There was some puzzlement among John Stuart Mills contemporaries that he should publish his tract On Liberty , with its deep concern for the tyranny of public opinion, when the press in England was the freest in the world and the public life of the country was vibrant with controversy in politics and religion. The historian Macauley restored a sense of scale when he remarked that Mill was crying Fire! during Noahs flood.
Readers tuned into the politics and law of our day may find themselves scratching their heads out of a comparable bewilderment if they encounter Professor Mark Tushnets new book, Taking the Constitution Away from the Courts (Princeton University Press). On the surface, the writer would seem to agree with the participants in that controversial symposium on the judicial usurpation of politics in the pages of First Things (November 1996) in making a case for diminishing the power of the federal courts and of judicial review. But in his case, the political motive springs from the left, from a professor of law who has drawn his inspiration more from the world of Marx and the postmodernists than from the tradition of natural law.
And yet, he strikes off here on a course quite discordant with the left in our day. Since the decision in Brown v. Board of Education in 1954, the left has identified itself with the aggressiveness of the courts in imposing a regimen of justice far more strenuous than anything that seemed likely to emerge from politicians, who depend for their offices on the suffrages of the people. Tushnet records with a certain pride his service as a clerk to Justice Harry Blackmun in the work that brought forth Roe v. Wade , and no case represents more clearly the willingness of liberals to use the courts for the sake of imposing their policies when they have failed to gain their way at the polls.
Yet Tushnet now affects to abandon this mode of governing, no doubt to the deep surprise of his allies. As he sketches in his case for such a counterintuitive move, he brings back the image of Mill crying fire during the flood. For when he looks at the state of the judiciary, he sees a world that few people will recognize, and only a handful, surely, must inhabit. In that world, the Supreme Court is in the grip of reactionaries, doing the work of the right wing, even as Mr. Clinton appoints two justices to the Supreme Court and fills about a third of the lower federal courts with little Clintons. Tushnet sees a Court that is cutting back decisively on affirmative action, calling into question the whole scheme of racial entitlements. He finds nothing much to celebrate in the willingness of the Court to vindicate with a large hand the claims of free speech, as in striking down measures, backed by vast public support, to ban the burning and desecration of the American flag. For Tushnet, these are but poses of liberality that count for almost nothing when set against the willingness of the same Court to protect, with the same spirit, the freedom of people to spend their own money without limit on political campaigns. Behind the lofty claims of the First Amendment, Tushnet finds simply a disposition of the Court to protect the privileges and inequalities favoring the rich.
Of course the same Court has withdrawn the presumption in favor of protecting speech in the case of pro“life demonstrators, who seem to have been placed by the judges in a separate enclave unto themselves. But that persistent strand of illiberality Tushnet does not mention. For the liberal cause, there is no issue more central or more of a touchstone than the right to abortion. And there, a Court with five Reagan“Bush appointees has succeeded only in entrenching that right further. Most recently, federal judges exceeded even themselves by striking down about twenty of the laws in the states dealing with abortions at the point of birth. With exceptions remarkably rare, the political class that forms the courts has made it utterly clear that it will not brook the slightest limitation on the right to abortion.
That record is manifest even to casual observers of the courts, but Tushnet finds the irony and the hidden cunning of it all: a conservative Republican party has recruited support widely among Christians and pro“lifers, but Republican administrations bring into office judges of a different conservative cast. They are hostile to regulation and affirmative action, but they share the perspectives of their class on abortion, which they leave undisturbed while producing a conservative jurisprudence across the board everywhere else. Tushnet sees that effect as profound (while others of us find it often hard to discern). Even on abortion, he thinks that the laws formed and sustained by judges are far more brittle, far more open to erosion and overturning, than is usually supposed. Far better, he thinks, if the right to abortion had been enacted into law by a political movement, drawing widely on support in the country. Laws formed in that way would be far more riddled with compromise, but they would reflect the ambivalence that runs through the country on this issue, and in Tushnets reckoning, such laws would have the advantage of being far more stable, far less likely to be reversed.
It takes a rare sensibility indeed to think that the right to abortion, crafted and sustained by the courts, stands in any danger of being overturned right now. But Tushnet may be here a curious, sensitive barometer. He may sense, rightly, just how wide but shallow is the understanding that supports the right to abortion. In his calculation, then, and in his temper, Tushnet is drawn back to a more populist politics, reminiscent of the 1930s, when the judges and judicial review were regarded as the enemy. He would prefer to rely on the arena of politics, with its summoning of passion and support, rather than on that college of men and women in robes, flexing their power without seeking consent. Tushnet finds himself drawn to an older construction, one favored by the participants in the symposium in First Things : he would revive Lincolns understanding of the limits on the reach of the courts, and at the same time he would affirm, with Lincoln, the real standing of the political branches to act as interpreters of the Constitution.
