With President Obama’s nomination of Elena Kagan to fill a Supreme Court vacancy, the choir has assembled to chant the mantra: "we are not supposed to know anything of her judicial predispositions." Questions designed to elicit indications of how she might rule on given cases are not to be asked. Lawyers, legal scholars, and judges — along with media lickspittles — will croon the liturgy.
I have always regarded this proposition as so absurd on its face as to be unworthy of respect from intelligent, rational men and women. It takes an Ivy League college graduate to vigorously defend the idea. Think of the implications of this doctrine were it to be applied to advice you might seek from others in your daily life. If you were suffering from appendicitis and sought the help of a medical practitioner, would it be any of your concern whether that person engaged in established medical analysis and remedies, astrology, chiropractic techniques, crystal healing, prayer, or New Age methods? Whatever you might think of any of these approaches to health, would you consider it beyond your right to inquire? If your financial advisor regularly consulted tarot cards, dream analysis, Ouija boards, or Ben Bernanke to inform his judgments, would you want to know of this fact prior to his making investment decisions on your behalf?
The general acceptance of this idea requires an underlying belief that there is something called "the law" — with the emphasis on "the" — which wise and well-educated men and women are able to discern through great effort. It is an idea that can be traced back to Plato’s notion of "philosopher kings," persons capable of discovering the objective principles and processes beneficial to a well-ordered society. The premise underlying this belief is that members of the judiciary are capable of listening to all sides in a dispute and rendering a decision consistent with these presumed objective legal standards.
Such thinking has also been influenced by scientific methods of reasoning, i.e., that one can test the validity of a given hypothesis through empirical means. One can set up experiments to determine the freezing point of water at sea level and, if the test is properly conducted, arrive at an answer upon which scientists can agree. (I will omit, for the time being, the discoveries from the study of chaos that call into question the "absolute" nature of the results achieved.) The ability of mathematicians to calculate answers to complex math problems upon which all can agree is another source of the undeserved faith in the judicial process.
But "law" — as with philosophy generally — is a normative proposition, grounded not in some imagined coherence of legal principles with the physical universe, but in subjectively-created values that differ from one person to another, one culture to another, and one time period to another. One can dispute the law of gravity and jump from the roof of a twenty-story building, but he or she cannot avoid the consequences of doing so. On the other hand, laws generated by legislative or judicial bodies can be ignored without adverse effects: have you ever seen someone driving 100 miles per hour without getting caught?
"Law," as something created and enforced by the state, is a product of nothing more than the preferences of those who control the machinery of the state. There is no more objectively-discovered validity to such a body of rules than there was in Ayn Rand’s preference for the music of Rachmaninoff over Stockhausen. What separates the pro-war from anti-war advocates are subjectively-held priorities regarding institutional interests and the value of life. None of this is to say that one person’s opinion is as good as another’s, or that a persuasive case cannot be made for a given normative standard. It is only that, no matter how strongly one holds to a given set of values — legal or otherwise — such preferences can never rise to a higher level than the thinking that produced them.
If some people are to rule others, however, the authority to do so must be seen to rest upon some higher principle than this. Every grade-schooler is aware that the bully’s power derives solely from his capacity to use violence upon others. Children are perceptive enough to understand this basic fact. Adults, on the other hand, insist upon being seduced into a state of subservience. Those who govern must be seen as deriving their powers from some higher source than the exercise of self-serving violence. Monarchs were once able to bamboozle their victims with the proposition that they ruled by "divine right." The Enlightenment — with its emphasis upon earth-centered explanations of reality, and individual liberty — forced the ruling classes to find other rationales for their arbitrary powers. This was found in the so-called "social contract" theory of social practices, with political systems presumed to have been created by an imagined collective will of all, subscribing themselves to a written constitution delineating the authority state officials were to have. That this "social contract" explanation has no more validity to it than "divine right" justifications for the existence of the state, need not concern us at this point. Other-directed men and women are capable — even desirous — of being deceived by any rationale for their subservient roles, provided it be couched in terms familiar to their conditioned mindset.
Thusly do otherwise intelligent men and women cling to the belief that written constitutions can restrain the arbitrary exercise of state power. Conservatives still speak of "returning to the Constitution." I am sorry to inform you that the American political system has never deviated from the Constitution; this document provides the state with all the authority it might ever wish to exercise. I try making the point by tweaking my conservative friends with the notion that "the Constitution is what keeps the government from doing all the terrible things it does!"
If more people bothered to actually read this document — including President Obama, who once taught constitutional law and who, in this year’s state of the union address, erroneously declared that the Constitution provided that "all men are created equal" — they would discover the unlimited powers it provided to government. Beginning with a preamble setting forth the purposes of the Constitution being "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty," the document proceeds to set forth how such purposes are to be attained.
