California Law Review, Inc.

Judicial Supremacy and the Modest Constitution

Author(s): Frederick Schauer
Source: California Law Review, Vol. 92, No. 4 (Jul., 2004), pp. 1045-1067
Published by: California Law Review, Inc.
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 Judicial Supremacy and the
Modest Constitution

FrederickSchauert

INTRODUCTION

Judicial supremacyis underattack.From various points on the politi-

cal spectrum,political actorsas well as academicshave challengedthe idea
that the courts in general, and the SupremeCourtin particular,have a spe-
cial and preeminent responsibility in interpreting and enforcing the
Constitution.Reminding us that treating SupremeCourt interpretationsof
the Constitutionas supremeand authoritativehas no groundingin constitu-
tional text and not much more in constitutionalhistory, these critics seek to
relocate the prime source of interpretiveguidance. The courts have an
importantrole to play, these critics acknowledge, but it is a role neither
greaterthan that played by other branches,nor greaterthan the role to be
played by "thepeople themselves."'
The critics' understandingof a more limited function for the judiciary
in constitutional interpretationappears to rest, however, primarily on a
highly contestable conception of the point of having a written constitution
in the first place. According to this conception, a constitution, and espe-
cially the Constitutionof the United States, is the vehicle by which a de-
mocratic polity develops its own fundamental values. A constitution,
therefore,becomes both a statementof our most importantvalues and the
vehicle throughwhich these values are createdand crystallized.Under this
conception of the role of a written constitution,it would indeed be a mis-
take to believe that the courts should have the preeminentresponsibilityfor
interpretingthat constitution.For this task of value generationto devolve

Copyright? 2004 CaliforniaLaw Review, Inc. CaliforniaLaw Review, Inc. (CLR) is a California
nonprofitcorporation.CLR and the authorsare solely responsiblefor the contentof theirpublications.
t Frank Stanton Professor of the First Amendment,John F. Kennedy School of Government,
HarvardUniversity. This is the written version of a commentarydelivered at the Brennan Center's
Jorde Symposium, held at the University of Michigan Law School on April 4, 2003. An earlierversion
was presentedat the Kennedy School of Government'sFaculty ResearchSeminar.Although this Reply
goes in a slightly different direction from my joint work with LarryAlexander, it is part of our larger
projecton judicial supremacyand a productof our discussions and collaboration.Researchsupportwas
providedby the Joan ShorensteinCenteron the Press, Politics & Public Policy.
1. LarryD. Kramer,Popular Constitutionalism,circa 2004, 92 CALIF.L. REV.959, 959 (2004).

1045

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1046 CALIFORNIA
LAWREVIEW [Vol. 92:1045

to the courts would representnot only a perversionof constitutionalism,so

the argumentgoes, but would also signal an abdicationof democraticgov-
ernanceitself.
Although such a conception is not withoutmerit, it must competewith
an alternativeand arguablysuperiorunderstandingof the raison d'etre of a
written document called a "constitution."Under this alternative under-
standing,the constitutionincorporatesa series of rules that impose second-
order constraintson the first-orderpolicy preferencesof the people and of
their elected representatives and executive officials.2 Precisely because
these second-orderconstraintslimit (in the service of longer-termor deeper
values) th. rational and usually well-meaning first-orderpreferences of
those who are to be constrained,it would be anomalousto place too much
hope or trust in those whose constraintis the whole point of the constitu-
tional limits. Under this alternativeview of constitutionalism,judicial su-
premacy emerges not because of any nostalgic or unduly idealistic view
about the capacities of the judiciary. Nor does it flow from contempt for
the decision-making capacities of ordinarypeople. Rather, external con-
strainton those who are to be constrainedfrom effectuating even their ra-
tional, well-meaning, and good-faith policies and preferencesis the natural
concomitantof the externalnatureof the constitutionalnorms themselves.
In this Reply I seek to explicate and defend this latterversion of constitu-
tionalism and thus to show that the judicial role labeled "judicial
supremacy"is the naturalpartnerof constitutionalismitself.

I
Two PRELIMINARIES

A.
Authorityand Supremacy
The question here is one that often rides underthe bannerof "judicial
supremacy,"3but it is better understood as being more about judicial

2. The distinction between first- and second-orderreasons is a familiarone in moral, political,

and legal theory, with the basic idea being that second-orderreasons serve to exclude otherwise good
first-orderreasons, or to include otherwise bad first-orderreasons. This basic idea has an affinity with
H.L.A. Hart's distinctionbetween primaryand secondaryrules, H.L.A. HART,THECONCEPT OFLAW
79-99 (2d ed. 1994), was developed at some length in the works of Joseph Raz, see, e.g., JOSEPH RAZ,
PRACTICAL REASONS AND NORMS 15-48 (1990); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON
LAW AND MORALITY 3-33 (1979); JOSEPH RAZ, THE MORALITY OF FREEDOM 23-37 (1986), and is
summarizedand developed furtherin, for example, FREDERICK SCHAUER, PLAYINGBY THE RULES: A
PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 88-93 (1991);
Cass R. Sunstein& Edna Ullman-Margalit,Second-OrderDecisions, 110 ETHICS5 (1999). At the heart
of the distinction between first-orderand second-orderreasons is the idea that excluding first-order
reasons may at times betterprotect the long-termvalues embodied in second-orderreasons and may at
othertimes preventthose first-orderdecisions thatwould simply be mistakenat the outset.
3. See, e.g., LarryAlexander& FrederickSchauer,Defending Judicial Supremacy: A Reply, 17
CONST.COMMENT. 455 (2000); Rachel E. Barkow, More Supreme Than Court? The Fall of the
Political QuestionDoctrine and the Rise of Judicial Supremacy,102 COLUM. L. REV.237 (2002); Neal
Devins & Louis Fisher,Judicial Exclusivityand Political Instability, 84 VA. L. REV.83 (1998); Scott

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2004] THEMODESTCONSTITUTION 1047

authority than about judicial supremacy.Although it is not inaccurateto

refer to,"supremacy,"there is some risk of misunderstanding,a risk I will
try to minimize at the outset. Thus, consistentwith standardunderstandings
of the concept of authority,4the question is whether SupremeCourt inter-
pretationsof the Constitution(and with some caveats lower court interpre-
tations as well)' should be understoodby other branches of government,
and by the people, as authoritative-as being entitled to deference not
(necessarily)because of theirwisdom, but solely because of their source.
This source-based understandingof authorityand thus of authorita-
tiveness makes clear the importantway in which authoritativenessdiffers
from persuasiveness. Of course Supreme Court interpretationsof the
Constitution may be persuasive because of their reasoning or their out-
come, but so too may historical statements, law review articles, judicial
decisions of other nations, newspaperop-eds, and the argumentsmade by
our friends and relatives. If the question is only whether Supreme Court
decisions ought to be respected when they are persuasive, then there is no
serious argumentat all, for no one would contend that persuasive Supreme
Court opinions should not be respected when they persuadeon the merits.

