The Impact of Rawls' Public Reason on Substantive Due Process

This entry contains a link to my final paper for a class I took last quarter on John Rawls' philosophy.  I wrote the paper with legal philosophy's lens; I asked whether the concept of Public Reason extrapolated in his books Political Liberalism and certain essays in Collected Papers could substantiate or offer guidance in the Court's substantive due process doctrine.

My tentative answer is that certain elements of the doctrine could survive if substantiated by public reason.  I started from the assumption that SDP floats untethered to the Constitution's text, and in such a vulnerable state, requires justification if it's to remain in the Court's tool chest.  In sum, I draw on various sources to argue that public reason supports two of the Court's three SDP tests: the Palko test (those rights "essential to the concept of ordered liberty", i.e. mainly the Bill of Rights), and those rights and liberties deeply rooted in our legal and historical traditions (what I call the Scalia/Rehnquist test).

I discount as innovative and personally preferential the third test, which includes such cases as Roe v. Wade and Casey v. Planned Parenthood.  I do this not because I have any personal animus against abortion (though I do find it morally questionable), but because I find such cases jurisprudentially flimsy, and not tethered to any public-reason-based consensus as Rawls would conceive.

I argue further that the Court cannot avoid using public reason in its jurisprudence; this doctrine helps to gloss over some amendments' questionable ratification (13th and 14th) on the basis of their wide, enduring, unquestioned public acceptance.  Those qualities of depth and breadth legitimate concepts which the Court wishes to incorporate into the Constitution beyond its text because they carry a deep and broad democratic pedigree, comparable to the Constitution itself.

Anyway, here is a link to the paper itself, should anyone care to examine it. Please feel free to offer comments!

https://docs.google.com/file/d/0Bz3rDLoaZcY2OENweFF4MXdORXM/edit

Tribe’s Unified Field Theory and the Constitution’s Axiom of Self-Government

Professor Tribe’s book, The Invisible Constitution, lays out arguments for the existence, development, and definition of the Constitution’s “dark matter”, those rules, doctrines, and interpretive methods which are nowhere contained in the document itself but are indispensible to its utility and existence.  It is a truly brilliant book; as my first exposure to Professor Tribe’s work, my amateurish self comes away thoroughly impressed.

            But this entry is not a book review.  I highly recommend that anyone interested in constitutional interpretation read it (it’s not very long, and the chapters are very short, lending it well to periodic reading), but I want to assess a particular part of the book: pages 128-141, where Tribe integrates substantive due process themes of privacy and liberty of contract into a broader concept in the invisible constitution, self-government.

            Tribe synthesizes the theme of those pages: “If we think of self-governing relationships, within communities that are not themselves enclaves of hierarchy and exploitation, as presumptively entitled, under the invisible Constitution, to protection from interference by government entities outside those relationships—interference that is unconstitutional absent unusually persuasive and narrowly tailored justification—then we have something like a ‘unified field theory’ of much of the invisible Constitution as it has, by and large, actually evolved over the past seven decades or so.”

            By way of summary, Tribe spends the previous pages explaining substantive due process’ (SDP) role in the invisible Constitution.  Suspending judgment on most of the particular provisions of the to which the Court has applied SDP, Tribe argues that nearly all of its iterations, from parental freedom (Pierce v. Society of Sisters, Meyer v. Nebraska) to the doctrine of selective corporation (Palko v. Connecticut, Gitlow v. New York [among many others], and The Slaughterhouse Cases [insofar as these removed the Privileges and Immunities Clause from the incorporation debate]) to the liberty of contract (Lochner v. New York and its progeny), share a common theme embedded in the invisible constitution: self-government and the principle of non-interference.

            Tribe does not argue that Lochner was correctly decided; rather, he believes the error lay in the Court’s refusal to acknowledge the massive disparities in bargaining power that its liberty of contract doctrine engendered.  Insofar as many other liberties have been read into the Due Process Clauses, and absent any rigorous analysis showing why selective incorporation and privacy belong there while contractual freedom does not, it is necessary to find a way to synthesize these cases into a single coherent theme without resurrecting Lochner and its ilk.  This Tribe does with aplomb.  He stops short of justifying SDP entirely on grounds of autonomy and popular sovereignty; his mission seems more tightly cabined than that, but it is clear he regards it as an important overarching theme of both SDP and the invisible Constitution.

