Essentially Contested America

Last Friday evening, Bill Moyers interviewed Sanford Levinson, one of the most creative, provocative, and influential constitutional scholars of his generation. The topic of the interview was Professor Levinson’s 2006 book entitled Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Begin Correcting It) [hereinafter cited as "OUC"] which ECA discussed earlier this year. The book is an irreverent tour de force depicting how the Constitution prevents American government from consistently expressing the voice of the people. Levinson draws his bow and takes aim at the Senate, the Electoral College, the presidential veto, life tenure for federal judges, and a host of other undesirables hitting the bull’s-eye in every case. Unlike most other critics of the Constitution, however, Levinson is not content in merely presenting a litany of democratic complaints and leaving the matter there. Instead, Levinson calls on We the People to petition Congress to permit Americans to vote on the following proposal:

Shall Congress call a constitutional convention empowered to consider the adequacy of the Constitution, and, if thought necessary, to draft a new constitution that, upon completions, will be submitted to the electorate for its approval or disapproval by majority vote? Unless and until a new constitution gains popular approval, the current Constitution will continue in place. OUC, p. 11.

In the Moyers’ interview, Levinson amplifies on how the participants of this second constitutional convention will be selected.

Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I’m not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.

Levinson wants to highlight the Constitution’s Preamble which says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, [sic] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Preamble, for Levinson, is the core sustaining value and end toward which the other Articles of “the single most important part of the Constitution” (OUC, p. 13) because:

It announces the point of the entire enterprise. The 4,500 or so words that followed the Preamble in the original, unamended Constitution were all in effect merely means that were thought to be useful in achieving the great aims set out above. It is intended the ends articulated in the Preamble that justify the meaning of our political institutions. And to the extent that the means turn out to be counterproductive, then we should revise them. Id.

The Preamble represents, in the words of the ordinary language philosopher J. L. Austin, a performative utterance. The Preamble doesn’t merely convey information. Rather, it brings into existence the very document for which it is an integral part. Alternatively stated, the Constitution is born with the collective speech act which is the Preamble. In Levinson’s view, the Preamble is “magnificent. And [he thinks] we ought to think about it almost literally every day, and then ask, ‘Well, to what extent is government organized to realize the noble visions of the preamble?’ That the preamble begins, ‘We the people.’ It’s a notion of a people that can engage in self-determination.” Levinson’s commitment to the Preamble reveals that any attempt to paint him as some naive, wide-eyed utopian willing to scrap the 200 plus year document without any idea of what to replace it with is decidedly erroneous. Levinson’s faith in the underlying normative core of the Constitution–the Preamble–is deep and pervasive.[1]

In defense of Levinson’s important project, one might say that the 1787 document together with the 27 amendments constitute a first draft of how Americans have chosen to express the Preamble’s ideals. Understood in this manner, Levinson’s proposal is far less of an intemperate and irresponsible rejection of the Constitution than a call for the redeployment of the Preamble’s ideals in contemporary America. Levinson’s proposal, then, is to initiate a conversation to consider whether to replace the 1787 document which may have been satisfactory for the founding generation with one which is more suitable to our current democratic needs.

It’s terribly important not to scrap this project by insisting upon a distinction between a democracy and a republic. While it may be true that some of the founders saw democracy as the enemy of republicanism, today these political ideals are far less distinguishable. The idea of a representative democracy, constrained by various filters designed to create a government capable of expressing the reflective will of the people, is a good bridge between narrower and ancient conceptions of democracy and republicanism. Few Americans embrace direct democracy whatever that would look like in contemporary America.[1] And even fewer democrats embrace unconstrained majority rule. Moreover, America’s constitutional culture looks askance at a republicanism which merely pays lip service to the reflective will of the people. Accordingly, the notion that the democratic defects of the Constitution can be papered over simply by insisting that the Founders sought a republic not a democracy is not especially illuminating; indeed, it’s downright misleading. Whatever we call the political philosophy underlying the Constitution, consent must be an ineliminable feature. And objections to the Constitution in contemporary society, along the lines of Levinson’s critique, are replete with obstacles for realizing systematically and consistently the consent of the governed. Of course, one can force a distinction between democracy and republicanism by transmogrifying one or the other conception into a distorted replica of itself–for example by defining democracy as simply majority rule–but other than scoring a polemical point such a transformation isn’t conceptually or practically significant.

