The Democratic Constitution: Experimentalism and Interpretation

The Democratic Constitution: Experimentalism and Interpretation

by Brian E. Butler


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The Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy.
Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice. 

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Product Details

ISBN-13: 9780226474502
Publisher: University of Chicago Press
Publication date: 08/21/2017
Pages: 248
Product dimensions: 6.10(w) x 9.10(h) x 1.10(d)

About the Author

Brian E. Butler is the Thomas Howerton Distinguished Professor of Humanities in the Department of Philosophy at the University of North Carolina. He is the editor of Democratic Experimentalism.

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The Democratic Constitution

Experimentalism and Interpretation

By Brian E. Butler

The University of Chicago Press

Copyright © 2017 The University of Chicago
All rights reserved.
ISBN: 978-0-226-47464-9


The Democratic Challenge to Constitutional Law

This chapter begins by outlining one dominant explanation for judicial supremacy in interpretation of constitutional law. This explanation, the "protection from the tyranny of the majority" story, will then be critiqued through the work of contemporary theorists that are skeptical of this rationale not only due to its being empirically questionable but also and more important because of its incompatibility with democratic self-government. These critiques of Supreme Court supremacy point toward the necessity of a more democratic conception of constitutional law.

In this book the aim of a more democratic conception of constitutional law is not only accepted but is adopted in a very rigorous form. The democratic requirements accepted in this book are based upon the tenants of pragmatism as initiated by Charles Sanders Peirce and, most centrally, elaborated and championed by John Dewey. As will be shown, Deweyan democracy is very demanding. This chapter will end by noting and accepting one central implication of Dewey's demanding conception of democracy: that a democratic society can only be built upon democratic means. In the remaining chapters I construct a conception of "law as a democratic means" in order to render it plausible and desirable that constitutional law could be implemented in a more democratic manner. This conception, inspired by the 1930s work of Thurman W. Arnold and Edward Steven Robinson, and the contemporary work of Charles Sabel, Michael Dorf, and William Simon, among others, is then offered under the name of "democratic experimentalism."

Saving the People from Themselves

In his book, The Case Against the Supreme Court, Erwin Chemerinsky leads off with the story of Buck v. Bell, Oliver Wendell Holmes Jr's properly infamous opinion for the United States Supreme Court. The state of Virginia had enacted a eugenics law that legalized the involuntary sterilization of persons found to be of low intelligence. The state moved to sterilize Carrie Buck under this law. A hearing was held where testimony was offered that she was "retarded." (Evidence of her later life raises great doubt as to this conclusion.) Sterilization was ordered and executed without her consent. Carrie Buck's guardian, R. G. Shelton, filed suit challenging the constitutionality of the Virginia law. Buck's attorney argued that forced sterilization was a violation of her fundamental right to bodily integrity and cruel and unusual punishment. In an eight-to-one opinion, the Supreme Court ruled against Buck arguing that, among other things, the sterilization wasn't punishment at all because she had not been convicted of a crime. Holmes wrote in the opinion that the law was reasonable because "three generations of imbeciles are enough." After offering this frightening result, Chemerinsky then continues on to tell a book-length story detailing and lamenting the many other terrible decisions made by the United States Supreme Court.

The ensuing discussion of Supreme Court antiprecendent decisions that, according to Chemerinsky, in various ways set social progress back and thwarted justice, encompasses 225 of the 344 pages of his book. And the list of what he considered judicial failures is substantial. There were failures in decisions on matters of slavery and race that included Prigg v. Pennsylvania and Dred Scott v. Sandford. There was the Supreme Court's narrowing of the protections of the Equal Protection Clause through the Slaughter-House Cases, Plessy v. Ferguson, Cumming v. Board of Education, Berea College v. Kentucky, and Gong Lum v. Rice. There was the modern Court's failure in discrimination cases as seen in, among other cases, Washington v. Davis, Mobile v. Bolden, McClesky v. Kemp, Parents Involved in Community Schools v. Seattle School District No. 1, J. A. Croson v. City of Richmond, Fisher v. University of Texas at Austin. Then there were failures to act constitutionally in times of crisis as seen in Korematsu v. United States, Schenk v. United States, Frohwerk v. United States, Debs v. United States, Dennis v. United States, Holder v. Humanitarian Law Project, and Hamdi v. Rumsfeld. Also problematic was the way the Court has protected property and states' rights to the determinant of individual citizens seen in Hammer v. Dagenhart, Lochner v. New York, Allgeyer v. Louisiana, Adair v. United States, Coppage v. Kansas, United States v. E. C. Knight Co., Carter v. Carter Coal Company, A.L.A. Schecter Poultry Corp. v. United States, Railroad Retirement Board v. Alton R. Co., United States v. Lopez, United States v. Morrison, National Federation of Independent Business v. Sebelius, New York v. United States, and Prinz v. United States. Then there were specific failures of the Roberts Court seen in, for example, United States v. Apel, Pliva, Inc. v. Mensing, Mutual Pharmaceutical v. Bartlett, American Express v. Italian Colors Restaurant, Circuit City v. Adams, Wal-Mart Stores v. Dukes, AT&T Mobility v. Conception, and Ledbetter v. Goodyear Tire and Rubber Co., Inc. Also identified were consistent failures in protection from abuses of government power such as Van de Kamp v. Goldstein, Mireles v. Waco, Imbler v. Pachtman, Bogan v. Scott-Harris, Briscoe v. LaHue, Hope v. Pelzer, Ashcroft v. al-Kidd, Florida Prepaid v. College Savings Bank, Kimel v. Florida Board of Regents, Board of Trustees of University of Alabama v. Garrett, Alden v. Maine, Bryan County, Oklahoma v. Brown, Citizens United, Bush v. Gore, Garcetti v. Ceballos, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, and Shelby County, Alabama v. Holder.

