Constitutions And Institutions

I've been reading too much meta-theory about constitutional interpretation.

Hey! We'll have none of that in here! I am talking to you. Yes, you, in the peanut gallery. I'm not surprised to hear that you think any meta-theory about constitutional interpretation at all is too much meta-theory about constitutional interpretation. And after that little outburst, I think we all know what you think on the matter. Thank you ever so much for sharing.

As I was saying, something about the constitutional theory in the tradition exemplified by the assignments to which I've been exposed bothers me. It passes too quickly over the question of the binding value of a document two hundred years old. The appeal to democratic values is a good one, but that appeal is an appeal to our present respect for democracy and the values in protects, not to the historical respect for democracy embodied in the American Constitution.

Put another way, the argument from democratic principles can't handle the critique that if we can find a better way of being more democratic we ought to follow it, no matter what the Constitution itself says on the matter. Why should a genuinely democratic consensus be stifled merely because it can't muster the heightened level of support required to pass and ratify a constitutional amendment?

This isn't a real question. I'm passing over some good pragmatic arguments for respecting prior consensus; I want merely to insist that pure democratic theory has a serious problem with the continuted validity of democratic consensus across time.

There's a similar problem in the philosophy of personal identity: denying yourself pleasure right now in the interest of greater pleasure later only makes sense if "you" will be somehow the "same" person in the future. The identity seems obvious at first, but the gap can be surprisingly hard to close. What if you knew that you would suffer total amnesia between now and then, so that you'd have no recollection of your earlier sacrifice? What if you could impose intense pain on yourself ten years ago in exchange for a cinnamon jellybean right now?

Douglas Adams got here first, but the philosophic problem is real. Derek Parfit put it particularly well: pretty much any argument that you can make about your obligations (or lack thereof) to other people can be turned into an argument about your obligations (or lack thereof) to your "future self" or your "past self." It would be great to be able to make promises binding on your future self (economists can explain why that is, precisely), but, gosh golly gee, your past self was a real bastard making all those binding promises way back when? Why couldn't he have gone to the gym a bit more often instead of playing so much Nintendo? Selfish bastard.

Try another variation: sure, you thought it would be a great idea to get a tattoo when you were eighteen, but now that you're forty-three, that smiley face in bell bottoms sure looks dumb. And you know that your 1977 self was utterly convinced that smiley faces in bell bottoms were the ultimate in fashion and would never go out of style, but now that you know better, why shouldn't you go see Dr. Zizmor for that laser tattoo removal?

This same temporal argument cuts against the Constitution. If we're honestly convinced that we understand an issue better than the Framers, why on earth should we be bound by their imperfect understandings? (Remember: this question is meant for rhetorical purposes only; use for any other purposes will void the warranty.)

The professor today said something very sharp about the decision in Marbury v. Madison.

We interrupt these babblings for a brief message from our historical sponsors. The issue at stake in Marbury was a commission (as a D.C. justice of the peace) made out to William Marbury by the lame-duck Adams administration in 1801. Marbury's commission got lost in the last-minute scramble (the Federalist White House staffers were too busy removing the quill pens from the desks, one supposes), and the incoming Jefferson administration refused to deliver it or recognize Marbury's office. Marbury sued directly in the Supreme Court to make them fork it over, although the case didn't come up until 1803 (some things never change). The opinion, a political masterpiece by the newly-appointed Federalist Chief Justice John Marshall, refused -- on a convoluted technicality -- to order (to "issue a writ of mandamus" in fancy lawyer-speak) the Jefferson administration to fork over the commission. The decision is famous because Marshall, in order to come up with that technicality, more or less gave us our modern doctrine of judicial review, in which the Supreme Court can just chuck acts of Congress on the waste heap if it feels like it (and can wrangle the Constitution into saying that the waste heap might be appropriate for this particular bill).

Right. The professor pointed out that the opinion in Marbury v. Madison basically said that Marbury's commission was just a piece of paper. The metaphysical reality of Marbury's right to the office, such as it might have been, had nothing to do with the piece of paper and which rug it was or was not swept under. Similarly, in saying that Marbury had a right to it, but not a right the Supreme Court would make anyone do anything about, the opinion itself openly admitted that it was just a piece of paper, too. Maybe some lower courts would treat its holdings with respect, but the opinion itself had no mystical power to make anyone do anything.

This was as far as he went. But the light in my head went on when he said it, and I'm willing to go further. Even if Marbury v. Madison had ordered Madison to engage in the requisite forking over, it would have remained a piece of paper. Madison's blatant refusal to fork anything over, under, through, or around would have made the opinion's paper-thin authority quite literally evident.

Even in the doubly counterfactual scenario in which Marshall ordered Madison to fork and Madison complied in said forking, the judicial opinion would have remained a piece of paper. Its persuasive weight -- its ability make someone do something -- would have derived from the power struggles and ideologies swirling around it, not from anything intrinsic to the paper itself, or even the words imprinted on it. Power struggles and ideologies are related to the papers around which they swirl -- and the nature of that relationship is both an interesting and a critically important question -- but in no truly meaningful sense can the papers be said to be the cause of the struggles around them, any more than the eye can be said to be the cause of the storm.

All opinions are paper, all commissions too. Money is paper with numbers and pictures of dead guys; the Constitution is an old piece of paper with a bunch of signatures at the bottom.

So what does this have to do with my original point, the one about identity across time and why we should care what a bunch of guys in funny wigs and short pants thought? Well, I feel, in a way that I can't yet perfectly articulate, that, from the perspective of theories of constitutional interpretation, the identity across time problem and the piece of paper problem are the same problem.

Put another way, a theory that runs into trouble on one of them will run into similar trouble on the other. They both take aim at the connection between "here" and "there." "There" may be two hundred years ago, or it may be the abstract Platonic realm in which words and documents live, but in each case, you'll have to do some heavy theoretical lifting if you want to connect "there" to the here-and-now in which people live, think, talk with each other, do complicated and messy and not very well thought-through things with their lives, and generally muck about being, well, people.

Remember those rhetorical questions? You can unleash your answers now. I don't really know what my answers are, but I think they have something to do with those complicated social interactions. Legitimate democracy flows from these interactions. More than that, even: wherever human society is present in sufficient complexity, something worth calling "democracy" is there too, even if it's in disguise and keeping an eye out for trouble. These complicated understandings, from which something even occasionally emerges that might even be a consensus -- precisely because they touch on everything that people think and do, precisely because they exist and perpetuate themselves even beyond the extent of the participation of any one individual -- have the potential to stretch out, both into the past and into abstraction, and to do things there.

Maybe the gaps I've identified aren't really bridgeable. But I can speak about them as gaps, I can at least put in words the idea of bridging them, even if that underlying idea is incoherent. Incoherent or not, I can speak about it, and so can you, and so can anyone else who wants to play the constitutional interpretation game. The ideas may be perfectly incoherent the whole time, but they may still work, because the arguments we have over the interpretation of incoherent ideas have enough in common with the arguments we have over the Constitution itself, over laws and values and ethics, over what our government ought to do and what it will do.

The argument is the source of meaning, to which both the Constitution and the arguments over the Constitution's meaning refer back. People are machines for finding patterns, even where no patterns exist; political theory and constitutional interpretation are just two putative patterns for the same conversation about people and how they treat each other.

Even a stopped clock is right twice a day.