JURISPRUDENCE AND CONSTITUTIONAL LAW

Constitutional jurisprudence is the most abstract and philosophical part of constitutional theory. We may divide the subject into general areas or departments, although these areas will be densely interconnected. The most general division is between "foundational" and "interpretive" constitutional jurisprudence.

Foundational constitutional jurisprudence considers abstract normative questions about ideal constitutional structure. Is a written political constitution better than a conventional or informal one? Does the best constitutional structure vest executive power in a president independent of the legislature, as the American Constitution does? Would it have been better to adopt the British practice that vests executive power in the head of the party that controls the legislature? Should a constitution protect the interests of individual citizens against the wishes or interests of the majority? If so, which interests should it protect? Should it protect economic interests, for example? Should it deny either the national or state government power to raise taxes for purposes of redistributing the wealth? Should the constitution guarantee moral liberty or independence? Should it ensure homosexuals their own sexual orientation ? Should it ensure women freedom of abortion ?

Most of these questions raise issues of philosophical depth. What reasons could justify granting individuals legal rights of immunity from a decision a majority of citizens want, for example? Two answers are common among philosophers, and these answers lead to different conclusions about which individual rights a constitution should protect. The first is instrumental: It holds that constitutional rights are legitimate if, but only if, recognizing and enforcing the right produces an aggregate benefit for the community as a whole. Some philosophers have argued in favor of a constitutionally protected right to freedom of speech on this instrumental ground, for example. They argue that protecting free speech for individuals benefits the community as a whole by providing it with valuable information, challenge, and debate.

The second answer insists that constitutional rights are justified not because they produce aggregate benefits, but because they protect rights that individuals have on intrinsic moral grounds. Under this latter view, people have rights as "trumps" over collective-interests goals. Obviously, these different views about the ground of constitutional rights produce different views about their scope. An instrumental approach to free speech, for example, will not support extending this right to speech that has little or no chance of producing collective benefit, even indirectly or in the long term—to racist or obscene speech, for example, or to speech that calls for revolutionary or illiberal change. But someone who thinks that people have an inherent right to express their opinions, even in circumstances in which it is against the interests of their community for them to do so, would not use this test for limiting freedom of speech.

Another independent distinction is of great importance in foundational jurisprudence: the distinction between procedural issues of fairness and substantive issues of justice. The question as to whether an ideal constitution would grant individuals a right of choice in sexual orientation, for example, raises both sorts of issues. Some might deny that individuals should have a right even in principle; they might believe that every society should force its members to follow the traditional moral code with which most citizens identify because this is the best way to preserve the proper sense of communal integrity and unity. But even if they do not believe this—even if they think that a society of this sort would be deeply unjust—they still might resist a constitutional right to sexual independence on grounds of procedural fairness. They might say that democracy is the only acceptable form of government, and that it is undemocratic to use a constitution to prevent the majority from having the law it thinks best, even when the majority is profoundly wrong. This last claim—that individual constitutional rights are undemocratic—is one of the two most widely discussed issues of foundational constitutional jurisprudence in America and will be discussed further.

The second, interpretive part of constitutional jurisprudence considers issues closer to those of traditional jurisprudence and also closer to constitutional legal practice. It asks not what constitution would be ideal but what constitution we actually have, both in general and in detail. The central question of interpretive jurisprudence is a methodological one. It is only indirectly concerned with the right answer to the substantive questions the Supreme Court must eventually decide, like the question as to how far the Constitution as it stands, properly interpreted, now grants individuals constitutional rights to free speech, abortion, or economic protection. Interpretive jurisprudence is concerned, rather, with the strategies of investigation and argument that should be used to answer these questions.

The clauses of the Constitution that grant individual rights are drafted in very abstract language. The fourteenth amendment, for example, says that no state may deny due process of law or equal protection of the law. How should lawyers and judges decide whether the legal effect of that language is to create a constitutional right for blacks to attend integrated rather than segregated schools, for whites to resist affirmative action, or for a woman to have an abortion when she and her doctor believe it necessary or desirable? One answer, which is particularly popular among conservative politicians, insists that constitutional interpretation can only be a matter of discovering and respecting the wishes of those who made the Constitution, who are often called, compendiously, the "Framers." Did the framers of the Fourteenth Amendment intend blacks (or whites or women) to have such a constitutional right? If so, then the correct interpretation of the amendment's legal force includes that right; but if not, then it does not.

