July 2005

Abstract:
The Supreme Court legislates because Congress isn't doing its job. What should we do about it?

Up in arms
President Bush has made his nomination for Justice O'Connor's replacement on the Supreme Court, and the predicted furor has begun.  The typical political groupings have aligned themselves for or against Mr. Roberts, and we have reason to expect that what ought to be a sober and objective assessment of the candidate will again descend into the kind of emotional name-calling we've become used to in such cases.  The central public issue around Mr. Roberts' confirmation  – that is, the issue the media have zeroed in on –  seems to be his personal stand, if any, on abortion.  Various groups have announced all-out battle against his confirmation because he is suspected of disagreeing with the U.S. Supreme Court's ruling on abortion in the 1973 case "Roe v. Wade".

Mr. Roberts, whatever his actual views, would not be alone among jurists in disagreeing with the ruling in Roe v. Wade.  That view has become common in legal circles, although only two of the nine justices on the Supreme Court in 1973 thought the case was wrongly decided.  It appears to me personally, though I have no problem with legalizing abortion, that this ruling overstepped on the legislative prerogative of the States and/or Congress and, in the process wrote bad law poorly reasoned.  (I suggest you read the short but more detailed exposition of my conclusion here, if you're interested.)  The Court and our legislatures (States and Congress), waltzing cautiously around various questions of constitutional law-making authorities for over 200 years, have each taken different areas of the dance floor, so to speak.  While the separation line on the floor may be fuzzy, the Court seems here to have stumbled into the legislative area  –  perhaps because it's a bumpy part of the floor and the legislators weren't occupying it.  And if our lawmakers continue to vacate the area, the Court will be happy to take it over.

A bit of a problem
One might think that when one gathers nine of the nation's most outstanding judges to interpret the laws they have specialized in, there would be some semblance of commonality in their findings.  It is, after all, the law, not their personal views, that we're paying them to apply.  But in many cases, as in all those decided by the Supreme Court by 5-4 or similar majorities (which ought not to be precedential, in my view), it has seemed that we might as well have hired nine ditchdiggers, whose personal opinions would have every bit as much validity as those of the black-robed and somber grandees on the bench.  Amazingly, the nation seems to have accepted that the justices vote their opinion as if it were a political decision.  That a matter of law should depend on which judges decide the case goes against all principles of jurisprudence, but appears to be accepted by Americans as just the way it is.  The alarming fact is that on constitutional issues we have reverted from the sacred principle of Rule of Law to the decadence of Rule of Men.  The underlying problem is, of course, that the law the justices are asked to apply  – the U.S. Constitution –  is today unclear.  One might further think, since we're all aware of this, that we would consider this a serious national problem:

We don't know what our fundamental law means.

Is this not a bit of a problem?  And if it is, what has been proposed that we do about it?  Not much, and our good citizens are simply not exercised over this fundamental problem, while they are constantly up in arms over one issue after another  – such as abortion –  that derives directly from the fundamental problem of the murkiness of the Constitution as applied to our time.  No doubt, our Constitution is a great document, but let's face it:  After 218 years, someone needs to say that it now has marginal utility as law.

The Constitution
In no other country does the nation's Constitution play such an active role as in the United States.  In many countries the "constitution" is in effect a statement of principles which is expected to guide the nation in its lawmaking;  it does not necessarily have an active and direct force of law.  If such a constitution ages and doesn't seem as relevant as in the past, this may not be seen as a great problem.  In the United States, on the other hand, the Constitution is regarded and actively used as the bedrock law of the land.

Our problem with the Constitution is similar to that which religious denominations face in their Holy Writ:  The Writ was revealed as absolute law a long time ago, and in the meantime the world and one's worldview have changed to the point where it's hardly possible to discern the meaning in much of what was written in the Writ.  The sacred words gradually become the object of more and more tortured interpretation, and in the end lose nearly all connection with any ascertainable concepts;  one may interpret them as one will, and the official interpretation of the moment depends largely on the points of view of the individuals who are assigned to do the official interpreting. The result of this, both in theology and in constitutional interpretation, is that the dogma  – held to have the authority of final truth, for the violation of which men have been jailed and even executed –  in fact depends on the individual opinions and biases of a few functionaries.  Change the functionaries, and the inviolable truth changes, as we have seen many times both in the flexible eternal truths of churches and in the ever-changing "true" interpretation of the U.S. Constitution by the Supreme Court.  The sad fact is that the rather random selection of justices determines, and from time to time changes, the meanings of our most fundamental law.

