Our Common-Law Constitution

The Living Constitution, by David A. Strauss, Oxford University Press, 150 pages, $21.95

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, by Barry Friedman, Farrar, Straus and Giroux, 614 pages, $35.00

Everybody knows the Supreme Court is powerful and important, but why should it be? The nine justices on the Court are not elected to their positions, are not accountable to the public, and can keep on serving and making decisions long after the president who appointed them has retired. What explains the role of the Court in our society, and what justifies its power?

Two new books address these questions, but in different ways. The first, David Strauss' The Living Constitution, is a succinct attack on "originalism." This is the idea (or ideology) that the duty of judges, in a constitutional case, is to try to ferret out what the Constitution meant to the people who drafted it, at the time that they drafted it, and absolutely nothing more.

You can make a theoretical case for originalism, but you cannot make a practical case. For one thing, it is not so easy to divine what the Constitution meant when it was written. For another, a true originalist (if there are any) would have to dump overboard almost all of modern constitutional law, including Brown v. Board of Education, all of the decisions on sex discrimination, all the decisions about the right to privacy, and just about everything else in the canon. There is no way to deduce most of the modern rulings on human rights or the powers of Congress or the states from the words of the text as it was understood in the late 18th century (or as the 14th Amendment was understood in the 1860s).

Originalism is thus both empty and incoherent. But if we come to that conclusion, and admit that true originalism would have disastrous consequences, where does that leave us? Once we abandon what we might consider a kind of constitutional creationism and opt for an evolutionary approach to the Constitution -- the doctrine of the "living constitution" -- where are we morally and politically? How can we justify an evolving constitution? This is a question that has bothered a number of constitutional scholars (though probably very few ordinary citizens).

The problem, as some see it, is that the living constitution is undemocratic. The concept vests far too much power in the justices of the Supreme Court. As I said, nobody elected them; they serve for life, and nowadays they live a long time. If we have a "living constitution," doesn't this mean that the justices simply make up new rules as they go along? But no, not at all, according to Strauss. Constitutional law is far from the arbitrary will of the justices; rather, it is built up slowly and incrementally; it grows the way the common law has grown, inch by inch, case by case. Each generation builds on the "accumulated wisdom of previous generations." Constitutional law evolves, but not randomly or whimsically; it changes as society changes and never (or almost never) abruptly. Many, if not most, of the novelties that the Court reads into the Constitution have already become socially accepted or are shortly going to be. Its rulings on race and sex discrimination are perfect examples.

This is the central thesis of Strauss' book -- and a politically fraught thesis it is. "Originalism" has become a code word for a right-wing reading of the Constitution. Nobody is really a thorough-going originalist (it is simply not possible). But the right wing demands "strict construction," insists on adherence to the original understanding, and continually denounces "liberal activist" judges. Such justices as Antonin Scalia and John Roberts are as activist as the liberals, if not more so. But this point is conveniently ignored. Right-wing insistence on "strict construction" has so bamboozled the public that no prospective justice can even hope to get Senate confirmation without mouthing pious platitudes about objectivity and adherence to a traditional canon that nobody in Congress (or the academy) really believes. And probably nobody on the bench, for that matter.

In fact, there is no practical alternative to the "common law constitution." The actual Constitution, the one under glass in the National Archives, is hard to amend and has rarely been amended -- formally at least. It is the Supreme Court that continually amends it and keeps the grand old thing up to date.

Strauss is a liberal, and his book is clearly meant to defend the Supreme Court and its works. Is his defense a shade too pat? In the late 19th century and well into the 20th, progressives decried (with good cause) the "activist" Court of that day for striking down social and labor legislation, while conservatives at that time proudly defended the justices for making bold decisions that warded off radicalism and reaffirmed the old economic values. Today's progressives, who otherwise embrace the living constitution, nonetheless become "originalists" when it suits them -- notably with regard to the meaning of the Second Amendment. After all, they say, the framers were talking only about state militias, not about the right of private citizens to make arsenals out of their homes, carry guns into Starbucks, and buy machine guns (which hadn't been invented yet). People tend to approve of an evolving constitution mainly when it evolves in the direction they want it to go. If a President John McCain had put two more Scalia clones on the Court, progressives would become desperately unhappy about the power and activism of the Court. And with good reason.

