'Thin Constitution is Light Fare'
Legal Times
June 14,1999
‘Thin Constitution is Light Fare’
By Mark Kozlowski
“I never met a man I didn’t like,” Will Rogers said famously. Not at all famous, unfortunately, is S.J. Perelman’s criticism of Rogers’ declaration. “One of the most shameful utterances to stem from the human mouth,” Perelman called it. It was, he said, “pure flatulence, crowd pleasing and fake humility.” I recalled Perelman’s remark more than once while reading Mark Tushnet’s Taking the Constitution Away From the Courts because I came to feel as if the spirit of Will Rogers was informing the vision of a new constitutional order for which the book is a manifesto.
The book’s provocative title means what it says. Tushnet, the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center, has frequently criticized the results of judicial review from a left-liberal perspective. But here he writes in opposition to the very idea that constitutional questions should be resolved by judicial review, instead of by a regime of “populist constitutional law.”
The immediate goal of populist constitutional law is to “distribute responsibility for constitutional law broadly.” But as things stand in the American polity, responsibility for the Constitution is not with the judiciary alone. Legislators routinely consider whether proposed legislation is consistent with constitutional parameters so that if enacted it will not be struck down by the courts. In Tushnet’s vision, however, legislators will stop looking over their shoulders at the courts because “constitutional interpretation done by the courts” will have “no special normative weight.” That is, in keeping with the notion that legislators take an oath to support the Constitution itself, and not the Constitution as the courts have interpreted it, a regime of populist constitutional law will set each coordinate branch of government free to act in accordance with its own program of constitutional interpretation.
Tushnet’s vision of tripartite constitutional interpretation immediately raises the same question that was raised when Thomas Jefferson proposed essentially the same thing: What happens when the courts strike down a statute or nullify an executive action ? Do the other branches simply defy the courts? If so, doesn’t this invite permanent constitutional crisis?
Of course Tushnet recognizes this problem, but it doesn’t appear to interest him very much. With respect to clashes between the legislative and judicial branches, he offers the following “rule of institutional design: The Supreme Court’s interpretations of the Constitution’s requirements prevail in general, unless they are rejected by wide majorities in both houses of Congress in legislation that expresses a reasonable interpretation of the thin Constitution’s requirements.”
What is this “thin Constitution”? The thin Constitution, according to Tushnet, is the “fundamental guarantees of equality, freedom of expression and liberty” set forth in the Constitution. Well, actually, not in the Constitution alone and not all of the guarantees found therein. Tushnet is quick to note that the thin Constitution does not include the First Amendment or the equal protection clause. Tushnet is loath to cabin the thin Constitution within specific provisions because he devoutly wishes “to avoid the suggestion that the thin Constitution consists of, or is the same as, what the Supreme Court has said about those provisions.” The thin Constitution is not so much a set of written provisions as it is a body of aspirational principles, which, if they are set forth anywhere, are set forth in the Preamble to the Constitution and in the Declaration of Independence.
The “project” of populist constitutional law is to “vindicate” the Declaration and the Preamble by using them as the vehicle “to construct an attractive narrative of American aspiration.” What’s “populist” about the project? It is something that involves us all. The project is “a self-creating activity in which the people of the United States daily decide whether to continue to pursue the course we have been pursuing.”
Unlike craven liberals, who “have warm and fuzzy feelings about judicial review,” Tushnet is in no way afraid of the people. Indeed he believes that, through populist constitutional law, we may be able to “develop a more robust understanding of constitutional social welfare rights, which are recognized in many constitutions around the world.” In short, populist constitutional law holds forth the prospect of ending the agony of the American left. Assuming that you are on the left, what could be wrong with that?
I think that a lot is wrong with it. First, to begin with what is most obvious, while Tushnet believes that populist constitutional law “rests on the idea that we all ought to participate in creating constitutional law through our actions in politics,” he makes no serious effort to explain how this is supposed to happen. It is clear that the populous is going to have to do a good deal more than simply vote in order to take part in “a self-creating activity in which the people of the United State daily decide whether to continue to pursue the course we have been pursuing.” But what?
