory, this enlargement of the constituency is necessary if reliance is to be placed on majoritarian decisions. After all, what kind of a marketplace of ideas is it if it is restricted to a town meeting in Hamden, Connecticut? Such a small marketplace is unlikely to ventilate all ideas and to make a choice that deserves to be relied on as true or valuable, or that deserves to be enforced. The truth that a handful of people find in their own small marketplace may be their truth; a claim of universal validity for it will be difficult to make, however. And as the constituency is enlarged, majoritarianism steadily loses all reality as a policy-making mechanism. It becomes, as Madison foresaw, one mechanism in the complex system Professor Robert Dahl has described as rule by collections of minorities from time to time.

The First Amendment presents a similar dilemma. As audiences grow into mass audiences, it is more and more difficult to assume that they can be reasoned with, and to assume that in the marketplace of ideas truth will drive out error and good counsel prevail over bad. It is the paradox of liberal contractarian moralism that society must bend to a catechism of principles, hence a moralism not a little infected with authoritarianism. Yet among its principles are egalitarianism, popular sovereignty, and free speech, which can produce outcomes contrary to the authoritarianism the catechism implies. Rousseau resolved this paradox by resort to the notion of a general will, a fundamentally anti-democratic notion. Even so, the approving, indeed enchanted, historian of the Enlightenment, Peter Gay, must allow that Rousseau’s ideas, while fine as criticism, “are at best unrealistic and at worst pernicious” as a constructive program. Rousseau, Professor Gay continues, “tells us that freedom and equality, far from being incompatible, are indispensable to each other; that the political public must be absolutely general; and that institutional forms are less important than the moral and social foundations of citizenship. But Rousseau is not the philosopher of the democratic state, which rests on the very tensions that Rousseau wants to abolish.”

When the aims of the democratic movement, as Rousseau conceived them, conflicted with majoritarianism and the democratic state, Rousseau escaped, or at least his followers did, into authoritarianism and the anti-democratic state. In our system the liberal contractarian finds his escape in the Constitution, which, speaking through the Supreme Court, limits majority rule. The liberal contractarian sought to end the Vietnam war by urging that the Court declare the war itself unconstitutional. This effort failed, not because the war was not unconstitutional—in my view, President Johnson did exceed his constitutional authority in extending the war—but rather because, as a practical matter, resort to political rather than judicial government seemed the better remedy. The political decision to commit the nation to full-scale war was rejected politically, and the consequence was a strengthening of the process of consent.

In the liberal contractarian view, the limits on majority rule through appeal to the Constitution tend to be absolute, timeless, in response to the resistance of a majority, or even a minority. Most of life is seen in moral rather than prudential terms. None of the pragmatic skepticism so salient in the Whig model infects the Constitution of the contractarian. This was Justice Hugo Black’s Constitution, a storehouse of principles, inflexible and numerous. Hugo Black was himself a man of fiercely held principles. He believed in law—pervasive, positive, virtually all-encompassing law—which secured and defined the rights of the citizen and enclosed and regulated his life. He could find no right of privacy in the Constitution at all, and, perfectly consistently, could not accommodate himself or his legal universe to extra-legal political and social action. His vision was of a legalitarian society. He was a judicial activist, quick to regulate what seemed disordered and unruly. He was indeed an imperialist of law, judicial and majoritarian law both, for like Taney, he was also a populist who resolved the tension between legalitarianism and populism by force of will.

Justice Black was, in everything but blood, and for all we know in that, too, a direct lineal descendant of Andrew Jackson, another populist and a great majoritarian democratizer, but who wrote in a letter in 1821: “I have an opinion of my own on all subjects, and when that opinion is formed I pursue it publickly regardless of who goes with me.” Black could have said as much. Nothing is easier for strong-minded, passionate men, the true believers, who are given, in a phrase of Richard Hofstadter, to “self-assertive subjectivism”—nothing is easier for such men than to attribute their passionate beliefs to a monolithic abstraction called the People or the Constitution. The Warren Court in its heyday was Hugo Black writ large.

