Making Our Democracy Work

by Breyer, Stephen

  An “originalist” judge looks to history to find not just the basic values that underlie this Sixth Amendment provision but also, say, descriptions of eighteenth-century trial practice that will answer these questions by supporting one view or another of the confrontation clause’s present-day requirements.

  Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact. An objective approach will reassure the public that the Court’s interpretation reflects what history shows to have been the framers’ detailed intentions, not the judge’s own. And the Court will thereby build and maintain continued public support for its decisions.

  This historical approach, however, suffers serious problems. For one thing, it is less “objective” than one might think. When courts consider difficult questions of constitutional law, history often fails to provide specific objective directions. The legal question at hand may be narrow. Relevant historical material may be difficult to find. As Justice Robert H. Jackson pointed out, “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”2

  If there is no historical material directly on point, what should the Court do? Create historical “assumptions” designed to draw answers from a historical void? Or refuse to answer a question of practical importance (for example, involving fair trials for those accused of murder) on the basis of a skimpy, uncertain record of eighteenth-century practice? If the Court is to decide major constitutional questions on the basis of history, then why not ask nine historians, rather than nine judges, to provide those answers?

  Moreover, even when faced with major historical questions, historians can disagree. For example, the Second Amendment says that a “well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Does a local law prohibiting handgun possession violate this amendment? Over the years historians have filed briefs in the Court tracing the amendment’s history, but they often disagree about the significance of different pieces of historical evidence. How should the Court treat this kind of disagreement? In 2001 historians awarded the coveted Bancroft Prize to a professor whose book purported to prove that few eighteenth-century Americans possessed firearms. That fact made it unlikely that the Second Amendment was written to protect handgun owners. Yet after investigation cast doubt on the prizewinner’s data, the historians, in 2002, took the prize away.3

  Nor does historical clarity about how the framers believed the provision applied in the eighteenth century always tell us whether or how they thought it should apply in the future. We can be certain that the framers intended the word “two” in the phrase “two Senators from each State” to have a single, fixed reference over time. But we cannot be so certain about the scope of the word “commerce” in the Constitution’s grant to Congress of the power to “regulate Commerce … among the several States.” Indeed, in all likelihood the framers intended the scope of that word to expand, covering more and more items, as commerce itself expands, as technology advances, and as commercial activities in one state increasingly affect those in another.4

  Consider, too, the Fourteenth Amendment’s equal protection clause—the clause that forbids states to deny any person “equal protection of the laws.” Those who wrote this clause in the 1860s knew that segregated schools existed at the time, even in the federal District of Columbia. Suppose they believed that enactment of the clause would not require integration of the District’s then-segregated schools. Must we then follow those beliefs, say in 1954, when the Court decided, in Brown, that the clause forbids segregated schools?

  In 1954 the Court did not stick to what the authors of the clause might have thought in this specific respect in the 1860s. By 1954 it had become clear that racial segregation, including school segregation, had denied minority groups the very equality that the clause sought to assure them. And the Court concluded that the authors of the clause would have preferred an interpretation that furthered its vital broad objective (that is, assuring equality) over an interpretation based on a particular factual belief (that school segregation was consistent with equality), which, if respected, would have subverted their more basic egalitarian purposes. Thus, we find an answer to the legal question at issue in Brown by applying not particular historical beliefs but the values that underlie the equal protection clause. We apply those values to the circumstances of segregation as they existed in 1954. We can reasonably believe that the authors of the clause would have approved our doing so.

  Even if originalist answers were easy to uncover and free from historical ambiguity, I doubt that following the originalist approach could help maintain public support for the Court as an institution. After all, the framers could not have been aware of the automobile, television, the computer, or the Internet, but as most originalists themselves will agree, the commerce clause must apply to commerce in those matters. More than that, if we could find a specific historical explanation of the equal protection clause authors’ thinking on school segregation, then we should still ask why, given the basic purposes and values underlying the clause, we would place controlling weight on that historical answer. What would the public today think of a Constitution that denied, on the basis of race, the right to attend an integrated school?

  Indeed, what would the public think of a Constitution that (through an eighteenth-century-based interpretation of the confrontation clause) prevented a prosecutor from introducing into evidence a murdered wife’s pre-death account of her husband’s threats of violence—in a case accusing him of her murder? What would the public think of an Eighth Amendment (which forbids “cruel and unusual punishments”) that would permit flogging in the navy today on the ground that flogging was common practice on eighteenth-century ships?5

  Can originalism gain the public’s respect? Can it help ensure an affirmative response to practical questions of public acceptance and implementation? Or would it instead instill public doubt because those who interpret the Constitution do so on a basis foreign to their own lives, producing answers that show that the Constitution’s protections have become increasingly irrelevant? In a word, why would people want to live under the “dead hand” of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?