E. Gant,Judicial Supremacyand Nonjudicial Interpretationof the Constitution,24 HASTINGS CONST.

L.Q. 359 (1997); Barry Friedman, The History of the CountermajoritarianDifficulty, Part One: The
Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333 (1998); Edward A. Hartnett,A Matter of
Judgment,Not a Matter of Opinion, 74 N.Y.U. L. REV.123 (1999); LarryD. Kramer,Foreword: We
the Court, 115 HARV.L. REV.4, 6-16 (2001); Robert Justin Lipkin, The New Majoritarianism,69 U.
CIN. L. REV. 107 (2000); FrankI. Michelman,Living with Judicial Supremacy,38 WAKEFOREST L.
REV. 579 (2003); L.A. Powe, Jr., The Politics of American Judicial Review: Reflections on the
Marshall, Warren,and RehnquistCourts,38 WAKEFOREST L. REV.697 (2003); SaikrishnaB. Prakash
& John C. Yoo, The Origins of Judicial Review, 70 U. CHI.L. REV.887 (2003); RobertA. Schapiro,
Judicial Deference and InterpretiveCoordinacyin State and Federal ConstitutionalLaw, 85 CORNELL
L. REV. 656 (2000); Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three
Objections and Responses, 80 N.C. L. REV.773 (2002); Brian M. Feldman,Note, Evaluating Public
Endorsementof the Weakand StrongForms ofJudicial Supremacy,89 VA. L. REV.979 (2003).
4. See, e.g., RICHARD T. DE GEORGE, THE NATURE AND LIMITS OF AUTHORITY (1985);
AUTHORITY (Joseph Raz ed., 1990); RAZ, THEAUTHORITY OF LAW, supra note 2; Heidi M. Hurd,
Challenging Authority, 100 YALEL.J. 1611 (1991); Donald H. Regan, Reasons, Authority,and the
Meaning of "Obey".:Further Thoughts on Raz and Obedience to Law, 3 CANADIAN J. L. &
JURISPRUDENCE, 3 (1990); FrederickSchauer,The QuestionsofAuthority, 81 GEO.L.J. 95 (1992).
5. The issue of lower court interpretive authority is often discussed under the rubric of
"nonacquiescence,"the practice by which some federal agencies refuse to follow, except in the
particularcase, federal appellatecourt (but not SupremeCourt)decisions the agency believes mistaken.
See generally Samuel Estreicher& Richard L. Revesz, Nonacquiescence by Federal Administrative
Agencies, 98 YALEL.J. 679 (1989). The case for acquiescence (or nonacquiescence) in Court of
Appeals decisions is made more complex by the following questions: (1) whethera Courtof Appeals
decision would be considered binding within the Circuit but not without, (2) whether there is a
Supreme Court decision generally on the issue, and (3) whether the issue is likely to produce a
Supreme Court decision in the foreseeable future.Thus, when the Fifth Circuit invalidatedany use of
race in admissions at the University of Texas Law School in 1996, in Hopwood v. Texas, 78 F.3d 932
(5th Cir. 1996), questions arose about the extent to which that decision, binding on the University of
Texas Law School, and arguablybinding on the state of Texas, should also be consideredauthoritative
(and not merely persuasive)in other states within the Circuit,or even in other Circuits.

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1048 CALIFORNIA
LAWREVIEW [Vol.92:1045

But a true question of authorityis content independent6and thereforeper-

suasiveness independent.The question is whethera SupremeCourtopinion
should be entitled to deferencejust because of its source and not (necessar-
ily) because of its content or its persuasiveness, and thus even when it is
not persuasive. Put most clearly, the question is whether there is an argu-
ment for following even those Supreme Court interpretationsof the
Constitutionthatthe follower believes mistaken.7
Even if Supreme Court interpretationsshould be understood as au-
thoritative,it does not follow that such authorityshould be absolute-that
is, infinitely stringent.What makes the term "supremacy"potentially mis-
leading is that the termmay suggest absoluteness;it may imply thataccept-
ing the Supreme Court as the authoritativeinterpreterof the Constitution
entails accepting that no considerationsof morality,prudence,or anything
else can ever override that authority.Although some have argued force-
fully for such a position,8the infinite stringencyof an authorityis not en-
tailed by the concept of authority itself any more than the infinite
stringency of a rule, an obligation, or a right is entailed by the authority
and the existence of the rule, the obligation, or the right.9We could treat
SupremeCourt decisions as authoritativewhile recognizing that, on occa-
sion, the wrongness of a SupremeCourt interpretationwill be so apparent
and so immoral-Dred Scott1ocomes to mind-that the presumptionof
deference implicit in the concept of authorityshould be overridden.Thus,
the key idea is that of a presumption,for although presumptionscan be
overcome by reasons of extraordinarystrength, there is no reason to be-
lieve that presumptions-any more than heightened burdens of proof-
need be incapableof being overcome in orderto have substantialeffect.

6. See H.L.A. HART, ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL

THEORY243-68 (1982); RAZ, THE MORALITYOF FREEDOM,supra note 2, at 35-37 (1986); Gerald J.
Postema, Coordinationand Conventionat the FoundationsofLaw, 11 J. LEG.STUD.165 (1982).
7. Much the same applies to the idea of precedent,for a precedentmattersqua precedentonly
when the precedentfollower believes the precedentmistaken on the merits. If the precedent follower
believes the precedent sound, she could reach the same decision absent the precedent. But if the
precedent follower believes the precedentunsound, its precedentialforce may still produce a decision
consistent with the precedentwhen the precedentfollower genuinely places weight on the precedent's
precedential force. See Larry Alexander, Constrained By Precedent, 63 S. CAL. L. REV. 1 (1989);
FrederickSchauer,Precedent, 39 STAN.L. REV.571 (1987).
8. See Emily Sherwin, Ducking Dred Scott: A Response to Alexanderand Schauer, 15 CONST.
COMMENT.65 (1998).
9. See A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS 7-28 (1979); Barry
Loewer & Marvin Belzer, Prima Facie Obligation: Its Deconstruction and Reconstruction,in JOHN
SEARLEAND HIS CRITICS359 (Ernest LePore & Robert Van Gulick eds., 1991); Robert Nozick, Moral
Complicationsand Moral Structures, 13 NAT'LL.F. 1 (1968); FrederickSchauer,A Commenton the
Structure of Rights, 27 GA. L. REV. 415 (1993); John Searle, Prima Facie Obligations, in
PHILOSOPHICAL
SUBJECTS:ESSAYSPRESENTEDTO P.F. STRAWSON238 (Zak van Straaten ed., 1980);
JudithJarvisThomson,Some Ruminationson Rights, 19 ARIZ.L. REV.45 (1977).
10. Scott v. Sandford,60 U.S. (19 How.) 393 (1856).

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2004] THEMODESTCONSTITUTION 1049

Yet althoughthe concept of authoritydoes not entail the absoluteness

of that authority,it does entail that some will have authorityand otherswill
not. In order for deference to be a coherent idea," some individualsor in-
stitutionsmust be entitled to deference, and othersnot. It is in this sense of
differentialauthoritythat the term "judicialsupremacy"takes its meaning,
for the question under considerationis whether SupremeCourt (and other
judicial) interpretationsof the Constitutionare to be understoodas (pre-
sumptively) authoritative,whereas congressional, executive, administra-
tive, or popular interpretationsof the Constitutionin general are not. The
corollary question is whether Congress, the President,12 the administrative
agencies, and the people should defer to SupremeCourt interpretationsof
the Constitutioneven while the SupremeCourt is not expected to defer to
congressional, executive, administrative,and popularinterpretationsof the
Constitution.'3This, as so clarified, is our question here, although at this
point in the argumentit should be understoodonly as no more than a ques-
tion.

