Exceptionalism by Michael B Mukasey

When Enforcing the Constitution Means Rejecting Precedent: A Reply to Greg Weiner

Evan Bernick December 30, 2016

Part bull, part man, and nourished by Athenian blood, the minotaur has been the stuff of nightmares for millennia. It is to be doubted, however, that anyone has put it to more terrifying use than the French political scientist Bertrand de Jouvenel , who deployed the minotaur as a symbol of a particularly menacing kind of government power—arbitrary power, unconstrained by principles of law and hostile to individual rights.

In a recent essay at Liberty & Law, Greg Weiner trots out Jouvenel’s minotaur to frighten readers about the supposed menace of “a jurisprudence of ‘wrong the day that it was decided’”—that is, a judicial approach whereby judges reconsider and reject decisions that never did reflect an accurate understanding of the law. This judicial approach has been recommended by both Randy Barnett and Mark Tushnet, albeit on the basis of fundamentally differing understandings of the Constitution and of judicial duty. Warns Weiner, “the judicial Minotaur does not differ from other variants of the all-consuming creature . . . having been forged for one hand to brandish, [judicial power] will ultimately be wielded by another.”

Barnett and Tushnet’s profound disagreements (chief among them: Barnett believes that the Constitution has fixed meaning that judges are duty-bound to enforce, whereas Tushnet does not think the Constitution means anything in particular) are less important to Weiner than the fact that both scholars “attack . . . stare decisis” (Latin for “precedent”). Both Barnett and Tushnet deny that judges should follow the reasoning of previous decisions without regard to their correctness. Weiner urges that to adhere to precedent is to pay respect “to the views of one’s forebears and the limits of one’s own reason.” Weiner also assails the notions—defended by Barnett and myself—that (1) the concurrence of all three branches of government is required before government power can constitutionally be brought to bear on an individual; and (2) each branch of government has the power, and, indeed, the duty, to block assertions of government power that it concludes are unconstitutional. We have claimed that the judiciary stands on equal footing with the other branches in these precise respects—Weiner denies that there is any such “judicial equality.” More broadly, Weiner denounces what he perceives to be “supreme confidence in discrete reason” and claims that “[b]oth Tushnet and Barnett would expel Edmund Burke’s definition of ‘the science of jurisprudence’—‘the collected reason of ages’—from the Temple of Constitutional Reason.”

Weiner’s essay is imaginative and characteristically well-argued. But his critique of judicial equality is ultimately unconvincing and his paean to precedent fails to reckon with the nature of judges’ constitutional duty and the damage that judicial acquiescence in erroneous precedent inflicts upon our constitutional order. Heeding his counsel would prolong the life of decisions that have eroded the rule of law and facilitated deprivations of individual rights for generations.

Weiner begins by suggesting that judicial equality, as defined by Barnett, is in fact a kind of judicial supremacy. Weiner has elsewhere argued that to hold that the judiciary has the “last word in sequence in constitutional interpretation” is to elevate the judiciary above the other branches of government.

This is not so. Judicial equality means that officials in all three branches of government are duty-bound to reach their own constitutional conclusions concerning proposed actions, and are equipped to resist them if they determine that those actions are unconstitutional. If Congress does not adopt a proposed statute on the basis of such a determination, its judgment is—for the moment, at least—final. If the President vetoes a piece of legislation and refuses to sign it into law because of such a determination, his judgment is—for the moment, at least—final. The question is whether the judiciary also has the power to block an unconstitutional action—or whether it alone among the branches is powerless to do so.

But it turns out that such equality is too much for Weiner, who goes on to forthrightly deny that there is “constitutional warrant for the idea that all branches are equal in the first place.” He calls Madison and Hamilton as witnesses and draws briefly upon the text of Article I in the service of his arguments. Those arguments are unpersuasive.

Weiner tartly observes that Madison’s “originalist credentials are generally respected.” So they are—and yet one must situate Madison’s statements in context in order to understand them and to use them to illumine constitutional questions. This Weiner fails to do. He attributes to Madison the claim that “a linear conception of the U.S. Constitution under which judges pronounced last in sequence on the permissibility of laws would be improper.” “[Madison] wrote,” Weiner states, that such a linear conception would make the judiciary “paramount in fact to the Legislature, which was never intended, and can never be proper.” Madison did write that—but he was commenting on Thomas Jefferson’s 1783 draft of a revised Virginia Constitution that included a council of revision—a council that would give judges a role in the legislative process, specifically, by ensuring that they had the opportunity to object to a bill and thus require a legislative override before that bill became law.

Neither Madison’s 1788 critique of the proposed Virginia council of revision nor the omission of a federal council of revision from the 1787 Constitution lend support to Weiner’s case against judicial equality. The arguments that carried the day against the federal council of revision—which Madison had supported—focused on the risk that participation in the legislative process would bias judges in favor of legislative measures. That is, it was feared that participation in the legislative process would serve to transform the judiciary into an instrument of the legislative branch—the branch that was believed to be most threatening to individual liberty. But judicial equality does not entail judicial involvement in the legislative process and does not present such a risk. Weiner goes on to cite Madison’s statement in Federalist 51 that “[i]n republican government, the legislative authority necessarily predominates” as if it were an argument in favor of legislative domination—even though Madison went on to talk of “remed[ies] for this inconveniency” (emphasis added) that were built into the structure of the Constitution. Again, context matters, and it does not help Weiner.

