WE are all judicial activists now

University of Cincinnati Law Review

Volumn 77, Issue 1, 2008, Pages 181-232

  Lipkin, Robert Justin ^a  

^a WIDENER UNIVERSITY   (United States)

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EID: 64949094817     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (253)

1. See DAVID BARTON, RESTRAINING JUDICIAL ACTIVISM (2003);
2. RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (2d ed. 1997);
3. ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1997);
4. PAUL O. CARESE, THE CLOAKING OF POWER: MONTESQUIEU, BLACKSTONE, AND THE RISE OF JUDICIAL ACTIVISM (2003);
5. HRISTOPHER WOLFE, THE RISE OF MODERN JUDICIAL REVIEW: FROM JUDICIAL INTERPRETATION TO JUDGE-MADE LAW (1994)
6. Lino Gralia, Rule of Law: Our Constitution Faces Death by Due Process,' WALL ST. J., May 24, 2005, at A12.
7. Only judicial independence competes with judicial activism as the number one hot-button issue in constitutional theory. The two are related, of course. The more judicial independence is built into a political system, the greater the chance that judges will become activists. The temptation to assert their own grandiose view of the Constitution is much too compelling. The greater the incidents of judicial activism, however, the more likely the call to reign in the Court's independence. See generally, Symposium, Judicial Independence and Judicial Accountability: Searching for the Right Balance, 56
8. ASE W. REs. l. REV. 911 (2006).
9. See supra note 1 for conservative denunciations of judicial activism.
10. See also THOMAS M. KECK, THE MOST ACTIVIST COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM (2004);
11. JAMIN B. RASKIN, OVERRULING DEMOCRACY: THE SUPREME COURT VS. THE AMERICAN PEOPLE (2003);
12. HERMAN SCHWARTZ, RIGHT WING JUSTICE: THE CONSERVATIVE CAMPAIGN TO TAKE OVER THE COURTS (2004)
13. Simon Lazarus, The Most Activist Court: How progressives should think about and respond to the assaults of the Roberts Court, AMERICAN PROSPECT, June 29, 2007, http://www.prospect.org/cs/articles?article=the- most-activist-court.
14. Consider one fairly typical example of the complaint. "Judicial activism is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and 'legislate' from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs." Bruce Hausknecht, Focus on the Family's Issue Analysis" The Law & the Courts, Q & A-Judicial Activism, http://www.citizenlink.org/FOSI/Courts/A000001374.cfin (last visited Oct. 1, 2008). Of course, what counts as "going beyond their constitutional prescribed duties" or "legislate[ing] from the bench" is rarely explained. However, the notion of correctness underlies both these locutions. Judges have proper (or correct) roles which they can exceed, and when they do so they legislate from the bench-as if the distinction between a judge legislating from the bench and sticking to his or her prescribed role is pellucid. Of course, some commentators praise judicial activism as long as it is activism of the right kind.
15. See CLINT BOLICK, DAVID'S HAMMER: THE CASE FOR AN ACTIVIST JUDICIARY (2007)
16. James L. Huffman, A Case for Principled Judicial Activism, the heritage FOUNDATION, May 20, 1993, http://www.heritage.org/Research/ LegalIssues/HL456.cfm. The commitment to constitutional values permitting judicial activism is often stated without the slightest recognition of the tendentiousness of the commitment.
17. While law professors squabble over judicial policy-making, political scientists are more serene about the judiciary's role in making law. Martin Shapiro, Fathers and Sons: The Court, the Commentators, and the Search for Values, in THE BURGER COURT: THE counter-revolution THAT wasn't 236-38 (Vincent Blast ed., 1983).
18. I describe American constitutionalism as "republican democracy" to indicate that there are two fundamental elements involved. "Democracy" indicates the consent of the government; while "republicanism" indicates the existence of filters that refine the electorate's immediate preferences and transform them into reflective judgments. These filters must be reasonable and designed to prevent arbitrary power, but fashioning them as muscular counter-majoritarian conditions, that prevent the reflective will of the majority from being expressed, is antithetical to republicanism that derives its authority from the sovereign will of the people. But see, PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT 181 (1997). The fundamental point republican democrats must confront is that an institution such as judicial supremacy, which is designed to be virtually incorrigible from a democratic perspective, is both undemocratic in principle and likely to be even more undemocratic in practice. JAMES L. HYLAND, DEMOCRATIC THEORY: THE PHILOSOPHICAL FOUNDATIONS 157 (1995).
19. Ran Hirschl chooses the term "juristocracy" to signify this stealth judicial aristocracy. RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004). I believe that "aristocracy" better captures the Founders' commitment to popular sovereignty. I use "stealth" to indicate that most Americans are unaware of just how powerful the Court is and, unfortunately, judges together with powerful political elites seek to keep the public in the dark.
20. The term "judicial activism" refers to a family of views concerning the nature of constitutional interpretation and the institutional role of the Court:
21. Counter-Majoritarian Activism: the reluctance of the courts to defer to the decisions of the democratically elected branches;
22. Non-Originalist Activism: the failure of the courts to defer to some notion of originalism in deciding cases, whether that originalism is grounded in a strict fealty to text or in reference to the original intent of the framers;
23. Precedential Activism: the failure of the courts to defer to judicial precedent;
24. Jurisdictional Activism: the failure of the courts to adhere to jurisdictional limits on their own power;
25. Judicial Creativity: the creation of new theories and rights in constitutional doctrine;
26. Remedial Activism: the use of judicial power to impose ongoing affirmative obligations on the other branches of government or to take governmental institutions under ongoing judicial supervision as a part of a judicially imposed remedy;
27. Partisan Activism: the use of judicial power to accomplish plainly partisan objectives.
28. William P. Marshall, Conservatives and the Seven Sins of Judicial Activism, 13 U. COLO. L. REV. 1217, 1220 (2002) (emphasis added). For a virtually identical list, see Emest A. Young, Judicial Activism and Conservative Politics, 73 U. COLO. L. REV. 1139, 1144 (2002).