  Yet if originalism cannot help (for example, by safeguarding judges from the charge of following subjective preferences), then how are courts to decide difficult questions in ways that maintain the public’s respect? Should they simply follow their own political instincts about what the public will accept and shape the law accordingly?

  The answer to this question must be no. Indeed, Dred Scott demonstrates the debilitating consequences of any other answer. Decisions tailored to the prevailing political winds would weaken—if not eviscerate—the Constitution’s protections, particularly as applied to unpopular individuals and groups. Furthermore, the very reason for placing the power of judicial review in the courts is to secure enforcement of the Constitution when it is politically unpopular to do so. If the Court’s decisions reflect short-term popularity, then why have the Court conduct judicial review in the first place? Why not place the constitutional review power in a politically responsive body, namely, Congress, particularly because, as Dred Scott shows, judges are not accomplished political meteorologists? For that matter, how could a law that reflects public opinion, which can shift quickly, maintain reasonable stability over time?

  The best reason for the public in a democracy to support an independent judiciary with the power of judicial review remains Alexander Hamilton’s reason: the public will come to understand the need to occasionally tolerate unpopular Court decisions to help ensure a government that stays within the Constitution’s boundaries over time. The �
��political winds” do not offer pragmatic or any other support for a Court’s constitutional decision.

  But what then? If judges neither follow a deterministic theory such as originalism nor act politically, will they, in difficult cases with important social consequences, simply substitute their own subjective preferences for the law? Are we left with subjective decision making?

  To think so is to counsel despair. How could a legal system work if each judge decided even a few important cases on the basis of personal views about what is “good” or “bad”? Given the fact that different cases arising at different times embody different circumstances with different desirable (or undesirable) attributes, it would be difficult for a single judge, let alone nine judges, to remain consistent. Why would a public, aware of that kind of decision making, accept the views of those unelected judges as legitimate? And with different presidents appointing different judges, how could a subjective system remain stable?

  A CONSTITUTION THAT ENDURES—A PRAGMATIC APPROACH

  EVEN IF “ORIGINALISM,” “politics,” and “subjectivity” offer unacceptable answers, they do not exhaustively describe the way judges reach decisions. My earlier book, Active Liberty, described a judicial tradition that hesitates to rely on any single theory or grand view of law, of interpretation, or of the Constitution. That tradition can find antecedents in the American judiciary of the eighteenth century, when, as a leading scholar points out, judicial “appeals to reason and the nature of things became increasingly common.” The judges took an “unusually instrumental attitude toward law,” offering “prudent and pragmatic regulations” and justifying them by what the Connecticut jurist Jesse Root, in 1798, called “the reasonableness and utility of their operation.”6

  Modern American judges working in this tradition, like most judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text. But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences. In doing so, judges must avoid interpretations that are either too rigid or too freewheeling. They must remain truthful to the text and “reconstruct” past solutions “imaginatively” as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem. The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.7

  The Constitution establishes political institutions designed to ensure a workable, democratic form of government that protects basic personal liberties; divides and separates power (among state and federal governments, among three federal branches of government) so that no single group of officeholders can become too powerful; ensures a degree of equality; and guarantees a rule of law. These purposes can guide a judge’s efforts to interpret individual constitutional phrases. By taking account as well of the role of other government institutions and the Court’s relationships with them, the Court can help maintain these workably democratic constitutional objectives.

  The Constitution, by creating several governmental institutions and dividing power among them, stresses the importance of considering those institutions as part of one government, working together. I add that the Court will sometimes find it can better interpret the law by staying aware of the different powers, responsibilities, and capacities with which the Constitution endows these various institutions. In doing so, the Court will reach decisions that take advantage of both its own and other institutions’ comparative competences and experience. Those decisions may well garner political support from other branches—the kind of support that flows from an individual’s understanding that his or her interests have been addressed even where they have not proved determinative. This is all to the good—simply one more reason why these decisions will likely work well and prove effective in practice.

