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Triangulating the Constitution.(how liberals and conservatives use the US Supreme Court to achieve their political objectives)
Gary Rosen
Issue: July, 1999

FOR THE better part of this century, there has been no more reliable litmus test in American politics than attitudes toward the Supreme Court. In the now-familiar shorthand, liberals stand for activism in constitutional matters, conservatives for restraint.

In practice, this has meant that liberals view the federal judiciary as an engine for social change, especially on behalf of minorities and those with little economic power. Judges, they maintain, must look at the Constitution at a high level of abstraction, teasing out the fullest implications of principles like "equal protection" and "due process" and of the federal powers described in seemingly narrow provisions like the commerce clause. This approach, in cases stretching from the New Deal to the Warren Court and into the present, has often meant thwarting the will of majorities as expressed through their local or state governments. But as the activists see it, democratic majorities must yield when their actions fly in the face of fundamental liberties.

Conservatives have quarreled not so much with this principle itself as with how liberals define its key terms. In the first place, they argue, there is no more fundamental liberty than democratic self-government, and judges who strike down its results should exercise extreme caution, relying not on vague standards of enlightened opinion but on explicit provisions of the Constitution. The meaning of these provisions, moreover, is not to be found in the philosophical musings of contemporary legal theorists but rather in the concrete history of the Constitution, especially as conceived at the Founding, whose guiding principles were federalism and limited government. By seeking this "original understanding," conservatives assert, judges show proper deference to the sovereign people, the creators of the Constitution and the source of its legitimacy.

But now something remarkable is taking place. The liberal side of the equation appears to be shifting--and, seemingly, in a conservative direction. On the evidence of several new books by leading law professors, some liberals are having second thoughts about the reasoning that has for so long carried forward the liberal constitutional project. Leaving behind their predecessors' distrust of both present-day majorities and the Founding Fathers, these writers have begun to meet conservatives on their own turf. Liberals, too, it turns out, can proclaim their deference to the will of the people and wrap themselves in the mantle of history.

The question, of course, is how they go about it--and also what their academic arguments will accomplish when, as has happened so often in the past, those arguments make their way into the hands of judges.

FROM A political standpoint, the chief vulnerability of liberals in discussing the Constitution has always been the charge of elitism. For several generations, after all, nothing has so united the liberal legal academy as its fear of popular majorities. When it comes to protecting the nation's precious rights and hard-won social entitlements--so the implicit creed has gone--ordinary Americans simply cannot be counted upon.

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It is thus no small thing to find well-known liberal law professors paying tribute to the idea of popular sovereignty. According to Bruce Ackerman, who teaches law and political science at Yale, the people of the United States have always been the central actor in the unfolding of our constitutional system. Indeed, he argues in We the People: Transformations,(*) the second volume of a projected three-volume work, on certain occasions in our history they have engaged in an unusual process of "higher lawmaking." Acting at the behest of leaders impatient both with the constitutional status quo and with the prescribed methods for changing it, the American people have refashioned the political order in an informed, self-conscious exercise of their sovereign authority.

The particular constitutional "moments" that Ackerman has in mind are the Founding, Reconstruction, and the New Deal, and he recounts the decisive events of each in impressive detail. He reminds us, for example, that the terms for amendment described by the Articles of Confederation, under which Americans lived for most of the 1780's, were unceremoniously ignored by the Philadelphia Convention once it had received various tokens of popular support. Similarly, post-Civil War Republicans, operating with the people's blessing after a decisive electoral victory, coerced the Southern states into ratifying the Fourteenth Amendment, the centerpiece of their program to protect newly freed blacks. Finally, Franklin D. Roosevelt "redeem[ed] the voice of the People" through a series of "transformative" appointments to the Supreme Court, eventually winning from the Justices a body of favorable rulings analogous to constitutional amendments and intended to give unambiguous authority to the modern welfare and regulatory state.

