Essentially Contested America

Author: Professor Jim May [see photos from event] Bobby’s constitutional theories were cogent, unconventional and unsettling. Bobby was unafraid of toppling conventional wisdom and subverting dominant paradigms about constitutional evolution, interpretation, supremacy and review.  I’m here to discuss three ideas Bobby invoked in four articles collected in this special issue of the Widener Law Review.

1. Constitutional Law Evolves Not Through Constitutional Theory But Instead Through a Process of Constitutional Revolutions
2. Constitutional Truth Does Not Exist; Results are Instead Explained by Indeterminacy
3. While Judicial Review Nourishes Democracies, Judicial Supremacy is Antithetical to them.

His legal scholarship displays a courageous Cervantesarian devotion to tilting at doctrinaire constitutional theory. To Bobby, there is no unified field theory of constitutional interpretation. There is no such thing as constitutional truth. Judicial Supremacy should be replaced by judicial review with congressional override. At bottom, Bobby imagined constitutionalism as a beautiful shape-shifting constitutional democratic consciousness, a communitarian way to nourish a democracy and empower its people, forming a more perfect Union along the way.

Constitutional Law Evolves Through a Process of Constitutional Revolutions
Bobby sought to explain how constitutional legal theory evolves, not which theory is best. This is best exemplified by the first piece in this collection, The Anatomy of Constitutional Revolutions, (Nebraska – his alma mater — 1989). He explained:

[T]he perennial debate over the correct interpretive methodology is the search for which constitution is our Constitution. Among the candidates are: the living Constitution, the strictly constructed Constitution, the perfect Constitution, the strategic Constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, and the Constitution in exile.

To Bobby, none of these are correct and all are beside the point. To Bobby, constitutional legal theory evolves and adapts with what anthropologist and humanist Stephen Jay Gould might have called “punctuated equilibrium,” that is, long periods of stasis upset by abrupt, transformative change. Bobby called such changes in constitutional legal theory “constitutional revolutions” (as in “revolt,” not “revolve”), wherein legal change inconsonant with existing constitutional theory is impelled by compelling extrinsic factors, which explains results in “hard cases,” say Slaughterhouse, Plessy, Brown and Lawrence.

Bobby’s own theory about which constitutional theory is best is ultimately to reject the lot of them – which he said “obscures” real constitutional discussion, in favor of a nihilistic indeterminacy cabined by belief, bias, cognitive pragmatism and relativism, majoritarianism, chaos and cultural influences. Which brings me to his second theory about the role of truth in constitutional theory.
Results are Not Explained by Constitutional Truth, but instead by Constitutional Indeterminacy.
Bobby questioned the meaning of “truth” in constitutionalism. He was unwilling to accept the premise that there is or ought to be settled constitutional truths is well in view in the second piece of this collection, Indeterminacy, Justification and Truth in Constitutional Theory (Fordham, 1992). Bobby could be an epistemic fundamentalist, questioning the meaning of truth in and about constitutional interpretation: “Thus, the question of constitutional indeterminacy is ultimately a question of epistemic indeterminacy. Without knowing the univocal meaning of a constitutional proposition, even if such meaning exists, constitutional practitioners cannot be constrained or significantly guided by the law of the case.”

In Indeterminacy, Bobby argued that because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy, epistemic indeterminacy (sub nom. “indeterminacy”) is therefore more relevant to constitutional legal theory. He wrote:

Once we rid ourselves of the unfortunate dichotomy between metaphysical and epistemic indeterminacy, we realize that constitutional provisions have a univocal meaning if, and only if, qualified constitutional practitioners agree on what the provision means, and on the type of reasoning appropriate for resolving controversies pursuant to that meaning. This agreement explains why so-called “easy” cases are easy.

Bobbby rejected the notion that there exists “correct” constitutional theory, in favor of a sort of Zen temporal interpretivism that rejects the concept of constitutional “truth” altogether, concluding: “Constitutional theorists should jettison the notion of constitutional truth,” and

that constitutional theorists, judges, and practitioners should abandon truth in favor of justification. [T]ruth does not have the explanatory force it is typically thought to have. Consequently, whether constitutional statements are true is irrelevant to the process of constitutional litigation and adjudication.

