Public consensus as constitutional authority

George Washington Law Review

Volumn 78, Issue 6, 2010, Pages 1207-1231

  Primus, Richard ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 78149354083     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (65)

1. See generally ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (1962) (discussing the countermajoritarian difficulty and how judicial review is arguably undemocratic).
2. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
3. Id. at 369-71.
4. See, e.g., id at 4.
5. Throughout this Essay, I use the term "public opinion" to mean the raw views of the populace, whether or not those views have been enacted into law by any formal decisionmaking process. By "public consensus," I mean very broadly shared public opinion. I can offer no precise formula to specify how broadly an opinion must be shared for it to qualify as a consensus opinion, but I have in mind a standard considerably more demanding than the one the plurality of the Supreme Court seems to have recently entertained in McDonald v. City of Chicago, where four Justices adduced an amicus brief submitted on behalf of 58 members of the United States Senate and 251 members of the House of Representatives as evidence of a consensus that the right to keep and bear arms is, as a constitutional matter, sufficiently fundamental so as to apply against the states as well as against the federal government. See McDonald v. City of Chicago, No. 08-1531 (U.S. June 28,2010) (plurality opinion). Under the conditions prevailing at the time McDonald was decided, 58 Senators and 251 Representatives would not even have been a majority great enough to pass ordinary legislation. One would think that a supermajority large enough to qualify as a constitutional consensus must be considerably greater than that necessary to enact a statute.
6. The sort of public view that I have in mind is not a view about the interpretation of a particular constitutional authority (e.g., that the Due Process Clause of the Fifth Amendment is properly understood to contain an equal protection component). It is a view about the ultimate constitutionality or unconstitutionality of a specific practice (e.g., that the federal government may not operate racially segregated schools). Anything like mass public consensus about interpretive questions of the first kind is probably elusive in the extreme. Indeed, and as I will say throughout this Essay, it is frequently the case that the public has no widely shared view even about questions of the ultimate constitutionality of a practice. But it probably does make sense to speak of consensus public convictions about the ultimate constitutionality of at least a few known practices, even if there is no public consensus about the doctrinal mechanics that establish those conclusions.
7. FRIEDMAN, supra note 2, at 58-64.
8. Id at 64-71.
9. Id. at 95-104.
10. Id. at 150-66.
11. Id. at 195-236.
12. Id at 254-58.
13. Id. at 280-365.
14. Id. at 369-70.
15. Id.
16. Id at 370.
17. Id.
18. Id at 371.
19. See, e.g., Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 586 (1993);
20. Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV. 2596, 2606-08 (2003).
21. See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 443 (2004);
22. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 17-18 (1996).
23. See Robert Dabl, Decision-Making in a Democracy: The Supreme Court as National Policy-Maker, 6 J. PUB. L. 279, 285 (1957).
24. My own small contribution to this literature is Richard A. Primus, Boiling Alone, 104 COLUM. L. REV. 975, 1023 (2004).
25. See PHIUPPA FOOT, The Problem of Abortion and the Doctrine of Double Effect, in VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 19,23-24 (2002);
26. Judith Jarvis Thompson, The Trolley Problem, 94 YALE L.J. 1395 (1985).
27. See FRIEDMAN, supra note 2, at 375.
28. Friedman recently published a short statement of his argument in The New Republic under the title "Benched: Why the Supreme Court Is Irrelevant." See Barry Friedman, Benched: Why the Supreme Court Is Irrelevant, NEW REPUBLIC, Sept. 23, 2009, at 7. Journalism being what it is, Friedman may not have chosen that title, and I do not know whether he liked it. But it captures a fair implication of his argument, even if in slightly exaggerated form.
29. See FRIEDMAN, supra note 2, at 369.
30. Id at 280-322.
31. See, e.g., id at 380-81.
32. Hammer v. Dagenhart, 247 U.S. 251 (1918).
33. United States v. Darby, 312 U.S. 100 (1941).
34. Miranda v. Arizona, 384 U.S. 436 (1966).
35. See, e.g., New York v. Quarles, 467 U.S. 649 (1984) (Miranda warnings not required before asking questions required by concern for public safety);
36. Michigan v. Tucker, 417 U.S. 433 (1974) (fruits of non-Mirandized confession are admissible, though the confession itself is not);
37. Harris v. New York, 401 U.S. 222 (1971) (non-Mirandized confession can be admitted for impeachment purposes).
38. See Neil S. Siegel, A Coase Theorem for Constitutional Theory, 2010 MICH. ST. L. REV. (forthcoming 2010).
39. See FRIEDMAN, supra note 2, at 322.
40. See Richard Primus, Double-Consciousness in Constitutional Adjudication, 13 REV. CONST. STUD. 1, 18-20 (2007).
41. Id.
42. See, e.g., FRIEDMAN, supra note 2, at 370 (collecting examples of expressions of this view);
43. Klarman, supra note 20, at 1-3 (same);
44. Antonin Scalia, Common-Law Courts in a CivilLaw System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 40 (Amy Gutmann ed., 1997).
45. See Richard A. Primus, When Should Original Meanings Matter?, 107 MICH. L. REV. 165, 186 (2008).
