Decentralizing constitutional provisions versus judicial oligarchy: a reply to professor Koppelman.

• Author: McGinnis, John O.
• Position: Response to Andrew Koppelman in this issue, p. 11

Professor Koppelman pays me the compliment of responding to my recent article. Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery. (1) In particular, I am grateful for his kind remark that the article is a "major contribution to scholarship" as the "first unified description" of the Rehnquist's Court jurisprudence, because the major ambition of the paper, as Professor Koppelman himself acknowledges, is descriptive. (2)

Unfortunately, Professor Koppelman comprehensively misstates my normative position and his reply is thus misdirected. Professor Koppelman says that I think the Rehnquist Court has been following and should be following a "principle of subsidiarity." (3) He then argues that his principle invests the Court with such substantial political discretion as to make it a kind of oligarchy. (4) It is important to clarify at the outset that my article does not at all endorse the Court's fabrication and enforcement of the abstract principle of subsidiarity. Instead the article discusses the manner in which the Court has revived decentralizing provisions that are actually in the Constitution such as the limitations of the commerce clause, the protection for joint expression afforded by the First Amendment and the neutrality principle inherent in the religion clauses. To be sure, such provisions show that the Constitution contains an underlying theme of decentralization and I believe that theme is attractive as a policy matter for reasons I discuss, but that is a separate matter. The Court's warrant extends only to enforcing constitutional provisions, not a constitutional theme, and the Rehnquist Court, like any other court, should be applauded insofar as it interprets constitutional provisions correctly, which in my view requires taking account of text, original meaning, and precedent. Contrary to Professor Koppelman's claim, such an interpretivist Court enjoys no more political discretion when enforcing decentralizing provisions than when it enforces other provisions of the Constitution. (5)

Oddly enough, it is Professor Koppelman who consistently evaluates Supreme Court decisions according to his own political discretion. Rather than criticize the basis of the Rehnquist Court's holdings by appealing to text, original understanding, or even a close reading of judicial precedent, Professor Koppelman claims that a broad application of the Court's new decisions will lead to consequences of which he disapproves. (6) This method of criticism is doubly defective. First, he does not himself offer any theory of interpretation and in particular fails to observe the many ways in which attention to text and precedent will prevent the consequences he finds so unfortunate. Second, harping on particular consequences rather than building textual and precedential arguments against the Court suggests that he is guilty of exactly the same failings of which he wrongly attempts to convict the Court--shaping constitutional doctrine to reach preferred policy goals.

Because the Court's justification for its discrete decentralizing decisions derives from the Constitution itself, I never undertook the burden of demonstrating that the Constitution's provisions were wise public policy. (7) The article does note some modern support for policies that these decentralizing provisions implement--support that Professor Koppelman misunderstands and in some cases misstates. Given the primarily descriptive objectives of my piece, this support also helps explain why the Court may be restoring some of the original Constitution, just as I explained how political theories of the time led the New Deal and Warren Courts to neglect these provisions. In any event, as a matter of political theory, Professor Koppelman offers no framework for assessing circumstances in which centralization of norm creation is better than decentralization. Without a theory, Professor Koppelman can provide anecdotes about the examples of decentralization he dislikes but he contributes little or nothing to the political theory debate over the relative merits of centralization and decentralization. (8)

But what is most puzzling about Professor Koppelman's criticisms of the Rehnquist Court and of my article, even on the terms of his own misunderstanding, is his full-throated endorsement of Roe v. Wade. (9) If any decision can be criticized as inevitably bound up in political decisions and as representing the triumph of oligarchy, it is Roe. Without relying on a determinate text of the Constitution but on its own assertion of what rights are "fundamental," seven members of the Court invalidated the laws of a large majority of the states and put the issue of abortion beyond democratic control. In contrast, even if the Court were to enforce a principle of subsidiarity, it would at least have a coherent body of economic theory to choose the appropriate level for decisionmaking. Moreover, at the level chosen the decisions would be made more democratically than was the case in Roe.