B. ThePolitical Valence(Or Not) of Judicial Supremacy

Unlike many, perhaps most, constitutionaldebates, the debate about
judicial supremacy does not appearto have an obvious political valence.
Although several recent decisions of the Rehnquist Supreme Court have
enthusiasticallysupportedthe idea of judicial supremacy,'4the debate goes
back to the similar pronouncementsaboutjudicial supremacyin Cooper v.
Aaron,'5an iconic decision of the WarrenCourt. More recently, although
Professor Kramer and others who attack, or at least question, judicial

11. See PHILIPSOPER,THE ETHICSOFDEFERENCE:LEARNINGFROMLAW'S MORALS(2002).

12. See David S. Strauss,Presidential Interpretationof the Constitution,15 CARDOZO L. REV.
113 (1993).
13. Thatjudicial supremacyis the default position does not mean that there cannot be particular
instances in which the deference runs in a differentdirection,which is the whole point of the "textually
demonstrableconstitutionalcommitment.. . to a coordinatepolitical department,"Baker v. Carr,369
U.S. 186, 217 (1962), strandof political question doctrine. See Nixon v. United States, 506 U.S. 224
(1993); Goldwater v. Carter, 444 U.S. 996 (1979); Powell v. McCormack, 395 U.S. 486 (1969);
Coleman v. Miller, 307 U.S. 433 (1939). And even when there is no such "textually demonstrable
commitment,"there are areas, especially in the context of war, foreign policy, and national security, in
which the courts appearto have abandonedthe defaultrule of judicial interpretiveauthority.See Dames
& Moore v. Regan, 453 U.S. 654 (1981).
14. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett,531 U.S. 356 (2001); Kimel v. Fla. Bd. of
Regents, 528 U.S. 62 (2000); United States v. Morrison, 529 U.S. 598 (2000); Dickerson v. United
States, 530 U.S. 428 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997). For critique, see Susan
Bandes, Fear and Degradation in Alabama: The Emotional Subtext of University of Alabama v.
Garrett,5 U. PA. J. CONST.L. 520 (2003); Kramer,supra note 3; and RobertC. Post & Reva B. Siegel,
Protecting the Constitutionfrom the People: Juricentric Restrictions on Section Five Power, 78 IND.
L.J. 1 (2003).
15. 358 U.S. 1 (1958).

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1050 LAWREVIEW
CALIFORNIA [Vol.92:1045

supremacy16 might loosely be thought of as lying to the left of center in

contemporaryAmerican politics, the contemporaryacademic attackon ju-
dicial supremacy was in fact initiated by conservatives such as Michael
Paulsen'7 and Gary Lawson.'8 Moreover, the position espoused by
Professors Kramerand Paulsen, among others, was embracedin 1986 by
Ronald Reagan's AttorneyGeneral,Edwin Meese III,19as well as by those
with20 and without2'sympathy for Meese's general political outlook. Even
apartfrom Meese's speech, challenges to judicial supremacywere Justice
Departmentpolicy throughoutthe administrationsof Ronald Reagan and
George H.W. Bush,22 and were a centralfocus of conservativeplans at the
beginning of PresidentGeorge W. Bush's administration.23 Yet, in the past,
to
challenges judicial authority in constitutional interpretationhave been
embraced just as enthusiastically by Presidents Abraham Lincoln24and
FranklinRoosevelt.25
Although the foregoing lineup ignores importantcomplications and
variationsthat will reappearlater in the analysis,26 the bipartisanhistory of

16. MARKTUSHNET,TAKINGTHE CONSTITUTION

AWAY FROMTHE COURTS(1999); Robert Post,
The SupremeCourt,2002 Term-Foreword: Fashioning the Legal Constitution: Culture,Courts, and
Law, 117 HARV.L. REV.4 (2003); RobertC. Post & Reva B. Siegel, Legislative Constitutionalismand
Section Five Power: Policentric Interpretationof the Family and Medical Leave Act, 112 YALEL.J.
1943 (2003); Post & Siegel, supra note 14; Mark Tushnet, Two Versions of Judicial Supremacy,39
WM. & MARY L. REV. 945 (1998).
17. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the
Law Is, 83 GEO.L.J. 217 (1994).
18. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional
Interpretation,81 IOWAL. REV.1267 (1996).
19. Originallya speech, the writtenversion is Edwin Meese III, TheLaw of the Constitution,61
TUL.L. REV.979 (1987). The speech as well as commentariesand backgroundmaterialscan also be
found in WHO SPEAKS FOR THE CONSTITUTION?THE DEBATE OVER INTERPRETIVEAUTHORITY
(FederalistSoc'y for L. & Pub. Pol'y Stud. Occasional PaperNo. 3, 1992), and in Perspectives on the
Authoritativenessof SupremeCourtDecisions, 61 TUL.L. REV.977 (1987).
20. See Rex E. Lee, The Provinces of Constitutional Interpretation,61 TUL. L. REV. 1009
(1987); Robert Nagel, The Role of the Legislative and Executive Branches in Interpreting the
Constitution, 73 CORNELLL. REV. 380 (1988).
21. See SanfordLevinson, Could Meese be Right This Time?,61 TUL.L. REV.1071 (1987); see
also Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial
Doctrine, 21 GA. L. REV. 57 (1986); Paul Brest, The Conscientious Legislator's Guide to
ConstitutionalInterpretation,27 STAN.L. REV.585 (1975); Stephen L. Carter,The Morgan "Power"
and the Forced Reconsiderationof ConstitutionalDecisions, 53 U. CHI.L. REV.819 (1986).
22. See Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Congressional
Power: PresidentialInfluences on ConstitutionalChange, 78 IND.L.J. 363 (2003).
23. See JonathanGroner, Election Fight Lights Spark Under the Right, LEGALTIMES,Dec. 4,
2000, at 20.
24. See Abraham Lincoln, First Inaugural Address, in 4 THE COLLECTEDWORKSOF ABRAHAM
LINCOLN
262, 268 (Roy P. Basler ed., 1953); AbrahamLincoln, SixthDebate with StephenA. Douglas,
in 3 THE COLLECTED
WORKS OF ABRAHAMLINCOLN245, 255 (Roy P. Basler ed., 1953).
25. See Franklin Roosevelt, Draft Speech on the Gold Clause Cases (Feb. 19, 1935), in
F.D.R.: His PERSONAL LETTERS, 1928-1945, 459-60 (Elliott Roosevelt ed., 1950).
26. Chief among these is whetherpopularconstitutionalism(the view thatthe people shouldhave
a major role to play in constitutionalinterpretation)differs from departmentalism(the view that the

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2004] THEMODESTCONSTITUTION 1051

both sides of the issue should be sufficient to show thatjudicial supremacy

is not a simple left versus right or liberal versus conservative or Democrat
versus Republicanissue. At times some of the contemporarycritics of ju-
dicial review have chosen simply to ignore those holding similar positions
but from differentpolitical perspectives,but wishing won't make it so, and
it is importantto recognize that contemporarydefenders as well as critics
of judicial supremacy exist across the political and ideological spectrum.
Temptingas it is for some to see the tide of judicial supremacyas basically
a "RehnquistCourt"27or "conservative"28agenda, the facts belie such a
characterization.The very existence of odd political alliances, however
much they may be ignored, is simply evidence of the enduringand funda-
mental importanceof the issue.

II
THENEGATIVE
CONSTITUTION
With these preliminariesout of the way, let us begin by examining a
few exemplary Supreme Court cases, cases selected in order to make a
point aboutthe role of the courts.More precisely, these cases presenta pic-
ture of judicially enforced constitutionallimitationsthat is a picture not of
wise judges overrulingthe actions of foolish legislators and executive offi-
cials, but ratheris one stressing the importanceof second-orderconstraints
on the first-orderdecisions of often wise and often well-meaning members
of the legislative and executive branches.
Our first case is Palmore v. Sidoti,29 in which a unanimous Supreme
Courtmade clear that it was constitutionallyimpermissibleunderthe Equal
ProtectionClause for a judge in a contestedcustody proceedingto take into
account potential effects on the child stemming from a parent'sremarriage
to a person of a different race. Whateverthe consequences for a child of
being a member of an interracialfamily, the Court ruled, those conse-
quences could not as a matterof constitutionallaw be permissibly consid-
ered by a judge acting in the name of the state.

