I think that, in his recent web article , Fr. Neuhaus underestimates Professor Budziszewski’s point that written constitutions can undermine constitutionalism.

Fr. Neuhaus rightly notes that this need not happen if judges interpreting the constitution take an appropriately deferential attitude towards the constitutional text. This shows, however, only that there is no necessity to the idea that constitutions undermine constitutionalism. I’ve not read Budziszewski’s article, but I suspect that all he’s saying is that there is a tendency in practice for constitutions to undermine constitutionalism because, although judges should defer to the text, in practice they very often don’t. American constitutional history confirms the existence of this tendency, and, as Robert Bork showed in his Coercing Virtue: The Worldwide Rule of Judges , the tendency is not just an American one but seems to attach the judicial office as such because judges in Canada and Israel behave as badly or worse than their American counterparts.

The theory of the U.S. Constitution was never to rely for good government on the virtue of officeholders but rather to control them through a system of checks and balances. Although on the whole an absolutely brilliant design, the Constitution provides for no check on the judicial power to interpret the Constitution short of the amendment process, which is in fact almost always impracticably difficult. The result is that, in practice, there is no check on the Supreme Court’s power to interpret the Constitution. In this respect, there is a serious flaw in the Constitution’s system of separation of powers.

It need not have been this way. Legal theorists as diverse as Bork, Bruce Ackerman and Michael Perry have all proposed systems in which, in one way or another, there would be a viable political process that would overrule the court’s constitutional interpretations. In one of the simpler of such proposals, two-thirds majorities of both houses of Congress, along with the concurrence of the President, could overrule the Supreme Court. This particular proposal might make it too easy to overrule the court, but there’s plenty of room for tinkering with details here. One could require larger supermajority votes, concurrences of a percentage of state legislatures, confirming votes in subsequent congresses, national referenda, etc. The point is that the process to overrule the court should be difficult and require significant supermajoritarian support but should not be so difficult as to become impracticable the way the amendment process has become.

A system like this would correct the design flaw in the U.S. Constitution and would return final authority to interpret the Constitution back in the hands of the American people.

Articles by Robert T. Miller

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