January 29, 2010

Point #1 in my list of arguments made by Glenn Greenwald in his posts laying out his thoughts about the court’s decision to invalidate the McCain-Feingold restrictions on campaign spending is Greenwald’s view of constitutionality. He states:

In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).


It’s critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions — or, conversely, almost never providing opposite answers — that’s a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution.

This view is wrong. It is a pillar of legal dogma and part of the mystique of the judicial branch, and yet it is quite transparently false on two counts:

  1. The constitution is supposed to generate good results. Certainly considerations such as “compelling state interests” show that interests are what is at the bottom of constitutional decisions, but these are just an explication of the entire rationale of the constitutionality. The constitution, or indeed any rule in a democratic society, is supposed to serve the public good. Otherwise, it has no reasonable function and should simply be ignored. Greenwald’s own adherence to what he perceives as the principle of free speech is due to his perception that this principle serves society well.
  2. The constitution, like any legal document, or any document that says anything about the real world (as opposed to, say, a mathematical theorem) is open for interpretation. The interpretation is guided by the interpreter’s world view, which includes, of course, what the interpreter considers good or bad. Therefore, even if we did not believe that constitutional decision should be based on interests or values, we would have to find a different method to make those decisions, a method which would not be inherent in the constitution itself.

In fact, an arbitrary system for making constitutional decisions is already in effect. It is a system that does not reflect the interests or values of the public but those of a small cabal of oligarchs – the supreme court judges. (These are naturally not arbitrary but are in line with those of their associates and those of the members of their social-economical class.)

The real role of constitutional articles is not to serve as a formal test for validity of laws – such a test is impossible. Their role is to help understand and find what is good. It is to serve as a guide to good lawmaking by aligning laws with professed general beliefs. Laws are supposed to create a consistent system which governs human conduct and generates good outcomes. Having a set of general accepted good principles is supposed to facilitate generating good specific laws. Neither the laws, nor the constitution, nor the relationship between the former and the latter are immutable. All of those are subject to revision, whether gradual or sudden, deliberate or unconscious. They are all open for reconsideration as circumstances reveal new facts and create new understandings about society and the functions of the rules. It is neither possible nor theoretically desirable for a certain set of ideas to be considered a gold standard which is outside the regular rules of politics. Some ideas may be more dear to our hearts, or more fundamental to the system, but they would nonetheless be subject to the effects of interests and power – there is no use to pretend that this is not the case, and good reasons to acknowledge that it is.

[ Addition, January 29: In other words, using a term I learn from a comment in the Crooked Timber blog, the constitution, the laws and judgments about outcomes should be in a state of Reflective Equilibrium. ]


One Response to “Constitutionality”

  1. […] point #2, I find that much of the groundwork has been laid out in my treatment of points #1, #3, and #4, so the analysis is […]

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