No one need agree with Levinson regarding all, or even any, of his arguments. But everyone–constitutional scholars, and more important, reflective American citizens–should confront the arguments in his book. We are all indebted to Sandy Levinson, not only for his wonderful book on fixing American constitutionalism, but also for his extraordinary career as a public intellectual and as a patriot who always gives his best to America.
__________________________________________
[1] It’s not clear whether Levinson believes the Preamble to be an entrenched feature of the Constitution, one that the second constitutional convention cannot amend. If so, the entrenched Preamble seems to have its own democratic deficits. If not, then Levinson must be willing to endure the new constitutional convention jettisoning the Preamble entirely, or amending it to say, “We the States” or some other reactionary change in its text, for example, adding “Under God” or “life begins at conception,” or “‘marriage is a union of one man and one woman.” Indeed, it is virtually guaranteed that some anti-democratic provisions will be included in the new constitution. Upon realizing this, one can reject Levinson’s entire project or acknowledge ruefully that a republican democrat must be prepared to lose some important battles even over the basic structure of the society.

[2] An exception might be Mike Gravel’s Philadelphia II project.

Credit for Photo of Levinson

Credit for Third Image

The Supreme Court term ended dramatically last week, with many constitutional law professors and civil rights advocates lamenting the Court’s turn to the right. On the very last day, in Parents Involved v. Seattle, the Court struck down the race-based programs adopted by the Seattle and Louisville school boards to integrate their school systems, and stopped just short of outlawing any such race-based measures. A couple of weeks before, in Ledbetter v. Goodyear, the Court eviscerated Title VII equal pay cases, holding that such cases must be brought within 180 days of the employee’s hiring at the lower pay.

These cases are convincing evidence that the Roberts Court is not a protector of “discrete and insular minorities,” the role that, we were taught in constitutional law classes, best justifies the exercise of judicial review. But what made sense in theory was rarely supported by fact. With the advent of the Roberts Court, it’s time to wake up and recognize the fact that throughout our history, with the marked exception of the Warren Court, the Court has rarely protected those rights and that instead, the primary protector of those rights has been the comparatively majoritarian United States Congress. (I discuss this in my recent book, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights.)

Those of us who care about what I call “rights of belonging,” those rights that promote an inclusive vision of who belongs to the national community and that facilitate equal membership in that community, need to stop expecting the federal courts to be the primary arena for protecting those rights, and pay more attention to Congress, the body that is most likely to protect them. There are a number of measures currently pending before Congress that would expand rights of belonging. Such measures include the Hate Crimes Act of 2007, which would create enhanced penalties for violent crimes motivated by hatred based on race, gender, religion or sexual orientation; the Employee Free Choice Act, which would make it easier for unions to organize employees, and the Employee Non-Discrimination Act, which would make it illegal to discriminate in employment on the basis of sexual orientation. All of these measures deserve the same attention from constitutional law scholars and advocates for rights of belonging as the Supreme Court decisions. These measures are compelling examples of “popular constitutionalism” because they represent attempts by members of Congress, the elected representatives of the people, to vindicate the constitutional values of equal protection and equal participation.

The Court’s ruling in Ledbetter provides Congress with another chance to step up to the plate and protect our rights of belonging by amending Title VII to set a realistic  filing date for equal pay cases. Indeed, such a law has already been proposed in Congress. There is ample precedent for this bill: Congress has expanded the statute’s protections twice before to overturn adverse Supreme Court rulings with the Pregnancy Discrimination Act in 1978 and the Civil Rights Restoration Act in 1991. Rather than focusing only on the Court, constitutional law scholars should note that a House Committee approved the Ledbetter Bill on June 27, less than a week after it was introduced. Congress can’t do anything about the Court’s interpretation of the Equal Protection Clause, but it can act to remedy some of the mistakes it has the power to undo. We should expect it to.

What’s wrong with dictatorship? In many cases, though conspicuously not all, dictatorship increases the efficiency of government. That’s good, isn’t it? Well not really. Efficiency is good, but not by crushing freedom. More important, there’s no accountability. Tyrants get to do whatever they choose–the people be damned. Tyrants have no need to consult the people because nothing “the people” could say matters in the first place. You don’t really want to be governed by the people, do you? Dictators eliminate elections or ignore them just because good government cannot be self-government.

Not so for George W. Bush. Mr. Bush believes in elections. Indeed, the American people elected him twice–well alright, once–consequently, strictly speaking, he cannot be a dictator. Wait a minute! In this view, elected-for-life presidents cannot be described as dictators? Is the assumption that simply because elected-for-life presidents have one “accountability moment,” if that many, somehow they cannot be called “dictators”? Aren’t they properly described as “elected dictators”? If that’s so, what is Mr. Bush?