The question as to whether this original intent method of constitutional interpretation is appropriate is the second of the two most debated issues of constitutional jurisprudence and will be further discussed. Two other answers to the methological question as to how the abstract language of the Constitution should be interpreted each have support among constitutional lawyers and teachers. "Passivism" holds that when the language of the Constitution is abstract or its legal effect is for another reason unclear or debatable, then it should be interpreted to interfere least with the power of state or national legislators or other political officials to do what they think best for the community. Passivism presupposes the foundational thesis that individual constitutional rights are in principle antidemocratic. It therefore acts to shrink the scope of such rights whenever possible.

The method of "integrity" presupposes a very different interpretive attitude: the Constitution is not just a set of discrete political decisions allocating power in different ways but a system of principle. It therefore insists that each of the abstract clauses and provisions should be interpreted and applied in a way that makes it coherent in principle with accepted interpretations of other parts of the Constitution and with principles of political morality that provide the best available foundational justification for the constitutional structure as a whole.

This brief and schematic discussion illustrates the inevitable interconnections between foundational and interpretive issues. Although the original-understanding method denies that foundational morality should figure prominently in constitutional interpretation, it cannot be applied without relying on controversial foundational positions, as will be discussed. The passivist method presupposes a contoversial foundational position about the conflict between constitutionalism and democracy, and the method of integrity insists that foundational morality must play an overt, although limited, role in detailed constitutional interpretation.

The Constitution contains both structural and disabling provisions. The structural provisions describe the various branches of the national government, provide methods for electing or selecting their members, and define the powers of these institutions and officials vis-à-vis the institutions and officials of the various states. These structural provisions constitute the American form of democracy; they create government by the people. In contrast, the disabling provisions of the bill of rights and the Civil War amendments, like the first amendment and the due process clause and the equal protection clause, set limits to the overall authority of elected officials. Many lawyers and politicans believe these provisions impede government by the people and are undemocratic for that reason.

Some who take this view regard this friction as a cardinal defect of our constitutional system. They argue that the antidemocratic provisions should be narrowly interpreted to give individuals as few trumps over majority decision as possible. Other lawyers who agree that the disabling provisions are antidemocratic do not agree this is a cause for regret; they believe that a limited democracy is superior to a pure one simply because the former respects individual rights. Is the assumption both these views share—that the Constitution impedes as well as creates democracy—correct? This depends on what we take democracy to be.

Democracy is collective government by the people. But which sense of collective is meant? There are two kinds of collective actions—statistical and communal—and our conception of democracy will turn on which kind we take democratic government to require. Collective action is statistical when what the group does is only a matter of some function—rough or specific—of what the individual members of the group do on their own, that is, with no sense of doing something as a group. In contrast, collective action is communal, when it cannot be reduced to some statistical function of individual action because it is collective in the deeper sense that requires individuals to assume the existence of the group as a separate entity or phenomenon. An orchestra can play a symphony, although a single musician cannot. This is a case of communal rather than statistical action because it is essential to an orchestral performance, not just that a specified function of musicians each plays some appropriate score, but that the musicians play as an orchestra, each intending to make a contribution to the performance of the group and not just as isolated individual recitations.

On the statistical understanding, democracy is government according to the wishes of a majority or at least a plurality of the eligible voters. Under communal understanding, democracy is government by distinct entity—the people as such—rather than any set of individuals one by one. These two conceptions of democracy take different views of the distinction previously drawn between the structural and disabling provisions of the Constitution. By the statistical reading, structural provisions are mainly limited to those that are procedurally structural—those that define how members of Congress are elected, what proportion of them it takes to enact legislation, and so forth. By the communal conception, the structural provisions include not only those that are procedurally structural in these ways but also provisions needed to create a genuine political community that can be understood to be acting as a collective unit of political responsibility. A genuine community is one in which government is not only of and for the majority, but of and for all the people, and a genuine community will therefore need to insure not only that each citizen have an opportunity to participate in political decisions through a vote, but that each decision allows each citizen equal concern and respect.

Several of the apparently disabling constitutional provisions can be understood as necessary to guarantee equal respect and concern and, therefore, to be functionally structural rather than disabling of democracy understood by the communal conception. The First Amendment guarantee of free speech, for example, might be thought necessary not only to full and equal participation, but to equal respect as well, and the equal protection clause can be interpreted as requiring equality of concern for all citizens in the deliberations that produce political decisions. Thus, the foundational question of constitutional jurisprudence—whether and how far the Constitution is undemocratic—is actually a deep question that draws on the most fundamental parts of moral and political philosophy.

But how should lawyers and judges decide whether some state or statute violates the requirement that states follow "due" process, deny no one the "equal" protection of the laws, or avoid punishments that are cruel and unusual? The original-understanding thesis insists that abstract constitutional provisions should be interpreted to have only the force that the Framers intended or expected them to have. Although this thesis has generally been rejected in Supreme Court practice, lawyers and politicians have offered various arguments in its support. Some say, for example, that because the Framers were the people whose decision made the Constitution our fundamental law, their convictions about its correct application should be respected.