Strauss' book is not a historical treatment of the Supreme Court. True, it describes the work of the Court in evolutionary terms. But it leaves off telling the detailed story of how constitutional doctrine evolved against the backdrop of American history. Barry Friedman's The Will of the People does that job. It is a sizeable book, rich in details, and remarkably comprehensive, despite a few lapses and inaccuracies. Friedman's account of the long, slow struggle of the Court for acceptance and recognition reminds us that this was not at first a sure thing. The Court faced bitter criticism in the 19th century and sometimes outright defiance. Georgia, for example, simply ignored the Court when the justices tried to protect the rights of the Cherokees. But the Court slowly became an almost sacred institution, so that even such lapses as the Dred Scott case, such (apparently) unpopular holdings as the ban on school prayer, and such rancidly political decisions as Bush v. Gore have not impaired its position in the eyes of the public. Although people may hate this or that decision, they treat the Court as something holy, something untouchable.

Why should this be so? Mostly, according to Friedman's argument, because the Court never strays too far from public opinion. To be sure, the justices are hardly experts on gauging public opinion, and they have no power to predict how it will change. The rants against Brown v. Board of Education died down and are now ancient history, while the rants against Roe v. Wade remain as strong as ever. But, says Friedman, what history shows is not that decisions are always "in line with popular opinion" but that public opinion and the Court's doctrines "come into line with one another over time." Supreme Court doctrine on abortion, he argues, has become congruent with general public opinion on the subject, though not everyone would agree.

Strauss has written a brief for the Court, and a rather good one, whether or not we agree with him. Friedman's book is not intended to be a brief but an analysis instead of the complex social, historical, and political context in which the Court does its work. In a way, however, his book is also a brief. He says there is no need to fear the Court (or to praise it inordinately); it does what it does, and in the end, everything comes out all right, or at least comes out nicely in line with public opinion.

This too strikes me as a shade too pat. For one thing, public opinion is not easy to define or to measure. There are many different publics and many different opinions at any given time. Even if both authors are right that the Court does fine in the long run, they fail to recognize how much short-term damage or good it can do. The Court's decision to give the presidency to George W. Bush was a disaster with grave consequences. Yet the Court also gave us Brown v. Board, which, despite the doubts of some scholars, did accomplish a great deal -- slowly and partially perhaps, and with many stumbles along the way. But it is hard to imagine the modern world of race relations without it. At times, when the machinery of the country is stalled, the Court can jump-start the batteries. Or help to.

The Court is supposed to protect minority rights, although it tends to lose its appetite for this role if the minority is unpopular enough (Communists, for example, during the McCarthy period). In that case, and in many other instances, we can fault the Court for sticking too closely to public opinion. It also makes a difference what sort of public opinion we are talking about. In general, the Court's antennae are most sensitive to elite national opinion, not mass opinion -- for example, on the teaching of "creation science" or on flag-burning as a form of symbolic speech. In The Supreme Court and the American Elite, 1789-2008 (see "How Supreme a Court?" April 2009), Lucas A. Powe Jr. spells out this position, arguing that the Court has identified with and served "ruling political coalitions." And though not true in every instance, that conclusion seems generally correct.

Where does all this leave us? Law, like life, is messy and complicated. Although the Supreme Court has changed kaleidoscopically over the years, its position in public opinion has consistently grown stronger. As Friedman shows, the many proposals to curb the Court, strip it of jurisdiction, or punish it for bad decisions have usually gotten nowhere. Is this because the Court is shrewd enough to avoid crossing some invisible line? Nobody really knows. Both of these authors seem to tell us that the Court does a good job overall and in the long run. It is a little scary, though, to think that in certain short-run but crucial instances, justice and liberty stand or fall on the slim basis of five votes against four.