The lesson that Ackerman draws from these crucial chapters in our history is that the people should have a more direct way to amend the Constitution than the one the Constitution itself provides in Article Five, with its elaborate requirements for supermajorities at the state and federal levels. He recommends supplementing Article Five with what he calls his "Popular Sovereignty Initiative." Under it, a second-term President would be allowed to propose amendments that, when approved by Congress and then by the electorate in two successive quadrennial elections, would become a formal part of the Constitution. In this way, Ackerman writes, "We the People can reclaim our power to rewrite the Constitution in ways that express our modern constitutional identities. We can become masters of our own house."

AKHIL REED AMAR, a young star of the Yale law-school faculty, goes even farther in recognizing popular authority over the Constitution. In two new books, he sets out to demonstrate, among other things, that the American Founders meant for the people to sit in constant judgment over their government and, when appropriate, to undertake remedial action in their own name.

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In The Bill of Rights: Creation and Reconstruction,([dagger]) the more scholarly of the books, Amar explores in depth the views of those responsible for the first ten amendments. As he correctly observes, the Bill of Rights was intended to mollify fears that the new Constitution would create, in his words, "a monstrous central regime." Thus, of the many amendments proposed by James Madison, the very first declared that "the people have an indubitable, unalienable, and indefeasible right to reform or change their Government." Though this amendment did not make the final cut, its radical essence, Amar contends, is preserved in the First Amendment right of peaceable assembly and in the broad language of the Ninth and Tenth Amendments, which speak of the rights and powers "retained" and "reserved" by the people. Taken together with the Preamble's dramatic opening phrases--"We the People of the United States ... do ordain and establish this Constitution"--these texts suggest to Amar that what the popular sovereign has made, it may "disestablish at will."

The practical upshot of this analysis forms an important part of For the People: What the Constitution Really Says About Your Rights,(**) written by Amar and the journalist Alan Hirsch and intended, as its title suggests, for a more general audience. As Amar and Hirsch see it, the constant invocation of "the people" in the Bill of Rights points to a now all-but-forgotten 18th-century ideal of virtuous, vigilant citizenship. The paramount concern of this "Republican Tradition," as they call it (borrowing a term of art from a prominent school of historians), was to ensure that the people remained firmly in control in the face of a potentially "self-dealing" government.

For Amar and Hirsch, this historical context sheds new light on Article Five, which they, like Ackerman, consider an excessively onerous route to amendment. For them, the significant fact is that Article Five nowhere declares itself the only method for changing our fundamental law. What this means is that a simple majority of the American people, acting outside Congress and the state legislatures, enjoys "the inalienable legal right" to amend the Constitution. Conditions may be placed on this right in order to promote proper deliberation, but fear of rash or oppressive measures should not stand in the way of upholding our most glorious "first principle." For too long, the authors hold, the people's "constitutional muscles" have been allowed "to atrophy through disuse."

A STILL more unconditional endorsement of the people's prerogatives flows from the pen of Mark Tushnet, a professor at the Georgetown University Law Center and a leading figure in the revisionist movement known as Critical Legal Studies. For Tushnet, the great problem with constitutional law today is its focus on the Supreme Court. Indeed, in Taking the Constitution Away from the Courts,(*) he proposes abandoning the very institution of judicial review, under which the Court has final say on matters of constitutionality. Tushnet wants to replace this "elitist" approach, established by Chief Justice John Marshall's famed ruling in Marbury v. Madison (1803), with what he calls "populist constitutional law."
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Under Tushnet's scheme, the judiciary would still resolve ordinary legal disputes, but the Constitution would become a creature of the people's representatives, its meaning no more or less than "what a majority of Congress says it is." Tushnet knows his proposal will be greeted as heresy by his fellow liberals, but he is convinced that their devotion to judicial review is misplaced. After all, even those Court rulings most venerated by liberals have made little difference by themselves. Segregation in the South yielded in the end not to the decision in Brown v. Board of Education (1954) but to the civil-rights legislation of the 1960's; and Roe v. Wade (1973), though overturning abortion laws throughout the states, was decided as it was only because it reflected the "latent" wishes of a majority of Americans. "Looking at judicial review over the course of U.S. history," Tushnet writes, the courts have generally been "in line with what the dominant national political coalition wants."

