I'm talking about Geoffrey Stone's Op Ed from today's Times. The part of his point that's right is captured by the title.
Our Fill-in-the-Blank ConstitutionWhen judges and justices have to determine how to apply the Constitution, Stone says (rightly) they don't, in fact they can't, apply the credo then-Judge John Roberts dishonestly espoused before the Senate Judiciary Committee when he said,
I will remember that it's my job to call balls and strikes, and not to pitch or bat.And when he said,
Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.Nor do they do what Justice Scalia claims he does, find out the "original meaning" of the Constitution's words and simply apply it.
Stone explains why.
Stone's characterization of those decisions (the links are his) is, in at least some of the cases, seriously misleading. District of Columbia v. Heller for instance, specifically did not "prohibit the regulation of guns." And I'm not interested here in arguing about whether, as he suggests, the Court's decisions in these case was something other than "neutral and detached." The implied claim of bias is beyond the scope of this post.
To see why this is so, we need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.
Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.
But his larger point is clearly right. There's nothing in the Constitution that mandated at least some of those decisions. The rights of corporations, the protection afforded commercial speech, the use of affirmative action to redress the consequences of past and current discrimination, these are not rules clearly spelled out in nor clearly prohibited by the language of the relevant portions of the Constitution.
This isn't, of course, a new point. Not in the world at large and not in this blawg. It bears repeating now only because we are, again, entering the season in which it will be claimed (lifting a phrase from Jane Austen) a truth universally acknowledged that the Constitution does not require interpretation but merely fealty.
Stone goes on to explain that Madison knew better and understood more. (The links, again, are Stone's.)
So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.OK. The fear in a democratic system is tyranny of the majority. Sure enough. The Constitution's protection from that fear is our intentionally clumsy and inefficient tripartite system of government. Stone locates the protection, through Madison, in the judiciary and the power of judicial review. But that power isn't spelled out in the Constitution. Rather, it was found to be implied there and adopted by the Court itself in Marbury v. Madison. Balls and strikes won't discover it, though Justice Balls & Strikes himself has no qualms about applying it.
Anyway, Stone's channeling of Madison's championing the rights of the minority against the tyranny of the majority is sweeping and majestic.
Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.
There's a good case for saying he's right, at least if all you look to is the idea that he finds in Madison of the powerful tyrannizing the powerless, though "consertive" should maybe be put in quotes. But then there's this.
Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantánamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.Catch the howlers?
The "people like Madison who forged the American constitutional system" would have favored
invalidat[ing] laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.
Huh? Who are those people? The slaveowners? The ones who enshrined slavery in the Constitution? The ones who forged the compromise that apportioned representation in the House
by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Are they, instead, the ones who enacted the Alien and Sedition Acts making it a federal offense to criticize the government? The ones who saw no problem with limiting voting rights and office holding rights to males who owned real property?
"We the people," as Barbara Jordan so eloquently and ironically observed, did not include significant numbers of the people. That's a reality.
The Constitution that protects the minority against the tyranny of the majority is a fine and noble thing. But it's fatuous to pretend that the democratic fear of the framers was anything other than mob rule. The majority they feared were not they. It was their privilege - male, white, moneyed, protestant - they were protecting.
The rest of "We the people," were the danger.