This is the fifth of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to present the argument for the Constraint Principle from the rule of law. These posts introduce ideas that I present in greater depth in a work-in-progress:
For a very short statement of the case for originalism, see:
This post addresses the following questions:
- What is "the rule of law"?
- How does the Constraint Principle serve the rule of law values?
- What role does politicization play in undermining the rule of law under living constitutionalism?
- In what sense does living constitutionalism lead to judicial tyranny?
The other posts in the series so far are as follows:
The post continues after the break.
What is "the rule of law"?
Let's start with the idea of the rule of law. One formulation of the idea contrasts the rule of law with the rule of individuals (or "men" in John Adams's famous statement). Another way to approach the idea of the rule of law is by breaking it down into components. Thus, we might say that the rule of law is served when the law is public, certain, stable, predictable, even-handed, and so forth.
Another basic question is whether the rule of law is a good thing. This may seem like an odd question, because there is a strong consensus in our political culture that the rule of law a fundamental value--affirmed by citizens who disagree about many other topics. Nonetheless, there are some citizens who question the value of the rule of law, usually on the ground that the value of justice should always prevail when it conflicts with the rule of law.
One more point about the nature of the rule of law. Sometimes in debates about the rule of law, this concept is treated as an on-off switch, a binary rather than a scalar. That is simply false. The rule of law can be realized to a lesser or greater degree. So, the rule-of-law argument for constraint will be that originalism (which adheres to the Constraint Principle) realizes the rule of law to a greater degree than does the constitutional status quo--which, you will recall is Constitutional Eclecticism.
How does the Constraint Principle serve the rule of law values?
One way of getting at the rule-of-law argument is to consider how constraint by original meaning serves the rule of law values. We can get at this idea by doing a quick comparison of the Constraint Principle with Constitutional Eclecticism:
- Predictability: Constraint enables us to predict that constitutional doctrine will be consistent with the constitutional text, but eclecticism entails that doctrine will shift as different judges employ different interpretive methods on different occasions.
- Stability: For the same reason, constraint provides stability, but eclecticism leads to the instability of constitutional law as shift coalitions of Justices form and reform coalitions on particular constitutional issues in specific cases.
- Certainty: Originalism relies on the original public meaning, which does not change, but eclecticism permits new approaches to constitutional questions that change with the changing composition of the Supreme Court.
I could go on, but I am sure that readers can complete the argument for other rule-of-law values.
What role does politicization play in undermining the rule of law under living constitutionalism?
The rule-of-law values argument does not take into account the dynamic interaction between Constitutional Eclecticism and the judicial selection process. As political actors become aware of the fact that nonoriginalist judges will frequently decide cases in a way that is influenced or determined by their political preferences, there will be ever increasing incentives to appoint politicized Justices. There is a prisoners dilemma operating here. If the left appoints politicized judges when it controls the appointments process, then the right will be tempted to do so in retaliation. Because of a lack of trust, tit-for-tat can easily transform into a strategy of escalation, leading to a downward spiral of politicization. The more politicized the process becomes, the greater the threat to the rule of law values. Highly politicized judges care about results and not the rule of law.
The Constraint Principle offers a stable equilibrium that avoids the downward spiral of politicization. Although the original meaning of the constitutional text is not idea from the point of view of any political actors, it can serve as a second best alternative. Even if everyone would prefer a Supreme Court consisting entirely of Justices who shared their own political preferences, they may prefer constraint by the constitutional text to the prospect that the other side will stack the Court with young, highly ideological Justices who are unconstrained.
In what sense does living constitutionalism lead to judicial tyranny?
Once the Supreme Court becomes thoroughly politicized, Constitutional Eclecticism degenerates into judicial tyranny. I am using the word "tyranny" in a philosophical sense. Tyranny is rule by decree, where rule by decree is contrasted with the rule of law. A politicized Supreme Court rules by decree, because it imposes constitutional decisions on a case-by-case basis without constraint. Obviously, without constraint by the constitutional text--that is the very issue we are investigation.
One reply to the judicial tyranny argument is that the court is constrained by precedent. Caveat: this reply would be valid for a living constitutionalist who adhered to a version of Common Law Constitutionalism that incorporated strong rule-like versions of the doctrines of vertical and horizontal stare decisis. But for now we are considering the comparison of originalism with Constitutional Eclecticism after the full effects of politicization have kicked in. That means that the doctrine of stare decisis will be very weak--almost nonexistent and the judicial decisions will be almost entirely determined by ideology. Moreover, the lower federal courts will also be politicized, resulting in a judicial war of all against all--with every judge as an extreme version of Judge Stephen Reinhardt of the Ninth Circuit--calculating the odds of achieving their ideological will in each case given the inability of the Supreme Court to grant cert in any significant percentage of the total number of Court of Appeal's decisions.
The endpoint of the downward spiral of politicization is judicial tyranny--the rule of justices and not of law, a condition that would truly deserve the label "juristocracy."