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II

Since few principles are inscribed sharply in the Constitution itself, the Supreme Court, speaking in the name of the Constitution, fills, in part, the need for “middle-distance” principles of the kind advocated by Edmund Burke in the 18th century. It proffers, with some important exceptions, a series of admonitions, an 18th-century checklist of subjects; it does this cautiously and with some skepticism. It recognizes that principles are necessary, have evolved, and should continue to evolve in the light of history and changing circumstance. That—and not Hugo Black’s—is the Constitution as the Framers wrote it. And that is what it must be in a secular democratic society, where the chief reliance for policy-making is placed in the political process.

The Constitution, said Justice Holmes in a famous dissent in 1905, “is made for people of fundamentally differing views.” Few definite, comprehensive answers on matters of social and economic policy can be deduced from it. The judges, themselves abstracted from, removed from political institutions by several orders of magnitude, ought never to impose an answer on the society merely because it seems prudent and wise to them personally, or because they believe that an answer—always provisional—arrived at by the political institutions is foolish. The Court’s first obligation is to move cautiously, straining for decisions in small compass, more hesitant to deny principles held by some segments of the society than ready to affirm comprehensive ones for all, mindful of the dominant role the political institutions are allowed, and always anxious first to invent compromises and accommodations before declaring firm and unambiguous principles.

Yet in the end, and even if infrequently, we do expect the Court to give us principle, the limits of which can be sensed but not defined and are communicated more as cautions than as rules. The professional explication of principle is disciplined, imposing standards of analytical candor, rigor, and clarity. The Court is to reason, not feel, to explain and justify principles it pronounces to the last possible rational decimal point. It may not itself generate values, out of the stomach, but must seek to relate them—at least analogically—to judgments of history and moral philosophy. We tend to think of the Court as deciding, but more often than not it merely ratifies or, what is even less, does not disapprove, or less still, decides not to decide. And even when it does take it upon itself to strike a balance of values, it does so with an ear to the promptings of the past and an eye strained to a vision of the future much more than with close regard to the present. Burke’s description of an evolution meets the case: to produce nothing wholly new and retain nothing wholly obsolete. The function is canalized by the adversary process, which limits the occasions of judgment and tends to structure issues and narrow their scope to manageable proportions.

In 1905, when Holmes wrote the Lochner dissent, the Justices were grinding out annual answers to social and economic questions on the basis of personal convictions of what was wise—derived, as it happens, from the laissez-faire philosophy of Herbert Spencer. That would not do, Holmes told them, and it did not, although it took thirty years for a majority of the Justices to see it, and Holmes was gone by then. None has reread Herbert Spencer into the Constitution since, but in the 1960′s a majority of the Justices, under Earl Warren, again began to dictate answers to social and sometimes economic problems. The problems were different—not regulation of economic enterprise, not labor relations, but the structure of politics, educational policy, the morals and mores of the society. And the answers were differently derived, not from Spencer’s Social Statics, but from fashionable notions of progress. Again, it may take time before the realization comes that this will not do.

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On January 22, 1973, the Supreme Court, paying formal tribute to Holmes’s 1905 dissent but violating its spirit, undertook to settle the abortion issue. In place of the various state abortion statutes in controversy and in flux, the Supreme Court prescribed a virtually uniform statute of its own. During the first three months of pregnancy, the Court decreed, a woman and her physician may decide on an abortion quite free of any interference by the state, except as the state requires the physician to be licensed; during the second three months the state may impose health regulations, but not forbid abortion; during the last three months, the state may if it chooses forbid as well as regulate. That may be a wise model statute, although there is considerable question why the Court foreclosed state regulation of the places where the abortion is to be performed. The state regulates and licenses restaurants and pool halls and Turkish baths and God knows what else in order to protect the public; why may it not similarly regulate and license abortion clinics, or doctors’ offices where abortions are to be performed?

But if the Court’s model statute is generally intelligent, what is the justification for its imposition? If this statute, why not one on proper grounds of divorce, or on adoption of children? Medical evidence, the Court tells us now, shows that abortions during the first three months of pregnancy present no great risk. Well and good. It is also clear that the fetus is not a life in being at the early stages of pregnancy, is not entitled to constitutional protection, and the Constitution cannot be construed to forbid abortion. Well and good again. But the fetus is a potential life, and the Court acknowledges that society has a legitimate interest in it. So has the individual—the mother, and one would suppose also the father; an interest that may be characterized as a claim to personal privacy, which in some contexts the Constitution has been found to protect. The individual’s interest, here, overrides society’s interest in the first three months and, subject only to health regulations, also in the second; in the third trimester. society is preeminent.