And yet, his is not exactly the version of Lincolns argument that the symposiasts sought to revive. It is instead a truncated account of Lincolns argument, and as one follows the thread of Tushnets argument, it turns out that he offers a truncated version of everything else, too. Nothing is ever taken to the root, to the ground of principle that explains or justifies his judgments or his bold construction to take back the Constitution from the judges. At every step, something is left out, and if we trace the omissions there seems to be a purpose or design behind the things left out.
The puzzle may be assembled by returning to Lincoln. One of the oddities of our own day is how an understanding at once so simple and compelling, so bound up with the logic of the Constitution, is so thoroughly unfamiliar to most lawyers and judges. What Lincoln saw as the crisis of the house divided was brought to the stage of acuteness by the Dred Scott decision in 1857. That decision overturned the political settlement that had confined slavery and resisted its extension into the territories of the United States. But the Court held in the Dred Scott case that people could not be deprived of their property in slaves when they entered a territory of the United States. Lincoln argued that this decision would not be confined to the territories; that it could be extended to the states as well, making slavery national in scope, legal in every state. As Russell Hittinger has pointed out, Lincoln could not have taken his presidential oath promising to uphold the Constitution if the decisions of the Supreme Court were thought to be part of that Constitution, as though they were woven into the text itself. For Lincoln had led a national movement precisely to resist that decision in Dred Scott . He and his party would not resist it by considering the decision a nullity, or by refusing to respect the judgments of the Supreme Court. As they say these days, his resistance was more nuanced, and in the debate with Stephen Douglas, Lincoln explained his position with some care:
We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that . . . we will in any violent way disturb the rights of property thus settled; but we nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principle of that decision. We do not propose to be bound by it as a political rule in that way . . . . We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.
Later, during his First Inaugural Address, he refined the explanation: he was willing, he said, as President, to accept the judgment of the Court as binding in any case, upon the parties to a suit, as to the object of that suit, . . . [and] limited to that particular case. But he would not accept the principle or the broader rule of law articulated in the case, unless he was finally persuaded of its rightness.
But that distinction, that critical part of the argument, gets left out of Tushnets account, and for that reason perhaps he leaves entirely unmentioned the most dramatic early test of Lincolns understanding. In the first days of the Lincoln Administration, a young black man in Boston sought a passport to study in France, but he was denied the passport on the strength of the Dred Scott decision: black people could not be citizens, and therefore it was reasoned that they could not carry American passports. For the same reason, a black inventor in Boston was denied a patent under the laws of the United States. Both cases were brought to the Administration by Senator Charles Sumner of Massachusetts. Neither case involved a slave litigating over his freedom. In both cases, agencies of the federal government applied the principle of the Dred Scott case to circumstances quite remote from that case. The Lincoln Administration quashed both decisions. It issued the passport and the patent, and it came forth with an opinion by Attorney General Edward Bates declaring that, in the understanding of the Lincoln Administration, free blacks born in the United States were in fact citizens of the United States. In all decisions coming under its hand, the Executive would act on that premise”even though it ran counter to the principle proclaimed by the Court in the Dred Scott case.
As the saying goes, we now fast“forward: it is the late 1980s, and a committee is constituted to advise the National Institutes of Health on the matter of experiments with fetal tissues. Even some of the conservative members of the committee are under the impression that the NIH must be governed by Roe v. Wade , that it must regard elective abortions as legitimate. In that event, the tissue drawn from fetuses in these legitimate surgeries must be tissue legitimately drawn. But if we take Lincolns understanding seriously, it must have been possible for the Reagan Administration to say, in the style of the Lincoln Administration, that this Administration will respect Roe v. Wade as it bears on the litigants in that case, but it will not accept the principle proclaimed in that case, and apply that principle to any measure that comes under our hand. This Administration cannot accept a right to destroy an unborn child either early or late in pregnancy, for any reason whatever. This kind of an argument could have been wrong only if Lincoln was wrong in the understanding that governed the cases of the two black men in Boston. But I would suggest that there is no way, under the Constitution, that Lincoln could have been wrong.
It is hard to imagine, however, that Tushnet would welcome, or even accept, this application of Lincolns understanding. For if he had, there would be no need, or sense, to the program reflected in the title of the book: there would be no need to tak[e] the Constitution away from the courts, because the power of the courts would be tightly circumscribed by confining the ruling in any case to the parties in the suit. But at the same time, the Supreme Court could still be quite vigorous in doing what the Court was meant to do in weighing the constitutionality of those measures that come under its review.
