Article by Sotirios A. Barber
I sit here in my office writing a commentary on Michael Perry's new book, Morality, Politics, and Law. Or so I think. But Professor Perry might not agree that I'm really sitting here commenting on his book. At the heart of his book he argues that we can't know a statement is true by testing it against reality, and this statement is true “because Reality is, through and through, an inaccessible criterion.” Perry provides the upshot of this argument with a quote from Wallace Stevens: “‘[W]e live in the description of a place and not in the place itself.”’ So Perry might say that a more precise account of what's going on would have me sitting in the description of my office, not my office itself. But if I were sitting in the description of my office, I'd be commenting on a description of Perry's book, not the book itself. And if Perry's book were really only a description of Perry's book, then the source of “my” initial contention about who sits where doing what would be a mere description of me, rather than me myself. All manner of old reliable illusions come tumbling down at this point. And while I marvel at the brave new world of contemporary constitutional thought, I also head for the liquor cabinet.
I'm back now; fortified enough to say: Brave new world my foot! The problem isn't my illusion about sitting in this place. Not that I can prove I'm really sitting here, mind you. It's rather that I can't deny that I'm sitting here or see how Perry or anyone else can believe that I'm not. And their ability to say what I'm confident they cannot mean, and say it for posterity and with a straight face, suggests that there's something wrong with contemporary constitutional thought.
Perhaps our problem is a loss of courage. Mainstream scholars, including Perry and me, resist the suggestion that the Constitution can offer no meaningful guidance in resolving any of this country's institutional or moral problems. We don't want to believe the nihilists who tell us the Constitution is dead. Yet we also find it difficult to deny their arguments. Our dilemma surfaces first as a problem of justifying a strong and unapologetic exercise of judicial power in constitutional cases. We exponents of judicial power keep trying to cope with the collapse of the classical defense of judicial review. The old argument was that judicial review was an instrument of constitutional supremacy, not judicial supremacy, and that constitutional supremacy was in turn an expression of the people's supremacy over their government. This was the argument of John Marshall and the 78th Federalist; it remains the official defense of judicial review in America. Some judges and lawyers may accept it, along with a larger number of ordinary citizens. But few academics are persuaded because twentieth-century thought has convinced much of the educated world that the presuppositions of the classical theory are untenable.
The classical theory rests on a complex belief in the power of the Constitution's general, often vague, and always value-laden language to provide meanings of sufficient clarity and intrinsic moral attractiveness to move judges and others in directions contrary to their partisan preferences. Modernists dismiss this belief primarily because they believe that shifting social conventions exhaust constitutional meaning and because they deny the possibility of simple truth, especially moral truth. They reject the old argument for an insulated judiciary as guardian of a constitution designed to reconcile majoritarianism to justice and natural rights. They are skeptical of the key premises of the old argument, premises involving: the capacities of judges (who, they point out, are human and the home-grown products of an acquisitive culture); the power of (all-too-human) language; the ontological and epistemological status of (abstract and controversial) constitutional values; and the moral claims of the (slaveholding and capitalist) framers and ratifiers.
Deflation of the classical theory left the judiciary exposed as an elitist institution imposing its political will on democratic institutions without real constitutional warrant. Two basic reactions followed. One was a call—first from progressives and later from reactionaries—virtually to dismantle judicial power over constitutional questions. The other was a quest, conducted most impressively by Alexander Bickel and John Hart Ely, for a new defense of judicial review, one that accepted the modernist attack on the classical theory. Perry attempts to continue the modernist quest after the point at which it has been widely recognized a failure. In fact, Perry seems very much the new Bickel. Both make similar arguments, each with progressive and conservative stages, and, as I shall show, one heading for the same fate as its predecessor. The failure of the modernist quest has and will continue to strengthen the reactionary case against judicial power.
But contemporary reactionaries also have a problem, for their leading arguments also reject the tradition's claims about judicial power, natural rights, and majority tyranny. Despite their lip service to framers' intentions, reactionaries assume that because the classical theory is untenable, democracy requires that judges deciding controversial constitutional questions defer to elected officials. But if modernists generally are right in holding that there are no objective standards of political morality, reason can favor no one meaning for a normative term like “democracy.” Nor can reason compel us to read the Constitution and its history as if either excluded the strong and independent judiciary Americans have had since the republic's beginning. Finally, without objective standards of political morality, there can be no valid moral arguments for abandoning judicial review. In the end, the modernists cannot avoid concluding that nothing succeeds like success. So it's judicial power today, legislative supremacy tomorrow, and who knows what after that. And this result would make normative constitutional theory—the attempt to discover what ought to succeed—a waste of time for anyone but the ideologues.
This scenario is not inevitable. Recent work in constitutional theory, most impressively that of Michael Moore, shows that an active judicial concern for simple justice is essential in a system that respects a written constitution as law. By arguing against modernist and post-modernist (or hermeneutical) teachings concerning the nature of values and language meaning, Moore's work promises to restore philosophic respectability to our everyday assumptions about what words refer to and the possibility of moral truth. Skeptical dogmas are so entrenched, however, that mainstream scholars treat Moore and a handful of other moral realists in constitutional theory as a group of eccentrics. Perry virtually ignores them.
The problem, therefore, is how to persuade those who will not listen—those who can't seem to break away from a complex intellectual inheritance that closes them to the possibility that the classical and still ordinary assumptions about real meanings and real values are right or at least ineluctable. The task may be hopeless; force cannot open a person's mind. But it is possible to show how confused and even ludicrous things look when we try to deny beliefs we cannot do without (such as my belief that I'm sitting here). For this reason, my task here is a negative one. Instead of repeating affirmative arguments that I and others have made about the classical theory and constitutional meaning, I'll try to show what's wrong with Perry's position.
About the Author
Sotirios A. Barber. Professor of Government, University of Notre Dame. A.B. University of Illinois 1964; Ph.D. University of Chicago 1973.
Citation
63 Tul. L. Rev. 1289 (1989)