The canon and the Constitution outside the courts.

• Author: Barber, Sotirios A.

What would it mean for "the canon of constitutional law" if we were to take seriously "the Constitution outside the courts"? What would happen to the canon if we were to distinguish (as Cass Sunstein and Larry Sager do) between the partial, judicially enforceable Constitution and the Constitution that imposes higher obligations upon legislatures, executives, and citizens generally to pursue constitutional ends or to secure constitutional rights?(1) How would the canon be affected by "taking the Constitution away from the courts," as Mark Tushnet proposes,(2) or by adopting what Sandy Levinson has called a "Protestant" rather than a court-centered "Catholic" approach to the question, who may authoritatively interpret the Constitution?(3)

We are co-authors, with Walter Murphy, of a casebook, American Constitutional Interpretation, which conceives the enterprise of constitutional interpretation on the basis of three basic interrogatives: What is the Constitution? Who may authoritatively interpret it? and How ought it to be interpreted?(4) In our treatment of the questions What? and Who? and in our selection of cases and materials beating on those questions, we commit ourselves to a muscular conception of the Constitution outside the courts, rather than simply focusing on constitutional interpretation by courts and on constitutional law as the product of Supreme Court decisions. In this essay, we briefly explore the canon and the Constitution outside the courts in general and then in particular with respect to a canonical, though wrongly decided, case, DeShaney. We take up the matter of how casebook authors might show that the canon of the Constitution is broader than the canon of the judicially enforceable Constitution. We raise the issue of DeShaney here, not to say anything new on the subject, but instead to put it on the table for discussion.

We appreciate the many difficulties associated with the concern for the Constitution outside the courts. Though the nation has not always moved toward a judicial monopoly of constitutional interpretation in all areas of constitutional controversy, American constitutional history does exhibit uneven progress toward a judicial monopoly of most constitutional questions, including most of the weightiest constitutional questions. Even where doctrinal change seems largely epiphenomenal on social and economic developments that occur "outside the law," the formal Constitution does not catch up until the courts say so, and the precise constitutional rationalizations of these developments, factors in their future, depend also on the courts.

The judiciary's apparent grip on the Constitution can be connected to a founding strategy to facilitate and foster private economic pursuits from which the common good would emerge as if by some hidden hand. As long as things go well or recovery is just around the corner, a bourgeois citizenry is too busy living to reflect much on its manner of living. Finding it easiest to believe that pleasure defines the good, and encouraged to do so by the regime, the bourgeois citizenry degrades all other answers to "ideology." This entrenches its answer so deeply that it is no longer seen as one of several (debatable) answers, and the question goes neglected--rationally unanswerable, some come to believe. This neglect and depreciation of the question creates a vacuum into which the courts are sucked by virtue of the way constitutional language forces judges into philosophic reflection and choice. (Justices finding a constitutional right to abortion, for example, had to make and eventually defended assumptions about the nature of liberty.(5) Opponents of the right, like Justice Scalia in Casey, predictably raised (second-order) philosophic objections to the...