Congress and the president should have interpretiveauthority equal to or greater than that of the
Supreme Court or that each of the three branches should have interpretivesupremacywithin its own
sphere of operations). Compare Kramer, supra note 1, with EDWARDS. CORWIN,COURTOVER
CONSTITUTION: A STUDYOFJUDICIAL REVIEWAS AN INSTRUMENT OF POPULAR GOVERNMENT 15
(1938). See also Barkow, supra note 3, at 323 n.529; Whittington,supra note , at 782-83. As will
become apparent,my argumentsagainst popular constitutionalismapply with almost equal force to
departmentalism.
27. See Post & Siegel, supra note 16, at 1945-46, 2058. Post and Siegel, however, appear to
argue that accepting a strong congressional role in delineating the contours of the Fourteenth
Amendment through Section 5 is compatible with Cooper v. Aaron-style assertions of judicial
supremacy.See Post & Siegel, supra note 16, at 2032-39. Seeing Section 5 as but a narrowexception to
a general rule of judicial supremacy,however, seems in some tension with the overall antisupremacist
tone of Post and Siegel's arguments.
28. Kramer,supra note 1, at 964-65.
29. 466 U.S. 429 (1984).

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1052 LAWREVIEW
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We do not know for sure what motivatedthe trialjudge in Palmore. It

may well have been simple racism or an objection on relatedgroundsto the
very idea of interracialmarriage.But there is no indication of such a pat-
ently invidious judicial motivation in the record, and thus nothing in the
record excludes the alternativeexplanation that perhaps the judge, while
decrying racism and decrying aversionto interracialmarriage,nevertheless
believed it wrong to conscriptjuveniles as the front-linesoldiers in the bat-
tle againstracism. Thejudge might well have believed that being a child of
an interracialcouple, in the United States in 1983, would be especially dif-
ficult for a child, not because interracialmarriagewas wrong, but because
too many people in society wrongly believed it wrong. With that being the
case, the trial judge might well have believed that placing the child with
the interracialcouple may not have been in the "best interestsof the child"
however much such an act, when combined with large numbersof similar
decisions, would neverthelesshave been in the best interestsof society.
At the heart of the Supreme Court decision in Palmore is the view
that, even under this benign understandingof the motivations underlying
the original trial court decision, the decision was constitutionallyimper-
missible. However well-meaning the trialjudge might have been, however
much the judge might sincerely have believed that such a decision would
be in the best interest of the child, and however much such a decision
might actually have been in the best interests of the child, the decision
could not stand.3"If race is a suspect classification, the Court concluded,
then it is presumptivelyimpermissibleto use race as a factornot only when
its use reflects racism,but even when it does not.3"
The same dynamic of imposing wise second-orderconstitutionalre-
strictions even on equally wise first-orderpolicy decisions is presented in
an amusing but obscure dormant commerce clause case called Bacchus
Imports, Ltd. v. Dias.32 At the heart of the case was a brandy called
okolehao, made from a plant (called ti) indigenous to Hawaii and found
nowhere else, and also a Hawaiian wine made not from grapes but from
pineapple, a staple of the Hawaiian agriculturalindustry rarely grown
elsewhere in the United States. As might be expected, Hawaiianpineapple
wine-for reasons of familiarity,heritage, and, presumably,taste-was at
a competitive disadvantagein its competitionwith, for example, California
cabernet and French Bordeaux. Presumablymuch the same could be said
about brandy made from the ti plant. In order to assist its local industry,

30. That a full societal acceptance of interracialmarriagewould be a good thing does not entail
that it would be good for every child of such a marriageduringthe transitionto a better societal state of
affairs.
31. I do not mean to suggest that Palmore is germaneto the debate about affirmativeaction and
the permissibilityof noninvidiousracial classifications. My discussion here is only aboutwhat Palmore
means within the particularcategory of racialclassificationsto which it applies.
32. 468 U.S. 263 (1984).

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2004] THEMODESTCONSTITUTION 1053

and thus to assist indigenous pineapple farmers and ti distillers, Hawaii

grantedHawaiianpineapple wine33and okolehao exemptions from various
state taxes, exemptions not available for the wines of France, Italy,
California, and New York, nor for the brandies of Spain, Germany,
Switzerland,and Poland.
As with the trialjudge in Palmore, there is no reason to believe that
either the governoror the legislatureof Hawaii had evil motives. The legis-
lature and the governor presumablysought to do what they thought they
had been elected, in part, to do, which was to provide tangible supportfor
local products and local industries and to foster the establishment of a
strong financial base for local products.Yet however noble those motives
may have been for the Hawaiiancitizenry, they also constitutedexactly the
kind of explicit protectionismthat even the narrowestreading of the dor-
mant commerce clause34does not countenance. Thus a majority of the
Courthad little difficulty in strikingdown the preferentialtax exemption.
Now consider the collection of 1977 and 1978 cases, some commenc-
ing in federal courts and others in state courts, that go underthe heading of
the "Skokie" controversy.35Led by a man named Frank Collin, the
American Nazi Party proposed a march, complete with jackboots, swasti-
kas, and all the rest, in Skokie, Illinois. The town is a suburbof Chicago
disproportionatelypopulatedby survivorsof the Holocaust and selected by
Collin and his Nazi compatriotsas the venue for their march for precisely
that reason. Understandablyincensed, and desirous of protectingtheir con-
stituents from the targetedpain that the marchwould cause, the mayor and
other officials of Skokie sought by all possible means to ban the march.
They attempted to deny a permit, to impose onerous insurance require-
ments, and in various other ways to prevent or to minimize the harm to
many Skokie residentsthatwould ensue from the march.
As is now well known, these efforts on the part of Skokie officials
were unavailing.Both state and federalcourts,primarilyon the authorityof
Cohen v. California,36Police Department of Chicago v. Mosley,37and

33. The statute referredto "fruitwine," but the Supreme Court, relying on both unmistakable
legislative intent and the actual operationof the tax, concludedthat the tax exemption in both intentand
in operationwas limited to pineapplewine and extendedneitherto wine made from grapes (which were
not fruits for purposesof the tax statute)nor to wine made from fruitsotherthanpineapple.
34. See West Lynn Creamery,Inc. v. Healy, 512 U.S. 186, 213-16 (1994) (Scalia, J., concurring
in the judgment).
35. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), stay denied, 436 U.S. 953 (1978), cert.
denied, 439 U.S. 916 (1978); Nat'l Socialist Partyof Am. v. Village of Skokie, 432 U.S. 43 (1977) (per
curiam). For additional discussion of these cases, see ARYEH NEIER, DEFENDINGMY
ENEMY: AMERICAN NAZIS, THE SKOKIE CASE, AND THE RISKS OF FREEDOM (1979); Lee C. Bollinger,
The Skokie Legacy: Reflections on an "Easy Case" and Free Speech Theory,80 MICH.L. REV.617
(1982); and David Goldberger,Skokie: TheFirst AmendmentUnderAttackBy Its Friends, 29 MERCER
L. REV.761 (1978).
36. 403 U.S. 15 (1971).
37. 408 U.S. 92 (1972).

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1054 LAWREVIEW
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Brandenburg v. Ohio,38held that such attempts to protect the citizenry

from viewpoint-basedharm constitutedfundamentalviolations of the First
Amendment,a conclusion that a clear majorityof the SupremeCourtfound
sufficiently self-evident that it refused to grant even a full hearing on the
merits, denying certiorariin the federal case39 and dismissing their appeal
for want of a substantialfederal question in the state case. Once again, it is
hard to maintainthat the primaryofficials were foolish or selfish, but it is
equally hardto deny that their actions were, underthe existing law, plainly
unconstitutional.
Finally there is the 1965 case of Griffinv. California.40Even in 1965
it was acknowledged to be an unthinkable violation of the Fifth
Amendmentprivilege against self-incriminationfor the prosecutionto call
the defendantto testify in a criminalcase.41 Nevertheless, the prosecutorin
Griffin, as part of his closing argument,offered the empirically probable
observationthat guilty defendantswere more likely to refuse to testify than
innocent ones and asked the jury to take this into account as they weighed
all of the evidence in the case.
Although commenting on the inferences that might be drawn from a
defendant's constitutionallyprotectedrefusal to testify is seemingly based
on highly plausible probabilisticconclusions, and although such commen-
tary is permittedin the vast numberof common law countries that recog-
nize the privilege against self-incrimination,42the Supreme Court would
have none of it. Seeking to give the constitutionalguaranteefunctionalas
well as literal protection,the Courtruled with little controversythat allow-
ing such commentarywould functionallynegate the effect of a defendant's
claim of a constitutionalright and might deter defendantsfrom exercising a
right so plainly protected.