29. See also, Bradley C. Canon, A Framework for the Analysis of Judicial Activism, in SUPREME COURT ACTIVISM AND RESTRAINT 385 (Stephen C. Halpern & Charles M. Lamb eds., 1982) (discussing a similar set of criteria for analyzing judicial activism).
30. There are two kinds of definitions of judicial activism. The first kind attempts to provide an intuitive account of the term's core meaning. For example, "we can define judicial activism as the relatively uninhibited utilization of judicial power to enforce norms that judges 'discover' in the Constitution."
31. See Louis MICHAEL SEIDMAN, OUR UNSETTLED CONSTITUTION: A NEW DEFENSE OF CONSTITUTIONALISM AND JUDICIAL REVIEW 184 (2001). By contrast, "[j]udicial restraint ⋯ is characterized by a reluctance to permit judicial interference with political outcomes." Id. The second kind applies this core meaning to various contexts.
32. See supra note 8.
33. JOHN RAWLS, POLITICAL LIBERALISM 54-58 (1993). Reasonableness involves "the assessment of the pursuit of one's own aims in the light of the morally justified claims of others." DAVID A. J. RICHARDS, A THEORY OF REASONS FOR ACTION 76 (1971). The idea of reasonable disagreement applies to circumstances where disputants have mutually exclusive positions on some pressing issue, but neither position is unreasonable. In other words, neither position is guilty of making any of the usually deductive, inductive, nor commonsensical mistakes in reasoning.
34. An Archimedean perspective is a neutral, impartial, and objective vantage point, a God's eye view, if you will, from which to resolve both questions of fact and theory.
35. The idea of reasonableness applies to perspectives that pass the requirements of inductive and deductive reasoning and are based on plausible, even if disputed, evidentiary factors. We need to recognize that truth and reasonableness sometimes fail to converge. Pluralist societies, therefore, must embrace the idea of reasonableness.
36. Reasonable disagreement is not present in all types of constitutional adjudication. In what I have called elsewhere "normal adjudication," there exists a settled criterion for resolving conflicts. By contrast, in "revolutionary adjudication" reasonable disagreement is present just because such criteria are absent.
37. See ROBERT JUSTIN LIPKIN, CONSTITUTIONAL REVOLUTIONS: PRAGMATISM AND THE ROLE OF JUDICIAL REVIEW IN AMERICAN CONSTITUTIONALISM (2000)
38. Robert Justin Lipkin, Constitutional Revolutions: A New Look at Lower Court Appellate Review in American Constitutionalism, 3 J. APP. PRAC. & Process 1 (2001). Judicial activism occurs only in revolutionary adjudication. Of course, this distinction between normal adjudication and revolutionary adjudication is not always pellucid. It possesses, however, sufficient clarity to provide a pragmatic device for understanding different kinds of constitutional adjudication.
39. The notion of "essentially contested concepts" is W. B. Gallie's term to explain disagreement in social theory.
40. See W. B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC'Y 167 (1956). This notion rests on the distinction between concept and conception. However, additional complex elements in the idea are also included in its meaning. Id. at 171-73. These additional elements need not be explained at this time.
41. RAWLS, supra note 10, at 54.
42. See infra notes 171-88 and accompanying text. I will explain these concepts in greater detail in Part IV.
43. Keenan Kmiec, Comment, The Origin and Current Meanings of "Judicial Activism," 92 CAL. L. REV. 1441 (2004).
44. Robert Justin Lipkin, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, 28 CARDOZO L. REV. 1055 (2006).
45. The "analytic content" of terms in constitutional discourse refers to the instructions for correctly using the term and the term's explanatory and justification force. See Robert Justin Lipkin, Federalism as Balance, 79 TUL. L. REV. 93, 164 (2004).
46. Other institutional arrangements are possible. Lipkin, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, supra note 18, at 1092.
47. The framework of constitutional law and theory consists of descriptive, explanatory, and justificatory concepts, arguments, and reasons.
48. Interpretive questions involve questions of constitutional meaning, while institutional questions involve questions about who decides what the Constitution means.
49. Historically, several answers emerge: the court, the legislature, the executive, the states, or the electorate.
50. By "changing the subject" I mean replacing one framework of inquiry with another incompatible framework. Suppose we wanted to describe objects, such as tables and chairs. The descriptive categories would include size, weight, height, shape, color, and so forth. Suppose, by contrast, we describe these objects only on a sub-atomic level. Because we would have replaced the framework (or vocabulary) of commonsense objects with the framework of quantum physics, the above descriptive categories would have little relevance. Thus, in effect, the replacement of one framework for the other means the subject and methods of description and explanation have changed. See Wilfrid Sellars, Empiricism and the Philosophy of Mind (1997).
51. See infra notes 89-127 and accompanying text.
52. Emotivism in meta-ethics is a theory of the meaning of such ethical terms as "good," and "right." Emotivists believe that ethical utterances, in the logical sense, have no truth-values and therefore are equivalent to shouting "Hooray" or "Boo." Michael Smith, Emotivism, ROUTLEDGE ENCYCLOPEDIA OF PHILOSOPHY, http://www.geocities.com/Athens/Rhodes/3724/Cytrix/cdrom2/ Routledge-emotivism.htm. According to an emotivist analysis of "judicial activism," the term evinces approval or disapproval of a judicial decision; it does not express either.
53. The standard complaint is that "judicial activism" has no content and therefore plays no explanatory role in constitutional discourse. See JEFFREY A. SEGAL & harold J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 408 (2002);
54. Randy E. Barnett, Is the Rehnquist Court an "Activist" Court? The Commerce Clause Cases, 73 U. COLO. L. REV. 1275, 1276 (2002);
55. Justice Antonin Scalia, No Unanimity on Holding on to High Esteem, WASH. POST, Apr. 1, 2002, at A13; Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Hearing Before S. Comm. on the Judiciary 103th Cong. 169 (1993) (statement of Ruth Bader Ginsburg, nominee for Justice of United States Supreme Court), available at http://www.gpoaccess.gov/congress/senate/judiciary/shl03- 482/163-171.pdf.