            Now for my critique.  Leave it to a master like Tribe to find a way to legitimate SDP by appealing to the Constitution’s general theme of popular sovereignty.  The latter concept is hardly original; I encounter it regularly in my studies, extracurricular and curricular both.  It is the underlying theme of Bruce Ackerman’s We the People Vol. 2 (have yet to read Vol. 1 and cannot find Vol. 3), and a recurring observation in Akhil Amar’s exposition of the Constitution and its history in America’s Constitution: A Biography.  But what’s impressive about Tribe’s synthesis is the way he connects this noble theme to the most suspect of doctrines.

            But I fear Tribe runs into problems he does not—and perhaps cannot—fully reconcile with this tenet of the invisible Constitution.  For example, Tribe also argues that the Dormant Commerce Clause is equally part of the invisible Constitution: he both claims that any justification of this doctrine must come from reasoning outside of the text (the overarching theme of his book), and that it is born of necessity and general Constitutional principle (the notion of a unified nation, of the invalidity of a government passing laws regulating people and places outside of its jurisdiction, etc).

            I sense some conflict between the principle of non-interference that undergirds SDP jurisprudence as Tribe presents it, and his defense of the Dormant Commerce Clause.  I acknowledge the conflict more to pertain to the principles as applied than in the abstract, but I find it difficult to reconcile a strong Constitutional shield of non-interference protecting states, cities, and groups of individuals to conduct their own affairs—but in times of pressing need of government interference—with a doctrine which (in conjunction with the Commerce Clause as construed in the modern era) strips the states of yet more of their power to regulate commerce.  Are those areas that the DCC touches “unusually persuasive,” and is the Court’s elaboration of that doctrine a “narrowly tailored justification”?

            I’ll spare any readers a detailed analysis of the DCC and its consequences for Tribe’s thoughts in this section.  In sum, it struck me as odd that one scholar would defend both the DCC and a very strong general principle of federalism—basically arguing that the Court should apply strict scrutiny in assessing federal interference in lower-level self-government, but should maintain its capacious extra-textual Commerce Clause jurisprudence.

            I should also add that Tribe does not connect the concept of private self-government with which he defends the contract doctrine and the strong federalism with which he follows it.  He appears to gloss any differences between the public-private relationship and the vertical federal structure.  Perhaps it is acceptable to address this distinction by claiming a general right to self-government both of the sovereign people, and the pre-existent states whose powers predate the Constitution (he does address the police powers doctrine as part of the invisible Constitution earlier in the book).  But I wish he had acknowledged the distinction.

            I’m continuing to read Professor Tribe’s book; it is outstanding. I hope to finish it in the next day or so.  I recommend it heartily for anyone looking for a scholar’s refutation of strict textualism—not only on normative grounds, but also on purely expository grounds.  Tribe says both that we should see the “dark matter” of the Constitution, but also argues that not to acknowledge it is both to disqualify unwittingly many of the Court’s most important decisions and enduring doctrines.  This dark matter is both pervasive and essential to our Constitutional order—one would be hard pressed to come away from this book with any other conclusion.

Marriage Equality

This entry is dedicated to equal marriage opportunity and the Constitution.

A series of cases will come before the Supreme Court this year pertaining to recognition of marriages for same-sex couples.  These cases will address various issues, some relating to the states, some to the federal government (challenging the constitutionality of the Defense of Marriage Act).  The Court here faces a complex set of questions.  I will address but one.

Does the Constitution require that the states recognize marriages between same-sex couples?

            To begin, I will separate this issue along two lines.  As a legislative matter, this issue seems very clear-cut to me.  I have been able to glean little more than a naked distaste for homosexuality and a deep-seated animus against homosexuals driving the laws and constitutional amendments in the states prohibiting legal recognition of those unions.  Were I to sit on any state’s legislature, I would be honored to vote for a statute recognizing marriages between same-sex couples.  I would be similarly honored to vote for state constitutional amendments to that end, or to vote against amendments outlawing such recognition (as I did in Florida in 2008).