All four of these cases, and many others like them, share two impor-
tant features. First, Palmore, Bacchus Imports, and the Skokie cases were
straightforwardapplications of constitutionalprinciples that were and are
widely considered sound. And Griffin was a relatively uncontroversial
supplementaryprinciple necessary to protect an equally uncontroversial
primaryprinciple. Second, and more important,none of the principalgov-
ernment protagonists-the trial judge in Palmore, the Hawaii legislature

38. 395 U.S. 444 (1969) (per curiam).

39. Although denials of certiorariare, of course, not decisions on the merits, it is inconceivable
that the Courtwas not awareof the signal it was sending in refusingeven to hearthe challenge from the
Seventh Circuitdecision.
40. 380 U.S. 609 (1965).
41. The very unthinkabilityof the view that the Fifth Amendmentcould allow the prosecutionto
call the defendantto the stand in a criminal case produces the fact that there is no citation to support
this proposition.
42. See, e.g., R. v. Andrews [1992] 3 N.Z.L.R. 62.

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2004] THEMODESTCONSTITUTION 1055

and governorin Bacchus Imports,the mayor and village council in Skokie,

and the prosecutorin Griffin-were bad or self-aggrandizingpeople seek-
ing to abuse or increase their power. Rather,all of these officials were, by
most accounts,honest and well-meaningpolicymakersmaking sound, first-
order policy decisions designed to serve the legitimate interests of their
primaryconstituencies.
That these officials were making sound first-orderpolicy decisions
does not necessitate the conclusion that those decisions were constitution-
ally permissible. That is why the soundness, honesty, and public-
spiritedness of their first-orderdecisions does not protect them from in-
validation on the second-ordergroundsthat we label "constitutional."But
the correct constitutional invalidation of even such seemingly well-
intentionedlegislative, executive, andjudicial decisions calls into question
an image of constitutionaladjudicationthat is primarilyabout keeping bad
people from doing bad things in pursuitof their own selfish or crassly po-
litical interests.43To be sure, numerous constitutional decisions fit this
mold,44but they do not exhaust the universe of constitutionaldecisions.
Palmore, Bacchus Imports, Skokie, and Griffin represent the even more
importantset of instances in which constitutionalrights exist not to keep
bad people from doing bad things, but ratherto keep good people from en-
acting sound first-orderpolicies (or even pursuingsound first-orderprinci-
ples) that have negative or self-defeating45second-order,institutional,or
long-term consequences. The governmentalactions in each of these cases
were invalidatednot in the service of preventingevil or combatingpower-
hungry officials, but in the service of protecting important long-term
second-order values46from erosion by good people making reasonable
short-termdecisions.
Decisions like these represent what we might call the "negative
Constitution."These decisions, and in importantrespects the constitutional
provisions and principles they embody, are not so much about reflecting
the deepest aspirations,goals, and ideals of a polity. Nor are they about
empoweringdemocraticand deliberativedecision making. Rather,they are
about entrenchingthose long-termvalues-not necessarily the most impor-
tant of our values47-that are especially likely to be vulnerablein the short
term. Constitutional entrenchment, therefore, creates second-order

43. A good example of this common view is Cass R. Sunstein, Naked Preferences and the
Constitution,84 COLUM. L. REV.1689, 1689-92 (1984).
44. See, e.g., United States v. Nixon, 418 U.S. 683 (1974); New York Times Co. v. Sullivan, 376
U.S. 254 (1964); Grosjeanv. Am. Press Co., 297 U.S. 233 (1936).
45. See Adrian Vermeule, Hume's Second-Best Constitutionalism,70 U. CHI.L. REV.421, 435
(2003).
46. See Sunstein& Ullman-Margalit,supra note 2, at 7.
47. The Third and Seventh Amendments,protectingvalues that seem far less than fundamental,
are good cautions against those who too easily see in the Constitutiona statement of what is most
importantto the polity.

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1056 LAWREVIEW
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constraints on wise and well-meaning first-orderdecisions. Recognizing

that good people doing good things often producebad collective long-term
consequences, or that good people doing good things often neglect noncon-
sequentialistvalues,48the negative Constitutionestablishes a series of re-
strictions targetinggood decisions as well as evil ones and functions as a
check on even the most well-meaning democraticdecision making.
These second-orderrestrictions may have a variety of foundations.
For those who believe that welfare and utility maximizationdo not exhaust
the universe of human values, some of these restrictions-the prohibition
on cruel and unusual punishments,the protectionof free exercise of relig-
ion, the guarantee of equal protection of the laws, some dimensions of
freedomof speech-can be understoodas deontologicalside-constraintson
utility maximization.49 But even from an unconstrainedconsequentialist
perspective, these and other second-orderconstraints can still be under-
stood as rule-consequentialist side-constraints on act-consequentialist
maximization,5"or as ways of dealing with Prisoners' Dilemma and other
problemsof collective action. But whatevertheir deepest source, the rights,
values, and proceduresprotectedby the negative Constitutionare best un-
derstood not necessarily as the most importantof our rights, and certainly
not as a comprehensivestatementof our most fundamentalhopes and ide-
als, but as the intereststhat appearto be in the greatestjeopardy from strict
first-orderdecision making.

III
ENFORCINGTHE NEGATIVE CONSTITUTION
In theory nothing about enforceabilityor the role of the courts flows
from recognizing the negative aspects of the Constitution. The "people
themselves," as Professor Kramerputs it, could, after all, recognize and
self-enforce wise second-order constraints on their own wise first-order
policy preferences.Throughself-restraint,they could enforce those second-
order limits against their own short-terminterests as they make, whether
directly or through elected representatives,their first-orderpolicy deci-
sions.
Yet although it is theoretically possible for people to enforce rules
upon themselves,"5in numerouswalks of life we worry about the strength

48. See generally RONALD DWORKIN,TAKING RIGHTS SERIOUSLY 184-205 (1977).

49. See DWORKIN,supra note 48; ROBERTNOZICK,ANARCHY,STATE,AND UTOPIA28-35 (1974)
(developing the idea of rights as moral side-constraintson utility maximization); JUDITHJARVIS
THOMSON,THE REALMOF RIGHTS(1990).
50. On rule utilitarianism and rule consequentialism, see, among recent works, BRAD HOOKER,
IDEALCODE, REAL WORLD: A RULE-CONSEQUENTIALIST THEORYOF MORALITY(2000); and CONRAD
D. JOHNSON,MORAL LEGISLATION:A LEGAL-POLITICAL MODEL FOR INDIRECTCONSEQUENTIALIST
REASONING(1991).
51. See Thomas C. Schelling, EnforcingRules on Oneself, 1 J.L. ECON.& ORG.357 (1985).