56. For a more detailed articulation of the entrenched understanding, see Lipkin, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, supra note 18, at 1073-75.
57. Constitutional review requires some constitutional actor to have the responsibility to ascertain whether legislation comports with the Constitution. The doctrine itself makes no mention of the judiciary. In American constitutional history, however, the courts serve this important function. The uniquely American notion of judicial review is largely the work of Chief Justice John Marshall. Although there is protracted controversy over whether Marshall created judicial review (and when) or merely reflected a familiar judicial practice from English common law. For an eloquent articulation of the former possibility, see infra text accompanying note 77.
58. The fact that the American model of judicial review has been rejected in several European countries strongly suggests that there is nothing inevitable about it. Those who cannot shake the grasp of the entrenched understanding find it difficult to appreciate that there is more than one conception of judicial review. DAVID M. O'BRIEN, CONSTITUTIONAL LAW AND POLITICS: STRUGGLES FOR POWER AND GOVERNMENTAL ACCOUNTABILITY 173 (2005).
59. Sanford Levinson's work on the defects in our constitutional democracy and his call for a second constitutional convention are not taken seriously even by scholars who rightly admire Levinson's eminence as a constitutional theorist. See Robert Justin Lipkin, Book Review (Jan. 2007), available at http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/levinson0107.htm (reviewing Sanford LEVINSON, OUR DEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006)). His book is praised but it has not, as yet, altered the veneration of the American Constitution. My explanation is that the entrenched understanding is much too powerful to permit a fair appraisal of his arguments and proposals in the current academic atmosphere. But maybe this stagnation is about to change.
60. See Posting of Robert Justin Lipkin to Essentially Contested America, How's a Little Rebellion Now and Then? What's the Future for American Constitutional Change? (Sept. 24, 2007, 3:59 EST), http://essentiallycontestedamerica.org/blog/2007/09/24/hows-a-little-rebellion- now-and-then-whats-the-future-for-american-constitutional-change/.
61. The doctrine of departmentalism or coordinate construction was arguably the Founders' conception of constitutional review. According to Jefferson, "The constitution has erected no such single tribunal [as the Supreme Court], knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments, co-equal and co-sovereign within themselves." Letter from Thomas Jefferson to Charles Jarvis (Sept. 18, 1820), in 1 The Writings of Thomas Jefferson 160 (Paul Leicester Ford ed., 1892). For a contemporary departmentalist perspective, see walter F. murphy, constitutional democracy: creating and Maintaining a Just Political Order 470 (2006).
62. Law professors typically press this position. Political scientists, specializing in constitutional law, often emphasize a larger perspective focusing on the constitutional role of other branches in American government.
63. This doctrine of judicial review "has no basis in the Constitution. The text does not confer upon the Supreme Court the power to declare unconstitutional an act of Congress, the President, or state government." NEAL DEVINS & Louis Fisher, The democratic Constitution 13 (2004).
64. Three cases constitute the cornerstone of judicial supremacy-the doctrine that the Court has the final word on constitutional meaning. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
65. OOPER V. AARON, 358 U.S. 1 (1958)
66. ITY OF BOERNE V. FLORES, 521 U.S. 507 (1997).
67. Madison later realized that the co-equality of the branches of the federal government was flawed in practice because it "makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper." Jonathan Riley, Imagining Another Madisonian Republic, in CONSTITUTIONAL CULTURE AND DEMOCRATIC Rule 170 (JOHN FEREJOHN, JACK N. RAKOVE, & JONATHAN RILEY EDS., 2001).
68. Roughly speaking the "Talmudic tradition" in Judaism, in parts, consists of what rabbis throughout history have understood the Torah to mean.
69. In Justice Robert A. Jackson's words, "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953).
70. See Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
71. See Jeffrey Rosen, Courting Disaster, N.Y. TIMES MAGAZINE, Dec. 5, 2004, available at http://www.nytimes.com/2004/12/ 05/magazine/05WWLN.html?.
72. Lipkin, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, supra note 18.
73. See IS THE SUPREME COURT THE GUARDIAN OF THE CONSTITUTION? (Robert A. Licht, ed. 1993).
74. See, e.g., MARK KOZLOWSKI, THE MYTH OF THE IMPERIAL JUDICIARY: WHY THE RIGHT IS WRONG ABOUT THE COURTS (2003);
75. KERMIT ROOSEVELT, III, THE MYTH OF JUDICIAL ACTIVISM (2006).
76. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURT 57 (1999).
77. See Mark A. Graber, Naked Land Transfers and American Constitutional Development, 53 VAND. L. REV. 73 (2000)
78. Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35 (1993).
79. John Adams, the second American president, feared elections, the hallmark of republican democracy. Writing to Jefferson after the Convention Adams revealed, "[e]lections, my dear sir ⋯ I look at with terror." SUSAN DUNN, JEFFERSON'S SECOND REVOLUTION: THE ELECTION CRISIS OF 1800 AND THE TRIUMPH OF REPUBLICANISM 29 (2004). Fear of popular rule rests at the core of the entrenched understanding. A government that dreads the results of the right to vote is antithetical to republican democracy. See BENJAMIN R. BARBER, A PASSION FOR DEMOCRACY 90 (2000). But see WOODY HOLTON, UNRULY AMERICANS AND THE ORIGINS OF THE CONSTITUTION (2007).
80. Lord Acton put the point as follows: "Power tends to corrupt, and absolute power corrupts absolutely." The Phrase Finder, http://www.phrases.org.uk/meanings/288200.html (last visited June 29, 2008).
81. But see CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 60 (2001). Defenders of judicial activism parade several highly unpersuasive arguments in favor of judicial supremacy. In the end, the only discipline judges face is self-discipline and that conspicuously fails to restrain judges from ultra vires decision-making.