Tushnet offers nothing but cant here. Populist constitutional law will employ “discussions among the people in ordinary political forums,” or “in the ordinary venues for political discussion.” What “forums” and “venues” can Tushnet mean? The only thing that occurred to me is radio call-in shows, but I don’t think this is what Tushnet has in mind. The most he can say is that “the Constitution belongs to us collectively, as we act together in political dialogue with each other--whether we act in the streets, in the voting booths, or in legislatures as representatives of others.” OK, I’m clear on the first two; they are wholly conventional and not particularly populist. But what exactly is going to go on in the streets?
Whatever the people are going to do on the pavement, Tushnet believes that chances are they will do a pretty good job: “Elitists tend to think that the people could not possibly care enough about individual rights to protect them through politics. And yet there are some dramatic examples of popular respect for what the people understand to be constitutional rights.”
Tushnet offers a grand total of two such “dramatic examples.” The first is an odd choice, the Second Amendment: “Gun control legislation is hard to enact because large numbers of people are convinced--wrongly, in the eyes of many scholars--that the Constitution guarantees an individual the right to own a wide range of guns.” Astonishingly, Tushnet does not even mention the fact that many of these “large numbers” belong to the National Rifle Association, an organization which, holding forth the promise of large campaign contributions to those who share its view of the Second Amendment, has successfully blocked gun control measures that much larger numbers of the American citizenry consistently tell pollsters that they favor. Can this be the sort of “principled discussion” of constitutional rights for which Tushnet yearns?
Tushnet’s second example, abortion rights, is only slightly less curious: “In 1992 the Supreme Court made it substantially easier for the states to adopt regulations restricting the availability of abortion. . . . There were a few efforts to expand regulation substantially, and more to tinker with existing regulation at the edges, but here was no rash of legislation seeking to make it significantly more difficult for women to obtain abortions.” Thus, the populist tide held back the judicial subversion of reproductive freedom. But, this account obscures a few things. It was, of course, the Supreme Court that, in Roe v. Wade, afforded constitutional protection to reproductive rights, and it is the judiciary that has, on numerous occasions since that 1973 decision, struck down or narrowed any number of popularly enacted initiatives inimical to its letter and spirit. So the history here is, to say the least, a little more complex than Tushnet lets on.
Indeed, as a general matter, Tushnet’s treatment of the role of the judiciary in the history of the American polity leaves much to be desired. It is little more than a rush to conclude that the faith that liberals place in the efficacy of judicial review as a means to the protection of constitutional principles is unwarranted. But he falls far short of making his case.
In the end, Tushnet’s populist constitutional law is not really constitutional law at all. What he has done is dream up something called “the thin Constitution” and assert that “the people,” through a process of deliberation that is a chimera, will advance constitutional principles by arriving at “reasonable interpretations” of that truncated document. But this is a constitutionalism of shreds and patches. First, the stuff of the thin Constitution--the opening passages of the Declaration of Independence and the Preamble--are undeniably eloquent, but they are also about as unspecific as political language can get. The parameters of “reasonable interpretation” of these soaring phrases are hopelessly vast.
When one subjects constitutional principles to the hurly-burly of quotidian politics, as Tushnet does, the only standard of “reasonable” application of those principles is majority rule. Whatever else this may be, it is definitely foreign to the American constitutional tradition. As James Madison put it in the year before the Constitution was drafted, “nothing could be more false” than asserting that majority rule can serve as “the political standard of right and wrong.” And it is not, as Tushnet says, “profoundly undemocratic” to recognize this. That would be so only if one believes that fidelity to democracy rests in a crude idolatry toward “the people.” It is merely to recognize that, in a country such as ours, which is characterized by great ethnic, racial and religious diversity, constitutional principles will by no means always be protected when left to the short-term interests and shifting alliances of ordinary politics.
Indeed Tushnet himself acknowledges this. Implicitly admitting that “the people” may disappoint him, he declares that his doctrine will allow for “judicial review of laws restricting criticism of government officials” and that the same may be necessary to “protect a domain of privacy within which people can form their own views about matters of public importance. By any reckoning, these are huge concessions that call into question Tushnet’s entire project.
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ABOUT THE AUTHOR
Mark Kozlowski is a Staff Attorney at the Brennan Center for Justice at NYU School of Law.