Tushnets break from the courts is a break from the constraints imposed by the text of the Constitution and the discourse produced among lawyers. Tushnet would move beyond the confines of courts and make the Constitution an object of deliberation among ordinary people, in an arena of public arguments. That deliberation, he expects, will have to move beyond the text to the deeper principles or purposes that underlie the Constitution. At least eight times Tushnet comes back to the Declaration of Independence as the touchstone for this new scheme of constitutional interpretation. The Declaration contains, of course, that proposition that Lincoln regarded as the father of all principles among us, All men are created equal. That commitment to equality is taken by Tushnet as the anchoring premise of the republic, the premise that defines us as a people. But it is also the principle that would guide the public discourse about policy and the meaning of the Constitution. Except for one notable thing: it is not the Declaration as Lincoln and the Founders understood it. In Tushnets rendering, the Declaration is purged of its moral substance, and it can function then neither as a constraint on political power nor as a guide to our moral ends.
If there is any meaning in the Constitution, for Tushnet, it is a meaning that must depend on what he calls secular reasons, reasons purged of any religious significance”Tushnets Declaration omits that inconvenient reference to the Creator who endowed us with unalienable rights. In a stroke, Tushnet removes what the Founders understood as the source of those rights”and the Author of a law outside ourselves that even a majority is obliged to respect. Tushnet speaks of secular reasons, but he is emphatically not doing natural law, for it is taken as a given in his circles that there are no moral truths, or even a fixed nature for human beings. At any rate, nowhere in this tract does Tushnet seek to explain the ground on which all these judgments about the Constitution will finally depend for their truth.
As he advances in the book, in fact, things move in quite the opposite direction. In good postmodernist form he announces that the Declarations principles, the values that constitute the American people, are always subject to change as the people change. But then how are they principles? They do not articulate truths, much less those truths, as Lincoln said, that were applicable to all men and all times. If the principles of the Declaration are not really principles, based upon truths, then on what ground can we even claim their goodness? Why should we think that the political life based on those principles is better, or more just, than a politics based on premises wholly at odds with them? Tushnet, the child finally of postmodernism, delivers his valedictory:
We are who we are because we are committed to the project of realizing the Declarations principles. But we can start telling a different story about ourselves precisely because we constitute ourselves . We can, in short, change who we are . . . .
In taking that step . . . we would have to rethink how we understand the original Constitution, the post“Civil War amendments, and the New Deal and the Great Society programs. [But] the Declarations principles provide a story line that is much closer at hand.
A story line? First the reader was urged by Tushnet to leave the text of the Constitution and take his bearings from the principles of the Declaration. But those principles are detached from a Creator of nature and a moral law; they are not in fact principles but propositions of a contingent character, always subject to change; and they declare no moral truths. They disclose then no source of their rightness, and in the end we find that they provide only a story line, a line we are free to change. What is left, after all of this, is not Lincoln or the Founders, but Nietzsche. We are left simply as agents with a will, asserting our freedom to remake our own stories, or our own sense of the moral universe.
And yet, behind all this feigning of philosophy, there is a political end to be served, and that becomes the serious lesson of this book: writers on the left are willing to revive, at least in part, Lincolns argument about the limits on the courts, because they wish to prepare the ground for ignoring the decisions of the courts on race and affirmative action. Right now, universities in Texas are proceeding in the usual way, marking out favored races for hiring and promotion, even though the Hopwood decision in that state has called into the most serious question the constitutionality of these preferences. The Supreme Court has struck down schemes of racial gerrymandering in the forming of congressional districts; but still the Department of Justice under Clinton continues to press states to produce districts with the right racial profiles, yielding the right racial outcomes. Tushnet, it is clear, wishes to establish the ground for institutions at all levels to stage this kind of resistance and continue imposing liberal policies, even against the holdings of the federal courts.
Several years ago, in an intimate gathering in New York, one of our leading conservative jurists listened attentively as some scholars and lawyers sought to set forth again Lincolns understanding of the limits on the courts. The jurist listened with wide eyes, and he agreed that Lincolns argument was clear and compelling. But he was quite as certain that it was no longer usable in our law: it was too novel, too unfamiliar; it would not be understood. To that our inclination was to say, well, explain it again, explain it anew.
But that incident, combined with Prof. Tushnets book, captures an enduring problem in our politics: instead of giving decisive weight to Lincolns reasoning, conservatives are more inclined to gauge the currents of opinion, to estimate what is likely to be accepted in the temper of our own day. They will hold back from restoring Lincolns argument, lest it shock the public with its novelty. At the same time, liberals are serenely indifferent to the grounds of their judgment, and so they will invoke Lincolns argument without the slightest hesitation, if they think it can provide at least a plausible rationale, or cover, for what they are determined to do. Just when conservative judges are reluctant to adopt Lincolns understanding, liberals will do it readily and happily as a means of entrenching liberal policies.
But the deeper lesson is to be aware of what is unfolding before our eyes. With a jolt of recognition may come an access of wit and prudence: there is no reason for conservatives to hold back any longer from incorporating Lincolns argument as their own. And in restoring that argument, they would restore the moral logic of the Constitution.
Hadley Arkes is the Ney Professor of Jurisprudence and American Institutions at Amherst College.