Americans have lived so long with this aberration that nearly everyone from the ordinary voter to the most prominent politician has come to regard it as normal, and perhaps unavoidable.  It's time to recognize that this systemic unclarity in our fundamental law is nothing short of bizarre.  This result comes partly from its great age, but also from the broad and general nature of its provisions.  This has given great leeway in interpretation, and whether this is seen as a boon or bane depends on the viewer.  Justice William Brennan called the Constitution's adaptability its "greatest genius," affording great latitude of interpretation to the Court.  Others, like Justice Antonin Scalia, see in its generality a dangerous invitation for the Supreme Court to justify any law that they care to impose.  Numerous Constitutional experts, both on and off the bench, have agreed with Justice Hugo Black (cited from a 1963 case – Ferguson v. Skrupa – by Justice Potter Stewart concurring in the present case), who believed the Court should return "to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."

The Constitution is not written like statute law;  there are no definitions to guide us, for example.  (And its amendments, with which the Supreme Court has struggled so mightily, are no clearer.  Only one  – the 21st amendment, rescinding the 18th –  even makes clear what part of the Constitution it amends or what language, if any, may be altered or replaced by the amendment.)  The unclarity and generality of the Constitution, and our disorganized way of amending it, have led the Supreme Court to extend it much as they would common law, or as the Pope might extend the teachings of the Bible, by self-reference to their own earlier interpretations, which take on  – for practical purposes –  a similar authority as the original text.  Thus a tree of related judicial (or papal) decisions develops, with branches of widely varying soundness, some grafted on with great imagination.  Eventually a growth develops that bears little relation to the original, planted so long ago.

Where is Congress?
In the case of Roe v. Wade, the Supreme Court's decision, as I show in the companion essay, came down to personal judgments by the justices, judgments that were not derived principally from law or the Constitution, but were largely based on their individual attitudes about what ought to be law in the context of the social milieu and mores as interpreted by the justices themselves.  The Court made a brand new law in an ordinary political fashion, but without the benefit of the people's input, and certainly without the people's authority.  This kind of aspirational judgment is what we pay our legislators for, not the Court.  So where was Congress in this process?

Congress was doing what it usually does with politically sensitive cases:  staying out of it.  Congress has the right to clarify the Constitution by statute, and it could have and should have dealt with such controversial issues as definitions of person-hood and "due process" (among many other needed constitutional definitions and clarifications), but Congressmen and political parties clearly have seen no advantage in getting involved in such questions, and left it to the Court.  For the same reason, Congress has not objected to the Court continuing to deal with such issues.

What to do?
There's no reason to expect Congress to change its ways so as to take its responsibilities toward the Constitution seriously.  Not without the threat of losing voter or financial support.  And unfortunately, judicial-legislative coordination and constitutional clarifications are not likely to become sexy media issues any time soon.  Yet, in the spirit of forward-looking thought that motivates this Journal, here's a possible course of action to bring us out of the need for the Supreme Court to be doing the lawmaking job of the Congress.  Because of the close connection between the roles of the Court and the Congress, these branches need to improve their coordination.  In short, we need to have a program of maintenance for the Constitution. Much like an old car that won't work well unless it gets more and more attention, our Constitution needs a carefully planned but evolving maintenance program to keep it up-to-date. (See this later essay on constitutional updating.)

A good start would be a standing Congressional joint committee on the Constitution, to:

1. Establish and oversee a regular maintenance program for the Constitution, providing such research vehicles as a library, professional conventions, focused issue papers, and public hearings on Constitutional issues.

2. On the basis of the above, to consider the need for amendments to the Constitution, and to propose clarifications, definitions, and interpretations through statutes.

3. Coordinate with the Supreme Court, and clarify for the Court, under the Constitution's Article III Section 2, the limits of the Court's law-making powers.  The Court should refer constitutional questions requiring legislative decisions to the Congress.