Natural law may be the ultimate source of some constitutional norms, but the positive law of the Constitution has a life and integrity of its own.
Mark Tushnet, a Harvard law professor, is the nation’s most prominent leftist legal scholar. He was one of the founders of critical legal studies, which understands legal reasoning and doctrine as a mask for political preferences. Tushnet has said that, as a judge, he would decide cases to advance the cause of socialism. When he was confident that Hillary Clinton would win the presidency and that that there would be a fifth Democrat-appointed justice on the Supreme Court, he wrote an attention-grabbing blog post, “Abandoning Defensive Crouch Liberal Constitutionalism” in which, among many other striking claims, he said, “remember that doctrine is a way to empower our allies and weaken theirs.” He also expostulated about Anthony Kennedy in a manner that cannot be published at a family-friendly site.
Thus, it does not come as a shock that his new book Taking Back the Constitution: Activist Judges and the New Age of American Law offers ideas for progressives to ditch as much doctrine, convention, and even text as they can get away with to achieve their progressive goals. Nor is it astonishing that originalism is a primary target, because originalism is the antithesis of critical legal studies, asserting as it does that the Constitution’s meaning can be established by legal methods and is binding on us, whatever our political preferences.
But it does come as a bit of a surprise that Tushnet’s arguments against originalism are so weak and sometimes depend on assertions about scholarship and Court opinions that are either ill-informed or plainly wrong. Even outside of his attack on originalism, Tushnet has a tin ear for law, seemingly unable to distinguish between arguments that a conservative or progressive court could conceivably find plausible and those that would be outlandish to any judge that can be imagined. Finally, his praise of what he calls “popular constitutionalism” demolishes the distinction between constitutionalism and ordinary politics. In Tushnet’s world, constitutionalism is just a fancy name for arguments to put or maintain one’s preferred regime in power.
Tushnet does not like Chief Justice Roberts’ metaphor of the judge as an umpire, because Tushnet asserts that the judge has discretion to change the strike zone and use that discretion to advance their preferences, generally those of the political party that appointed them.
Originalism is conventionally seen as a response to that view. It is the original meaning of the Constitution, an empirical fact established at the time a provision was enacted, that determines the strike zone of law. Thus Tushnet, from the beginning of his book, must take on originalism. His basic strategy is to deploy the interpretation/construction distinction urged by the so-called New Originalists to argue that originalism is not fundamentally different from living constitutionalism. On his view, while there may be certain clauses that have a clear meaning—like the one that provides every state with two Senators—many key provisions of the constitution, like the Due Process Clause and the Equal Protection Clause, are indeterminate and permit all manner of applications depending on the constructions chosen. And he even asserts that originalists agree with him on this point.
Unfortunately, Tushnet’s arguments do not even try to grapple with the modern originalist scholarship that is devoted to showing that the very clauses he claims all originalists concede as indeterminate actually have a relatively fixed meaning. For instance, Nathan Chapman and Michael McConnell interpret the term “due process” as placing into the Constitution certain common law understandings. As a result, they understand it as preventing the legislature from exercising judicial power or violating common law procedural protections. Tushnet also seems to think that it is obvious that race-conscious remedies adopted by the federal government in the wake of the Civil War suggest that a similar construction of the Equal Protection Clause may be permissible. Here again he ignores important scholarship. Michael Rappaport has shown that the Equal Protection Clause applied only to the states, and thus federal legislation, like that which created the Freedmen’s Bureau (enacted originally pursuant to Congress’s war powers), even if race conscious, was not probative of that Clause’s meaning. Without a systematic discussion of the originalist scholarship that has grown in the last decades, his claim that the construction zone is so large as to render originalism unimportant comes across as uninformed.
His treatment of originalism in the Supreme Court is even worse than his treatment of originalism as practiced by academics. One of the two cases by which he tries to show that originalism is irrelevant at the Supreme Court is NLRB v. Noel Canning. He correctly describes the majority holding as stating that the president can make recess appointments whenever the Senate has recessed for more than ten days. He then comments on the decision as follows: “conservatives don’t have to invoke originalism to reach the results they favor. When they do so, it’s mostly icing on a cake already baked.”
But “conservatives” (i.e. Chief Justice Roberts and Justices Scalia, Thomas, and Alito) emphatically did not vote for the holding that Tushnet describes. Instead, they concurred only in the result and argued on the basis of original meaning that presidents could make recess appointments only during intersession recesses (that is, recesses between different sessions of Congress that typically occur at the end of the year) and even then only if the appointment has occurred during that recess. They specifically rejected the arguments from practice made in the majority opinion and in fact criticized the ten-day rule as having no foundation in the Constitution. Thus, the case stands for a proposition exactly opposite to Tushnet’s: Originalist reasoning can make all the difference to constitutional law doctrine.
Noel Canning also refutes yet another argument that Tushnet makes against originalism, namely that it is an impractical theory because judges do not have the time to do the linguistic and historical research to make it work. That claim ignores the division of labor between scholars and judges that a culture of originalism can facilitate. Originalists filed amicus briefs in Noel Canning that made the justices aware of the rich originalist scholarship that outlined the correct meaning of the clause. Four of them followed that learning in their opinion.
