Putting the Law Back in Constitutional Law
Sherry, Suzanna, Constitutional Commentary
Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, (1) the organizers of this symposium have asked us to address whether constitutional law is in crisis. I am agnostic on that question, although I think that there has been a turn in the wrong direction. But if there is a crisis, I know who to blame.
If constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of lawyers. We thus should not be surprised if judges have, as Professor Ristroph suggests, lost their faith in the Constitution. We have led them into the wilderness.
Law, especially constitutional law, and especially the hard cases that reach the Supreme Court, is neither fully determinate nor fully indeterminate. Legal decision making (including constitutional decision making) is, as I have argued elsewhere, constrained by precedent, by reason, institutional structure and context, and by professional norms. (2) Those constraints are not perfect, nor do they eliminate discretion and disagreement. But to the extent that they remain influential, the constraints curb judicial excesses and ensure that constitutional doctrine remains, by and large, governed by the rule of law rather than by the whims of judges.
The first problem is that many legal academics have stopped believing in the efficacy of those restraints, and consequently see little distinction between politics and law. Following the lead of "attitudinalist" political scientists, hordes of law professors now proclaim that constitutional law is nothing but politics, and judges are merely legislators in black robes. (3) (Ironically, political science scholarship is now moving away from attitudinalism (4)--as usual, law professors are ten or twenty years behind the discipline from which they are borrowing ideas.)
For some of these legal academics, the appropriate response is to attempt to reduce judicial discretion by imposing some overarching methodology of constitutional interpretation. But constitutional adjudication cannot be made mechanical, and all of these "grand theories" end up leaving judges with essentially as much discretion as they would have in the absence of the theory. (5) In addition, even the few judges who purport to adhere to one of these grand theories regularly depart from it. This attempt to eliminate discretion, then, is a dead end--although we still can't seem to stop obsessing about it.
Other academics take the opposite approach. Instead of taking politics out of constitutional law, they want to take constitutional law away from the courts. The latest fad in constitutional theory seems to be popular constitutionalism. (6) Popular constitutionalists argue that because constitutional adjudication is equivalent to legislative policy making, constitutional interpretation should be done only by the people or their representatives. It is hard to know how popular constitutionalism would work, since few (if any) of its advocates make any concrete suggestions about how to implement popular constitutional interpretation. But in any case, my view is that leaving constitutional decisions to the majority carries an unacceptably high risk of majority tyranny. There is also the problem that many popular constitutionalists are fair-weather friends of populism: When the Supreme Court is making decisions they agree with, they are perfectly happy to leave constitutional interpretation to the courts.
The point, though, is not that both grand theory and popular constitutionalism are seriously flawed. The point is that their adherents share a cynical view of constitutional law: that it is not law, but politics. And the problem is that if even legal academics take that view, the conflation of law and politics is bound to infect politicians, judges, and the American public. …