Rather than “Truth,” indeterminacy is “an appropriate vehicle to transport constitutional theory into the twenty-first century,” and “ultimately captures the imagination of the age” and best equips society to address the greatest issues of the day, say slavery, abortion, gay marriage, consensual homosexual sex, executive authority, and national security.
To Bobby, the search for constitutional truth misses the point. The real adventure is in the journey of discovery not for the what, but for the who: who gets the final word on constitutional meaning? Congress? The President? The Supreme Court? States? To Bobby, the answer is “none of the above.”
Against Judicial Supremacy; In Favor of Judicial Review
Bobby concluded that while constitutional review is a healthy instrument in a republican democracy, constitutional supremacy escheats to The People. This is exemplified by the eighth and ninth articles in this collection, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, (Cardozo, 2006) and What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? (Widener, 2008)
To Bobby, a politically unaccountable Supreme Court should not have the last word – like Lewis Carroll’s Humpty Dumpty – on the meaning of the words and phrases contained in the U.S. Constitution. In a republican democracy – especially with constitutionally enshrined bicameral lawmaking topped by a democratically elected chief executive – constitutional interpretation should be wielded by those most accountable to the electorate. In Which Constitution, Bobby challenged the very notion of judicial supremacy in constitutional interpretation:

It is an indispensable feature of our constitutional system, according to conventional wisdom, that the federal judiciary is supreme in the exposition of the law of the Constitution. The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. [I reject] judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate’s incapacity to give their consent to justices and judicial decisions through input-accountability, process-accountability, and output accountability renders judicial supremacy anathema to self-government.

Bobby questioned judicial supremacy on constitutional textual and political accountability ground. He wrote:

it prevents citizens nevertheless from engaging in the joint enterprise of integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of sovereign authority over the society’s future.

Bobby also questioned judicial supremacy as applied in America as representative: “The Court, a mostly white, mostly male, and mostly middle-class body, seems conspicuously unrepresentative.”

Rather than courts, Bobby maintained that the electorate ought to be the ultimate arbiter of constitutional meaning. Bobby argued that Congress should have the role of “penultimate constitutional interpreter, one step short of the ultimate interpreter: the electorate.”

Bobby believed that “a congressional override of Supreme Court decisions as the solution to the problem of judicial supremacy has the advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it.”

Bobby held that congressional overrides are a constitutionally and historically entrenched American tradition that would serve as a democratic lever against the “the Court, thoroughly intoxicated with the power judicial supremacy grants them,” onerously running roughshod over a republican democracy.

Bobby made clear that his call against judicial supremacy was not a call to abandon judicial review. As he explained in What’s Wrong: “The value of judicial review lies in its utility in establishing a practice for reflection and deliberative conversation designed to translate the constitutional values of the past into the constitutional reality of the present.” In sum, Bobby believed that republican democracies thrive with judicial review, but not judicial supremacy. While judicial review is laudatory, he reasoned, dispositive constitutional disquisition should devolve not to those who cast judicial votes, but to those who cast elective ballots:

After deliberative debate, the final judgment concerning constitutional and political values should be the electorate’s. Any alternative system gives a government branch the power to check the other branches without an appropriate check on it. If there are to be unchecked checkers in American democracy, they should be—after extensive deliberative debate—the people themselves.

Now let’s hear from some other people, themselves.

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister's Club.]