We must recognize three points about this kind of argument, however. First, any such argument for the original-understanding thesis necessarily draws on normative assumptions about the proper allocation of authority in a democracy among remote constitutional architects, contemporary legislators, and past and contemporary judges. Second, these normative assumptions cannot be justified, without the most blatant and absurd circularity, by appealing to the intentions, wishes, or decisions of the people whose authority they propose to describe. It would absurd to argue that judges should respect the expectations of the Framers because the Framers expected that they would or believed or decided that they should.

The third point is particularly important: Such arguments, even if supported by independent normative assumptions, are radically incomplete if they purport to establish only the general proposition that lawyers and judges should respect the Framers' wishes or intentions. In most pertinent cases, the question at issue is not whether judges should respect the convictions of the Framers but which of their convictions judges should respect, and how. Suppose the following historical information is discovered: All the framers of the equal-protection clause believed, as a matter of political conviction, that people should all be equal in the eye of the law and the state. They were convinced that certain forms of official racial discrimination against blacks were morally wrong for that reason, and they adopted the amendment mainly to prevent states from discrimination against blacks in those ways. They agreed, for example, that it would be morally wrong for a state to create certain special remedies for breach of contract and make these remedies available to white plaintiffs, but not black ones. The framers assumed that the clause they were adopting would prohibit that form of discrimination.

They also shared certain opnions about which forms of official discrimination were not wrong and would not be prohibited by the clause. They shared the views, for example, that racial segregation of public schools did not violate the clause. (Many of them, in fact, voted to segregate schools.) None of them even considered the possibility that state institutions would one day adopt affirmative-action racial quotas designed to repair the damages of past segregation; therefore, none of them had any opinion about whether such quotas would violate the clause. Some of them thought that laws that discriminate in favor of men treat women unjustly. Most framers of the equal protection clause did not outlaw the gender-based distinctions then common. Most of them thought that homosexual acts were grossly immoral and would have been mystified by the suggestion that laws prohibiting such acts constituted an unjustified form of discrimination.

Many contemporary lawyers and judges think that some or all these concrete convictions are inconsistent with the framers' more abstract intention to establish a society of equal citizenship. Almost everyone now agrees, for example, that racially segregated schools are inconsistent with this ideal. Many people think that affirmative action is inconsistent with the ideal as well, and many people, although not necessarily the same people, think that laws that subordinate women or homosexuals violate the ideal. If a contemporary judge believes that the framers' concrete convictions were inconsistent with their abstract ones on one or more of these matters because the framers of the clause did not reach the correct conclusions about the moral consequences of their own principles, then that judge has a choice to make. It is unhelpful to tell him or her to follow the framers' intentions. The judge needs to know which intentions—at how general a level of abstraction—he or she should follow and why.

In other words, a judge can compose sharply different versions of the original understanding of the equal protection clause, each of which has support in the collection of framers' convictions and expectations. The judge might adopt a reductive version that emphasizes the framers' concrete opinions and hold that the clause condemns only the cases of discrimination that the framers of the clause collectively expected it to condemn. So understood, the clause forbids discrimination against blacks in legal remedy for breach of contract, but it does not forbid racially segregated schools, affirmative-action quotas that disadvantage whites, or discrimination against women or homosexuals. Or, the judge might adopt an abstract version of the original understanding that emphasizes the framers' general conviction to provide equal citizenship, properly understood, for all Americans. Under this version, if we assume that equality is in fact denied by school segregation, quota systems, or laws that subordinate people on the basis of gender or sexual orientation, the clause condemns these discriminations, despite what the framers themselves thought or would have approved.

The important choice judges and other interpreters of the Constitution must make, therefore, is not between the original understanding and some other method of interpretation but between reductive and abstract versions of the original understanding. Many proponents of the original-understanding method have not made this choice coherently; they believe the equal protection clause outlaws racial segregation and affirmative action quotas, but does not outlaw laws discriminating against women or homosexuals, for example. Lawyers and judges must not only choose between the reductive and abstract versions coherently but also on principle, that is, with adequate support in foundational jurisprudence. The passivist interpretive method, which supports the choice of reductive understanding of the framers' intention, is based on the statistical conception of democracy and, accordingly, fails if this conception is rejected. The method of integrity, which presupposes an abstract understanding, is based on a communal conception in which individual rights are not subversive, but constitutive of genuine democracy. Even at the practical level of adjudication, constitutional law is deeply embedded in political philosophy.

Ronald Dworkin
(1992)