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2004] THEMODESTCONSTITUTION 1057

of will and mental separationthat would make this possible. We do not

allow judges or jurors to sit on cases in which their own interests are af-
fected. We appoint inspectors general and divisions of internalaffairs and
special prosecutorsto prevent officials from investigatingthemselves. We
expect public officials to avoid conflicts of interest,no matterhow honest
we think they are. And in numerous other ways, the principle of English
natural justice-nemo debet esse judex in propria sua causa (no man
should be judge of his own cause)52-pervades our principles of institu-
tional design.
At times externally-enforcedrules may be necessary in order to pro-
tect a majority's own long-term interests from that majority's short-term
desires. Just as we often enlist external enforcers-personal trainers, for
example53-to make sure that our long-term interests do not fall prey to
short-termweakness of the will, so too does the same phenomenon apply
to governmentaldecisions. The very idea of requiringa super-majorityfor
a constitutionalamendmentreflects this instinct,54and we can see this in
constitutionaldecisions as well. I.N.S. v. Chadha,55for example, was at one
level about "formal"as opposed to "functional"approachesto separation
of powers,56but at a deeper level it was aboutpreservingthe people's long-
term constitutionalarrangementsagainst the same people's short-termde-
sires to circumventthe amendmentprocess in order to make government
work more smoothly. Much the same can be said aboutBowsher v. Synar,57
invalidating a constitutionally dubious but pragmatically useful way of
dealing with budget deficits. Indeed, the fact that the federalbudget was in
surplus less than ten years after the passage of the invalidated
Gramm-Rudman-HollingsAct supportsthe proposition that measures are
often less necessary than popular or legislative majoritiesbelieve them to
be. Freedom of the press may also be a good example, for the short-term
desire to restrictthe unpleasantvoice, especially when it seems (or actually
is) wrong, may be inconsistent with the long-term interest in keeping the
institutionof the press free and strong.
The importance of external constraint is especially apparentin the
context of the protection of persistently unpopular and systematically

52. See R. v. Barnsley Licensing Justices, 2 Q.B. 167 (A.C. 1960); R. v. HertfordshireJustices, 6
Q.B. 753, 115 Eng. Rep. 284 (1845); Dimes v. GrandJunctionCanal 3 H.L.C. 759, 88 Rev. Rep. 310
(H.L. 1852); 0. HOOD PHILLIPS & PAUL JACKSON,O. HOOD PHILLIPS' CONSTITUTIONALAND
ADMINISTRATIVE LAW603-04 (6th ed. 1978).
53. Those of us with big egos and a pathologicalunwillingness to be thoughtweak often find that
announcingour futureplans-to quit smoking or to ride a bicycle across the United States-to a large
numberof friendsis a highly effective way of guardingagainstweakness of the will.
54. U.S. Const. art. V.
55. 462 U.S. 919 (1983).
56. See Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers
Questions-A Foolish Inconsistency?,72 CORNELL L. REV.488 (1987).
57. 478 U.S. 714 (1986).

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1058 LAWREVIEW
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under-representedinterests-not only the discrete and insularminoritiesof

the Carolene Products footnote,58but also those whose unpopularityspans
traditional ideological divisions (atheists, flag burners, child pomogra-
phers, and those charged with crimes, for example). With respect to such
individuals, their rights will probably never be seriously representedby
popularor legislative majorities,and it should be no surprisethat the rights
these minoritiesclaim are those for which judicial supremacyhas made the
greatestdifference.
Examples of the effects of judicial supremacyhardly occupy the en-
tirety of constitutionallaw. As the proponentsof popularconstitutionalism
properly claim, it is simply not plausible to argue that all of the Supreme
Court's decisions are counter-majoritarian, nor that the Courtis unawareof
the potentialrepercussionsif a high percentageof its decisions diverges too
dramaticallyfrom the popularor legislative will. Nevertheless, there is no
indicationthat the Courtuses its vast repositoryof political capital only to
accumulate more political capital, and in many areas judicial supremacy
has made not just a short-termdifference, but a long-term difference as
well. Perhapsmost obvious is school prayer.For over forty years the Court
has persisted in its view that organized prayer in public schools is imper-
missible underthe EstablishmentClause59despite the fact that public opin-
ion is little more receptive to that view now than it was in 1962.60 So too
with flag burning,where the Court's decisions from the late 1960s61 to the
present have remained dramaticallydivergent from public and legislative
opinion.62 Or consider child pornography,where the Court's decision in
Ashcroft v. Free Speech Coalition63flew in the face of an overwhelming
congressionalmajorityapprovingthe extension of existing child pornogra-
phy laws to virtual child pornography. Similarly, in the regulation of
"indecency,"the Court has spent well over a decade repeatedly striking
down acts of Congress that enjoyed overwhelming public and

58. United States v. CaroleneProds. Co., 304 U.S. 144, 152 n.4 (1938).
59. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577
(1992); Wallace v. Jaffree,472 U.S. 38 (1985); Abington Sch. Dist. v. Schempp,374 U.S. 203 (1963);
Engel v. Vitale, 370 U.S. 421 (1962).
60. National Election Studies polls show that even as of 1998, only sixteen percent of the
American population agreed that there should be no prayerin public schools. Nat'l Election Studies,
NES Guide to Public Opinion And Electoral Behavior, available at http://www.umich.edu/-nes/
nesguide/toptable/tab4c_3b.htm(last visited Feb. 28, 2004). When the issue is phrased in terms of
agreementwith the core of the holding in Schempp,the agreementrate is higher, but still only thirty-
seven percent,no higherthan it was in 1982. See Nat'l OpinionResearchCtr.,Bible Readings in Public
School, available at http://1stam.umn.edu/main/pubop/biblereading.htm (last visited Feb. 28, 2004).
61. See United States v. Eichman,496 U.S. 310 (1990); Texas v. Johnson,491 U.S. 397 (1989);
Spence v. Washington,418 U.S. 405 (1974); Smith v. Goguen, 415 U.S. 566 (1974); Street v. New
York, 394 U.S. 576 (1969).
62. See First Amendment Online, Flag Burning, at http://1stam.umn.edu/main/pubop/
flag-burning.htm(last visited Feb. 29, 2004) (giving various poll results).
63. 535 U.S. 234 (2002).

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2004] THEMODESTCONSTITUTION 1059

congressional support.64Most dramaticof all, however, is criminal proce-

dure, where the SupremeCourt's decision in Dickerson v. UnitedStates,65
invalidatinga congressional attemptto overrule Miranda v. Arizona,66 un-
derscores the persistent gap in concern for defendants' rights between
Congress and the public, on the one hand, and the SupremeCourt, on the
other.

IV
JUDICIALSUPREMACY
WITHOUTILLUSION
It turns out, therefore,that the case for judicial authorityor, to put it
differently, for overridable judicial supremacy, need not depend, as
ProfessorKramerand others appearto suppose, on the view thatthe people
and (mutatis mutandis)legislatures are stupid, ignorant,especially selfish,
or especially driven by passion ratherthan reason. Admittedly, such atti-
tudes about the populationand their elected representativesare hardly ab-
sent from the academy, the judiciary, and the intelligentsia.And there can
be little doubt that such attitudesdrive some claims of judicial supremacy.
Yet it is usually a mistake to argueby psychologizing one's opponents,and
the argumentin the foregoing sections should make it clear that the best
argumentfor judicial authorityis not dependenteither upon a dim view of
the people or upon a glorified view of the judiciary,67 no matterhow com-
mon such views may be.
In maintainingthat the question of judicial supremacyis a "matterof
sensibility,"68 Professor Kramer,like others before him,69 assumes that it
would be impossible to believe in judicial supremacy without having a
largely negative view of popular (or legislative70) governing capacity. Yet
however widespread such a negative view may be,71 it is a mistake to as-
sume that the sensibilities of the faculty lounge necessarily drive the argu-
ment for judicial supremacy,and a larger mistake to take on the weakest
ratherthan the strongest argumentfor judicial supremacy. The strongest
argument, as we have seen, is not the argument from popular
64. See, e.g., Reno v. Am. Civil LibertiesUnion, 521 U.S. 844 (1997); Sable Communicationsof
Cal., Inc. v. Fed. CommunicationsComm'n, 492 U.S. 115 (1989).
65. 530 U.S. 428 (2000). For context, see Neal Devins, Asking the Right Questions: How the
CourtsHonored the SeparationofPowers by ReconsideringMiranda,149 U. PA.L. REV.251 (2000).
66. 384 U.S.436 (1966).
67. For an effective argumentagainst such glorified views, see RoderickM. Hills, Jr.,Are Judges
Really More Principled than Voters?,37 U.S.F. L. REV.37 (2002).
68. Kramer,supra note 1, at 1002.
69. See, e.g., RICHARDD. PARKER,"HERE, THE PEOPLERULE": A CONSTITUTIONALPOPULIST
MANIFESTO(1994).
70. See generally JEREMYWALDRON,LAW AND DISAGREEMENT (1999); JEREMYWALDRON,THE
DIGNITYOF LEGISLATION (1999).
71. For discussions of the issue far more serious and nuancedthan one is likely to find in judicial
chambersor in the faculty common room, see the various argumentsin Public Ignorance, 12 CRITICAL
REV.397 (1998).