            But the policy of marriage recognition is different from its constitutionality.

            This question raises competing claims: the Constitution’s demand that the states provide the equal protection of the laws, and the states’ police power: their undifferentiated authority to regulate on behalf of the health, safety, welfare, and morals of their citizens.  The states have historically dictated the terms of the marriages they will recognize with few exceptions (like the Court’s intervention in Loving v. Virginia, which ruled that a Virginia law prohibiting interracial marriages violated equal protection).  Defining the terms of marriage drives to the heart of the states’ police powers.

            The Court has spoken on issues involving state action and homosexuality before.  Important cases like Lawrence v. Texas and Romer v. Evans set a precedent for equal treatment toward those of whatever sexual orientation, though they conspicuously declined to name sexual orientation as a protected class under EP jurisprudence. 

Lawrence involved the invalidation of a Texas statute criminalizing sexual activity between same-sex couples.  The Court’s majority opinion relied on a right to privacy grounded in the Due Process Clause of the 14^th Amendment, and recent decisions elaborating (creating?) that right.  Justice Stevens, writing the majority opinion in Lawrence, made a special effort to foreclose the possibility that his opinion would be used in future cases to impose same-sex marriage recognition on the states by distinguishing this case from a hypothetical one involving marriage recognition by implying that the states would have an interest in reserving marriage for heterosexual couples.  But more pertinent to this discussion is Justice O’Connor’s (more cogent) concurrence noting that to prohibit sexual conduct for homosexuals but not for heterosexuals constitutes a violation of Equal Protection insofar as such a law treats similarly situated people differently without a rational basis. 

Romer overruled an amendment to the Colorado constitution forbidding anyone to claim protection from Colorado’s anti-discrimination laws on grounds of sexual orientation.  Stevens, writing for the majority again, unearthed as the amendment’s motivation nothing more than a transparent prejudice against homosexuals.  But again, he declined to say anything more than that these laws failed the rational basis test

Justice Scalia’s scathing dissent in Lawrence reveals inconsistency in the majority opinion, but also could portend the future: the Court’s opinion delves deeply into American and common law history to find and distinguish the motivations behind anti-sodomy laws from modern statutes like Texas’.  Such a painstaking analysis reaches far beyond normal rational-basis jurisprudence into the demanding standards of strict-scrutiny review.  The Court acts disingenuously when it says one thing and does another.  However, such an argument may reveal that the Court was merely unwilling to reveal its true intentions at that time.  The full revelation of this more exacting standard of review may await us this year.

            However, both of these cases differ from the issues at hand: they forbid the states from engaging in discrimination, but they do not require legal recognition of marriages between same-sex couples.  There is a difference between a laissez-faire approach to personal relationships between consenting adults, and the active recognition of such relations’ equality before the law and the polity.  Hands-off is different from thumbs-up.  

            However, one could say that Romer does involve equal recognition of homosexuals in the states before the law insofar as it deals with self-identification along lines of sexual orientation, which in turn depends on sexual conduct.  Perhaps this case does involve thumbs-up recognition insofar as it demands that the states regard homosexuals legally as they would any other identifiable group.  Lawrence similarly involves non-discrimination along lines of sexual conduct (although again, Stevens denied to expand such recognition into the marital arena), and insistence that to criminalize certain sexual conduct stigmatizes those who engage in it, weakening regard for the law.  Both themes are present also in Romer, as arguably in any case challenging state failure to recognize same-sex marriage.  Such failure arguably perpetuates a stigma against homosexuals and homosexual conduct by enshrining it in law; further, such failure denies to homosexual couples the full measure of the law’s protection in such matters as taxation and inheritance.

            (I don’t know enough about civil unions to know whether this is strictly true, but in the event that they are not equal in such matters strengthens the EP argument.)