More fundamentally, Tushnet finds something perverse in giving a small, isolated group of jurists the authority to decide the most controversial issues faced by a democratic society. In such cases, he avers, the Supreme Court usually relies on its "all-things-considered" judgment, weighing today's needs against the demands of history and precedent. But what uniquely qualifies it for this task? Given serious constitutional responsibilities, Tushnet insists, the people and their representatives will assuredly rise to the task.

IF AN emphasis on popular sovereignty is one side of the new turn in liberal constitutional thought, the other is history, an area that has long been the special domain of conservative students of the Constitution--and one that has a more direct bearing on how actual cases are decided. Here, Akhil Reed Amar and Bruce Ackerman are the writers of interest. Both offer a kind of liberal "originalism," anchoring their ideas in narratives that capture, they believe, the distinctive rhythms of our constitutional tradition.

As I have already noted, Amar's The Bill of Rights takes with commendable seriousness the Founding era's view of the first ten amendments. But his account does not stop with popular sovereignty. His broader point is that the Bill of Rights as originally conceived was not meant to protect citizens from the overreaching of every level of American government, only from the newly created national regime. Amendments usually viewed today as ringing affirmations of individual rights sprang, he emphasizes, not from some profound libertarian impulse but from a wish to preserve states' rights and to confine the new national government to its enumerated powers. To take one of Amar's many examples: the First Amendment means precisely what it says when it declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." States could certainly give official support to religion, and many did.

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But matters became considerably more complex in the second great epoch Amar explores: the period of Reconstruction after the Civil War and particularly the campaign for passage of the Fourteenth Amendment. Center stage in his account belongs to John Bingham, the Republican Congressman from Ohio who drafted the amendment's key phrases. For Bingham, Amar shows, newly freed blacks (and their Northern sympathizers) could hope to be secure in the South only if they were guaranteed a full range of civil rights. The solution, as Bingham saw it, was to impose the federal Bill of Rights on the states, a feat achieved, in his eyes, by the Fourteenth Amendment's command that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

According to Amar, this "grand idea" of national privileges and immunities transformed the American constitutional order. The original Bill of Rights, grounded in the principles of federalism and limited national government, took on an entirely new dimension, becoming more "liberal and individualistic" and addressing "the distinct problem of minority rights."

From a legal standpoint, all this makes Amar an energetic advocate of "incorporation"--the controversial doctrine under which the Supreme Court has in fact applied against states and localities most provisions of the Bill of Rights, from free-speech standards to the details of criminal procedure. Amar does not like the slapdash and seemingly unprincipled way in which the Justices have gone about this task, and he differs with them on a few specific matters (surprisingly, he reproves the Court for ignoring the right to keep and bear arms, and roundly criticizes the restrictions it has placed on the conduct of "searches and seizures"). But for the most part, his analysis reaches the same result as the Justices have reached.

In For the People, Amar and Hirsch take this "originalist" message a step farther. Our "Republican Tradition" is still available to us, they maintain; all we need do is to revive certain institutions whose original purposes have been eclipsed by modern ideas.

The first of these is the jury, which, though now primarily considered a safeguard for the accused, was seen by the authors of the Constitution as "a vital public space" where ordinary Americans would come together to learn about their common concerns and reaffirm the government's dependence on their will. For Amar and Hirsch, this not only explains the salience of the jury system in the Bill of Rights, but also points to a number of long-dormant constitutional rights, including the right of jurors both to declare a law unconstitutional and to engage in "nullification"--acquitting a defendant despite the evidence--when justice demands it in a particular case.