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1060 LAWREVIEW
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incompetence, but rathera combinationof two different arguments,72nei-

ther of which presupposesor requiresa negative view of the populace.73
The first of these argumentsis the familiar one about checks on self-
interest. To believe that people vote (and in other ways participatein gov-
ernance) largely on the basis of their self-interest is not to deny the same
phenomenonfor judges,74 executives, administrators,or academics. It is to
say only that at the core of the strongestargumentfor judicial supremacy,
and the argumentdependentneither on an unrealisticallyrosy view of the
judiciary nor on an unrealisticallydim view of the electorate,is a recogni-
tion that the ability of the people to pursue their own interestsin the name
of public policy, like the ability of the members of the judiciary to pursue
their own interestsin the name of publicjustice, might plausiblybe limited
by introducinga source of countervailingpower.
This argumentis related to but not identical to the argumentfor sec-
ond-order constraints on first-orderpolicy preferences. Again, the belief
that people have only a limited ability to impose such constraintson them-
selves is not a view about the limited abilities of people. Or, more accu-
rately, it is not a view about the disproportionatelylimited abilities of the
people when compared to the abilities of any other segment of society.
First-orderpolicies and preferences occupy the foreground of our phe-
nomenology;75and while the ability to look beyond this foregroundis no
more limited for the people as a whole than it is for universityprofessorsor
members of the federal judiciary, nor is there reason to believe that it is
less.

72. Actually, it is three arguments.The argumentthat settlement is intrinsicallyvaluable, which

LarryAlexanderand I have developed elsewhere, is compatiblewith but differentfrom the argumentsI
offer here. See Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17
CONST.COMMENT. 455 (2000); LarryAlexander & FrederickSchauer,On ExtrajudicialConstitutional
Interpretation,110 HARV.L. REV.1359 (1997).
73. It also does not require the kind of positive view of the judiciary that one sees in, for
example, CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT (2001).
74. See RichardPosner, WhatDo Judges Maximize?(The Same ThingEverybodyElse Does), 3
SUP. CT. ECON.REV. 1 (1993); Frederick Schauer, Incentives, Reputation, and the Inglorious
Determinantsof Judicial Behavior, 68 U. CIN.L. REV.615 (2000).
75. This was one of the basic insights of Legal Realism, set out most explicitly and least subtly in
JEROME FRANK, LAW AND THE MODERN MIND (1930); see also Dan Simon, A Psychological Model of
Judicial Decision Making, 30 RUTGERS L.J. 1 (1998). When first-orderpolicy preferencesare strong,
and formal legal guidance indeterminate,as with the small number of cases decided on the merits by
the Supreme Court every year, first-orderpolicy preferences appear to play the strongest role in
explaining outcomes. See JEFFREYA. SEGAL & HAROLDJ. SPAETH, THE SUPREMECOURT AND THE
ATTITUDINAL MODEL (1993); James L. Gibson, Judges' Role Orientations, Attitudes, and
Decisions: An InteractiveModel, 72 AM.POL.Sci. REV.911 (1978); Jeffrey A. Segal, Separation-of-
Powers Games in the Positive Theoryof Congress and Courts,91 AM.POLL.
Sci. REV.28 (1997).

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2004] THEMODESTCONSTITUTION 1061

V
ON THE DISTINCTIONBETWEEN MAKING AND ENFORCINGNORMS
At times it appears that neither Kramer nor others, especially
Waldron,76 would disagree with the foregoing. They acknowledge that ju-
dicial supremacymay be appropriatefor enforcing those clear rights that
the people themselves have at earlier times expressly recognized. This is
merely, but properly,a recognition that an importantdimension of consti-
tutionalism,a dimension capturedby the image of Ulysses binding himself
to the mast, is one in which the people themselves decide that they wish to
be constrainedin the future against their own strong but short-termpolicy
preferences. Thus, Kramerand others appear to accept that textually ex-
plicit and precisely demarcatedrights (such as the right not be convicted of
treason except by the testimony of two witnesses or the right to a trial by
jury in all criminal and most civil cases) might appropriatelybe enforced
by the judiciary acting simply as the agent of the people for the enforce-
ment of rights that the people themselves have createdat an earliertime.
Not so in many other cases, Kramer, Waldron, and others argue.7
When the issue is filling in the indeterminatecontours of "due process of
law,""78"equalprotectionof the laws,"79"crueland unusualpunishments,"'8
"freedomof speech ... [and]press,"'' or the "free exercise [of religion],"82
for example, they insist that the judiciary cannot plausibly be seen as
merely the enforcing agent for decisions made by the people in earlier
times. Even if a strong,preeminent,and deference-entitledjudiciary is the
appropriateinstitution for enforcing pre-designatedrights, it is something
else again when the task is best understoodas deciding what rights there
will be ratherthan how to enforce the rights that exist. Decisions about ap-
plying "equal protection of the laws" to gender,83sexual orientation,84

76. See WALDRON, LAW AND DISAGREEMENT,supra note 70; WALDRON, THE DIGNITY OF
supra note 70.
LEGISLATION,
77. This appearsto be one of the runningthemes in Post, supra note 16.
78. U.S. CONST.amend.V; U.S. CONST.amend.XIV, ? 1.
79. U.S. CONST.amend.XIV, ? 1.
80. U.S. CONST.amend. VIII.
81. U.S. CONST.amend. I.
82. Id.
83. Craig v. Boren, 429 U.S. 190 (1976); Frontierov. Richardson,411 U.S. 677 (1973); Reed v.
Reed, 404 U.S. 71 (1971).
84. Lawrencev. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996); Bowers v.
Hardwick,478 U.S. 186 (1986). For many of us, the recent decisions of the SupremeJudicial Courtof
Massachusettson gay and lesbian marriageprovide a powerful example of how courtsmay on occasion
determine the contours of vague constitutional provisions to the benefit of relatively powerless
minorities in ways far removed from contemporaneouspolitical, popular, legislative, or executive
movement. See In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004); Goodridge
v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Popular constitutionalistsmight argue that
better long-term results for gays and lesbians could have been secured if the SupremeJudicial Court
had waited, or might argue that the detrimentaleffects of judicial supremacyoutweigh the benefits,
such that it is better to deny the authoritythan to grant it. Or they might claim that the argumentsfor