Predicting the Future
After establishing to his satisfaction that judges have a lot of discretion to reach the results that they and their party desire, Tushnet discusses the possible paths conservative and progressive courts may take in the future to construct a constitution pleasing to a conservative or progressive regime. Here the difficulty is that Tushnet has such a wide conception of a strike zone that he sees the Court’s reasoning as essentially unconstrained, making it hard to do much in the way of useful prediction. And some of his claims about what might occur are implausible.
On the conservative side, for instance, he speculates that a conservative court might try to prevent states from restoring voting rights to felons. He says: “It’s difficult to come up with obvious constitutional arguments against expanding the voter base, but under pressure, conservatives will undoubtedly do so.” Tushnet does not have the courtesy to tell us anything about the content of these conservative arguments. In fact, conservatives are supremely unlikely to tell the states that they cannot choose to structure their franchise as they please so long as they do not violate some constitutional provision. Such a stance is not only inconsistent with originalism but also with the values of federalism.
Tushnet also entertains wild arguments on the progressive side. For instance, he seems to think it conceivable that progressive judges will decide that equal representation of states in the Senate is unconstitutional because it conflicts with the equal protection clause. Here Tushnet moves away from his apparent concession to originalism that some cases are clear, because it is hard to think of a case with a more obvious answer than this one.
I am, to put it mildly, no fan of progressive living constitutionalism, but I do not think this result at all plausible, even for it. Put aside original meaning. This result conflicts with the pellucid text of the Constitution, its obvious structure as confirmed by another provision preventing even express amendment of equal representation in the Senate, and more than 200 years of practice, including more than 150 years after the Fourteenth Amendment. Moreover, this kind of decision would infuriate citizens in small states across the country. Judicial elimination of equal representation in the Senate would not be an act of constitutional law, but constitutional dissolution.
Tushnet’s lapses are telling: not only does he not have a jurisprudence of his own that imposes constraints, he cannot really imagine that anyone else does either.
And for someone who thinks that future political and judicial behavior can be explained by interests, Tushnet is also sometimes surprisingly at a loss to understand what those interests are. He admits to puzzlement that Republicans oppose campaign finance restrictions more than Democrats, because both parties reap close to equal contributions and independent expenditures. But when the voices of wealthy citizens are muffled, those of academics and journalists—who face no such restriction in shaping political agendas—will become even more dominant. Academics and journalists, of course, lean sharply left. Perhaps Tushnet has trouble perceiving this obvious truth because domination by the intellectual elite is something he sees as the natural order of things.
The only kind of legal approach about which Tushnet has positive things to say is popular constitutionalism. Popular constitutionalism is the way Tushnet believes that ordinary people think about the Constitution. They are not confined by legalisms. For instance, one example he gives—the view that health care is a constitutional right—is hard to square either with any provision of the Constitution or with its overall structure which focuses on negative rights against government, not positive rights. Tushnet likes this kind of constitutionalism because it is directly democratic, not refracted through legal methodology or dependent on notions of judicial supremacy.
Tushnet thinks popular constitutionalism is the same as departmentalism. He is wrong about this equation. Departmentalism is the view that each branch of government has the right to articulate a view of the Constitution. But almost all departmentalists concede that judicial decisions are still final in the cases in which they are rendered, and that the executive or legislature must persuade the judiciary to change its mind. Moreover, these branches articulate constitutional positions with much the same kind of legalistic arguments that courts do. Tushnet gives the example of Edwin Meese as a kind of popular constitutionalist, but Meese was pressing the judiciary to return to a legal jurisprudence—originalism—that is, in its basic concept, as old as the republic.
But the larger problem is that popular constitutionalism, as Tushnet articulates it, is the negation of constitutionalism. The Constitution is a framework to facilitate and indeed constitute ordinary popular politics, not something to be transformed by that politics. Our Constitution is, in the words of Justice David Brewer, meant to protect Peter Sober from Peter Drunk. Ordinary politics generates a lot of fanciful notions that should not be written into the Constitution.
The Constitution itself provides a vehicle for a better kind of popular constitutionalism: Article V. The amendment process permits each generation to change the Constitution in much the same terms as previous generations. Tushnet does not like a fixed amendment process like ours. He favorably quotes French thinkers from around the time of their revolution who objected to one generation’s setting the terms by which another generation could throw out their work. But that position undermines all constitutionalism, breaking down the distinction between ordinary and constitutional politics. And how did such a mindset work out for the French? They are on their Fifth Republic with much disorder in the many interregna.
To be sure, it is not fair to blame the less-than-successful trajectory of modern France entirely on French constitutionalism, but Tushnet shows no interest in discussing what makes a good constitution or a just method of interpreting it. For Tushnet, a constitution—along with constitutional law—seems to be just another way for people to obtain power over others. Tushnet is not so much a left-liberal constitutionalist, as an anti-constitutionalist.