Accountability is central to American government. George W. Bush believes in presidential accountability. More precisely, he believes in an “accountability moment.” In answering a question about whether anyone has been held accountable for the mistakes made in Iraq, Mr. Bush replied: “we had an accountability moment, and that’s called the 2004 election.
And the American people listened to different assessments made about
what was taking place in Iraq, and they looked at the two candidates,
and chose me, for which I’m grateful.” This implies that once the electorate authorizes an individual to carry out executive functions, no further discussion of his or her competence should occur at least not until the next election.

What’s wrong with this response? Well for starters, the founding design was clearly committed to a government of checks and balances. Once elected, the president, congress, and the judiciary are involved in an elaborate array of accountability moments, accountability to each other and to the people. Checks and balances represent formal accountability. American constitutionalism also encourages informal accountability, for example, a free press.

This is pretty elementary stuff, isn’t it? Doesn’t Mr. Bush know this? A president might ask congress to enact legislation. If congress fails to do so, that’s one accountability moment. If congress enacts the legislation, but the president thinks it inadequate, the president may then veto the bill. That’s a second accountability moment. If congress has the votes to override the president’s veto, it can do so. Presto! A third accountability moment. If the law passes and is signed by the president, but is deemed unconstitutional by the Court, the law fails though another accountability moment–judicial supremacy–a fourth accountability moment. In short, the design of American government includes many different kinds of accountability moments besides elections.

Shouldn’t the present occupant of the White House be aware of the many formal and informal accountability moments in American government? After six years in office, shouldn’t we expect Mr. Bush to understand that American constitutionalism presents a varied array of accountability moments? Indeed, American constitutionalism is first and foremost all about accountability moments. In extreme cases, the Constitution fashions a remedy for officials who fail to appreciate the significance of accountability moments. This special kind of accountability moment is called “impeachment.” What a novel idea? Is anyone
in the House of Representatives listening?

The chance of the Democrat controlled Congress initiating impeachment hearings again the Bush administration is negligible. But why? What “crimes and misdemeanors” has he committed? How about the following for starters? (1) lying to the American people about the case for invading Iraq. of course, he wasn’t under oath, so maybe his lies were just “white lies” some prevarication one tells that has no serious consequences, (2) his grossly incompetent planning and execution of the his war in Iraq, (3) unconstitutionally arrogating to the executive branches power an authority that are inherent powers of the Presidency only if the United States Constitution creates a “soft” dictatorship, (4) using funds to carry out covert and illegal operations in the Middle East never appropriated for such purposes–that’s the reason billions of dollars intended for reconstruction of Iraqi society cannot be accounted for (5) in capable or unwilling t to responsibility respond to such natural catastrophe’s as Katrina. But now, Mr. Bush’s criminal negligence extends to the failure to protect the troops both in Iraq and when they return home with life-altering injuries in the VA hospitals throughout the nation.

Democrats haven’t the courage to initiate impeachment proceedings. But even if they did, impeaching Bush (and Cheney) would mean handing the Party that lost the 2004 elections changing the Party in power through impeaching the President and vice-President absolutely forbidden? Liberals somehow believe that in cases where one party controls Congress but not the presidency, impeaching the Pres. and VP flies in the face of republican democracy. These same liberals decry the absence of a constitutionally authorized no-confidence procedure, but when it comes to using procedures constitutionally available, they freeze. But shouldn’t the 2006 congressional elections repudiating Mr. Bush’s war provide substantial evidence that the electorate is open to a power change of this sort? For some mysterious reasons Democrats bark and growl, but when it comes to acting, formalist rationalizations control. For Democrats to display fidelity to the results of the past election they must rethink their timidity for the sake of our troops, the nation, and the world.

Reports of the atrocities at Walter Reed reveal the morally impoverished, hypocritical character of this administration. The negligence at VA hospitals is systemic and just those voices–invoking the troops to justify every major, blunder in Mr. Bush’s war–have conspicuously failed to protect the troops in just those circumstances critical to their rehabilitation. This shameful neglect by top brass is ultimately the administration’s responsibility. Will Congress’ response be sufficient? One minimal step Congress should take is to begin using the I-Word in these hearings. Perhaps, if individual members of Congress begin stating the inquiry into the horrors at Walter Reed by querying whether these failures constitute impeachable crimes, the nation will realize that they are and thus petition Congress to take the appropriate action. In any event, putting the I-Word into the congressional record is critical to a comprehensive evaluation of the Bush presidency when Mr. Bush finally leaves office.