82. See Lipkin, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, supra note 18, at 1065.
83. Popular sovereignty is the chief expression of republican democratic legitimacy. See AMY GUTMANN & DENNIS FRANK THOMPSON, WHY DELIBERATIVE DEMOCRACY? 9 (2004).
84. Some might argue that this view of the Court as the sole arbiter of constitutional meaning flies in the face of reality. Even judicial decisions expressing the supremacy of the Court in reality involve national majorities or political elites prevailing in constitutional battles. While I think there is much to be learned from this view, it will not, in my view, show that over hot-button issues, the Court's power is compatible with republican democracy, no matter how this power is tied to other constitutional actors. For a more detailed response to this and other objections to the idea of judicial supremacy, see Lipkin, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, supra note 18, at 1079-96.
85. STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO PRACTICE 89 (1998).
86. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 18 (1986)
87. The Judiciary and American Democracy: Alexander Bickel, the Countermajoritarian Difficulty, and Contemporary Constitutional Theory (Kenneth D. Ward & Cecilia R. Castillo eds., 2005).
88. The New Deal Revolution, creating a presumption of constitutionality of economic and social regulation, is expressed poignantly in United States v. Carolene Products. 304 U.S. 144, 152 (1938) ("[T]he existence of facts supporting the legislative judgment is to be presumed.").
89. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
90. Proponents of judicial restraint rarely provide a viable method for distinguishing unwise legislation and unconstitutional legislation.
91. Additionally, judicial inquiry includes questions of statutory interpretation.
92. These interpretation wars are over which interpretive methodology should prevail in ascertaining the Constitution's meaning and in determining how constitutional provisions should be applied to contemporary situations. Ultimately, these interpretive wars derive from the war to define American culture, and especially from the essentially contested values that underlie the culture wars.
93. Robert Bork is a paradigmatic, but not exclusive, example of such an individual. See ROBERT H. BORK, THE TEMPTING OF AMERICA (1997). Justice Antonin Scalia is another example sporting the theory of textualism, which refers to what the Constitution was originally understood to mean at the time of ratification. Hence, in this Borkian-Scalian commitment to textualism-originalism, constitutional meaning always has a dated meaning. In that sense, according to Justice Scalia, the Constitution is dead. Antonin Scalia, On Interpreting the Constitution, The Manhattan Institute Wriston Lecture (Nov. 17, 1997), available at http://www.manhattan-institute.org/html/wll997.htm (unedited transcript) ("Come along with me and admire the Dead Constitution. I have to get a new term for it⋯. [M]aybe the Enduring Constitution. That's a little better.");
94. see also, Antonin Scalia, God's Justice and Ours, FIRST THINGS, May 2002, at 17, available at http://www.firstthings.com/ articlephp3?id.article=2022.
95. RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (1997).
96. For an important piece on changes in constitutional theory, see Barry Friedman, The Cycles of Constitutional Theory, 67 LAW & CONTEMP. PROBS. 149 (2004).
97. It is mystifying that members of the Court need not share the same interpretive methodology or, when they do, necessarily apply it in the same way. It is especially confounding when we recognize that a judicial decision is ultimately formulated only by using the quintessential political strategy of voting.
98. It is simply a myth that unelected, life-tenured officials are miraculously able to interpret the law without making law. The distinction between interpretation and legislation is itself subject to interpretation and therefore to judicial activism.
99. This dichotomy is sometimes buttressed by the Hamilton distinction between judgment and will. Christopher Wolfe, The Rehnquist Court and "Conservative Judicial Activism''' in that eminent Tribunal: Judicial Supremacy and the Constitution 199-201 (Christopher Wolfe ed., 2004). The problem here is that the distinction between judicial judgment and legislative will is far from obvious. Certainly, it is insufficient as a way to define judicial activism.
100. This assumes, counter-intuitively, that constitutionalism is best understood by lawyers and judges. This legalization of constitutionalism needs to be examined.
101. See griffin, supra note 52, at 17.
102. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
103. In revolutionary adjudication, the battle is to construct a new constitutional paradigm or to repair, extend, and refine existing paradigms. Constructing constitutional paradigms in revolutionary adjudication can normalize adjudication in that area of the law or it can precipitate more intense forms of activism. The privacy cases, starting with Meyer v. Nebraska, 262 U.S. 390 (1923), and continuing through Lawrence v. Texas, 539 U.S. 558 (2003), illustrate the instability of some instances of revolutionary adjudication rendering each new decision an example of activism.
104. This means that while judicial decisions can be nonpartisan in the sense of not expressing allegiance to a particular political party, they are nonetheless reflective of a judge's constitutional and political philosophy, whether they know or not. But see Posting of Stanley Fish to N.Y. Times Opinion Blog, Does Constitutional Theory Matter? (Jan. 27,2008, 23:01 EST), http://fish.blogs.nytimes.com/2008/01/27/does-constitutional-theory- matter/. For a brief criticism of Fish's view, see Posting of Robert Justin Lipkin to Essentially Contested America, What's Stanley Fish's Beef with Constitutional Theory? (Feb. 1, 2008, 4:47 EST), http:// essentiallycontestedamerica.org/blog/2008/02/01/whats-stanley-fishs-beef-with- constitutional-theory/. Nevertheless, at its best, judicial political reasoning differs from ordinary political reasoning, but both are value-bound. The former can be understood as a form of wide reflective equilibrium.
105. See Robert Justin Lipkin, Beyond Skepticism, Foundationalism and the New Fuzziness: The Role of Wide Reflective Equilibrium in Legal Theory, 75 CORNELL L. REV. 811 (1990).
106. The distinction between revolutionary and normal adjudication tracks the late philosopher and historian of science, Thomas Kuhn. See THOMAS KUHN, THE STRUCTURE OF SCIENCE (1969).