One is left to ask, why? The Court never said. It refused the discipline to which its function is properly subject. It simply asserted the result it reached. That is all the Court could do because moral philosophy, logic, reason, or other materials of law can give no answer. If medical considerations only were involved, a satisfactory rational answer might be arrived at. But, as the Court acknowledged, they are not. Should not the question then have been left to the political process, which in state after state can achieve not one but many accommodations, adjusting them from time to time as attitudes change? It is astonishing that only two dissented from the Court’s decision, although Justice Potter Stewart noted in his agreement, presumably with some discomfort, that the decision joined the long line of earlier cases imposing judicially-made social policy to which Holmes had objected. The dissenters were Justices Byron White and William Rehnquist. The Court’s decision was an “extravagant exercise” of judicial power, said Justice White; it was a legislative rather than judicial action, suggested Justice Rehnquist. So it was, and if the Court’s guess on the probable and desirable direction of progress is wrong, that guess will nevertheless have been imposed on all fifty states.

Normal legislation, enacted by legislatures, not judges; is happily less rigid and less presumptuous in claims to universality and permanence. The claim to universality and premanence is illusory in any case, for the ongoing political process which follows upon the declaration of law is another discipline the Court is subject to. Yet the Court is not excused in transgressing all limits, in refusing its own prior discipline, for in its initial process of law formation the Court is riot under the discipline of the political process. Neither the Court nor its principles directly originate there. The discipline is subsequent.

Such is the Court’s function under the Constitution of open texture, as it is aptly called. There is another Constitution as well; I will call it the manifest Constitution; it is the Constitution of structure and process, not of due process or equal protection, and certainly not of metaphysical privileges and immunities. More theory has to be poured into it than can be extracted; it is the Constitution of the mechanics of institutional arrangements and of the political process, of power allocation and the division of powers, and the historically defined hard core of procedural provisions, found chiefly in the Bill of Rights. These hardcore provisions, as Felix Frankfurter once wrote, have a relative “definiteness of terms” and “definiteness of history,” derived from the specific grievances the Framers meant to redress. In establishing the power of judicial review in 1803, in Marbury v. Madison, vesting the Supreme Court with value-definition exercised in the name of the Constitution, John Marshall spoke of the Constitution as law, and reasoned that when it is properly invoked before them in a case, judges must enforce it. He spoke as if most of it were manifest, and suggested later that where it is open-textured it confers little if any power on judges.

Matters have turned out quite the other way around. The judges have little to do with the manifest Constitution; they chiefly exercise power by invoking its open texture. But Marshall was right in his view that the manifest Constitution is law, and a special kind of law at that, imposing a duty to obey of the sort that does not definitely attach, except broadly, in the aggregate, to other general law in our system, and imposing it most particularly on all officers of government, state and federal, who by Article VI are oath-bound to support the Constitution.

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There is a moral duty, and there ought to be, for those to whom it is applicable—most often, officers of government—to obey the manifest Constitution, unless and until it is altered by the amendment process it itself provides for, a duty analogous to the duty to obey final judicial decrees. No President may decide to stay in office for a term of six years rather than four, or, since the Twenty-second Amendment, to run for a third term. There is an absolute duty to obey; to disobey is to deny the idea of constitutionalism, that special kind of law which establishes a set of preexisting rules within which society works out all its other rules from time to time. To deny this idea is in the most fundamental sense to deny the idea of law itself.

The liberal contractarian tradition, as Justice Black represented it, posits a duty to obey judicial decrees, and beyond that a duty to obey the manifest Constitution, and a further duty to obey the general law the Court makes in the open texture. And yet the manifest Constitution presents problems, just as popular sovereignty does in its way. For the contractarian liberal is a moralist, and the moralist will find it difficult to sacrifice his aims in favor of structure and process, to sacrifice substance for form. Yet process and form, which is the embodiment of process, are the essence of the theory and practice of constitutionalism.

I have shared, and do share, the tendency of the liberal imagination to respect the moral claims of justice against the status quo. Yet I insist more strongly, even passionately, quite as if I were talking about justice, on a politics of the computing principle, which Burke urged upon us. It seems to me to make everything else possible. Without it, in the stark universe of imperatives, in the politics of ideal promises and inevitable betrayals, justice is not merely imperfect, as under the computing principle, but soon becomes injustice.

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