No less central to the Founding design, Amar and Hirsch contend, was militia service, held up by the Second Amendment as "necessary to the security of a free state." The point of these locally organized and self-armed military units was not, however, just to supplement regular forces but also to provide the people with an ultimate check on the federal government and promote "their knowledge of and commitment to civic affairs." In our own day, with militias having long since disappeared, these 18th-century doctrines translate into a constitutional right to serve in the military--a right requiring, among other things, the admission of homosexuals into the armed forces and of female soldiers into combat.
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IF AMAR's aim is to provide firm historical support for an expansive notion of federally guaranteed rights, Bruce Ackerman's is to do the same for federal power. Though he devotes hundreds of pages to the extraordinary demands of constitution-making during the Founding and Reconstruction, his main effort is bent toward vindicating the New Deal in all its breadth. Franklin Roosevelt may have made his own constitutional rules, Ackerman concedes, but in so doing he was following in the footsteps of the Founders and post-Civil War Republicans--and no one questions the legitimacy of their "higher lawmaking."

But Roosevelt, as Ackerman would have it, also added something to the precedents set by earlier constitutional revolutions: namely, the insight that the people's sovereign acts need not be recorded in the black-letter text of the Constitution itself. Despite the overwhelming popularity of his activist agenda, Roosevelt opted not to authorize it through the amendment process of Article Five, pointedly refusing to support any of the constitutional changes proposed at the time--including an amendment that would have explicitly empowered Congress "to regulate agriculture, commerce, industry, and labor." Instead, according to Ackerman, Roosevelt effectively amended the Constitution by way of the Supreme Court, naming Justices who understood that on the great question of federal responsibility for the economy, the people had spoken.

Ackerman acknowledges that Roosevelt's modernizing of the Constitution came at a price. Since his day, Presidents have viewed appointments to the Supreme Court as an opportunity to follow his example, nominating jurists who they expect will find new meanings (or revive old ones) in the same familiar text. Unhealthy, too, has been the loss of "crisp markers" indicating exactly when a major constitutional change has occurred, and what its contours are. But that is where Ackerman's "Popular Sovereignty Initiative" comes in: with the President leading the people in bringing about a formal change in the Constitution, we can remedy the defects of Roosevelt's example while preserving its essence.

"WE THE people," "what the Constitution really says about your rights," "taking the Constitution away from the courts"--such rhetoric has long been the stuff of conservative stump speeches and bumper stickers. Does its adoption by prominent members of the liberal legal guild truly signal a new openness to the principles of American self-government and popular rule? Alas, it does not.

What is most curious about the proposals of Ackerman, Amar, and Tushnet is that they do not correspond to any declared wish or discernible need of the popular sovereign in whose name they claim to speak. Though each writer hastens to tear down the obstacles in the way of constitution-making by a simple national majority, none dares to suggest that the people themselves are clamoring for this privilege. There is, in fact, no crisis in our basic political institutions to prompt what Ackerman calls a constitutional "moment."

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Indeed, to the extent that popular dissatisfaction has been voiced with the workings of our constitutional system, the changes proposed in these books promise to exacerbate it. What Ackerman's "Popular Sovereignty Initiative," Amar's "inalienable" right to amend, and Tushnet's "populist" constitutional law have in common is a desire to overcome federalism. All would draw constitutional decision-making away from states and localities and toward the national center, the very trend that has sparked protests in recent decades on issues ranging from pornography and abortion to busing and school prayer.

Amar and Ackerman would do this in a fairly direct way, substituting national referenda on constitutional amendments for the elaborate state-based ratification procedures of Article Five. Tushnet's plan for eliminating judicial review would achieve the same result: although removing constitutional oversight by the federal courts might give states and localities maneuvering room for a time, Congress would quickly take up the slack. What all three refuse to acknowledge is that, insofar as contemporary Americans have concerns about self-government under the Constitution, the critical question is not how best to develop a national standard on a given issue but whether and to what degree a national standard should prevail in the first place.

Amar suggests that his proposal for national referenda would encourage federal judges to strike down laws as unconstitutional, since "We the People" could more easily overturn these rulings if necessary. But under his scheme, local dissent would enjoy no such option: in fact, Amar celebrates the Supreme Court's controversial decision in Romer v. Evans (1996) declaring that the people of Colorado could not amend their state constitution to ban special legal protection for homosexuals. For his part, Tushnet dismisses traditional concerns about federalism with a wave of his hand, declining to surrender the defining issues of public life to "the mere preferences of democratic majorities." For this self-styled populist, as for the liberal "elitists" against whom he purports to argue, states and localities are forever suspect, national authority at once benign and boundless.