107. See also Lipkin, What's Stanley Fish's Beef with Constitutional Theory?, supra note 68.
108. Certainly, these decisions cannot be regarded as constrained. To defend the entrenched understanding requires the creation of a middle ground between judicial activism and judicial restraint and between revolutionary adjudication and normal adjudication. This middle-ground has been the Holy Grail of mainstream constitutional jurisprudence, and unfortunately, it remains beyond reach.
109. 22 U.S. 1 (1824).
110. Id. at 187-89.
111. There are several different versions of this approach. See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007)
112. WILLIAM J. BRENNAN, see infra notes 116-17
113. IPKIN supra note 13.
114. Gibbon v. Ogden, 22 U.S. 1, 187-89 (1824).
115. Justice Antonin Scalia expresses a similar criterion for determining which interpretations are legitimate. In cases of statutory construction, the appropriate methodology is textualism. According to Scalia, "[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 23 (Amy Gutmann ed., 1997). Of course, this definition of interpretation-that it should be reasonable and fair-does not illuminate the meaning of a text because the terms "reasonable" and "fair" are vague and contestable. According to Scalia, "[i]n textual interpretation, context is everything, and the context of the Constitution tells us not to expect nitpicking detail, and to give words and phrases an expansive rather than narrow interpretation-though not an interpretation that the language will not bear." Id. at 37. Again, agreement on what counts as expansive or narrow interpretations is not obvious; nor is the notion of "an interpretation that the language will not bear." Ultimately, Scalia settles for an original meaning methodology, which perhaps is better understood as a dated textualism. However, Justice Scalia does not stick to this methodology. In Printz v. the United States, 521 U.S. 898 (1997), Justice Scalia acknowledged that no textual provision of the Constitution existed that would allow him to decide the case, yet decide the case he did. Id. Robert Post takes Scalia to task for doing so: "Printz nicely demonstrates the degree to which Scalia's judicial practice is entirely independent of the interpretive methods advocated in A Matter of Interpretation." Robert Post, Justice for Scalia, 45 NY REV. OF BOOKS, June 11, 1998, at 62.
116. See LIPKIN, supra note 13.
117. See SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION viii (1990). But see, William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. REV. 455 (2005).
118. See Michael C. Dorf, Is there A Distinction Between Law and Politics? Yes, and the Bush v. Gore Decision Proves It, FindLaw, Dec. 27, 2000, available at http://writ.news.findlaw.com/dorf/20001227.html; Adam Cohen, Has Bush v. Gore Become the Case That Must Not Be named?, N.Y. TIMES, Aug. 15, 2006, available at http://www.nytimes.com/2006/08/l5/opinion/15tues4.html?scp=l&sq=Has %20Bush%20v.%20Gore%20Become%20the%20Case%20That%20Must%20Not%20Be%20named? &; st=cse.
119. Jack Shafer, How the Court Imitates the World Series: John Robert's Winning Baseball Analogy, SLATE, Sept. 13, 2005, http://www.slate.com/id/ 2126241/.
120. See also Marjorie Cohn, John Roberts: Umpire or Ideologue, MEDIA WITH CONSCIENCE, http://mwcnews.net/content/view/1354/ 26/;
121. Roberts Says Judges Should Play Limited Role, like Umpires Rather than Players, COURTTV, Sept. 12, 2005, http://www.courttv.com/news/supreme/ 091205-umpire-ap.html.
122. The term "interpretation" is used to distinguish between a neutral strategy of understanding the Constitution and a strategy imposing one's favorite ideology into the Constitution's text. Interpretation requires something more than simply reading the words, yet something less than defining the words de novo as whatever the judge wishes the text to mean. Interpretation, however, is not a self-defining term. Different theories of interpretation yield different substantive results, yet there is little consensus over which theory of interpretation should be embraced. Even on the Supreme Court, Justices cannot be compelled to adopt one theory of interpretation over another or use the same theory in precisely the same manner as other Justices using that theory. In other words, "interpretation," though necessary, tends to muddy the waters regarding the dichotomy between law and politics.
123. The malleable character of almost any theory of interpretation permits judges to camouflage judicial activism in a vocabulary that often cannot stand up to critical analysis. Moreover, interpretation will not achieve consensus in the constitutional community; no theory of interpretation ever has. This claim doesn't entail or prove that interpretation will not constrain judicial decision in revolutionary adjudication. However, when a critical concept has been examined in a myriad of circumstances with copious scholarly scrutiny and still fails to prove viable, we are entitled to consider the concept's explanatory utility suspect.
124. Bill Klem Biography, Baseball Library.com, http://www.baseballlibrary. com/ballplayers/player.php?name=Bill-Klem (last visited Oct. 1, 2008).
125. "Legal realism" is a movement in American jurisprudence that emphasizes policy considerations in adjudication rather than following legal doctrine and rules.
126. Bill Klem Quotes, Baseball Almanac, http://www.baseball-almanac.com/ quotes/quoklem.shtml (last visited June 29, 2008).
127. ADDRESSES AND PAPERS OF CHARLES EVANS HUGHES, GOVERNOR OF NEW YORK, 1906-1908, 139 (1908). The full passage being that "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution." Id. With respect to safeguarding our property consider the following: "Senator Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice, in 1930, declared that the Supreme Court had become 'economic dictator in the United States.' Some of the Justices concurred in these observations, especially Justices Holmes and Brandeis. Asserted the latter, the Court had made itself 'a super-legislature' and Justice Holmes could discover 'hardly any limit but the sky to the power claimed by the Court to disallow State acts' which may happen to strike a majority [of its members] as for any reason undesirable." The Federal Courts vs. Constitution, National Center for Constitutional Studies, http://www.nccs.net/newsletter/jul03nl.html (last visited Oct. 1, 2008).