46. Compare, e.g., JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT 163-77 (2001) (arguing that "written constitutionalism ... is required by democracy"), with
47. Michael Klarman, Antifidelity, 70 S. CAL. L. REV. 387 (1997) (arguing that, from a positivist perspective, anticonstitutionalism or antioriginalism is not radical and that originalism disserves democracy).
48. Absent, of course, a prior democratic decision to award an office on the basis of a swimming race.
49. See INS v. Chadha, 462 U.S. 919 (1983).
50. They get it wrong sometimes, Friedman says, but more often they get it right, and they get it right more and more often as time goes on. See, e.g., FRIEDMAN, supra note 2, at 376.
51. That is, decisionmakers who act on the authority of public consensus do not always recognize that consensus is an important ground of their decision. By definition, a real consensus on a constitutional issue would include the vast preponderance of American officials. And when a consensus view is also an official's own view, he may give it force not because he is trying to channel a consensus but because, as his own view, it shapes his understanding of otherwise indeterminate authorities like text and precedent. To be sure, the tendency of interpreters to read indeterminate sources in light of their own views exists whether or not those views are broadly shared. But the tendency is probably at its height when the views in question are a matter of consensus, because the absence of controversy may permit interpreters to forget that the authorities being interpreted could be understood in any other ways. See generally Richard Primus, Constitutional Expectations, 109 MICH. L. REV. (forthcoming 2010).
52. See U.S. CONST, amend. I ("Congress shall make no law .. . abridging the freedom of speech ....") (emphasis added).
53. See, e.g., N.Y. Time Co. v. United States, 403 U.S. 713 (1971) (rejecting the executive branch's demand for censorship said to be necessary for national security).
54. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 310 (1879) (invalidating race-based classification of jurors but arguing that other forms of classification, including sex-based discrimination, were not prohibited by the Fourteenth Amendment).
55. See United States v. Virginia, 518 U.S. 515, 532 (1996) ("[T]he [Supreme] Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature- equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.").
56. By definition, original meanings do not change. But perceptions of original meanings change, and when they do, the change is partly a function of changes in popular opinion: a more egalitarian age is likely to read original meanings in a more egalitarian way, and a more property-protective age is likely to read original meanings in a more property-protective way, and so forth. Cf. Antonin Scalia, Originalism: The Lesser Evil, 57 U. ON. L. REV. 849,864 (1989) ("The inevitable tendency of judges to think that the law is what they would like it to be will, I have no doubt, cause most errors in judicial historiography to be made in the direction of projecting upon the age of 1789 current, modern values[.]").
57. For more development of this distinction between public opinion as a first-order authority and public opinion as a second-order authority, see Primus, supra note 34, at 7-8.
58. For example, the immunity of states against being sued by their own citizens in federal court is called an Eleventh Amendment immunity, even though the Eleventh Amendment contains no words creating that immunity. so Many scholars and judges have openly proclaimed the prevailing judicial incompetence in this arena. See, e.g., Larry D. Kramer, When Lawyers Do History, 72 GEO. WASH. L. REV. 387 (2003);
59. Jeffrey S. Sutton, The Role of History in Judging Disputes About the Meaning of the Constitution, 41 TEX. TECH L. REV. 1173, 1184-86 (2009). Nobody really contests the point. Nonetheless, almost nobody thinks that constitutional law should eschew history as a source of authority.
60. See, e.g., JOSEPH RAZ, THE AUTHORITY OF LAW 213-15 (1979). The authority that the doctrine of stare decisis commands within constitutional adjudication partly reflects the importance of this rule-of-law concern within the overall set of American constitutional values.
61. See Varnum v. Brien, 763 N.W.2d 862, 876-906 (Iowa 2009) (applying the equal protection doctrine to the Iowa Constitution's provisions on marriage).
62. See, e.g., Adam Liptak, Gay Vows, Repeated from State to State, N.Y. TIMES, Apr. 11, 2009, at WKl (discussing the Iowa case and public opinion regarding same-sex marriage).
63. See Varnum, 763 N.W.2d at 876-906.
64. Consider, for example, what would happen if the Supreme Court took seriously the textual command of Article I, Section 7, that Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives- U.S. CONST, art. I, § 7, cl. 3. The process for amending the Constitution under Article V requires the concurrence of the Senate and the House of Representatives. So, in the absence of some reason to deny that the vote by which the two houses of Congress approve a proposed constitutional amendment is a "vote," the text of Article I, Section 7 plainly directs that proposed constitutional amendments must be presented to the President. No proposed amendment has ever been so presented, and a strict textualist might therefore infer that all of the amendments we now think of as part of the Constitution are in fact invalid. Obviously, such a conclusion would radically destabilize American law, and nobody holds the view that courts should be good formalists and insist upon the textually prescribed rule in this case.
65. See Primus, supra note 34, at 18-20.