Sunday, December 9, 2012

Judge Posner on Amar's New Book

I'm not sure if Judge Posner is right.  But he is a brilliant mind whose work is always worth taking seriously.  And the argument he makes explores the political-theological concerns we study at American Creation.  A taste:
 THE CONSTITUTION of the United States has its passionate votaries—none more so than Akhil Reed Amar of Yale Law School—as does the Bible. But both sets of worshippers face the embarrassment of having to treat an old, and therefore dated, document as authoritative. Neither set’s members are willing to say that because it is old, and therefore dated, it is not authoritative. Some say it is old but not dated; they are the constitutional and Biblical literalists. But most of the worshippers admit, though not always out loud, that their holy book is dated and must therefore be updated (without altering the text) so as to preserve its authority. They use various techniques for updating. One is misinterpretation. Another is loose interpretation, which can be thought a form of realism. Amar, who is merely dismissive of conservative textualists and originalists, is harshly and unfairly critical of realist judges such as Oliver Wendell Holmes and realist professors such as David Strauss, lest he be confused with them.
Amar’s method of updating, which is also the one the Catholic Church applies to the Bible, is supplementation from equally authoritative sources. The Church believes that a Pope receives divine inspirations that enable him to proclaim dogmas that are infallible and thus have equal authority with the Bible. Jesus Christ’s mother does not play a prominent role in the New Testament, but she became a focus of Catholic veneration, and in 1854 the Pope proclaimed the dogma of Mary’s Immaculate Conception (that is, that she had been born without original sin). This and other extra-Biblical Catholic dogmas, such as the Nicene Creed, which proclaimed the consubstantiality of the Son and the Father, form a kind of parallel Bible, equal in authority to the written one, which reached its modern form in the third century C.E. 
This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there. 
Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.
One is tempted to say that this is preposterous, and leave it at that. But it is an attempt to respond to the felt need of professors of constitutional law, and of judges who rule on constitutional cases (particularly Supreme Court justices), to find, or at least to assert, an objective basis for constitutional decisions. On the eve of the Supreme Court’s decision on the constitutionality of the Affordable Care Act—a time of liberal panic—Amar was quoted as saying that if the Court invalidated the act “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” But the constitutional “law” that matters to Amar is not what other lawyers understand law to be. It is a palimpsest of twelve constitutions, only one of which is real.


Tom Van Dyke said...

There is a “lived” constitution, how the Constitution and its amendments were immediately understood and put into practice.

The question of birthright citizenship comes to mind, that although it was designed to address the question of freed slaves, the 14th Amendment was immediately taken to mean that anyone born on US soil is a citizen. It seems a tortured reading of 14A, and it's reasonable for anti-immigrationists to oppose such a reading, but to change the interpretation of 14A after 100+ years seems imprudent.

OTOH, "stare decisis" is for suckas. We overthrew Plessy's "separate but equal" after 50 years and

Loving v. Virginia, 388 U.S. 1 (1967),[1] was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States.

Not to mention 14A being currently argued as requiring we institute gay marriage.

So is 1973's relatively recent Roe v. Wade really the "law of the land" then, or just the jure de jour?

Jonathan Rowe said...

Re Stare Decisis, I'm actually going to note what I do to my community college students (George Washington & the Communion WAY differs from what I teach about; but here what I teach about seems relevant):

It's considered "good" judging to rely on stare decisis. If a higher court has spoken, then you have to follow their past decisions. But a particular court always has the power to decide when to break with its own past precedents so long as it isn't violating a higher court's controlling authority.

But what's distinctively "common law" about courts today, including SCOTUS is the reliance on past precedents. In oral arguments, attorneys are expected to cite past cases as controlling authority.

So I wouldn't go as far as to say stare decisis is for "suckas." It's a doctrine that should be given due, but not absolute accord.

Tom Van Dyke said...

So I wouldn't go as far as to say stare decisis is for "suckas." It's a doctrine that should be given due, but not absolute accord.

In the end that means nothing. "Due" is a meaningless word. It means whatever you say it means.

That's why for years I never even studied 14th Amendment jurisprudence. You know why, Jon. Because logic and law and precedent have nothing---zero---to do with the final decision.

Among all the decisions in Supreme Court history, it was Roe vs. Wade, establishing a "right" for doctors to perform abortions, that broke all faith with the Constitution.

But a particular court always has the power to decide when to break with its own past precedents so long as it isn't violating a higher court's controlling authority.

Yes, courts lower than the Supreme Court are expected to respect the supreme court's reasoning and edicts, but they don't always.

I will say that the Supreme Court deserves credit when it unanimously or near-unanimously overturns a lower court decision.

5-4 decisions are only 20-25% of the total.

But the Supreme Court of 2030 may well reverse whatever the Supreme Court rules in 2013. And by 2030, I'm thinking all bets will be off about what the Constitution means or ever meant.

And for you "social contract" types out there, good luck with a government that starts rewriting your social contract every first Monday in October.