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. . . . [T]this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.–Abraham Lincoln

Americans imbibe a devotion to self-government with their mothers’ milk. Each new generation inherits this love from the prior generations and each generation, in turn, is responsible for creating “a new birth of freedom.” What distinguishes our nation is this cultural–even “natural”– commitment to self-government. The consent of the governed is the sole standard of American sovereignty. I say “consent,” not “consultation.” American democracy does not–or at least should not–merely inform us of what it does; it asks for our approval and participation. Indeed, the people are the normative source of sovereignty upon which government rests. Our consent grounds this government of the people, by the people, and for the people. This is no trifling task, but what precisely does this stunning phrase mean?

First, government is created by the people, not imposed upon them from above. An Illinois backwoods boy, Abraham Lincoln, uttered this majestic sentiment, not a King, Priest, or Aristocrat. For the first time a sovereign government was made up of ordinary folks thirsting for freedom and equality. Second, these folks did not outsource the daily operations of the government. Instead, they chose from among their ranks representatives to do their bidding. Third, the raison d’etre of this government was to satisfy the interests of the same group of people from which the government derived and by which the government was operated. Neither God nor nobility were the beneficiaries of this new creature–popular government–instead the beneficiaries necessarily were the people themselves.

What is this valuable commodity “consent”? At the heart of republican democracy consent lies an axis of consent: authorization–process–termination. First, our representatives must be authorized to represent us. Winning an election or being appointed by someone who has won an election is the first step. The second phase of the axis of consent is the process through which the people communicate individually or through associations with governmental officials and through which these officials will sometimes modify or reverse their decisions. This process includes the media, lobbying, and all formal and informal means of the citizenry seeking a change in policy by the current administration. The final phase of this axis–the termination stage–holds the elected officials accountable for what they did or did not do in their current term of office. In the authorization stage, we gave these officials instructions to act in ways we approve. The termination stage determines whether we were sufficiently satisfied with how they carried out these instructions. The axis of consent is the foundation of accountability. I call the first phase “authorization-accountability,” the second phase “process-accountability,” and the third stage “termination-accountability.”

American citizenry virtually boycotts the axis of consent. Less than fifty percent of the electorate votes to authorize government. Only so-called “special interests” participate much in process of making their voices heard during the process of government. More Americans need to engage in the re-election or dismissal of public officials in the termination stage of the axis of consent. Why are Americans indifferent, even hostile, to government? After all, it is the only collective association we have. Because they are pragmatists, and government does not speak to them. Government does not encourage their active, continual participation; nor is government genuinely concerned with their problems and interests. Why do public officials betray the people’s trust? The simple reason is that enormous amounts of money are required to run political campaigns. Where can elected officials turn but to the corporate interests? Theirs is the only real game in town. They’re loaded with big bucks and love nothing better than to spend their bounty to buy politicians.

Wealth distorts the axis of consent. Money is not speech, it merely buys speech. And when elites can buy more speech than the citizenry at large, perennial distortion of what ordinary folks consider the common good arise until ordinary folks no longer consider the common good at all, or even look to politics to help implement what they want. At this juncture, American government breaks down. The privileged elites have taken over and republican democracy becomes, “a walking shadow, a poor player that struts and frets his hour on the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing.”

Can republican democracy be revivified? I’m sure it can, but not quickly. And time is not on our side. The obstacles appear overwhelming. American popular culture is fixated on immediate gratification. We want to speak to people whenever and wherever we choose. A myriad of images permeate our consciousness. Elemental, step-by-step attempts to understand, to integrate, to synthesize have virtually vanished. We are what we see and, if you reflect, what we see is not terribly appealing. “Reality” TV smothers us in unreality. Tattoos and body ornaments wrap not only our bodies, but also our souls. Sound, speed, and gimmicky gadgetry pervade the imagination. Everything is reduced to hype. Nothing escapes the drumbeat of those incessant attempts to get us to buy something, vote for someone, or to commit one’s body and soul to this god or that god. Republican democracy is no match for these howling sense-data. We need an anchor, some Archimedean vantage point, just to re-start our pursuit of meaning. But no such sanctuary exists or ever existed. That’s the bad news. The good news is that we are still alive, at least for now. And human life means the creation of value. Creating value is something we do; it’s not our choice; we create value whether we choose to or not. Of course, there’s no guarantee that the values we create have substance. We struggle to create and refine contingent values which will with any luck can be integrated in a democratic republic. This republic and its attendant political morality must be re-constituted every generation. Although this political morality continues to be essentially contested, it is the only political morality that matters.

