Competing visions

[Mark Graber]

I am quite grateful that Professor Franck has responded online since
this seems to be advancing the debate.  Let me suggest some tentative
answers to his questions.

1.  As I have written too often, those of us who believe that law is a
form of politics are not committed to the view that law is identical to
other forms of politics.  We can claim distinctions between legislative
politics and judicial politics, just as we believe there are appropriate
distinctions between administrative and electoral politics/

2. One distinction between different forms of politics is the mode of
justification.  Constitutional and other arguments are different from
other forms of arguments, though there may be substantial overlap (here
one might note, as a very imperfect analogy, that Publius, or at least
Madison, quite clearly rejects the very strict Montesquieuan separation
of powers).  To take an obvious point, I think it rather stupid that we
have minimum age requirements for elected officials, but none for the
supreme court (given life tenure), but that is quite clearly the best
interpretation of the text, given history and practice.  Perhaps one
point here is that constitutions do a good deal of work preventing
argument, so that in the United States there is very little fuss over
what strikes me as a constitutional stupidity.  Alas, from my
perspective (see chapter I of forthcoming book on Dred Scott), it is
highly likely that when constitutional disagreements have enduring for
fairly long periods of time, all parties will be able to invoke history
and deep constitutional principles when making plausible arguments for
their constitutional visions.

     One of the worst aspects of constitutional argumentation is that we
wind up having to call people stupid we know are intelligent.  So we
have to declare that no reasonable person could find (or not find)
abortion rights in the constitution all the while having colleagues and
friends who disagree.  Consider a simple example.  My own view is that
both the constitutional text and history support the view that Congress
was constitutionally authorized to determine what regulations were
necessary to protect and foster interstate commerce, and that this
authorization covered laws that regulated intrastate activities that had
enough of an impact on commerce to warrant regulation.  Randy Barnett
has a fascination article and book that takes a different view.  I
disagree with Barnett, but find his position constitutionally plausible
such that I could not consider it a usurpation if the government adopted
his view.  I just think my position is a more accurate interpretation. 
To be more precise. I think my view better reflects the language of the
constitution, the history, and the values to be served by the
constitution.  And this is the best I can do.  But my understanding of
all of this is contestable, and I think constitutional politics is the
appropriate way of resolving our differences.

MAG

1.      I don't know how to persuade Sandy Levinson that "it is [not] in

fact a delusion" to hold as an ideal that, or even to locate instances
in 
practice in which, judges make their decisions apolitically or 
non-ideologically.  Maybe a beginning to a meeting of our minds is to
ditch 
the adjectives "political" and "ideological" as descriptors of judicial 
behavior, since they invite a contest over their own meaning that seems
to 
move us away from productive exchange.

Let us try another angle of attack.  The separation of powers seems to
be a 
central idea in the institutional arrangements of the Constitution.  As 
Hamilton quoted Montesquieu in Federalist 78, "there is no liberty, if
the 
power of judging be not separated from the legislative and executive 
powers."  It seems important, from the perspective of Montesquieu, 
Hamilton, and countless others in our history who thought they were
arguing 
about something real, that we be able to distinguish the three powers
from 
one another when we see them.  Does Sandy think such distinguishing is
not 
within our reach?  I humbly suggest that it is an insufficient response
to 
identify finely-grained "close" cases in which reasonable people might 
disagree about which function relating to law--making it, administering
it, 
or adjudicating its meaning--is at work therein.  My question is simply,

are Montesquieu and Hamilton on a fool's errand when they put forward
the 
distinction as a gross one?

This may remind people of Pres. Bush's oft-repeated remark that he wants
to 
put on the federal courts judges who will not "legislate from the 
bench."  I am almost as tired of hearing that as anyone else might claim
to 
be, since its sheer repetition has had a numbing effect, without
reassuring 
me about the quality of the president's nominees.  But Bush uses the 
expression so much because the American people understand it to be 
essential to our system of government that judges not be legislators and

vice versa.  Are they wrong?

2.      Mark Graber has several times used the expression
"constitutional 
vision," by which I take it he means respectable, well-thought-out, 
internally consistent high-political understandings of the
Constitution's 
meaning that have a rough but not perfect correspondence to ideological 
preferences--as, e.g., when he refers to his "claim that justices ought
to 
pursue publicly validated constitutional visions."  In the same message 
Mark, with more equanimity than I could muster, writes that he "do[es]
not 
regard the Rehnquist Court's federalism offensive as a usurpation
against 
the constitution, even though I believe it to be a constitutionally 
inferior vision."

This surely raises the question, on what ground does Mark distinguish 
between constitutionally inferior and constitutionally superior 
visions?  Is that ground to be found within or without Mark's own 
understanding of the Constitution?  That is, is the Constitution in any 
sense an independent touchstone  for Mark's (or anyone else's) vision of

the Constitution, or do such visions originate outside the Constitution
and 
come to be imposed on it by one's will, or one's desire for certain 
gratifying outcomes?

Story says in his Commentaries that "the constitution has proceeded on a

theory of its own," and that the job of the interpreter is to discern
what 
that is.  Is he wrong?  As with my question to Sandy, recitations of the

difficulties of discernment would seem to me to be insufficient.  As 
someone once said, "if we cannot decide which of two mountains whose
peaks 
are hidden by clouds is higher than the other, cannot we decide that 
mountain is higher than a molehill?"

It is just because I believe that such work is hard but possible that I
am 
perfectly prepared, unlike Mark, to denounce the Rehnquist's federalism 
"revolution" (if that is not too grand a word for such a poor molehill
of a 
thing) as a constitutional usurpation.

3.      Paul Carrese will recognize in the above that he and are kindred

spirits on many things, which he already knew.  But he has gently
upbraided 
me (I think) for desiring a brawl over a Court nominee who would
articulate 
a great restoration of a more modest judicial power.  In place of that 
desire Paul offers the hypothesis that, in keeping with their
institutional 
interests, the president and the Senate have joined forces to appoint,
in 
Roberts and now in Miers, nominees who will quietly go about effecting
that 
restoration without any need for a brawl.

I have tried to entertain this idea for longer than ten seconds and find

myself incapable of it.  The new chief justice did indeed speak quietly
of 
a quieter judicial power.  But I heard nothing that persuades me this
was 
any more than his version of "not legislating from the bench" 
boilerplate.  The Roberts hearings were so nearly devoid of substantive 
colloquy about anything at all, that I am still reserving judgment on 
whether Roberts was a good choice.

I think it questionable to suppose that in Roberts, the very model of a 
modern major player at the highest levels of constitutional politics,
and 
in Miers, the veritable anti-Roberts in all these respects, we find 
something in common in advancing an objective that Paul and I share.  I
see 
another common ground that is more possible: that Roberts, by training
and 
experience, is predisposed to be drawn by the lure of the Court's
present 
great power; and that Miers, in her apparent lack of experience, will
show 
an incapacity to resist that lure when it is dangled in front of her. 
The 
first outcome will spring from pride coupled with great intelligence;
the 
second from mediocrity coupled with delighted surprise at what one can
in 
fact get away with once the robe is donned.  The practical effects will
be 
hard to distinguish.  (These strike me, in fact, as rough but just 
portraits of the justices these two appointees replace.)

And I have seen no evidence that the president or any members of the
Senate 
have any animus against judicial supremacy.  They may hate particular
lines 
of judicial decision-making, but I see no sign that they hate the
Court's 
accumulation to itself of the power to make those decisions, and to
demand 
obedience to them with remarkable success.  If Paul has evidence to the 
contrary, I'd like to know what it is.

Matt

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Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
www.radford.edu/~mfranck
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