Professor Koppelman's endorsement of Roe suggests that he has not seriously addressed as a matter of political theory the problem which the decentralizing provisions of the Constitution help solve. If we were sure that the Court could find exactly what set of social norms would make the best republic, the Constitution should have set up a structure by which the Court dictates such norms. But the Constitution is more skeptical of the dictates of rulers and more sympathetic to experiments by the people. It thus left the appropriate contours of social norms, outside of a few core sets of rights and process norms, to more experientially and experimentally based processes that my article attempts to describe. (10)

1. PROFESSOR KOPPELMAN'S MISUNDERSTANDINGS AND MISSTATEMENTS

   It is most regrettable that Professor Koppelman attributes to me many views I do not hold. As a result, he spends much of his essay gleefully sifting the stuffing from straw men. He appears to believe that I want the Supreme Court to enforce a "principle of subsidiarity." (11) This is simply wrong and it is a mistake that pervades his entire essay. As Professor Koppelman admits, my article rarely even mentions the term subsidiarity, (12) and never suggests that Court should enforce this abstract principle. Instead, it explains how the Court is enforcing the decentralizing constitutional provisions--such as the limitations of commerce clause, the free speech clause, the religion clauses, and the jury trial clauses. This essential point is not obscure, but appears over and over again in the article: "The Rehnquist Court is rediscovering the provisions of the Constitution that create alternate forums [to national democracy] for norm creation." (13) The article observes later that this movement "restores a degree of the Constitution's original meaning" (14) and discusses how this restoration is properly limited by respect for precedent. In several places the article uses text and history to defend the Court's decentralizing decisions. (15) The article closes by observing that the Court is justified in enforcing these provisions against majorities, national or state, as the case may be, because these constitutional provisions have been approved by a supermajoritarian ratification that overcomes many of the defects of ordinary centralized majoritarian processes. (16) It is thus patently central to the thesis of my article that the Court is enforcing constitutional provisions through an interpretation that is guided by their original meaning as modified by established precedent.

   Despite my many citations in the preceding paragraph to my own article, Professor Koppelman in rebuttal suggests that this reply "shifts emphasis" from "decentralization" to "textualism and originalism." (17) But he does not provide any evidence of the shift in my jurisprudential position--neither evidence that my original article argued that the Court should enforce a principle of subsidiarity apart from the decentralizing texts in the Constitution nor evidence that it failed to argue that the Court's decisions were justified on originalist and textualist grounds. (18) It is mystifying why Professor Koppelman persists in confusing theories of constitutional interpretation and policy defenses of constitutional provisions and in predicating his entire essay on a claim that I have suddenly adopted an interpretative theory never expressed in any of my work. (19)

   Because of this fundamental error, Professor Koppelman expends enormous energy dissecting an article no one has written. First, he suggests that I think the Court should decide cases by determining what is "the best thing for government to do." (20) (As we will see, that interpretative method turns out to be more Professor Koppelman's style of jurisprudence). To the contrary, the Court should try to best understand the meanings of the words of the Constitution, such as the compass of interstate commerce. In section two I will show that Professor Koppelman has not demonstrated that it is doing so in a politicized fashion. (21) A related problem is that he ignores the many constitutional provisions authorizing centralized authority that I also believe should be enforced according to their terms. (22)

   Second, given that the Supreme Court has not chosen these principles for itself as a policy matter, it is wrong to suggest that either the Court or I must prove that the principles it enforces are politically sound. The article discusses at some length the seeming paradox of a centralized institution enforcing principles of decentralization that were themselves centrally developed at the Constitutional Convention. (23) The way out of this paradox is to recognize that the Court is enforcing provisions endorsed by a supermajoritarian consensus during the ratification process. As I describe briefly in this article and at length with Michael Rappaport elsewhere, the...