Spann, Girardeau A., Constitutional Commentary
My legal realist inclinations leave me largely agnostic about the particular provisions that happen to be included in any particular constitution. That is because both written and unwritten constitutions seem more likely to reflect than to prescribe the normative values of the cultures that adopt them. As a result, the substantive, structural, and procedural provisions of the present United States Constitution seem perfectly adequate to promote justice--at least in a culture that is genuinely committed to the cause of justice. No constitution is likely to promote justice in a culture that lacks such a commitment. Nevertheless, there is one change that I would make if I were rewriting our current Constitution. I would eliminate the institution of judicial review.
Judicial review is commonly thought to facilitate an acceptable degree of convergence between the abstract principles celebrated in our written Constitution and the actual practices of our political culture in the conduct of its day-to-day affairs. However, I fear that judicial review, in fact, serves precisely the opposite function. For example, the United States Constitution rests heavily on the abstract principle of equality. The equality principle, which seems to be a staple of most mature legal cultures, incorporates an a priori normative belief that justice requires like things to be treated alike. But the political culture often prefers to allocate benefits and burdens in ways that violate the equality principle, by according differential treatment to individuals and groups based on characteristics such as race, gender, wealth, social class, sexuality, political affiliation, religious conviction, and the like. I suspect that the culture's commitment to abstract equality is as genuine as the culture's inability to resist the lure of self-interested favoritism. As a result, the hypocrisy entailed in proclaiming equality while practicing discrimination can be expected to generate a level of cognitive dissonance that, if left unchecked, would be destabilizing.
Contrary to what one might initially suspect, in this context, destabilization would be a good thing. It would exert pressure on the culture to cease its discriminatory behavior, or at least to abandon its claim of fidelity to the equality principle. But the perceived conflict between principle and practice will not have this salutary effect if the dissonance between the two can somehow be dissipated. My fear is that the institution of judicial review serves this dissonance-reduction function well enough to preserve and protect the hypocrisy of the political culture. The culture, of course, has other dissonance-reduction techniques at its disposal. But the hypocrisy function of judicial review is particularly offensive, because it utilizes self-deception to make the practice of oppression actually appear to be noble. Because it is difficult to identify any truly benign function that judicial review has served in United States culture, I would rewrite the Constitution to make the institution of judicial review itself unconstitutional. There are, of course, practical problems entailed in "rewriting" a Constitution to eliminate a provision that never actually appears in the Constitution, and in describing the precise forms of "judicial review" that I would preclude. But, as will become apparent, there is no need to resolve those practical details at the present time. (1)
The legal realists have taught us that doctrine does not determine outcomes. Moreover, the postmodern extension of realist thought into the general realm of rational epistemology now engenders skepticism about all causal accounts that purport to transcend the normative perspectives of those who offer them. Because the United States Constitution is a repository of doctrinal assertions, resting on the particular set of epistemological conventions that we utilize to give the document meaning, it would be unrealistic to expect the Constitution to do anything more than reflect the normative values of our political culture at particular points in its evolution. …