Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Quelling Jurists' Imprudence

Spring 2000

Mark Tushnet
Princeton University Press, 1999 xii + 242 pgs.

Like most readers of The Mises Review, Professor Tushnet is fed up with the Supreme Court. I doubt, though, that his complaint against the Court will have much resonance with most of my readers.

Mr. Tushnet thinks the Court is insufficiently leftist. The Court has, in recent years, limited affirmative action programs and declined to consider welfare benefits as rights. What is to be done?

Our author responds by throwing into question the supremacy of the Court as an interpreter of our basic law. Why need those who differ with the Court's interpretations accede to them? Indeed, why grant the Court at all the power to declare laws unconstitutional?

It is here that the main value of the book resides. In general, his arguments do not depend on his leftist political views. Those of us who think of the Court as a major tool of the left can take over much of what he says: "My argument takes as its audience liberal supporters of judicial review, largely because they have been the most prominent defenders of judicial review in recent decades. The conclusion I offer...is equally applicable to conservative defenders-or critics-of judicial review" (p. 215).

Suppose that you are an official in California faced with enforcing Proposition 187. This, in part, denied free public education to children of illegal immigrants. "A federal court promptly held this part of Proposition 187 to be unconstitutional and barred state officials from enforcing it" (p. 6). (The federal court applied a Supreme Court precedent.)

Suppose further that you disagree with the court's ruling: you think that Proposition 187 is constitutional. (Mr. Tushnet does not add, as he should, that you are right.) Should you obey the court?

To some, the answer is obvious: the Supreme Court (and lesser courts beneath it) say what the law is, and that is that. Roma locuta, causa finita est. But why accept this view? Your oath is to obey the Constitution, not the Supreme Court's interpretation of that document. The Court, admittedly, has since Cooper v. Aaron (1957) said that its interpretation is final; but so what?

We cannot say that the Court's pronouncement by itself settles the matter without begging the question. Only if the Court is final does its statement that it is preclude further discussion.

But does not rejection of the Court as final quickly lead to anarchy? A well-ordered society needs to have fixed basic rules. Without them, collapse into chaos impends. Thus, our imagined official should swallow his doubts and conform to the dictates of our judicial masters. Professor Larry Alexander and Frederick Schauer have given the best recent defense of this position, but our author has found a key flaw in their argument.

As he points out in his brilliant critique of them, from the claim that a stable system of basic law is needed, it does not follow that the Supreme Court is the fit agency to provide this. "Alexander and Schauer appear to argue that the rule of law entails their version of judicial supremacy.... But their argument actually supports a rather different conclusion. What they establish is that the rule of law entails that a legal system have a set of institutional arrangements sufficient to ensure the [necessary] degree of stability" (p. 27).

The next question is apparent. What institutional arrangement is best fitted to bring about the needed degree of order? Mr. Tushnet maintains, reasonably enough, that this question admits of no a priori answer. Only an empirical investigation can help us. Our author finds little reason to think that the Supreme Court, rather than Congress, is best suited for the job.

We must, Mr. Tushnet thinks, have a reasonably stable way of arriving at constitutional interpretations. But he next takes a more questionable step. He denies that there is an objectively correct way to understand what the constitution says. He is, I fear, a zealous member of the Critical Legal Studies movement.

According to these legal deconstructionists, laws have no fixed meanings. All enactments are subject to conflicting interpretations, these interpretations to yet further controversies, and so on forever.

Our author's radical conclusion does not give what to my mind is the correct view a run for its money. The Constitution, I should have thought, means what its drafters and ratifiers intended it to mean; and, fortunately, the main constitutional disputes on this theory admit of ready settlement. The original intent that this theory mandates usually can be discovered. Professor Tushnet himself provides an excellent example to make my case. He refers to "something close to a consensus" among legal academies that the Second Amendment "really does create an individual right" to own guns (p. 30). If original intent can be fixed here, why not elsewhere?

Tushnet raises a problem for originalism, but his difficulty is not insurmountable. He rightly claims that true originalists could not accept the court's decision in Brown v. Board of Education. "One difficulty for adherents of original understanding is that the very Congress that submitted the Fourteenth Amendment to the states for ratification also supported segregated schools in the District of Columbia. Another is that the Amendment's opponents routinely said that it would lead to integrated schools, and its supporters routinely replied that it would not" (p. 156).

Our author, sensing victory, hurries to administer the coup de grāce. How can originalists accept Bolling v. Sharpe, which outlawed segregation in the District of Columbia? "The only relevant constitutional provision the Court could invoke was the due process clause of the Fifth Amendment, adopted in 1791. And, whatever we can say about Congress in 1868, it is surely impossible to believe that the framers of the Fifth Amendment, many of whom owned slaves, thought that they were somehow making segregation by the national government impossible" (p. 157).

But what, other than political correctness, is the problem? Why should the originalist want to accept these two decisions? To reject them hardly commits one to approval of racial segregation. Tushnet himself notes elsewhere, with apparent agreement, the view that the effects of the Court's decision in Brown should not be overestimated.

To return to our author's successes, he has, I think, successfully shown that we do not need an authoritative Supreme Court to obtain stability. But what role, if any, should the Court have in constitutional interpretation? Mr. Tushnet's answer is surprising, given one of his contentions.

He maintains that, in the long run, the Court's decisions make little difference; as one might expect, he trots out Mr. Dooley's "The Supreme Court follows the election returns" (p. 134). One would have thought he would argue that it does not matter what role in interpretation the Court is assigned.

He sees matters otherwise. Even if the Court does not in practice have much effect, nevertheless eliminating judicial review holds much promise. It will promote a "populist jurisprudence" in which the people interpret the constitution for themselves.

Mr. Tushnet's populism strikes me as more than a little odd. He cleaves the Constitution in two. The "thin constitution" carries out the ideals of the Declaration of Independence; the First Amendment is a paradigm instance of what this part of the document includes. The "thick constitution" includes procedural matters, e.g., the rule that senators serve six-year terms. Only the thin constitution binds us, on the strange ground that people would probably not risk their lives for the details of the thick constitution. Probably not; but why does this fact cancel the legal force of these provisions? Also, why does Tushnet think that the equality clause of the Declaration of Independence, in Jefferson's interpretation, refers "only to men and owned slaves" (p. 11)?

This book contains many useful and provocative ideas, but I suppose that in a work written by a Marxist and Critical Legal Studies partisan, one must expect at least some wackiness.


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