            Still, Lawrence mainly involves a hands-off policy toward homosexual relations more than it involves an active recognition and approval of such unions.  I’ve tried in the previous paragraph to argue as strongly as possible for active state recognition on Lawrence and Romer’s precedent.  But even Romer strictly requires the states not to disqualify sexual orientation as a protected class under their non-discrimination laws.  This decision did not require recognition of such a group, only that they not be disqualified out of hand.  It’s a stretch to say that the Court’s previous decisions regarding homosexuality pave the way for legal recognition of marriage between such couples.  Again, even Lawrence required only that the state’s coercive mechanisms not be used to stigmatize homosexuality and invade the privacy of adults’ bedrooms.  Romer dealt with nothing so private as sexual intimacy.

            The federal government has traditionally kept its hands off state regulations of marriage.  A notable recent exception was the case Loving v. Virginia in which the Supreme Court invalidated a Virginia stature forbidding interracial marriages on Equal Protection grounds.  The state had claimed that it was not treating the races unequally, since both white people and black people were subject to the same restrictions: neither group was allowed to intermarry.  In striking down the law, the Court declared that the right to marry was fundamental to individual liberty, and that such separation of the races necessarily violated equal protection despite its ostensibly equal treatment (both races were forbidden from intermarrying, but practically the Court understood that the legal and social burden would fall to black people).

Most important in this case for our purposes is Earl Warren’s declaration that the freedom to marry is fundamental.  Clearly, Loving pertains to racial inequalities, but it sets a precedent that the federal government will not hesitate to examine how states regulate marriage if certain lines of fairness are crossed.

            Are they crossed here?

            Equal Protection jurisprudence has recognized five classes against which discrimination will trigger heightened review: race, gender, alienage, illegitimacy, and exercising constitutional rights (the last is seldom used; usually the right at issue defends whoever exercises it without recourse to the EP Clause).  Sexual orientation is not among them.  Again, Romer and Lawrence involved no more than rational-basis review, requiring no greater scrutiny than cursory examination.

            So, the Court has not recognized that sexual orientation is a “discrete and insular minority” (U.S. v. Carolene Products Co.): deserving special protection because of political powerlessness, with a history of invidious discrimination.  As such, discrimination along lines of sexual orientation triggers the same standard of review as would state discrimination against any other lines, which is almost always permissible.

            Should discrimination against homosexuals trigger heightened review?  Few would dispute that this group has been victimized by discrimination in American history; they have indeed been victims of onerous discrimination.  And because social stigmas force many homosexuals (or those who question the certainty of their sexual orientation) to remain in hiding, this minority remains politically vulnerable due to its small size and disorganization.  It should not surprise—it is barely worth mentioning—that homosexuals are underrepresented in the political process.  There are surely far fewer openly gay legislators and other politicians in proportion to the population at large.

However, on the other hand, how discrete and immutable is this minority is questionable, since many consider sexuality to be a spectrum rather than a zero-sum game.  Still, homosexuals cannot change their orientation at a whim; this much should be apparent and accepted in the present day.  We should have long ago left behind the notion that homosexuals can be “cured” or otherwise treated for their “condition”.  However, sexual orientation is difficult to demonstrate, as opposed to race or gender, which are usually immediately apparent.  Thus, it would be easy for conniving individuals to take advantage of any special dispensations afforded homosexuals under non-discrimination laws. 

            Though homosexuals may not qualify as a discrete class, others fail to meet the criteria fully as well.  For example, women comprise slightly over half the American population; as such they cannot even be thought of as a minority, let alone one discrete and insular.  Though women have clearly been considered subordinates, and have been badly victimized by a political process to which they were not privy for generations, gender discrimination does not fit the EPC bill entirely.  As such, perhaps the best place for sexual orientation discrimination lies in the same category of mid-level scrutiny due to gender discrimination.

            Now, to argue for the opposite side: this case implicates the powers of the states.

            Once again, I will not address religious arguments, assuming for the moment that such laws founded on purely religious grounds would violate the Establishment Clause as incorporated against the states by Everson v. Board of Education (establishment) and Cantwell v. Connecticut (free exercise).  Solely on constitutional grounds, federal involvement in marriage runs up against the states’ police powers, which has traditionally involved regulation and recognition of marriage as part of their power to regulate on behalf of their citizens’ morals.