The failures turn out, therefore, to be an impressive-sized group indeed. And Chemerinsky's list is not meant to be exhaustive of either substantive areas of law (for instance, gender is not really covered) or cases in those areas actually analyzed (there are in the area of race, as an example, many other antiprecedents that could be identified given his criteria). But there must have been successes? In fact, Chemerinsky identifies only a fifteen-year period — the Warren Court — that according to him lived up to the proper function of the Court. And in his opinion even the Warren Court did not fully fulfil the Court's proper function because it did not show a full moral commitment to its central mission. So, even in the best case scenario of a decision like Brown v. Board of Education (a case he deems a success) the Court, though partially living up to its job, still ultimately failed as to its essential purpose. The section of the book devoted to Supreme Court success — however limited and qualified — lasts only thirty-six pages. And many of those few pages explain why this most successful of Supreme Court eras also failed.

One conclusion Chemerinsky derives from this investigation is not surprising: "The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments." Furthermore, the Court has lost because "the Court usually has been on the side of the powerful — government and business — at the expense of individuals whom the Constitution was designed to protect." That is, the Court consistently neglects to protect racial minorities, fails to stand up for rights in times of crisis, and has championed the strong, such as big business and states, at expense of individual rights. For Chemerinsky the Roberts Court is one of the worst disappointments in all of these areas.

Of course to know that the Supreme Court is failing at its job is to have some kind of idea of its function so as to be able to measure both its failures and its success. And some might think many of the above cases were not failures at all, though not many would find Buck v. Bell a success. That he sees protecting business and states at the expense of individual rights a failure gives a start at understanding what standards Chemerinsky is using to evaluate the Court. But what would be a success? To his credit, it is very clear as to what he thinks the Constitution, and the Court's relationship to the Constitution, is supposed to be when functioning properly. First, the Constitution "creates a framework for American government, but it also limits the exercise of governing authority by protecting individual rights." Further, the Constitution's defining characteristic designed expressly to help in this project is that it is difficult to alter. The reason for this unchanging and foundational quality is to prevent the tyranny of the majority. Therefore, Chemerinsky concludes, the Constitution's great overriding purpose is to protect minorities because "it is minorities — political, racial, social, economic — that need protection that democracy often cannot and will not provide." This purpose, in turn, explains what the Supreme Court's primary role is: "Therefore, I believe that the two preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities." So, for Chemerinsky, to judge the Court's performance properly is to look at it in light of its success in protecting political minorities from the tyranny of the majority. And in light of this purpose he thinks the Court has been a universal and consistent failure as represented by the crushing list of antiprecedent cases above.

Contrary to Chemerinsky one might think the Constitution has a different purpose or quite possibly multiple purposes. For instance, it might have been designed not to protect minorities but rather just to slow down democratic processes so they would be more deliberate and not so volatile. Indeed, this is one of the offered Madisonian justifications for representation. And certainly the worry of faction is not just a worry of rogue majorities. Minorities are factions too. Some minorities can be very powerful. But even if the constitution was designed to protect minorities from the tyranny of the majority, there is also room for disagreement over which minorities were meant to be protected. For example, it might be outlier states that were to be protected against the majority. Or it might be the elite property owners as a minority class that were to be protected. (This last possibility is the thesis offered in Charles A. Beard's An Economic Interpretation of the Constitution of the United States.) Protecting these last two minorities cannot be Chemerisky's stance, though, because cases that do exactly this are identified as failures in his list. Clearly he thinks it is racial minorities and things like progressive social legislation for workers that the Court should protect. But this, of course, is a contested picture of the Court's constitutional purpose. Though, admittedly, it is a picture of constitutional law that is quite popular.