  I do not argue that the Court should simply defer to other institutions. Although the Constitution assigns different roles to different institutions, it subjects all of them to important constraints. Indeed, the very creation of governmental power simultaneously calls for constraints. As Madison wrote in The Federalist number 51:

  If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

  As we have seen, the Court has the duty to ensure that governmental institutions abide by the constitutional constraints on their power. And it must continue to do so.8

  Thus, the Court can and should take account of purposes and consequences, of institutional competences and relationships, of the values that underlie institutional collaboration, and of the need to assert constitutional limits. The more detailed illustrations in the following chapters make up the substance of my claim that by taking proper account of these matters, the Court can help to maintain the workable democracy that the Constitution foresees.

  The approach I have in mind can be described as pragmatic—as that concept is broadly used to encompass efforts that consider and evaluate consequences. Pragmatism in this context requires the Court to focus not just on the immediate consequences of a particular decision but also on individual decisions as part of the law, which is to say as part of a complex system of rules, principles, canons, institutional practices, and understandings.

  Although the law is composed of some highly specific rules, such as those about how to deduct charitable contributions from income taxes, it also includes broad understandings, such as methodological understandings about how a judge should apply an earlier decision to a later circumstance, how a lawyer should determine the way in which one decision affects another, or when a court can change an earlier rule of law because the court now thinks it wrong. Pragmatism in respect to law recognizes that individual decisions not only set forth specific legal rules that affect the parties to the case but also interact with other portions of the law’s fabric. The resulting fabric affects the world, sometimes more (as in Brown v. Board of Education), and sometimes less (as with an interpretation of a technical tax code provision).

  Thus, pragmatism does not require a court to automatically overrule a decision simply because it produces harmful consequences. Even if all agree that a technical rule of antitrust law embodied in a century-old Supreme Court case produces some harmful antitrust consequences, a court might still preserve it. This is because changing that one legal rule will have implications for overturning others. Furthermore, the act of overruling old cases itself negatively affects the law’s stability.

  Pragmatic approaches to law are not naive. They can take account of the interactions of a single decision with, for example, other decisions, rules, principles, methods, canons, practices, and the consequential overall effects of modifying the legal fabric. In Brown v. Board of Education, for example, the Court fully understood the logical, legal, and practical contradictions between its precedent Plessy v. Ferguson, the nineteenth-century case that authorized “separate but equal” facilities, and the basic purposes underlying the Constitution’s equal protection clause. Notwithstanding the importance of following precedent, the Court properly overruled Plessy.9

  One might argue that pragmatic criteria, such as workability, just invite the judge to decide cases using political or subjective criteria. But this is not so. For one thing, the simple fact that a judge uses an approach, and eschews a more full-blown detailed theory, does not automatically mean he or she is thereby “freed” to act subjectively or politically. This is because, even without such a theory, many other aspects of the judicial craft constrain the judge’s decision making. Judges do not simply announce a legal conclusion. They reason their way to that conclusion in an opinion written for all to see. The obligation to provid
e legally defensible reasoning in a publicly accessible format prevents a judge from escaping accountability. Indeed, a good judicial opinion is transparent and informative. It shows that the decision is principled and reasoned. The strength of this reasoning matters.

  Moreover, judges in a constitutional court, like all judges, are constrained by prescriptions of the legal craft that have long guided judges toward better answers, even when a question is difficult and language open. A great judge, Learned Hand, a member of the federal Court of Appeals for the Second Circuit, answered the charge of “subjectivity” by pointing to “those books,” the law books, which include a common-law tradition and, in statutory matters, considerations of language, structure, history, precedent, purposes, and consequences.10

  In constitutional matters, too, language, history, purposes, and consequences all constrain the judge in that they separate better from worse answers even for the most open questions. The Constitution’s basic values or purposes—democratic decision making, protection of basic individual rights—constrain the judge by informing an individual case and by setting outer limits. The central values that underlie a particular general phrase set limits—for example, “Commerce … among the several States” or “due process of law.” Prior Court decisions and the need for stability in the law set limits. So do personal constraints—those that arise out of the judge’s own need for consistency. Justice Sandra Day O’Connor has described a judge’s initial decisions as creating footprints that his or her later decisions will follow.11

  Furthermore, to insist that judges decide cases by applying an overarching legal theory is to misunderstand the nature of the judicial role. Judges must work quickly, deciding difficult cases in weeks or a few months at most. They inevitably reason through the merits of those cases by appealing to general principles, to the facts at hand, and to more general assumptions about what the facts show.