            Further, the political power of homosexuals and their allies is growing, demonstrated by some states’ legalization of marriage equality in the 2012 elections.  The national trend may be shifting in this direction, taking the wind out of the sails of any judicial efforts to remove this issue from the political process.  If this process fixes its problems on its own, there is no need for judges to step in.  Indeed, I posit that they have a duty not to become involved absent pervasive, persistent, and invidious inequalities in the political process.

            Regulating marriage drives right to the heart of these powers, especially as they have been eroded over time.  Though the federal government has the power and an interest in promoting and ensuring equality, the states have an interest in safeguarding those powers that still redound to them in an era in which most issues of substantive concern are resolved at the national level.

            If the federal government nationalizes marriage, what will remain to the states?  If either the Congress or the Supreme Court exercises its 14^th Amendment power to require all the states to recognize same-sex marriages, little will remain of their once-sovereign power.  Few issues drive deeper to the heart of the police power than regulating public morality, since today much of regulation on behalf of health and welfare is either handled by the federal government, or at least conceived from the top, and only executed on the bottom.  The expansion of federal commerce power to near limitlessness has enervated the states’ power to act for the health and safety of their citizens; to strike at public morality nearly destroys state sovereignty altogether.

            Moreover, the scenario presented above does not entail a Congressional act dictating rules of marriage recognition nationwide, but the Supreme Court claiming that such is the command of the Constitution.  Congress can only enact legislation appropriate to enforce the 14^th Amendment; the Court would implicate the issue in the Constitution itself.  The distinction is important.  The people can, if they choose, order that Congress reverse a statute.  A Supreme Court opinion can only be overturned by Constitutional amendment, or by a future Court decision.  The latter scenario largely cuts the people out of the equation, ostensibly (and ironically?) by invoking the people’s highest will and supreme law.

            Using statutory law to enforce marriage equality presents a different problem: what to do when the bare national majorities drawn on party lines shift Congressional power.  What happens to this hypothetical statute when Congress falls into conservatives’ hands again?  What happens when the small national liberal majority tilts back toward the Republicans?  Constant vibrations in national public policy compromise the predictability necessary to the legal system,

            One lesson that the nation should take from the abortion struggles is that a Supreme Court decision claiming a segment of public policy for its very own can stoke the flames of a debate that may have otherwise simmered more civilly.  With Roe v. Wade and subsequent cases, the people lost their voice; the policy choice became mysteriously and questionably embedded in the Constitution rather than decided by the people at large, or within their states.  This frustration may have caused the debate to become more acrimonious that it might have done otherwise (several states had begun moving to liberalize their abortion laws before Roe), the bitter backlash sparking a defensive response from other parts of the public.

            Those who disagree with given Supreme Court decisions are cut out of the political process.  Participation in this process should be seen as a positive good in itself, an example of the civic virtue without which a democracy cannot function.

            The bottom line: when the Court implicates social issues in the Constitution without clear mandate, it removes a segment of the people’s power to decide issues for ourselves, which is understandably frustrating.  Furthermore, such decisions come dangerously close to making the Court into a roving super-legislature, creating public policy under the guise of Constitutional mandate and judicial review, but without the check of popular accountability.  This is arguably a violation of the separation of powers and due process of law.

            My refusal to endorse a Supreme Court decision imposing marriage equality on the states stems not from any prejudice against homosexuals, but a respect for the political process, and concern for the Constitution’s legitimacy, endangered by its persistent use in resolving contentious social ills.  The more we force the Constitution to take sides in our political debates, the more we risk fracturing the polity it constitutes irreconcilably.  It is cast in general principles, standing above the everyday political struggles that define our democratic order.

Why President Obama Could Easily Be Impeached Over the Debt Ceiling If Congress Fails to Raise It

Not my own essay, of course, but very interesting to read.

http://verdict.justia.com/2013/01/11/why-president-obama-could-easily-be-impeached-over-the-debt-ceiling-if-congress-fails-to-raise-it

I don't think that Republicans would be so reckless as to commit political suicide to ensure Obama's impeachment (he wouldn't get convicted/removed anyway, especially with Democrats in charge of the Senate).  I find it interesting because of the theoretical conundrum for any president: how to enforce the laws faithfully when they conflict with one another, a puzzle I had not considered before.