Article I, Sec. 8 informs us that "Congress shall have Power to lay and collect Taxes, . . . to pay the Debts and provide for the common Defence and general Welfare of the United States. . . ." Later on, we discover that Congress also has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Standing by themselves, these words would provide the most ambitious tyrant with the only grant of authority that would ever be needed to carry out his or her desired purposes. As Lord Macaulay so well expressed it, "Your Constitution is all sail and no anchor."
One of Ms. Kagan’s college professors has stated that "she’s a woman whose . . . deepest dedication is to the constitution of the United States." There is nothing startling in all of this: one can find in this document all the power needed for putting together any political program.
Suppose that I was given the authority to "provide for the general Welfare" and "to make all Laws which shall be necessary and proper" for exercising this power? What could I not do, constitutionally, pursuant to such a grant? Who is to decide what constitutes the "general Welfare," or what laws are "necessary and proper?" By their very nature all words are abstractions, and must be interpreted as to their application in the world. As I ask my students, if a statute regulated the sale of "glasses," would this include drinking glasses? Would it even include "eye-glasses" if such glasses were made of plastic, or if contact lenses were at issue?
For those desirous of understanding the realpolitik — instead of just the rhetoric — of how (and by whom) constitutional powers are to be interpreted, one can begin with the insights of Humpty Dumpty, who advised Alice that "’When I use a word, . . . it means just what I choose it to mean — neither more nor less.’ u2018The question is,’ said Alice, u2018whether you can make words mean so many different things.’ u2018The question is,’ said Humpty Dumpty, u2018which is to be master — that’s all.’"
Who, in our political scheme of things, is to be "master" of defining words, when one "can make words mean so many different things?" This is a power usurped, on behalf of the Supreme Court, by Justice Marshall in his opinion in the classic case of Marbury v. Madison. His convoluted reasoning came down to his finding, in Article III, a power of judicial review of the actions of other branches of the government, even though such authority is nowhere spelled out, or even hinted at, in the Constitution. When the Framers of the Constitution went to such great lengths to define — albeit in very abstract terms — the powers of the other branches, why would such a fundamental authority be omitted from the section on judicial powers?
The answer, of course, is to be found in the inherently arbitrary power associated with government in all its forms: those who are to rule must have a realm of final authority that is not subject to preemption by anyone else. The American political establishment was concerned — and with some justification, given the Reign of Terror that had occurred in France — that such a popular uprising might occur in America, and that the legislative and administrative powers of the state might be employed in ways that were inconsistent with institutional interests. Part of our make-believe democracy consists of the true owners of the state creating restraints on the efforts of the ruled to direct it to their purposes. Through the use of a power of "judicial review" that is nowhere to be found in the Constitution, Justice Marshall made the Supreme Court the "master" of the meaning of words found therein.
In this manner, the Supreme Court became, for all practical purposes, the sovereign political authority. Its pronouncements — not those of the electorate, or of their elected representatives — became the final interpretation of the meaning of words subject, of course, to a later court providing a different interpretation. The Supreme Court — whose members are not subject to being voted in or out of office by the general citizenry — became the seat of arbitrary power that defines every government as an agency enjoying a monopoly on the use of violence within a given territory. Members of the Supreme Court will vote their respective subjective preferences — or, more accurately, the preferences of the political establishment that elevated them to their status — for the ever-changing rules that will govern the rest of us in society.
This is why it is considered so impolitic to inquire of a judicial nominee his or her thinking on specific issues over which they are to promulgate binding definitions and rules of law. We may ask such questions of legislative or presidential/gubernatorial candidates — although experience shows we are unlikely to get either clear responses or promises that will be lived up to — but are not supposed to inquire into the thinking of those who will enjoy the arbitrary powers that define sovereignty. It is the nature of a sovereign not to be bound down, for such a limitation implies that his or her ultimate decision-making authority is subject to the approval or review of other forces who would, by definition, become sovereign.
What about the legality of federal bailouts of major corporations; or of congressional powers to audit the Fed; or of presidential powers to undertake wars without Congress’ declaration; or the constitutionality of torture; or the future of Roe v. Wade? These and other court-prescribed rules or constitutional interpretations are none of your business to ask of your sovereign rulers in advance of their assuming power. When it comes time for them to tell you of the rules to which you will be bound, rest assured that they will do so!
Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law. He is the author of the newly-released In Restraint of Trade: The Business Campaign Against Competition, 1918—1938 and of Calculated Chaos: Institutional Threats to Peace and Human Survival. His latest book is Boundaries of Order.