Weiner’s problems with context continue with his use of Hamilton’s language in Federalist 78. He observes that Hamilton called the judiciary “incontestably . . . the weakest” of the branches—but neglects to point out that Hamilton did so shortly before emphasizing the importance of judicial independence and highlighting the lengths to which the proposed Constitution went to secure it. Federalist 78 is in fact a rousing affirmation of judicial equality. Hamilton makes plain that the judiciary is no less representative of “We the People” than the other branches of government, and that it is indeed more representative than the legislative branch when it “pronounce[s] legislative acts void, because contrary to the Constitution.”

Finally, Weiner notes that Article I conveys “[a]ll legislative powers herein granted” to Congress, and that the terms “herein granted” qualify those powers. He attempts to minimize the significance of this qualification—which indicates a particular concern to avoid any inference that Congress was given plenary power—by focusing on the word “[a]ll,” stating that this word “qualifies the authority of the other branches.” This is true in the sense that it implicitly forbids the other branches from exercising legislative powers or Congress from subdelegating legislative powers elsewhere. But the grants of “[t]he executive power” to the President and “the judicial power” to “one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” also place particular kinds of power in specialized branches and implicitly forbid those branches from subdelegating their powers elsewhere.

Conspicuously absent from Weiner’s constitutional arguments is any discussion of Article III. As Philip Hamburger has shown, “[t]he judicial power” incorporates a duty to exercise independent judgment in accordance with the “supreme law of the land,” free (to the extent possible) from the distorting influence of will—either the judges’ own extralegal beliefs or desires, those of government officials, or those of members of the public. The contours of that duty had been fleshed out over the course of centuries of common law. Discharging it entailed a discrete act of judicial reasoning in every case—precedents were regarded as evidence of what the law was, but were not to be reflexively followed. Moreover, Hamburger explains that judges were understood to have a unique authority to expound the law in cases—authority that officials in branches go government associated with “will” and “force” did not possess. For that reason, judicial interpretations of the law of the land in particular cases could not simply be dismissed by officials in the other branches.

Upon concluding his constitutional argument, Weiner launches a broadside against “the authority of reason”—specifically, “discrete reason” that is “exercised by the individual jurist, in individual cases, with individual confidence.” Apparently, Weiner—like Edmund Burke, whom he reveres—doubts very much that, as a general matter, individual human beings are competent to arrive at accurate knowledge of the world through the use of reason, including the meaning of our law. Weiner throws the word “individual” around like an epithet.

The dominant epistemology among those who framed and ratified our Constitution was considerably less skeptical than Weiner’s. Founding-era writings disclose the influence of John Locke’s Essay Concerning Human Understanding—in which Locke contended that truths about morality and political science, no less than truths about geometry or physics, could be derived through rational inquiry. One cannot read the Federalist Papers without being impressed by the confidence that the authors express in human beings’ capacity to govern themselves through “reflection and choice”; their rejection of “blind veneration for antiquity”; and their critical reflection upon the virtues and vice of governments that had been instituted among men in the past. That same confident epistemology is central to understanding judicial duty and the judiciary’s function in our constitutional system.

It is deeply ironic, then, that Weiner accuses Barnett of adopting a method of judicial inquiry that amounts to “Croly for constitutionalists.” Herbert Croly was a vigorous opponent of the very kind of individual judicial reasoning that Barnett has championed—rightly—as part and parcel of judicial duty. Like other Progressive theorists, Croly urged that social consensus rather than natural right should determine the scope of government power and called for broad judicial deference to majoritarian will. Conceding that “individual freedom [was] important,” argued that “more important still is the freedom of a whole people to dispose of its own destiny.” In truth, in his denigration of individual judicial reasoning and his prioritization of “self-government” over individual rights, it is Weiner who most resembles Croly.

What does all this have to do with whether judges should follow precedent? Weiner’s aversion to a jurisprudence of “wrong the day it was decided” can be understood as a product of his epistemological skepticism. If one lacks confidence in the reasoning individual, an approach whereby judges undertake to determine in a given case what the law is, even if that entails departing from “the views of one’s forebears” looks like an invitation to, well, unleash a minotaur. Adherence to precedent mitigates this danger by ensuring that judges follow doctrines set forth in previous decisions.

Yet if we wish to live under the rule of law set forth in “this Constitution,” there simply is no alternative to such an approach. Does Weiner deny that certain decisions did not at the time and do not now reflect an accurate understanding of what the law of the land in fact is? Was Plessy v. Ferguson not wrong when it was decided? Buck v. Bell? If not, when they did become wrong? How many suffered under unconstitutional segregation and eugenic sterilization laws in the meantime? How long do Americans today have to be saddled with decisions holding that a federal government of “few and defined” powers may regulate everything from wheat grown only to feed Roscoe Filburn’s livestock and family to Angel Raich’s noncommercial use of marijuana to alleviate the effects of multiple sclerosis to the sleeping conditions of Ernest Hemingway’s cats? If individual jurists do not exercise independent judgment in individual cases, we can be sure that our constitutional law will have increasing little to do with our Constitution.

There is no denying that a jurisprudence of “wrong the day it was decided” can become a jurisprudence of “oh, well, we know better” if judges use their power to give effect to their mere will rather than to the law. Yet diminishing judicial authority and discouraging judges from exercising judgment that is essential to discharging their constitutional duty is no answer to this problem. It effectively disarms conscientious constitutionalists from undoing precedents that have long distorted our jurisprudence. It replaces the rule of law with the rule of long-dead judges, not a few of whom cared not a whit for “the collected wisdom of the ages.” It exposes ordinary citizens to government power of a kind that the Framers regarded as “the very definition of tyranny.”  The minotaur of arbitrary government, unlike that of “judicial supremacy,” is no myth—it is all too real, and it is fast devouring rights once held sacred. It is time that constitutionalists cease encouraging judges to keep it satiated.

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