Ideally, a president should wait for Congress to untie the legal knot so that he/she does not have to try to do so unilaterally.  But with a deadlocked or intransigent Congress, it's unclear to me as to what any president could do.  The article's prescription, to find the "least unconstitutional" option, seems best, I suppose.

The "Invisible Constitution": Departmentalism and Meta-Rules

            In his book, The Invisible Constitution, Lawrence Tribe argues that certain invisible constitutional principles, like “one person, one vote”, the protected classes of the equal protection clause, privacy, and judicial review (among others) are necessary extrapolations on the Constitution, achieving a status commensurate with the written text.

            These co-equal offshoots of the unwritten constitution include certain iconic cases and statutes, like Brown, Marbury, the apportionment cases, and the Civil Rights Act of 1964.  Tribe describes the way in which a small part of that statute was elaborated and expanded to include sexual harassment as a form of sex discrimination, a principle axiomatic in American law, unlikely ever to lose that status.

            But why could statutory law formed by Congress as opposed to constitutional law as formed by judicial opinion and precedent not fill the hollow spaces in between the constitution’s words?  Why must it redound to judges to fill in the spaces of our supreme law?

            If Congress were entrusted with interpreting the Constitution and thus filling in its blank spaces, this would represent an abandonment of the theories of judicial review (the judiciary as the body responsible for constitutional review), and judicial supremacy (the judiciary as the branch responsible for resolving disputes between other branches).  It would also eliminate this "invisible constitution"; replacing it with statutory law would help to solve problems of constitutional legitimacy, though it might make the Constitution's provisions more subject to transient political breezes.

            Tribe presents a problem derived from Godel’s Theorem: any rule on how to read the Constitution, especially a rule that to ascertain its meaning only the written text be consulted exactly as it is, itself is extra-constitutional.  Therefore, such a rule disproves/disqualifies itself.  But what if such rules were not set by judges who exercise near plenary power over the constitution and its deployment, but were filled by statutory law enacted by the people’s delegates in Congress?

            A recent stark example of the Court’s jealous defense of its constitutional supremacy came in 1997’s City of Boerne v. Flores.  In this case, Congress challenged the recent decision of Employment Division v. Smith in which the Court overturned the compelling-state-interest doctrine used in Sherbert v. Verner and Wisconsin v. Yoder.  The Court ruled in Smith that as long as a state law is facially neutral, it will not violate the Free Exercise Clause.  Congress passed the Religious Freedom Restoration Act, forbidding state action that infringes religious practice, even as applied, trying to restore the stricter scrutiny of Sherbert and Yoder.

            The Court responded jealously in Flores, striking down the RFRA, indignantly reminding Congress that the Court wields the final word in constitutional matters.  The Court explained to Congress that the 14^th Amendment gives Congress the power to enforce its provisions, not to interpret them.  If there were any remaining question as to whether anyone carries co-equal power to interpret the Constitution, then the Court laid it to rest in Flores.

            Does such a rule run the risk of contradicting the Constitution itself?  Does giving Congress the power to set the rules by which the judiciary may read and exercise the constitution put too much of its power in the hands of the majority?  Does it run afoul of the concept (Federalist 78) that judges should be responsible for safeguarding the minor parties in the community by keeping the majoritarian branches within their assigned limits?  The answer to all of these questions may be yes.  Tribe defends judicial review as necessary to secure the Constitution from majoritarian manipulation (though one fairly asks whether the Court has done such a good job of erecting enduring doctrines, so avoiding the momentary lapses of transient majorities), as I have done in other essays as well.  Still, given the grave errors of the Court’s history, it’s hard to predict that co-equal interpretation would necessarily be worse overall.