Another possibility would be to use the above list as evidence to support an argument to the effect that the tyranny of the majority is not so bad and, instead of the Court, democratic process would better protect constitutional and individual rights. Maybe, that is, this is evidence for some type of constitutional populism. Indeed, a huge majority of the antiprecedents listed previously are examples where the Court gets in the way of legislation Chemerinsky approves of. So not only does the Court fail to protect minority rights in these cases, but it fails in a very destructive way because quite often its inadequacy is an impediment to legislation where more purportedly democratic branches had, in his opinion, succeeded. But Chemerinsky condescendingly rejects this populist constitutionalism option as naive and its serious consideration as just a "product of academic detachment." The only evidence he offers for this rejection other than the strength of his own intuitions, though, is a couple of hypothetical questions: — "Who will be participating, and what will they be doing?" and "A populist constitutional law, almost by definition, would reflect popular attitudes. But why believe that this would be better than the courts in enforcing the Constitution?" These two hypothetical questions, it seems, are reason enough to eliminate any recourse to democratic means. Indeed, the questions seem to carry enough weight to eliminate any inquiry into the mere possibility of more democratic options.

But what if Chemerinsky's picture of the purpose of the United States Constitution and the Court is accepted? This leaves us with an important purpose that is being radically underserved by the institution he believes is specifically designed to further it. Normally if a tool's success rate in relation to the ends it was designed for had an easily identifiable failure rate of such magnitude it would be time to change tools. But this is not what he proposes to do. Startlingly, in the face of his own evidence of all of the Court failures he documented he argues rather that if only the justices would properly interpret the Constitution the Court could be "a moral leader." So, without any empirical evidence of success other than the brief and seemingly unrepresentative moment of the Warren Court and presumably the recent isolated example of Obergefell (a decision that came after his book was published), and indeed much evidence of failure, even recurring evidence of the Court getting in the way of democratic successes, he argues the Court's power of judicial review is necessary because of "the need to enforce the limits of the Constitution." Indeed, he claims that "those without political power have nowhere to turn except the judiciary for the protection of their constitutional rights."

He does, in service of his hope for this missing moral leadership from the Court, offer minor structural changes that would — it is assumed — help insure the that justices on the Supreme Court would have the legal knowledge, wisdom, and moral courage to ensure success. These changes are things such as making justices present a type of mission statement articulating the role of Court in enforcing the Constitution against the will of majority, picking justices on a merit system, rotating term limits, and changing the confirmation process so nominees would have to answer substantive questions honestly during hearings rather than hide behind neutral umpire rhetoric.

Belief in the Court's role as protector of minorities from popular prejudice and discrimination is, admittedly, a popular and ubiquitous one in United States legal theory. It is found in Alexander M. Bickel's belief that the Court does this as protector of principle and John Hart Ely's alternate claim that it does this through, alternately, protection of process. It is found in Richard Epstein's conservative theory of constitutional "classical" liberalism and Ronald Dworkin's morality-driven jurisprudential theory. It is, indeed, virtually an unquestioned assumption in legal thought relating to judicial review and judicial supremacy when it comes to the constitution.

On top of this characteristic legal claim, Chemerinsky's constitutional analysis exemplifies another recurring pattern in constitutional law theory and jurisprudence. This pattern goes as follows in Chemerinsky's text. He is both enamored by the Supreme Court and judicial supremacy in constitutional interpretation, sure of its necessity, and yet frustrated by its seemingly incessant failures. He then tries to identify the source of the failures without questioning the core constitutive assumptions behind judicial review and supremacy in the realm of constitutional law. The source of the failure is then identified as that in some manner or other the Court is not living up to its essential mission. That is, he finds one purpose or interpretive stance necessary and is somewhat at a loss to explain why it is not fully embraced to the exclusion of the numerous purportedly less reasonable alternatives. The analysis then ends with the hope that somehow uniformity might be imposed upon anyone who would mistakenly want to follow one of the other theories. This pattern is most clear in Chemerinsky's suggestion that the Court and each justice should adopt the practice of following a type of mission statement repeating, of course, his conclusion as to its purpose. In a later section of this chapter I explain why this pattern constantly reoccurs in legal theory and judicial reasoning. But first an outline of some opposing ideas as to constitutional function and democratic purpose is in order.

Popular Constitutionalism

Contrary to Chemerinsky's belief in the central importance of the Court's constitutional supremacy for the protection of otherwise vulnerable minorities are positions held by a series of legal scholars who argue for a more democratic conception and application of the United States Constitution and a lesser place for the Supreme Court in American Government. This is important. If theories of judicial supremacy like Chemerinsky's are not to be given a free ride, other options and the evidence available for them must be faced. This is even more clearly demanded in the face of such strong evidence as offered above that it is close to useless for the minorities it is supposed to protect under the "save the people from themselves protection from the tyranny of majority" theory of Court-driven constitutional law.


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Table of Contents

Introduction 1

Chapter 1 The Democratic Challenge to Constitutional Law 4

Chapter 2 Democratic Aims and Experimentalist Procedure 22

Chapter 3 Information-Rich Jurisprudence 49

Chapter 4 Epstein, Holmes, and Regulatory Takings Jurisprudence 77

Chapter 5 Lochnering 105

Chapter 6 Citizens United 128

Chapter 7 Brown and Ohergefell: Two Positive Precedents? 151

Chapter 8 From Social Contract Theory to Sociable Contract Theory 182

Conclusion 200

Acknowledgments 205

Notes 207

Bibliography 235

Index 245

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