When Benjamin Franklin left the constitutional convention, a citizen asked “Well, Doctor, what have we got–a Republic or a Monarchy?” Franklin turned and replied, “A Republic, if you can keep it.” We have not kept it. We betrayed this faulty, pragmatic vision of government created from within, from the people governed, not external gods or kings. However, the vision of a republican democracy is still possible. But we must clearly understand time is not on our side.

What follows is the fifth post in the ECA series on Whether Judicial Supremacy Is Compatible with Republican Democracy?

For Posting on February 14, 2007

Judicial supremacy, the doctrine that federal courts, in particular the United States Supreme Court, should have the final word in whether laws or other official conduct are constitutional–has lead a double life. Throughout American history it has been bashed by presidents, legislators, pundits, and ordinary citizens. However, the practice has resisted this blitzkrieg and has become more and more entrenched in American constitutional practice.

The general argument in favor of judicial supremacy rests on the alleged fact that government cannot be trusted to police itself. In particular, the elected branches of government, even when conscientious, cannot always resist enacting legislation that violates constitutional norms. Consequently, republican democracy requires a branch of government external to the elected branches to guarantee that the latter toe the line.

The paradox of judicial supremacy consists of the need for external checks on government, yet when it comes to the Court no effective (everyday) external check is required. In fact, there are two rather ineffective checks on the Court. Any judicial decision can be reversed either by amending the Constitution through Article V or through transformative appointments to the Court. Both approaches, however, are ineffective as routine ways to express the electorate’s displeasure with the Court. Amending the Constitution requires a supermajority of both Congress and the states in order for new constitutional text to be included in the Constitution. Transformative appointments require first getting the appropriate President and Senate elected in order to select judges who will reverse a contested decision. Both approaches are problematic and involve arduous processes. In the meantime the effects of a judicial decision can be disastrous. For example, look how long it took the Court to overturn Plessy v. Ferguson which permitted racial apartheid. Only after fifty-eight years of suffering on the part of millions of African-Americans did Brown v. Board of Education (desegregating public schools), overturn Plessy.

Without external discipline imposed on the Court, the ubiquitous complaint that justices make law will never cease. Why? Because judges will continue to make law. Consider, the Rehnquist Revolution which was designed to restrict judicial power. Instead, the Rehnquist Court became one of the most activist courts in American constitutional history. Under the Chief Justice’s tutelage, the doctrine of judicial supremacy became more expansive almost to the extent of identifying judicial constitutionalism with constitutionalism per se.

How then can a republican democracy, which insists on checks and balances between and among the various sources of governmental power, make an exception by not requiring an effective check on federal courts?

What follows is the fourth post in the ECA series on Whether Judicial Supremacy Is Compatible with Republican Democracy?

Judicial independence has been prized in American jurisprudence since the inception of the Republic. No less a luminary than Alexander Hamilton insisted that “t]he complete independence of the courts of justice” is nothing short of “peculiarly essential in a limited Constitution.” Three overlapping reasons explain the importance of judicial independence. First, the doctrine of the separation of powers requires the judiciary to be independent of the elected branches of government. Second, following the rule of law requires judicial independence. Third, in order for judges to tread in the service of justice, they must be impartial and fair in deciding cases. Neither impartiality nor fairness is possible if the judiciary is controlled by another branch. Accordingly, judicial dependence on the elected branches will prevent judges from serving justice, while a commitment to judicial independence helps fulfill the judicial role.

What exactly is “judicial independence”? For starters, it is fair, impartial, and honest adjudication motivated by a commitment to justice and the expression of justice in law. To achieve these virtues, judges must be free to decide questions of law and fact without threat of retaliation either physically, financially or occupationally. It’s not obvious how judges or courts can be independent if any of these factors are not strongly embedded in a legal system. A further factor is that judicial decisions should not be overturned or denied effect surreptitiously or arbitrarily. These critical factors of judicial independence are necessary for courts to function effectively at all.