The "invisible constitution's"  contents: meta-rules for how to read it; law filled into the blank spaces in the text; investing words with more meaning than their dictionary definitions would allow, are all necessary results of judges’ exclusive hold on the Constitution, byproducts of judicial review and judicial supremacy.  As long as the judiciary remains its highest institutional interpreter, their rules will fill in the gaps around the document’s deliberately vague clauses. 

Although other forces, like the weight of public opinion, the gravity of history, and the demands of public policy and circumstance will help to determine which of their opinions and rules are granted co-equal constitutional status with the document itself, such equality is a necessary result of the constitutional system we have slowly chosen.

            If Congress wielded co-equal constitutional power, as departmentalism would demand, then statutory law might fill in those constitutional gaps rather than judicial discretion and interpretation.  We might do better in this way to avoid the vagaries of the “invisible constitution” and the problems of legitimacy which such an approach must bear.  How can an “invisible constitution”, which was neither ratified, voted on, nor much less created by the people, command their allegiance as binding—even supreme—law?  How can something not of the people’s creation, nor even that of their elected delegates, attain so lofty a status in a system ostensibly predicated on popular sovereignty?

Though this approach presents its own set of problems, it would help to mitigate these constitutional gray areas, and put the people’s document, for better or worse, back into their collective hands.

So what is the bottom line? What does this mean for our constitutional order?  It means that the invisible constitution is an inevitable part of the way this order has developed.  Public reason (in the Rawlsian sense) gives the people some measure of control over which parts of this judicial construct become essential, unwritten parts of their supreme law (in instances like the Equal Protection clause encompassing race, or judicial review being so accepted by the people and politicians).  I have argued elsewhere that a deep (long-lasting) and broad consensus on a given topic of law or politics (i.e. an undeniable public reason as Rawls describes it in both Political Liberalism and select parts of Collected Papers) lends such a policy an equal democratic pedigree to the Constitution itself. 

Elsewhere, I used this argument to substantiate certain aspects of the Supreme Court’s substantive due process jurisprudence, and to discredit any further complaints about the constitutional illegitimacy of such as the ratification of the 13^th and 14^th Amendments and the expansion of federal power in the New Deal (described in Bruce Ackerman’s We the People Vol. 2).  However, that there would be an attenuated connection between such “invisible” constitutional mandates and the people themselves is the necessary result of our judiciary’s political insulation.

It is surely too late to reverse course now without major federal restructuring, probably requiring an amendment or two.  Keeping the system as it stands seems a stable, if not theoretically satisfying, approach to constitutional development. 

But if we continue to reject departmentalism and co-equal constitutional interpretation, then we should check ourselves when complaining about judicial activism, or invention.  We are forced to accept Tribe's argument that a meta-rule constraining the judiciary to pure textual interpretation itself relies on some form of an invisible constitution, and as such disqualifies itself, unless we are willing to embrace an external departmentalist check on judicial supremacy.  Such an invisible residuary is inplicit in the concept of the Constitution as enforceable law (see Article VI, Section 2), cast in vague terms that require elaboration.  As we have entrusted our Court with the highest institutional power to elaborate, we should not complain too much when they do it.

Why I voted for my girlfriend: Lessons in popular sovereignty

            Some people will not understand or approve, but here is the honest truth.

            I voted for my girlfriend for President in 2012.

            A friend was understandably skeptical when I told her about this decision last night.  Though she denied to explain exactly why, I theorize three objections: that I did not vote for her candidate, that I exercised my vote frivolously, or that my vote was an overwrought display of affection (in her terms, “schmoopy”).

            I’ll focus primarily on the second possible objection in this essay.  Briefly, I see no need to address partisan issues; I intend this blog to focus on constitutional issues, not taking sides on political controversies (unless they implicate the Constitution).  My refusal to vote for either major party candidate will be addressed, but to choose neither is not within the ambit of this essay, nor of my larger purposes.

            As for the third: my girlfriend said my vote made her day.  My dad voted for my mom in 2008, which I thought was really sweet.  I regret nothing!

            The second theory implicates the Constitution, but only in the broadest terms.  I looked over my ballot for several days.  I researched the candidates; I followed the news; I watched the debates.  After looking up and down the list of presidential candidates on the Florida ballot, I came to an inexorable conclusion.

