TCS Daily

The Right Has the Wrong Legal Theory

By William J. Stuntz - January 11, 2005 12:00 AM

Odds are, George W. Bush will soon appoint a new Chief Justice. More Supreme Court appointments will follow, along with hundreds of lower-court judges. The federal judiciary will soon be Bush Country, a fact that could have larger long-term effects than Social Security reform and the war in Iraq.

Unless something changes, the effects will be bad. Not because Bush's judges and Justices will be too conservative, but because they won't be conservative enough. Most conservative judges today believe in a theory that leads to very un-conservative results -- law that amounts to little more than judges' opinions, concentrated power in the hands of an allegedly all-knowing Supreme Court, and legal rules that reinforce the power of liberal interest groups like teachers' unions. The right has the wrong legal theory.

The theory boils down to three "isms": federalism, originalism, and formalism. The unifying theme behind this trinity is that all are things Earl Warren wasn't. Warren believed in broad Congressional power to regulate the economy and protect civil rights. Modern-day federalists believe in states' rights. Warren believed in a living Constitution that changes with the times. Originalists think the Constitution means exactly what James Madison thought it meant when he wrote it. Warren cared about the consequences of his decisions. Formalist judges follow legal forms and procedures and believe that worrying about consequences is a job for politicians.

All these theories are supposed to limit judges' power, so they can't "make law from the bench," as the President likes to say. But the holy trinity of conservative legal thought does not cabin judges' power so much as hide it. Judging, Scalia-style, is a little like a card trick: the audience's attention is drawn to one hand while the other does all the work.

Take the three isms one at a time. The basic idea behind federalism is to avoid concentrated power -- to give more authority to Austin and Boston, and less to inside-the-Beltway power brokers. Actually, judicially enforced federalism does the opposite. In a world with strong constitutional lines between the federal government and the states, the greatest power is held by whoever draws those lines. That power goes to nine unelected Supreme Court Justices, answerable to no one. So much for limiting the influence of Washington power brokers.

If state and local governments desperately needed the Court's protection, that might be an acceptable price to pay. But they don't. Over the last half-century, state and local governments have grown faster than the federal government. Remove Social Security, and the growth gap widens. States and localities are doing fine, without the help of the Justices. The pull and tug of politics protects state prerogatives a good deal better than Sandra O'Connor or Anthony Kennedy could.

That is just one reason to think that conservatives should be wary of judicially enforced limits on Congressional power. There are others. Consider: Conservative heroine Margaret Thatcher was a great centralizer when she governed Britain; it is the left's Tony Blair who believes in strong regional and local governments. That sounds surprising, but it isn't. Public employees' unions tilt to the left -- and those unions find it much easier to capture local agencies than national ones. In America, teachers' unions have a hammerlock on big-city school systems. The best way to break their hold is to ally the federal government with the market -- holding urban schools to higher standards and giving vouchers to parents when schools flunk the test. That won't happen if federalist judges bar Congress and the White House from doing anything about education. Constitutional federalism is a large gift to the NEA. Whatever else that may be, it isn't conservative.

Dangerous as constitutional federalism is, originalism -- the idea that constitutional language should be read the way James Madison and his friends would have read it -- is worse. Begin with a proposition that originalists usually ignore: No one really knows what Madison would think about, say, the constitutionality of federal environmental laws. Madison had a vision of what "commerce among the several states" might mean, but his vision did not extend centuries into the future. (Those among us who believe in divinely inspired texts should not confuse Madison with Moses.) Racial profiling, Roe v. Wade, and gay rights were, to put it mildly, not part of his legal imagination. Figuring out how he would apply eighteenth-century texts to those questions is not just hard. It's impossible.

