The Role of Law

I was at a talk about the life and times of Robert Bork today and, while I don't think I should quote it in too much detail, the speaker did mention several times that Bork was constantly looking for some kind of grand unifying theory for law. Specifically he seems to have spent some time trying to devise a comprehensive theory of when government may legitimately coerce its subjects. That's a very interesting subject. In a way it's the bedrock of political theory, since the legitimate use of force is a very large part of what distinguishes the government from the rest of society. But there's something it isn't, and I think (from some of the other stuff the speaker said about Bork's growing disillusionment) it's something Bork realized it isn't.

It isn't a matter for lawyers and legal institutions to decide.

Let me put that another way. If a country establishes a written democratic constitution that creates a set of political institutions, including a group of courts which will constitute a legal system. That legal system, and the lawyers and judges who constitute it, have a lot of important roles in the functioning of society. Deciding when the government may legitimately coerce its citizens is not one of them. The people have already decided that, in large part, in creating their constitution. It presumably will list some ways in which the government cannot coerce people, or maybe it will instead list certain ways in which the government can coerce people and imply that it mayn't in other cases. Those decisions are binding on the courts. In particular, any exercise of power by the government which the constitution either permits or fails to prohibit (depending on what the background default principle is) must be upheld and, specifically, enforced by the courts. They must be the instruments of that very coercion. They can't come up with some theory of government legitimacy independent from the constitution which gives them life and then refuse to apply laws which run afoul of it. Of course constitutions are ambiguous so a judiciary in interpreting the limits established by the constitution will need to do some political theory, but it must take the constitution as its postulate in doing so.

Now, this isn't to say that people who have legal training and expertise shouldn't think about these issues. Legal training and expertise can be obviously relevant in certain ways. And these deep issues of political theory don't stop being relevant once you write your constitution, not only because you can always amend it. The courts may not prevent the government from doing something just because they think it violates some important principle of political theory independent from the written constitution, but there is an institution that can: the legislature. It's easy. Just don't write laws that do it. If the polity comes to the conclusion that some power which its constitution grants to the government is an improper one which the government should not exercise, it can rather easily elect legislators who will vote not to exercise that power. And people who are lawyers can and should contribute to the public discourse over what kinds of government coercion can be legitimate. What they shouldn't do is start thinking that in their institutional capacity they should act upon these same kinds of philosophizing. That may sound like a slightly weird thing to say for someone who's a big fan of courts being quite expansive in their interpretations of constitutional provisions, but I do believe in rooting such interpretations pretty directly either in the text of the constitution or in the structure of the government that is created by the text.

Now, I don't know how much Bork ever advocated doing this kind of thing that I'm criticizing, how much he tried to substitute his personal theories of political legitimacy for those of the American constitution and political processes. I'm not an expert on Bork's life, and right now I don't feel like making a lengthy empirical examination of how much conservatives do this kind of thing as opposed to liberals, or whatever. It's just a thought I had.


It also relates to another one of my thoughts, which is that lawyers and judges spend way too much time trying to justify the institution of judicial review. Again, that's not their role. Of course they may, as Jeremy Waldron or my grandfather have done, contribute to the political theory of judicial review, i.e. make arguments for or against the institution in principle, removed from the context of a particular existing constitutional regime. But a lot of theories of constitutional interpretation, like those of Alexander Bickel and Antonin Scalia, and even John Hart Ely, begin with a lot of agonizing about how judicial review can possibly be legitimate. The substance of those theories is then shaped by that worry, because if you are scared that your entire undertaking is illegitimate you can't just try to do it well. In this context it means you can't just accept the idea of judges trying to form their best informed legal opinion of what the Constitution's various provisions mean and then voting to strike down laws that, in that opinion, violate it.

What's wrong with this, you may ask? Simple: the issue of whether there should be judicial review in the American system is not one for the legal system and those who constitute it to answer, because it has already been answered for us. It was answered in 1789, when the battle between the pro- and opponents of the proposed Constitution, both of whom agreed that it would contain the feature of judicial constitutional review of legislative acts, ended in favor of the Federalists. It was answered in 1791, when--to placate the Anti-Federalist concerns!--the new Constitution gained a whole new set of shiny individual liberties provisions, which, as everyone knew at the time, would be enforced by the judiciary against the government. It was answered in the first Judiciary Act, which gave the Supreme Court appellate jurisdiction over state cases that had challenged the constitutionality of federal laws.

And this answer, this enthusiastic affirmative answer, was not just given at the Founding and then imposed on the rest of us throughout history. It has been continually reaffirmed. The most striking example of this is 1937, when the most popular President in history with one of the greatest Congressional majorities in history came at the Court, which was deeply unpopular, and lost, miserably, in one of the worst moments of the greatest Presidency of all time. Maybe the worst moment. There were endless controversies about judicial review after the Brown case, and the Court not only survived with its powers intact but saw its prestige and authority enhanced through the period. But this reaffirmation happens, really, every single day that the U.S. Congress does nothing to strip the judiciary of its powers, which it could easily do. It could eradicate the lower federal courts. It could gut the Supreme Court's jurisdiction. It could gut funding for the Supreme Court. It could do lots of things, and it never ever does them.

And the point of all of this is that the decision whether or not the American system ought have judicial review has been answered without a jot of participation from the judiciary itself. Marbury v. Madison didn't "create" judicial review, it was just the first time the Court had occasion to use the tool everyone knew it had. The history clearly shows that We, the People love us some judicial review. Why? Who knows! I have some ideas, but I'm in law school now, not studying political theory, so I say, who cares? It's not my job to care. (Literally: I can care as a hobby, heh.) If the Supreme Court ever decided to overturn Marbury and cease conducting judicial review, and tell the lower federal courts to do the same, it would be, I think, in breach of its duties to the public. Under the Constitution we are, as lawyers, charged with certain things, and yes, even though the document doesn't spell it out for us, that includes conducting good-faith judicial review of all the actions of every other government organ in the country for constitutional validity.

The opponents of judicial review love to talk about the proper role of the courts. And in a country like Israel, where there literally is not a written constitution but the Supreme Court decided it could do judicial review anyway, for various underlying political theory reasons that I happen to think are right (and ballsy as hell), it would be completely appropriate to ask whether this decision was appropriate, and whether as a matter of law it was valid for the Court to exercise that power. But where the Israeli Supreme Court really did take up the mantle of judicial review of its own initiative, the U.S. Supreme Court was charged with that task by the Constitution itself. To question that by refusing to do what we as a legal system were constituted to do would be, in many ways, the most egregious usurpation of role the legal system could possibly accomplish. Ours not to reason why, ours but to do and die.*

*While still on the bench 'cause we've got life tenure.