128. MATTHEW J. FRANCK, AGAINST THE IMPERIAL JUDICIARY: THE SUPREME COURT VS. THE SOVEREIGNTY OF THE PEOPLE (1996).
129. See supra note 8.
130. It is critical to define judicial activism in a manner that avoids setting up straw arguments. For instance, Kermit Roosevelt, III contends that "[t]he plausibility of the charge of judicial activism thus depends at least implicitly on the idea that there is a clearly correct answer (frequently called 'the plain meaning of the Constitution') that judges are disregarding. And the basic reason that the term 'activism' has no place in a serious discussion is that relatively few significant or controversial cases possess clear right answers." ROOSEVELT, supra note 43, at 15. Roosevelt might be right that there are no clearly correct answers and by insisting that judges be wary of overturning laws because the Court does not have the expertise to evaluate complex legislation. The problem is not whether the Court interpreted the Constitution correctly, that might almost always be controversial;
131. rather, the charge of judicial activism is institutional: even if the Court interpreted the Constitution correctly in a particular case, it should develop the appropriate self-discipline not to intrude, Moreover, Roosevelt's obsession with the contrast between judicial activism and something he calls "direct enforcement" is a non-starter. Few, if any, observers believe that constitutional provisions are self-executing or directly enforceable, yet the charge of judicial activism still retains its sting.
132. Although relevant to judicial activism, I do not conduct an examination of under enforced constitutional norms in this Article.
133. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
134. See Paul Gewirth & Chad Golder, Op-Ed., So Who Are the Activist?, N.Y. TIMES, July 6, 2005, available at http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?.
135. PHILLIP BOBBIT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1984).
136. Remedial judicial activism is often overlooked in discussions of judicial power. Ross SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT (2003).
137. Of course, some incorrect decisions might be de minimis; consequently, according to this approach a distinction between extraordinary and de minimis mistakes is required.
138. One qualification is necessary. Some normativist judges actually embrace "activism" in the sense that the judicial role in interpreting the Constitution requires judges to aggressively re-interpret constitutional provisions when the status quo interpretation fails to conform to the appropriate constitutional values.
139. See Randy Barnett, Commentary, A Libertarian View Judicial Activism is Necessary, LEGAL TIMES (1987), available at http://randybarnett.com/libertairianview.html.
140. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).
141. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE POWER AND THE POWER OF EMINENT DOMAIN (2005).
142. As a political philosophy, libertarianism maintains that government is authorized to curtail freedom only to enforce contracts, to keep public order, and ensure national security.
143. Indeed, to paraphrase an old saw, if an individual never considered becoming a libertarian by the time she is 21, she has no brain. If she is still a libertarian by the time she's 40, she has no heart.
144. See Barnett, supra note 95.
145. See BARNETT, supra note 96, at 230.
146. Id.
147. 304 U.S. 144 (1938).
148. Id. at 151, n.4 ("There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.").
149. While structuralist arguments are often advanced to prove that judicial review is necessary to the viability of republican government, such arguments tend to be circular. Since republican government requires following the rule of the majority except when the majority violates individual rights, judicial review is required to police the majority's actions for evidence of such violations. This argument builds the very idea of "structuralism"into the requirement of judicial review. However, alternative methods of policing the violations of individual rights are possible, such as elections. If Congress, for instance, passes legislation which conflicts with individual rights, let the people vote to choose congresspersons who will uphold those rights. The standard circular reply of structuralists is that in the final analysis the Court is in a privileged position to determine when rights are violated.
150. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
151. 60 U.S. 393 (1857), superseded by constitutional amendments, U.S. CONST, amend. XIII-XIV.
152. The conventional orthodoxy maintains that the Court did not overturn another federal law until Dred Scott. See DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 29 (7th ed. 2005).
153. Mark A. Graber contends, however, that the Court placed limitations on federal power in approximately twenty cases between Marbury and Dred Scott.
154. See Mark A. Graber, The New Fiction: Dred Scott and the Language of Judiciary Authority, 82 chi.-kent L. Rev. 177, 181 (2007).
155. 358 U.S. 1 (1958).
156. 521 U.S. 507 (1997).
157. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 438, 440, 444-45 (1986).
158. See also FRANK I. MICHELMAN, BRENNAN AND DEMOCRACY (2005).
159. I have taken this phrase from Chief Justice Rehnquist's opinion in Lopez v. United States. See 514 U.S. 549, 567 (1995).
160. For an example of Locke's political philosophy, see JOHN LOCKE, TWO TREATISES OF GOVERNMENT (1689).
161. See RONALD DWORKIN, LAW'S EMPIRE (1986). But see LIPKIN, supra note 13 at 77-117.
162. Consider the Constitutional Court of South Africa's take on the "living" constitution: What is perfectly clear from these provisions of the Constitution and the tenor and spirit of the Constitution viewed historically and teleologically, is that the Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break from a culture of Apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is "justifiable in an open and democratic society based on freedom and equality". It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment. Shabalala and others v. Attorney-General of the Transvaal and another 1996 (1) SA 725 (CC) at 19-20 (S. Afr.).
163. William J. Brennan, Jr., Op-Ed., What the Constitution Requires, N.Y. TIMES, Apr. 28, 1996, available at http://query.nytimes.com/gst/ fullpage.html?res=9D0DE5D71639F93BA15757C0A96 0958260.
164. Justice William J. Brennan, Jr., Address at Georgetown University School of Law Text and Teaching Symposium: The Constitution of the United States: Contemporary Ratification (Oct. 12 1985).
165. The ratifiers of the Civil War Amendments could never have anticipated that the courts would oppose Reconstruction for nearly a century. See ERIC FONER, WHO OWNS HISTORY?: RETHINKING THE PAST IN A CHANGING WORLD 181 (2002). In light of the virtual repeal of these amendments, perhaps contemporary courts should more aggressively enforce these amendments. Accordingly, a court coming to terms with this historical judicial stonewalling perhaps now should permit Congress to enact vast prophylactic legislation through the enforcement mechanism of the Civil War Amendments.
166. Such additional information includes unforeseen applications of the constitutional provision, deeper interpretations of the foundational values grounding the Constitution, such as liberty and equality, and novel interpretations of the historical evidence surrounding the ratification of the Constitution.