Originalist lawyers and judges might respond as follows: We may not know what Madison thought about any particular issue, but we do know what abstract principles he held dear, and we can apply those principles to the issue at hand. This is a verbal trick. One can believe in freedom and limited government and come out either way on the questions raised in the preceding paragraph. So, in practice, originalism ends up resting on the following logical progression: Madison never told us what he thought of gay marriage. But we know that Madison was a smart and decent guy. I'm a smart and decent guy. So Madison would think about gay marriage pretty much the way I do. That is originalist judging in a nutshell: judges writing their own views into the Constitution, all the while pretending that Madison's hand holds the pen. That process has all the vices of the old Warren and Brennan style of judicial decisionmaking, with a dose of hypocrisy added to the stew. If judges are going to exercise judgment, better that they should admit whose judgment they're exercising.

If federalism and originalism are the reigning conservative theories of constitutional law, formalism is the reigning conservative theory of everything else. Formalist judges would rule out of bounds arguments that this or that legal rule or statutory interpretation should be adopted because it would advance some policy goal or otherwise make the world a better place. Judges should restrict themselves to matters of legal form. Statutes should be read with the aid of dictionaries, not policy arguments.

If there were an inverse relationship between a society's health and how much fun its lawyers have (in a just world, there would be), then formalism would be a pretty good approach to law. Surely there is something appealing about any theory that makes law, and lawyering, more tedious than it already is. The problem is, judges will not volunteer to make their jobs tedious. The better assumption is that, in a formalist world, judges will think about all the same policy arguments, but tell their law clerks to write formalist opinions. This amounts to the Wizard of Oz in reverse. The little man behind the curtain really is "great and powerful," but he pretends to be a simple legal mechanic who ponders nothing more interesting than what the meaning of "is" is. (Bill Clinton would make a good formalist judge.) Formalism, like originalism, is just a cover.

Conservatives need to wake up and smell the coffee. Judges, including conservative ones, do make law from the bench. We should see to it that they make good law rather than the bad kind. The first step toward that goal is to require that they admit what they're doing. Transparency is a virtue, in judging as in governing more generally. American courts are too shrouded in mystery already; they would benefit from more sunlight, not less.

So what is the right legal theory? The key is two more buzzwords: deference and democracy. When there is a choice between deciding an issue in the courts and deciding it elsewhere, elsewhere is usually the right choice. Especially if the choice is between judges and elected legislators. Let judges read statutes aggressively if they wish -- if they get it wrong, legislatures can always slap them down. But when reading the Constitution, judges should have two mottoes: First, do no harm. And when in doubt, don't.

Those mottoes may be the key to making American courts more conservative, in the best sense of that word. There are many ways a society could decide whether or not gays can marry, doctors can perform third-trimester abortions, universities can admit blacks and Latinos because of their ethnicity, or cops can frisk suspects based on a hunch. Judges writing jargon-filled opinions is rarely the best decisionmaking process. Antonin Scalia and Clarence Thomas, the two conservative heroes on the current Court, are no more likely to get the right answers than I am. And when they err, as surely they will, their mistakes are locked into place for decades, sometimes permanently.

That isn't conservative, and it isn't wise. If the last century proved anything, it proved that markets work better than central planning. Constitutional law is one of the leading bastions of central planning in our government. Break it up. Let the political marketplace decide hard questions.

Of course, some questions aren't hard. Sometimes, minority rights have to be protected by the courts, because they won't find protection anywhere else. And some constitutional regulation is necessary so that the political marketplace can function (gerrymandered congressional districts come to mind -- would that we had seen more judicial activism on that front). But these categories are not as large as most lawyers, including conservative ones, suppose. Most constitutional law deals with questions that other institutions could answer as well as or better than the courts. Where that is so -- where there is room for reasonable doubts and disagreements, as is usually the case -- courts should leave issues in other hands.

Over the past few years, a Republican President has embraced the proposition that fighting terrorism around the world means spreading freedom and democracy around the world. Another wartime Republican President, Abraham Lincoln, would have liked that proposition. Lincoln believed in fighting wars to preserve and spread "government of the people, by the people, and for the people." As we fight to secure democratic government for Afghanis and Iraqis, we would do well to spread a little democracy here at home. Let's start with people who wear black robes.

William J. Stuntz is a Professor at Harvard Law School.



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