How do these critical factors bear on a system of constitutional democracy? Do checks on the judiciary compromise judicial independence? Well, if any constraint on the judicial power compromises judicial independence then judicial independence should be compromised. This raises the question of which sorts of constraints on the judiciary are democracy is permissible? The answer depends entirely on what other values the constitutional democracy prizes. For example, in a constitutional democracy accountability should bebased on the consent of the governed. Without accountability, there can be no consent. Consequently, judicial independence and judicial accountability seem to pull in opposite directions.The more independent judges are, the less accountable, and the more accountable judges are the less they are independent. Is there any way to avoid this quandary? Some accommodation between these two important values is necessary. But what kind of accommodation is appropriate? The values of judicial independence and judicial accountability exist on a spectrum where one extreme represents complete independence, while the other complete accountability. The former means that judges are above the law. The latter means that judges are under the thumb of the legislature or some other external, non-judicial force. prized because

Which devices might bring these two ends closer to the middle? Let me list some of these devices without presently explaining precisely how they bring independence and accountability closer together: legislative overrides, term limits, congressional overrides, modifying the court’s jurisdiction, electing judges, and so forth. Historical context is critical here. No one in the United States would contend that Art. V compromises the independence of the Court. And indeed, Art. V provides in principle at least a last ditch effort to hold the Court accountable.

Institutional protections must be in place to enable judges to serve independently. American constitutionalism provides federal judges with cushy, well-paid, permanent tenure to insulate them from conflating self-interest and moral principle. Because judges are insulated in this hallowed refuge inside American government, they are left unfettered to examine the Constitution and the facts of particular cases without thought of personal gain or personal protection. The ordinary concern of legislators–political support–is irrelevant to the decisions of judges.

However, the same insulation from worldly pressures makes judges unreachable. Although judges must typically articulate the reasons for their decisions, they are never compelled to give a complete account of their reasoning. No one ever formally challenges judges to explain themselves. No force exists to discipline judges by either removing them or reversing their decisions. The people must simply acquiesce to judicial opinions and the reasons judges give in their formal opinions. It is one thing to be permitted to decide cases independently of threats to one’s life or liberty. It is quite another thing not to have to account for the errors and consequences of one’s decisions. Unlike NFL coaches, CEOs, and elected officials, little judges do can disqualify them from continuing in office or from repeating the same mistakes indefinitely. Hence, for all practical purposes, judges are never required to effectively account for their decision-making at all.

The appropriate institutional design of the courts should discourage judges from acting in partisan or otherwise self-interested way. However, self-interest is not the only vice to guard against. Completely conscientious decision-makers can and do wreck havoc not because they seek an advantage to their material good, but rather because their sincere convictions are unreasonable or in some other way incompatible with the Constitution. Indeed, judicial independence without accountability might tempt otherwise reasonable people to identify their own sincerely held convictions with what they believe to be constitutionally permissible. Democratic government is designed with checks and balances, not only to protect ourselves from scoundrels, but also to protect ourselves from well-intentioned individuals who simply have erroneous conceptions of American constitutionalism or who have become intoxicated by their own alleged insight and brilliance. The only mechanism for dealing with this problem in a republican democracy is for there to be checks on all governmental decision-makers. Hence, an uncritical adherence to judicial independence conceals one of the more glaring defects in American judicial practice: the absence of effective accountability. Absent effective accountability prevents consent from legitimizing judicial practice.

How should we now understand the concepts of “judicial independence” and “judicial accountability”? Only by taking judicial accountability seriously–realizing that it must intrude to some degree into judicial independence–will we be able to properly define American constitutionalism for the fourth century of the American experiment.

Simultaneously Posted on Ratio Juris Today

Former Associate Justice Sandra Day O’Connor, it’s reported, wished to remain on the Court until she was “ill [or] really in bad shape.” Unfortunately, for Justice O’Connor, her husband’s illness prevented her from fulfilling her wish. As it stands, retired Justices still receive a salary, maintain an office in the Supreme Court Building, and serve occasionally as appellate judges. No wonder Supreme Court Justices remain on the bench for decades. It’s good work if you can get it.

That said, such secure tenure on federal courts is anathema to republican democracy primarily because it places critical questions about American constitutionalism in the hands of people who are not accountable in any ordinary sense, have no reason to infuse the Court with fresh ideas (and rarely do), and are not compelled either to work diligently or to seek out alternative jurisprudential positions. Essentially, these priestly justices respond to one another’s arguments (maybe) as if the jurisprudential world consists of nine titans and no one else. Moreover, people destined to become Supreme Court Justices generally have little experience in a world about which they hand down momentous decisions. For the post part, they are professional spectators. ECA has decried the role of federal judges in earlier posts, especially here. We-the-People Regained would not tolerate this institutional practice.