NOR DOES the history on offer from the new liberal constitutionalists hold up any better than their proclaimed fealty to the people. Amar's originalism earns much of its credibility from his willingness to recognize that our forebears were gun-toting, churchgoing localists who created a national government almost despite themselves. But all this dissolves quickly in the powerful alchemy he attributes to the Fourteenth Amendment. Though the states may once have been entitled to deal as they saw fit with religion, speech, jury trials, and the like, the American people supposedly changed their minds by endorsing the doctrine of "privileges or immunities." Speaking through John Bingham, they turned a Constitution of limited, federal government into one of far-reaching national rights.
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But did they? Whatever Bingham himself may have had in mind, Amar can point to little evidence that his radical ideas represented anything like a consensus among Reconstruction Republicans. Still less can he demonstrate that the states which ratified the Fourteenth Amendment--the great majority of them Northern--understood themselves to be approving a massive expansion of federal interference in their affairs. Rather, as the Harvard legal scholar Raoul Berger has long maintained, the chief purpose of the privileges-or-immunities clause was to give a clear constitutional sanction to the Civil Rights Act of 1866, guaranteeing the right of blacks to make and enforce contracts, earn a living, sue, and so forth. The very notion that the clause "incorporates" the Bill of Rights did not surface in a Supreme Court opinion--and a dissenting one, at that--until 1947.

Considering Amar's eagerness to discard the older view of the Bill of Rights, it is odd, to say the least, that he and Alan Hirsch rely so exclusively on the Founding generation's principles in their own effort to coin new rights, including the right of homosexuals to serve in the military and of women to serve in combat. Apart from the fact that Madison was clearly opposed to any method of amendment but the one described in Article Five, or that women and homosexuals did not figure much in the 18th-century discussion of militias, it is difficult to see how the peculiar views of the Founding era could be so decisive for Amar if passage of the Fourteenth Amendment did what he says it did. Indeed, to read in succession the two recent books that bear his name is a somewhat dizzying experience, and leaves behind a strong impression of intellectual promiscuity.

As for Ackerman, his version of the broad are of our constitutional history is no less faulty. Whatever one might say of the latitude assumed by the Federal Convention in 1787 and by Reconstruction Republicans after the Civil War, their constitutional efforts culminated in formal and explicit expressions of the people's sovereign will. They did not mistake mere democratic authority, discovered in the course of ordinary politics, for constitutional authority.

This, however, is exactly what Franklin Roosevelt did. For all the ingenuity Ackerman pours into his model of unconventional "higher lawmaking," he cannot overcome a single striking political fact that he himself reports: Roosevelt's popularity was so universal that, if he had thrown his weight behind amendment, he almost certainly could have gained the authority that he chose to extract instead through sheer political muscle. Largely as a result of that fateful decision, controversies over the Constitution since the New Deal have hinged far less on the document's words than on the fierce contest between rival schools of interpretation.

It is precisely because the New Deal and its later progeny have so ambiguous a constitutional standing that Ackerman must ultimately reject the methods by which Roosevelt achieved his "amendments." Future changes, he avers, should be spelled out in unmistakable words of fundamental law--a conclusion noteworthy for its prudence and sense of constitutional propriety but also for its breathtaking inconsistency.
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WHAT, THEN, does the new turn in liberal constitutional thought amount to? One might best think of it as the constitutional equivalent of Clintonism, whose characteristic political technique, dubbed "triangulation," has led liberals to adopt a more responsible public vocabulary indebted to the intellectual toil of conservatives. As such, it is in some respects a welcome development. For all their faults, Ackerman, Amar, and Tushnet are certainly preferable as interlocutors to unreconstructed academic activists like Laurence Tribe or Ronald Dworkin. Still, in constitutional matters as in politics, language and method are only a starting point. Far more important are the integrity with which such tools are used and the purposes for which they are taken into hand.