167. See infra notes 177-84 and accompanying text.
168. Richard Rorty, Science as Solidarity, in THE RHETORIC OF THE HUMAN SCIENCES: LANGUAGE AND ARGUMENT IN SCHOLARSHIP AND PUBLIC AFFAIRS 38, 41-42 (JOHN S. NELSON ET AL. EDS., 1987).
169. See Lori A. Ringhand, Judicial Activism: An Empirical Examination of Voting Behavior on theRehnquist Court, 24 CONST. COMMENT. 43 (2007).
170. Her study caught the attention of the NEW YORK TIMES' editorial page. Editorial, Activism Is in the Eye of the Ideologist, N.Y. TIMES, Sept. 11, 2006, available at http://www.nytimes.com/2006/09/ 11/opinion/llmon2.html?.
171. Ringhand, supra note 122, at 44.
172. Id. Ringhand also examines "the issue areas in which each of the justices cast these votes and the ideological direction of the votes." Id. at 44. This Article focuses on Ringhand's conception of judicial activism as invalidating laws and precedent not the ideological commitments of the Justices.
173. Id.
174. Id. (emphasis added).
175. Id. at 44-45.
176. Id. at 45.
177. The logic of constitutional discourse clearly embraces overturning legislation and precedents as normative. Such decisions rests on the notion of "what is constitutional," a paradigmatically normative locution.
178. Ringhand relies on the framework of constitutional law and theory to initiate her empirical inquiry into "judicial activism." In other words, the locutions striking down, invalidating, reversing or overturning law or precedent, or voting to do one or the other are all critical, normative terms in the language of American constitutionalism. These notions all refer to a legislative act or judicial precedent that misidentifies constitutional meaning. Thus, some normative element must be included in her empirical study.
179. The source of a decision to ratify an unconstitutional statute is the Court, not the legislature. As things now stand, legislatures provide answers to first-order questions of policy, while courts answer second-order questions about the constitutional legitimacy of such policies. Indeed, one might even say that this second-order ratification of policy represents a much stronger judgment of the legitimacy of the policy than enacting the policy itself. In short, striking down or upholding legislation as a second-order venture is always an affirmative judicial decision that can be accused of judicial activism.
180. As far as I'm aware, Michael Stokes Paulsen first coined this term. See University of Colorado at Boulder Law School, Conference and Distinguished Speaker Series-Information on Past Conferences, http://www.colorado.edu/law/centers/byronwhite/pastconfs/2001.html (last visited June 29, 2008) (noting that Michael Stokes Paulsen's conference paper was entitled Activist Judicial Restraint).
181. The term activist judicial restraint is not an oxymoron for two reasons. First, upholding an unconstitutional law in hot-button controversies changes the meaning of the Constitution. Second, if an opinion accompanies the decision, that opinion-its rationale-will reverberate throughout the law. Judicial restraint can improperly alter constitutional meaning for generations. The potential injury to the nation can be is enormous. See STEPHEN M. GRIFFIN, supra note 52. Hence, even if the result is not activist, the rationale certainly is.
182. 83 U.S. 36 (1873).
183. 163 U.S. 537 (1896), overruled by Brown v. Bd. of Education, 347 U.S. 483 (1954).
184. 323 U.S. 214 (1944).
185. U.S. CONST, amend. XIV, § 1.
186. 32 U.S. (7 Pet.) 243 (1833).
187. Id.
188. U.S. CONST, amend. XIV, § 1.
189. Slaughterhouse Cases, 83 U.S. 36, 74 (1873). The language is more properly read as simply saying anyone bom in the United States is a both a U.S citizen-Dred Scott notwithstanding-and a citizen of a state he or she was born in. Nothing remotely suggests a radical difference in the kinds of rights attached to U.S. citizenship and state citizenship.
190. Id. at 78.
191. Id.
192. Id. at 96.
193. The CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION 965 (EDWARD S. CORWIN ED., 1953).
194. Ronald M. Labbe & Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment 211 (2003).
195. Id.
196. 163 U.S. 537, 550-51 (1896), overruled by Brown v. Bd. of Education, 347 U.S. 483 (1954).
197. Id. at 551-52.
198. Id. at 551.
199. 151. 347 U.S. 483 (1954).
200. Id. at 494.
201. The Court continued: The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. Id.
202. Justice Harlan, the lone dissenting voice in this case, would have none of the Court's opinion. See Plessy, 163 U.S. at 552-64 (Harlan, J., dissenting).
203. Indeed, he predicted it would turn out to be just as infamous as Dred Scott v. Sandford.
204. Id. at 559 (stating that "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case."). Did Justice Harlan alone know something about racial inequality?
205. Korematsu v. United States, 323 U.S. 214 (1873).
206. General John L. DeWitt testified before Congress that whether an American citizen or not, "[a] Jap is a Jap." See Orville Schell, Rounding up Americans, N.Y. TIMES, Jan. 1, 1984, available at http://query.nytimes.com/gst/fullpage.html?res= 9F02EFD61438F932A35752C0A962948260&scp=4&sq= %22a%20Jap%20is%20a%20Jap%22&st=cse.
207. The exact quote is this: "I would remind you that extremism in the defense of liberty is no vice⋯. [and] moderation in the pursuit of justice is no virtue." See Barry Goldwater, Speech Accepting the Republican Presidental Nomination, AmericanRhetoric.com, available at http://www.americanrhetoric.com/speeches/barrygoldwaterl964rnc.htm (last visited June 29,2008).
208. See aharon barak, the judge in a democracy 276 (2006).
209. 505 U.S. 833 (1992).
210. In each of the other cases, the activism derived not only from the result but more importantly from the Court's rationale. In Casey, for purposes of judicial activism, the result is largely irrelevant. The activism derives from powerful dicta in the joint opinion.
211. Casey, 505 U.S. 833.
212. Id. at 851.
213. 539 U.S. 558 (2003).
