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. By "our culture" or "our political culture" I mean that idealized collection of "us" who believe in abstractions that are commonly thought to constitute the American way of life--e.g., universal unalienable rights to life, liberty and the pursuit of happiness--but who also tolerate deviations in practice from the abstract norms that we espouse--e.g., poverty, parochialism, and xenophobic intolerance. The Constitution cannot constrain our actions, or our beliefs, in a way that causes us to become someone other than who we are.
Constitutionalism entails the belief that legitimate governmental power is limited by fundamental principles contained in a source of higher law that supersedes policies adopted through the ordinary political process. In United States culture, that higher law is articulated in a written Constitution, whose provisions are ultimately enforced through the institution of judicial review. Marbury v. Madison, (2) therefore, recognized a countermajoritarian power in the politically insulated Supreme Court to invalidate representative branch actions that violate the fundamental principles contained in the Constitution. That is the way that constitutionalism and judicial review are supposed to wok. (3) But there are alternate accounts.
Legal realism has taught us that legal doctrine--including the doctrine embedded in the Constitution--is alone too indeterminate to resolve disputes. Whether focusing on constitutional text, original intent, or one's favored theory of constitutional interpretation, there is always adequate play in the doctrine to support divergent outcomes. As a result, constitutional meaning is inevitably vulnerable to the normative values and political preferences of those doing the interpreting--including Justices sitting on the Supreme Court. (4) It is, therefore, difficult to imagine a Supreme Court interpreting vague insistences on "due process" and "equal protection--or even absolute prohibitions on "abridging the freedom of speech" or "impairing the Obligation of Contracts"--without being influenced by the values and preferences of the Justices themselves. (5) If that were not the case, Supreme Court confirmation hearings would focus on a nominee's analytical abilities rather than on a nominee's position concerning controversial political issues, and Senators would not vote so closely along party lines.
The legal realists sought to counteract the indeterminacy of doctrine by pairing law with foundational principles rooted in procedural regularity, or in their own preferred social sciences. However, the critical legal studies movement then applied realist indeterminacy insights to the foundational principles of the realists themselves, in order to demonstrate that those principles were no more determinate than the legal doctrines they had been offered to bolster. (6) As described by Robin West, the critical legal studies movement emphasized that doctrinal interpretations tended to skew outcomes in favor of existing power relationships by reinforcing the view that those outcomes were not only neutral and necessary, but were properly divorced from extra-legal moral or political concerns. Utilizing the analytical technique of deconstruction to expose the illusion of "false necessity" on which doctrinal outcomes typically rested, the critical legal studies movement sought to neutralize the often oppressive power of "liberal legalism" to perpetuate the status quo. As a normative matter, therefore, the critical legal studies movement tended to favor progressive policies and politics. But as critical legal studies matured into a full-blown postmodern epistemological movement, the normative predispositions of critical legal studies themselves came to be recognized as yet another set of contingent and socially constructed principles. (7) So understood, postmodernism, carried indeterminacy to its logical extreme by, ironically, questioning the coherence of the logical rationality that is typically offered to justify the application of judicial power. Let me emphasize, it is not that there is no difference between right and wrong. It is only that doctrine and syllogistic analysis cannot reliably illuminate the distinction between the two.
Judges are not necessarily misbehaving when they consult extra-legal values and preferences in giving meaning to constitutional provisions. They have no other option. Abstract constitutional principles cannot acquire operative meaning in a way that is independent from the perspectives and experiences of the judges who interpret those principles. But it would be a mistake to think that something more than judicial construction is what is going on. Ultimately, it is the Justices on the Supreme Court--and not the provisions of the Constitution--that are resolving the constitutional disputes brought before the Court. That should cause us to have more realist expectations about the nature of constitutionalism. The Supreme Court is better understood as yet another policymaking branch of a tricameral legislature than as a reliable guardian of constitutional principles. As such, the Court is more likely to reflect than to prescribe the normative values of our culture.
Although it is now common for us to accord the Supreme Court final say over controversial social policy issues such as abortion, school prayer and affirmative action, this judicial policymaking was not within the original conception of judicial review. Bill Treanor has emphasized that, prior to Marbury, judicial review was viewed as a natural outgrowth of the popular sovereignty expressed in our written Constitution--but not as a substitute for popular sovereignty. Accordingly, state and federal courts invalidated statutes raising structural or process problems. They did so where...