I have already said something about bow the new liberal writers on the Constitution go about their work; what about their wider purposes? The first of these, of course, is to put the major achievements of liberal jurisprudence on a sounder footing, thereby shielding them from the assaults of conservatives. The essential point to be made about this endeavor--at which, as we have seen, both Ackerman and Amar fail--is that it is largely irrelevant. After all, not even the most conservative members of the current Supreme Court have any intention of, say, declaring unconstitutional the Social Security system or refusing to hear, for lack of jurisdiction, First Amendment complaints brought against localities.

This is a perfectly understandable posture, rooted in the common-sense reasoning of stare decisis, the principle under which the Court respects its own precedents. Difficult though it may be to find a warrant in the Constitution for the astonishing growth of the federal government's reach in this century, one thing is fairly clear: the American people have generally approved of it or, at least, have reconciled themselves to it. Even if the various rights and powers established by New Deal activists and their heirs are not constitutional in any strict sense, the courts do--and should--treat the oldest and least contested of these precedents as settled law. As James Madison finally conceded in supporting the Bank of the United States--an institution that his countrymen had long accepted but which he considered outside the federal government's enumerated powers--there was "a decreasing prospect of any change in ... public opinion adverse to [its] constitutionality."

Where the ideas of the new liberal theorists are not irrelevant--where they stand to do real harm--is in furnishing new and more conservative-sounding rationales for extending the gains of liberal judicial activism. Ackerman's account of the New Deal, for instance, lends itself nicely to the federalism cases that have increasingly made their way onto the Court's docket in recent years. In the most significant of these, United States v. Lopez (1995), a majority, but only a slim majority, held that the commerce clause (the ostensible constitutional source for much of the federal government's modern expansion) does not amount to carte blanche for any policy Congress wishes to enforce against the states. The dissenting liberals in this case were forced to assume an elaborate connection between interstate commerce and a seemingly unrelated local activity; in the future, however, thanks to the labors of Bruce Ackerman, they might simply hold that the New Deal's "amendments" already give the federal government something like plenary authority in promoting the country's general welfare.
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Amar's work possesses even more potential for mischief. Much of what has been called the "rights revolution" in Supreme Court jurisprudence has proceeded under the doctrine of "substantive" due process--an oxymoron of an idea, as even its sympathizers have come to acknowledge, and one that is now all but dormant. Amar's ambitious revival of the privileges-or-immunities clause could breathe new life into liberal efforts to win judicial protection for a whole range of supposed rights. In fact, a change in course of this nature may already be under way.

In May, the Justices handed down a much-discussed ruling in Saenz v. Roe overturning California's limits on welfare benefits for new residents, and the privileges-or-immunities clause made an unexpected reappearance as the basis for the decision. Writing shortly thereafter in the New Republic, Amar found "far-reaching implications" in the Court's choice of text. For her part, Linda Greenhouse of the New York Times, a reliable source of liberal conventional wisdom, speculated in a piece of news analysis that the privileges-or-immunities clause might henceforth offer a "comfort zone" to "moderate Justices," allowing them to defend individual rights while at the same time "shedding the baggage of liberal methodology."

The Court's current batch of "moderate" Justices, disinclined as they have been to invoke the more controversial doctrines of judicial liberalism, may indeed be looking for new ideas. If so, their search is sure to grow more intent if the number of left-leaning Justices on the Court increases, as it almost certainly would under a new Democratic President. A few years hence we just may awake to find a Supreme Court again showing its determination to bring about profound social change--but this time under a carefully applied patina of "conservative" thinking.

(*) Harvard University Press, 515 pp., $29.95. Reviewed by Adam Wolfson in the July 1998 COMMENTARY.

([dagger]) Yale University Press, 412 pp., $30.00.

(**) Free Press, 259 pp., $26.00.

(*) Princeton University Press, 242 pp., $29.95.

GARY ROSEN is associate editor of COMMENTARY and the author of American Compact: James Madison and the Problem of Founding, which has just been published by the University Press of Kansas.