            I don’t want to vote for any of you clowns.

            Some candidates manifestly did not belong on any ballot (I’m looking at you, Roseanne Barr), let alone for President of the United States.  Some, like Gary Johnson, espoused platforms in which I might find limited appeal, but to carry through to fruition in its entirety would be, in my judgment, disastrous.

            So then I thought, why should I vote for any of you?  There is no tension between distaste for all available candidates, and a strong value-based emphasis on the importance of voting.  I do regard voting as an extremely important civic responsibility.  And my vote for my girlfriend was not an abdication of that responsibility.  Why?  Because I genuinely believed that she was the best candidate I could name for the office.

            She is voraciously intelligent; she has a beautiful, generous heart; she has good judgment; she does not lust for money and power (if she does, the joke’s on her!).  On those virtues alone, she outpaces 99% of all politicians in the country already.  I cannot attest that any politician in the country of whom I know possesses all of those traits to the same extent as my ladylove.  As such, I believe she was the best-qualified candidate I could name.

            (Here is where the Constitution comes in.)

            This thought process and my friend’s reaction prompted me to think of popular sovereignty and the scheme of representation.  I ask a simple question: why should I have to vote for any party candidate?  My sense is that most people approach their ballot with the following process: I choose the guy I already settled on; if I don’t like either, I pick a third party candidate; if I want to be snarky, I write in someone like Vermin Supreme.  I personally take politics seriously, but I did not feel that any of the candidates on the ballot were worthy to represent me in Washington.

            This is the heart of my decision.

            We the People are in charge of this country; this fundamental principle undergirds our entire constitutional order, and the scheme of representation as a whole.  We are not beholden to the two-party system, or to any third party. 

Think of the candidates as job applicants.  Were I reviewing applications, I’d have thrown out all their resumes, and picked someone who could do the job to my standards.

            A bit of disenchanted youthful revolt?  Maybe.  A romantic gesture?  I won’t deny it.  But I would not have voted for my girlfriend if I thought there was someone on the ballot superior as a presidential candidate.  And that gets to the heart of the matter: I feel these candidates must impress me; they must win my vote.  I will not vote out of either compromise or resignation. 

I am part of the sovereign People of the United States (as are you).  The politicians in Washington and (for me) Tallahassee serve at our pleasure.  They have their powers because We have deemed it to our best mutual advantage.  This may sound overly idealistic or pompous, but I assure you that it is not.  The Constitution guarantees popular sovereignty, as opposed to legislative or darker kinds. 

Witness the Preamble, in which We the People ordained a new government to serve us and our descendants; the Bill of Rights, in which we inform our government that We reserve certain privileges for ourselves; the separation of powers structure itself, designed to force the government to check itself by playing ambition against ambition (as James Madison explained in Federalist No. 51).  The Supremacy Clause in Article VI Section 2 declares that the Constitution is the “supreme law of the land”, the source from which the federal government draws its power and necessarily also the limit of those powers (as elaborated in Marbury v. Madison--whether you buy judicial supremacy or judicial review or not, constitutional review more generally is a necessary consequence of such a system). 

These structural and textual points taken together present the image of a united polity creating a new government for its collective benefit, and then binding its hands to ensure that it not grow beyond its pre-determined limits, that it not grow stronger that the People themselves. (For more on the democratic roots of the Constitution’s ordainment, history, and structure, see Akhil Amar’s America’s Constitution: A Biography).

  It is our document; ordained by the will of the sovereign people, it enumerates the powers we guardedly delegate to our representatives, the limits we set to those powers, and the means by which we call our stand-ins to answer for the use of their borrowed powers.

I called those hopeful delegates for the office of President to account, and found them all wanting.

In elections, We do not choose our rulers.  We choose our delegates, our servants.  We choose whom we will entrust with the power to do what is in the best interest of all, subject to certain pre-determined limits.  I caution you not to vote for anyone about whom you are tepid (unless you just don’t care about politics, in which case my advice is to be more engaged).  Vote for someone, anyone, with whom you would deliberately entrust the power to do what is best for you, and the polity as a whole.