214. Romer v. Evans, 517 U.S. 620 (1996) (overturning a Colorado constitutional amendment prohibiting cities and municipalities from passing ordinances protecting the civil rights of gays, lesbians, and transgendered individuals also prepared the way for Lawrence).
215. Justice Scalia derisively characterizes this dictum the "famed sweet-mystery-of-life" passage, Lawrence, 539 U.S. at 588.
216. 478 U.S. 186(1986).
217. The internal perspective is the one we use to function as agents in the world. It refers to experience, thought, and action. Jettisoning this framework may be possible in some circumstances, but if it occurs we lose our sense of self.
218. As the American philosopher Donald Davidson revealed, human actions are events that occur in the world. These events are subject to different descriptions depending upon the observers' interests and purposes. See Donald Davidson, Actions, Reasons and Causes, 60 J. phil. 685 (1963);
219. See also G. E. M. Anscombe, Intention (1957); Ludwig Wittgenstein, Philosophical Investigations (1953).
220. The framework of constitutional discourse includes examining such issues as democracy, majoritarianism, the relationship between federalism and individual rights, the question of whether the different standards of review effectively contribute to applying the Constitution, the question of interpretive methodology and a host of other issues "internal" to the way judges and other constitutional actors themselves conceptualize their conduct. More importantly, the framework of constitutional law and theory deals with judicial conduct as opposed to judicial behavior. It seeks explanations of what judges do in terms of the very reasons and arguments judges appeal to in voting and formulating their judicial opinions. Sidestepping judicial conduct is to change the subject of inquiry. In short, what judges do-how they conduct themselves-must appeal to their reasons for acting. The controversy between behaviorists and non-behaviorists in the science of human behavior is not new. Further, it would be foolish to reject all behavioral accounts of judging. Nevertheless, just what judicial activism is and how it should be measured cannot avoid incorporating essential reference to reasons.
221. Consider the general distinction between behavior and conduct. Behavior can be described and explained from the external point of view of social science. Conduct, by contrast, must include the agent's reason for acting. My arm going up is behavior; it might be caused by short-circuited neurons. No reasons are necessary to explain the behavior. However, when I raise my arm I do so for a reason whether I'm aware of the reason at the time or not. Acting for reasons constitutes conduct. Constitutional theory aims at understanding judicial conduct.
222. See abraham melden, free action (1961).
223. See Kuhn, supra note 69.
224. Among the hundreds of terms used on the surface structure of constitutional discourse are the following: "constitutional, "interpretation," "congressional authority," "judicial activism," "judicial restraint," "federalism," "standards of review," and so forth.
225. See Lipkin, Federalism as Balance, supra note 19, at 164.
226. For the necessity of reconstructing the language of argumentation in the public square, see Robert Justin Lipkin, Reconstructing the Public Square, 24 cardozol. Rev. 2025 (2003).
227. Just as radical translation-translating an unknown language into English from scratch without the benefit of being able to attribute meaning to mental states and linguistic utterances-is impossible, so too is disagreement about any and all topics. Certain common assumptions about language use are required to translate one language to another. For disagreement about constitutional meaning to occur, those in the constitutional community must share judgments over a many key constitutional issues. See Donald Davidson, Radical Translation, 27 dialectic a 314 (1973);
228. see also Willard Van Orman Quine, Word and Object (1960).
229. Rorty, supra note 121.
230. Rawls, supra note 10.
231. Gallie, supra note 14.
232. RAWLS, supra note 10.
233. Gallie, supra note 14.
234. For a sample of the many articles, see Ruth Abbey, Is Liberalism Now an Essentially Contested Concept, 27 NEW POL. sci. 461 (2005);
235. Robert Grafstein, A Realist Foundation for Essentially Contested Political Concepts, 41 W. POL. Q. 9 (1988);
236. John Gray, On Liberty, Liberalism and Essential Contestability, 8 brit. J. POL. SCI. 385 (1984);
237. John N. Gray, On the Contestability of Social and Political Concepts, 5 Pol. theory 331 (1977);
238. John Kekes, Essentially Contested Concepts: A Reconsideration, 10 PHIL. & rhetoric 71 (1977);
239. Alasdair Maclntyre, The Essential Contestability of Some Social Concepts, 84 Ethics 1 (1975);
240. Thomas D. Perry, Contested Concepts and Hard Cases, 88 ethics 20 (1977);
241. Christine Swanton, On the "Essential Contestedness " of Political Concepts, 95 ethics 811 (1985);
242. Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 L. & PHIL. 137 (2002);
243. Kenneth M. Ehrenberg, Law is not (Best Considered) an Essentially Contested Concept, Buffalo L. Stud. Res. Paper Series, Working Paper No. 2005-03, 2005), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=816146.
244. Gallie, supra note 14.
245. Plessy v. Ferguson, 163 U.S. 537, 559 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
246. Indeed, Justice Thomas opposes affirmative action because, among other reasons, it stigmatizes blacks not whites. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring in part and concurring in judgment). "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences."
247. Id.
248. Racial classifications can be divided into two categories, invidious and benign. Invidious distinctions are hurtful because they are based on the idea that the subordinate race is inferior. In contrast, benign racial classifications by their very nature are designed to benefit a previously victimized class of Americans.
249. This discussion of racial equality is an elementary explanation of an essentially contested concept using the distinction between concepts and conceptions to perform the lion's share of the explanation. See Gallie, supra note 14, at 171-72.
250. This is one of the reasons that disagreement over affirmative action spills over to the judicial appointments process, in the hope of placing like-minded Justices on the Court that then will decide affirmative action suits through a majoritarian, judicial process.
251. RAWLS, supra note 10.
252. Ian Shapiro, The State of Democratic Theory 35 (2003).
253. For a preliminary presentation of such a vocabulary, see Robert Justin Lipkin, Kibitzers, Fuzzies, and Apes Without Tails: Pragmatism and the Art of Conversation in Legal Theory, 66 TUL. L. REV. 69 (1991).