This post was written by President Rod Smith: In late June and early July of this year, I visited Pakistan as a guest of my friend, Mr. Justice Tassaduq Hussain Jillani, of the Supreme Court of Pakistan. This visit was one of the great experiences of my lifetime. I was blessed to be able to sit in the Supreme Court Chambers as the Court heard arguments in a case of great constitutional importance, a case involving the issue of whether the President had the power to remove the Chief Justice of the Supreme Court. I was deeply struck by the seriousness of the Court and the advocates, and by their collective commitment to the rule of law and constitutional democracy. Indeed, it seemed as if I was transported to the our founding era when we fought to secure the blessings of liberty and equality through the rule of law.My friend, Justice Jillani, is a man of great integrity. He never spoke of the case, during the week that I spent as a guest in his home or at any time thereafter, even though we have talked almost weekly, until this week when he has been rendered incommunicado by a dictatorial act. Throughout the time I was with Justice Jillani, I could sense how serious he was about the case and how devoted he and his colleagues are to the rule of law in Pakistan and throughout the world. It was and is a great reminder to me of the value of the rule of law, something that we clearly take for granted in the United States.
I was humbled when the Court held that the President lacked constitutional authority to remove the Chief Justice and President Musharraf agreed to abide by that decision. It was a courageous and wise act on the part of the Court and President Musharraf. It was a time of great hope in Pakistan.

Early in October, we awarded Justice Jillani an honorary doctorate. In doing so, we were also celebrating the rule of law in Pakistan. Our students were deeply moved by Justice Jillani’s address, “Creating a World without Walls,” which can be accessed on our website at www.svu.edu. In that address, Justice Jillani wisely reminded all in attendance that:

The United States on account of its unique position has to play a crucial role [in the world]. Firstly it has to demonstrate by deed that it shares the planet and benefits of the 21st century with other nations. Be it economic development, information technology, advancement in the medical science and issues of global warming, the developing world should have a sense of participation and sharing. Secondly for resolution of conflicts which are irritants to world peace, plans would acquire legitimacy only if they are made and acted upon through the aegis of [the] United Nations and its Security Council. Thirdly the U.S. needs to appreciate that her goal of moral leadership can only be realized if her thought and action are guided by those lofty principles which it has espoused in seminal periods of its history–the principles of equality, of freedom, of democracy, of justice and of rule of law. These values led to your Declaration of Independence. These values adorn the pages of your constitution and have made it a living document. [The United States] stood by these values during two World Wars and even thereafter. These values are part of your legacy and part of your creed. It is time to rise up and re-live their true meaning.

It was a great day, as we celebrated the rule in law in Pakistan, and were reminded of what it means to be leader-servants in the world, which is the mission of Southern Virginia University. You can imagine, therefore, the pervasive nature of sadness that we have all felt as Justice Jillani and many of his colleagues have essentially been placed under house arrest and the rule of law has been dealt a very serious blow in Pakistan by a President, who came to power as a dictator and appears committed to leaving power in the same way. Thus, only days after recognizing the rule of law in Pakistan and throughout the world, and even commending President Musharraf for his initial support for the rule of law, hope has been displaced with sadness and fear, fear for my friend and fear for the consequences of the loss of the rule of law.

I am by nature an optimist, however, and believe that good can even come out of evil of this sort. I am reminded, by the courage of my friend, and his colleagues, that I must be courageously committed to the rule of law. I look forward to teaching constitutional law again soon, and I can assure you that I will spend more time on the importance of the rule of law. As I have watched those of the legal profession step forward, at great risk, in a land that I have come to love–Pakistan–I realize that I must be a better man, a better lawyer, and a better citizen. Indeed, I am committed to doing my part to bring Justice Jillani’s dream, as expressed at the conclusion of his remarks at SVU, to fruition. He taught us well as he stated:

As I boarded the plane to come to the U.S. to keep my tryst with you and flew from continent to continent, I saw below vast tracts of land, oceans and rivers, mines and fields. But I saw no frontier, no dividing line and no walls of colour, creed or race. All I saw was nature’s boundless bounties stretched over millions of acres and miles. This panorama, I thought, carried a strong message, that we humans are one entity, without nature’s dividing line or wall and that accidents of birth have made us wear, the inherited masks of identity; let these masks not blind us to forget that from womb to tomb and dust to dust, we have a common destiny and have plenty to share and realize the cherished goals of freedom, democracy, rule of law and pursuit of happiness.

