A theory of power

A Theory of Power

CONSTITUTIONAL LAW is not a difficult or mysterioussubject; the Constitution is a short and simple document, and very few of its provisions play even a nominal role in the making of constitutional law. The need for anything as portentous as a "constitutional theory' --exactly what are the puzzling phenomena requiring explanation?--is therefore not entirely clear. The function of current constitutional theory, however, is not to aid understanding of the Constitution or of the nature and source of constitutional law, but instead to offer justifications for what the Supreme Court has done in the last three decades, entirely without constitutional warrant, in the guise of enforcing the Constitution.

The current proliferation of constitutional theories arisesfrom an increased recognition of two crucial facts that threaten to undermine the legitimacy of constitutional law: 1) The Supreme Court's rulings of unconstitutionality are not, as represented, based upon or derived from the Constitution. 2) These rulings have not been random in their political impact, but have uniformly served to advance a single political point of view. It can be said that the American Civil Liberties Union, the paradigmatic constitutional litigator of our day, never loses in the Supreme Court. Typically, either the ACLU wins a victory on some issue of social policy that it could not win through the ordinary political process, or, at the least, it is left where it was, to try again another day. For the ACLU's opponents, on the other hand, to win means nothing more than that the Court has not positively denied them the right to fight for their position--e.g., that abortion should be restrict-- in the ordinary political process.

Because the vast majority of those who write and teachin the area of constitutional law share the broad political preferences of the modern-era Supreme Court and realize that those preferences can be made to prevail in American society in no other way than by Court decree, the formulation of constitutional theory today is far from a disinterested academic enterprise. Typically, it is motivated by the view that the policy-making role the Court has been allowed to assume in the past three decades must be defended at all costs. The frequent result is resort to arguments so patently counter-factual and illogical that they would not be considered intellectually reputable in a true academic discipline and would be dismissed as ludicrous even as legal argumentation if the subject were not so politically charged.

It is necessary to make clear, first of all, that much is atstake in the "constitutional theory' debate. In the past three decades the Supreme Court has arguably become our most important institution of government in regard to domestic social policy. The Court's decision in Brown v. Board of Education in 1954, holding school racial segregation --and, it soon appeared, all racial discrimination by government--unconstitutional, led to a widespread belief in the moral superiority of judicial decision-making to decision-making by the processes of representative government. The Court quickly came to be seen as the essential vehicle of difficult social change, as an institution through which American society could be remade in accordance with a particular political vision without the necessity to undertake the onerous task of obtaining the consent of a majority of the American people. If, after all, the Court could do so great and difficult a thing as end racial segregation in the South, what great and difficult things could it not do?

In the years since Brown, the Court has been permittedto decide issues literally of life and death, as in its decisions on abortion and capital punishment; it has decided issues of public decency and morality and of personal and national security; it has decided that children should be excluded from their neighborhood schools and transported to more distant schools because of their race; it has disallowed state provisions for prayer in the schools, while also disallowing most forms of government aid to religious schools; it has invalidated most legal distinctions on the basis of sex, alienage, and legitimacy. In short, in terms of the issues that determine the nature of a civilization and the quality of life in a society, the Court has become our primary policy-making institution. And on every one of these difficult and controversial issues, it is important to note, the Court has adopted and furthered the policy preferences of those on the far left of the American political spectrum, and has done so in many cases over the strong opposition of a majority of the American people.

The only question common to the myriad of issues settledby the Court under the rubric of constitutional law is, "On what basis will the Court assert its power to decide this question?' Thus the only real issue in current constitutional law is, How, if at all, is it possible to justify the role the Court has assumed in the American system of government for the past three decades? Or, turning the prism through which we view the question a few degrees, Why should the American people prefer to have fundamental issues of social policy decided by majority vote of a committee of nine lawyers unelected and effectively holding office for life, rather than by the decentralized process of self-government provided for in the Constitution? Constitutional theory is in essence an attempt, witting or unwitting, to evade or obscure this question.