Decentralizing Constitutional Provisions versus Judicial Oligarchy: A Reply to Professor Koppelman
McGinnis, John O., Constitutional Commentary
Professor Koppelman pays me the compliment of responding to my recent article. Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery. (1) In particular, I am grateful for his kind remark that the article is a "major contribution to scholarship" as the "first unified description" of the Rehnquist's Court jurisprudence, because the major ambition of the paper, as Professor Koppelman himself acknowledges, is descriptive. (2)
Unfortunately, Professor Koppelman comprehensively misstates my normative position and his reply is thus misdirected. Professor Koppelman says that I think the Rehnquist Court has been following and should be following a "principle of subsidiarity." (3) He then argues that his principle invests the Court with such substantial political discretion as to make it a kind of oligarchy. (4) It is important to clarify at the outset that my article does not at all endorse the Court's fabrication and enforcement of the abstract principle of subsidiarity. Instead the article discusses the manner in which the Court has revived decentralizing provisions that are actually in the Constitution such as the limitations of the commerce clause, the protection for joint expression afforded by the First Amendment and the neutrality principle inherent in the religion clauses. To be sure, such provisions show that the Constitution contains an underlying theme of decentralization and I believe that theme is attractive as a policy matter for reasons I discuss, but that is a separate matter. The Court's warrant extends only to enforcing constitutional provisions, not a constitutional theme, and the Rehnquist Court, like any other court, should be applauded insofar as it interprets constitutional provisions correctly, which in my view requires taking account of text, original meaning, and precedent. Contrary to Professor Koppelman's claim, such an interpretivist Court enjoys no more political discretion when enforcing decentralizing provisions than when it enforces other provisions of the Constitution. (5)
Oddly enough, it is Professor Koppelman who consistently evaluates Supreme Court decisions according to his own political discretion. Rather than criticize the basis of the Rehnquist Court's holdings by appealing to text, original understanding, or even a close reading of judicial precedent, Professor Koppelman claims that a broad application of the Court's new decisions will lead to consequences of which he disapproves. (6) This method of criticism is doubly defective. First, he does not himself offer any theory of interpretation and in particular fails to observe the many ways in which attention to text and precedent will prevent the consequences he finds so unfortunate. Second, harping on particular consequences rather than building textual and precedential arguments against the Court suggests that he is guilty of exactly the same failings of which he wrongly attempts to convict the Court--shaping constitutional doctrine to reach preferred policy goals.
Because the Court's justification for its discrete decentralizing decisions derives from the Constitution itself, I never undertook the burden of demonstrating that the Constitution's provisions were wise public policy. (7) The article does note some modern support for policies that these decentralizing provisions implement--support that Professor Koppelman misunderstands and in some cases misstates. Given the primarily descriptive objectives of my piece, this support also helps explain why the Court may be restoring some of the original Constitution, just as I explained how political theories of the time led the New Deal and Warren Courts to neglect these provisions. In any event, as a matter of political theory, Professor Koppelman offers no framework for assessing circumstances in which centralization of norm creation is better than decentralization. Without a theory, Professor Koppelman can provide anecdotes about the examples of decentralization he dislikes but he contributes little or nothing to the political theory debate over the relative merits of centralization and decentralization. …