Two nights before the rule of law began to unravel in Pakistan, I received an unexpected call from my friend, Justice Jillani. We talked of our times together, of our families, and of the world. Tassaduq concluded by asking something of me that he had never asked before — he asked if I would pray for Pakistan. My dear friend, and brother, Tassaduq Hussain Jillani, I have prayed, even fasted, since that call, and I conclude by expressing my heartfelt desire that all of us, throughout the world, will rise up and offer our support for the courageous efforts of so many in Pakistan and for the values you are espousing by your sacrifice. I pledge to do better my part, and I pray for Pakistan, for the United States, and for the world, that we might put aside momentary provincial interests and recognize that we are all brothers and sisters and do all that we can to support, with equal courage, the values you espoused in your speech–freedom, democracy, rule of law and the pursuit of happiness.

The Quinnipiac Symposium on Harvard’s Mark Tushnet’s prolific work in constitutional history, law, and theory raised some of the most important issues in republican democracy. Included among the more central issues raised were: slavery, the idea of a constitutional order, the relationship between constitutionalism and political progressivism, the best approach toward constitutional interpretation, the continued existence and relevance of Critical Legal Studies, and how Mark’s work concerning “taking the Constitution away from the courts” can be reconciled with his historical treatment of and admiration for Justice Thurgood Marshall, the first African American Justice to serve on the Supreme Court and for whom Mark clerked.
Throughout the fascinating discussion Mark revealed both his command of American history and the refined care he exhibits in articulating his own positions as well as the positions of others. Mark has a wonderfully creative mind, but a mind that approaches creative scholarship by first attending to the meaning and nuances of meaning in an argument. His approach is reminiscent of the very best analytic philosophy. The honor that Tushnet is currently receiving is well deserved and cannot be overstated. Without a doubt Tushnet is one of the finest constitutional theorists of the last century and continues to be so in this one as well.
Professors Linda Meyer and Steve Latham as well as Dean Brad Saxton, and the entire Quinnipiac staff deserve copious praise for assembling a remarkable group of scholars presenting papers on the work of Harvard’s Mark Tushnet.

Should resident aliens be permitted to vote? Lithuania has now adopted a constitutional amendment permitting noncitizens to have a say in local elections. Is this the wave of the future? Is it a good idea? Many resident aliens live and work in the United States for decades sometime for life. The future of their cities–and even the nation–matters to them. Why shouldn’t they have a say in the political dimensions of their lives? In earlier periods in the life of our Republic noncitizens did have the right to vote in some states. Consider:

Granting voting rights was seen as a way to get newcomers engaged in the civic process. In 1848, Wisconsin established a model that other states soon followed. It simply required residents to declare their intention of becoming citizens before being allowed to vote. Up until the 1920s, when a powerful, anti-immigrant backlash swept the country, 22 states and territories allowed legal immigrants to vote in local elections. . . . . “It was a proven pathway to civic education, political education, and citizenship by giving people a stake in their communities.”

Becoming a citizen is a long and arduous process. Why shouldn’t noncitizens be granted the right to vote rather than enduring the process? Of course, opponents reply that if noncitizens want to become part of the community, they should apply for citizenship. Opponents also raise the question of loyalty. But does becoming a citizen in any way guarantee loyalty or even make it more probable? Indeed, noncitizens now serve in the military. Isn’t putting one’s life on the line a fairly useful guarantee of loyalty?

This issue raises the question of voting: its meaning, value, and purpose. People are drawn to the United States for multifarious reasons. Some come to escape persecution; others leave their native homes to get better jobs or even for the chance to work at all. Still others come to provide a better life for their children. The underlying rationale for emigrating here is just to be free and to exercise their right–some say their natural right–to express their freedom in concert with others, to participate in a community bound by the desire each individual has to be sovereign over their lives.

Just how should the electoral franchise be designed in a constitutional democracy? Is the fact that a noncitizen is affected by elections suficient for granting her the right to vote? Or does the concern of some that noncitizens might not have the appropriate commitment or might be disloyal dispositive?

It also raises the question of why so-many citizens in the United States fail to vote. Ironically, this issue highlights the noncitizen’s desire to vote with the citizen’s–some citizens–indifference to voting. Also interesting is the fact that the right to vote is nowhere in the United States Constitution. As a nation the right to vote and the civic responsibility to vote should be taken more seriously. What precisely are the reasons for our hostility to the right of noncitizens to vote while at the same time many of us fail to exercise this right ourselves?