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1062 LAWREVIEW
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age,85alienage,86 and affirmativeaction,"87 for example, are the foundational

questions that democracy demands be made by the people and not a small
coterie of judges or even a large coterie of lawyers, so these critics say. So
too with questionsregardingwhetherto apply "dueprocess of law" to con-
traception,88abortion,89and sexual conduct;90whetherto apply the prohibi-
tion on "cruel and unusual punishments" to capital punishment;91and
whether to allow harsh sentences for multiple offenders.92In all of these
instances, and many more, so the argumentgoes, the enforcementmodel is
unavailing, and the question of what these wildly indeterminateclauses
mean is not very different from the question of what a constitutionshould
say in the first place, a question that in a democracymust be answeredby
the people or their responsive representatives,not by an elite of lawyers
andjudges.
Although it may not be immediately apparent,this view rests on a
particularand highly controversialview about rights. More particularly,it
is premisedon the view that rights and interests(or policies) are more con-
tinuous than the standardpicture of rights as side-constraintsassumes,93
and that, to caricaturethis view slightly, a right is little more than an inter-
est pounding its fist on the table. Under this view, rights, like interests,are
ultimately createdby law, ratherthan existing antecedentto law and then
being enforced by law. If rights, even if not exactly "nonsense on stilts,"
exist by virtue of law, then it should come as no surprisethat the ultimate
power to make law in a democracy-the people-might be expected to be
the ultimatepower to decide what rights we are to have and what rights the
courts are to enforce. Moreover,as Waldronand to a lesser extent Kramer

judicial supremacyare peculiarto particularcourts and particulartimes (on this, see FrederickSchauer,
Neutrality and Judicial Review, 23 L. & PHIL.217 (2003)), such that nothing they say about the
SupremeCourtof the United States applies to the SupremeJudicialCourtof Massachusetts.But unlike
other issues on which judicial action in general and Supreme Court action in particularwas so
intertwinedwith popularand political movements, see GERALD N. ROSENBERG, THEHOLLOW HOPE
(1991), as to make questions of causality difficult to disentangle, it seems clear that the Supreme
JudicialCourtwas well ahead of popularand political opinion. As a result, its actions cannotplausibly
be describedas other than "juricentric,"and we await the argumentsattemptingto reconcile objections
to judicial supremacywith acceptanceof thejudicial outcomes in the Massachusettscase.
85. MassachusettsBd. of Ret. v. Murgia,427 U.S. 307 (1976).
86. In re Griffiths,413 U.S. 717 (1973); Grahamv. Richardson,403 U.S. 365 (1971).
87. Grutterv. Bollinger, 539 U.S. 306 (2003); AdarandConstructors,Inc. v. Pefia, 515 U.S. 200
(1995); City of Richmondv. J.A. CrosonCo., 488 U.S. 469 (1989).
88. Griswoldv. Connecticut,381 U.S. 479 (1965).
89. Roe v. Wade, 410 U.S. 113 (1973).
90. Lawrencev. Texas, 539 U.S. 558 (2003).
91. Eddings v. Oklahoma,455 U.S. 104 (1982); Lockettv. Ohio, 438 U.S. 586 (1978); Gregg v.
Georgia,428 U.S. 153 (1976); Furmanv. Georgia,408 U.S. 238 (1972).
92. Lockyerv. Andrade,538 U.S. 63 (2003).
93. See RichardH. Fallon, Jr.,IndividualRights and the Powers of Government,27 GA. L. REV.
343, 343-44 (1993); Richard H. Pildes, WhyRights Are Not Trumps:Social Meanings, Expressive
Harms, and Constitutionalism,27 J. LEGALSTUD.725 (1998). There is some flavor of this, althoughin
a milder form, in Post & Siegel, supra note 16, at 1977, 2021.

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2004] THEMODESTCONSTITUTION 1063

argue, if actual disagreement about rights makes realism about rights a

practically implausibleposition, then acting as if rights pre-exist our deci-
sions about them is unfaithful to our actual experience with rights in a
world of disagreement.
By contrast, if rights, or at least some rights, are antecedent to the
Constitution(whether written or otherwise), then it does not follow that
such rights do not exist unless the Constitutionor the supremelawmaking
power recognizes them. Indeed, many of the debates about constitutional
theory in the 1970s and 1980s focused on this very issue94 and on the hotly
contested possibility that explicit recognitionof a right in a written consti-
tutionwas not a necessary conditionforjudicial enforcementof thatright.
We should not make too much of this point. Considerationsof institu-
tional design might suggest that granting such judicial power would be
mistaken even if rights do exist prior to the Constitution.Such considera-
tions would include, for instance, the possibility that courts empoweredto
enforce unenumeratedrights would make more mistakes of recognition of
nonrightsthan courts not so empoweredwould make mistakes of nonrec-
ognition of real rights. Moreover, the values of majoritarian self-
governance,which count for somethingin the calculus even if those values
are not the only ones of importance,might constrain our willingness to
grantto nonmajoritariancourts the jurisdictionto recognize unenumerated
rights even if those rights in fact do exist.
This is all familiarterritory.Still, rehearsingthe familiarexposes the
fact that recognizing that a particularright (privacy, say) is not logically
entailed by a general right (due process) does not eo ipso producethe con-
clusion that delineatingthe scope of due process must be left to the people.
That conclusion follows only if, at best, rights do not exist antecedentto
the constitution;or if the public's right to self-governanceis lexically prior
to all other rights; or if, as a contingent matter of institutional design,
courts are not to be trustedwith the task of rights recognition. These last
two factors may well be sound, but they merely reframewhat is exactly the
matterat issue. Consequently,recognizing that delineatingthe contours of
abstractly formulatedrights is different from enforcing delineated rights
gets us less far than we might think in directly confrontingthe question of
judicial supremacy. Moreover, it is possible that the same considerations
that lead to judicial preeminence in enforcing pre-existing rights would
produce the same conclusion when the question is about empoweringthe

94. See, e.g., JOHN HART ELY, DEMOCRACYAND DISTRUST:A THEORYOF JUDICIALREVIEW
(1980); MICHAELJ. PERRY,THE CONSTITUTION, THE COURTS,AND HUMANRIGHTS(1982); Robert H.
Bork, Neutral Principles and Some First AmendmentProblems, 47 IND. L.J. 1 (1971); Thomas C.
Grey, Do We Have an UnwrittenConstitution?,27 STAN.L. REV.703 (1975); David A.J. Richards,
Human Rights as the UnwrittenConstitution: The Problem of Change and Stability in Constitutional
Interpretation,4 U. DAYTONL. REV. 295 (1979); Frederick Schauer, An Essay on Constitutional
Language, 29 UCLA L. REV.797 (1982).

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1064 CALIFORNIA
LAWREVIEW [Vol.92:1045

delineation of abstractlyformulatedrights. If, as Ronald Dworkin has in-

sisted, one class of rights is best understoodas rights againstthe majority,95
a characterizationthat provides perhaps the best understandingof many
equality rights and a fair number of free speech, free exercise, criminal
procedure,and due process rights as well, then the same argumentsabout
second-orderconstraintson first-orderpolicy preferencesthat were devel-
oped above would also apply as much to rights delineatorsas to rights en-
forcers. Just as we might expect anyone-including judges, lawyers,
members of Congress, the President,and ordinarycitizens-to be system-
atically deficient at the task of acting against self-interest,so, too, might we
expect majorities to have the same systematic deficiencies. Again, this
view is not to be understoodas being especially critical of the competence
of majorities or of the people. It does recognize, however, that the same
argumentsfor being reluctantto let police officers, presidents, attorneys
general, and lawyers police themselves would also apply to the policing of
majorities and the policing of the people, for this is a large part of what
rights againstmajoritiesdo.

VI
THE MODESTCONSTITUTION
Even if we understandconstitutionaldecision making as working out
and not just enforcing rights-basedside-constraints,96 an importantconclu-
sion emerges from the foregoing: the Constitutionis not the primaryfo-
rum in which the people make the bulk of their most importantdecisions
about policy and principle.And in this conclusion lies perhaps the major
divide between those who supportand those who are skeptical aboutjudi-
cial primacyin constitutionaladjudication.
Under one view, common among American constitutionalistssince
the 1970s, the Constitutionis America's civil religion,97defining and shap-
ing who we are and what we wish to be. The Constitutionis and always
has been the repository of American-ness, the forum for our deliberation
and discourse about our hopes and aspirations,and the vehicle by which
we crystallize our fears and dreams.98
This view of the role of the Constitutionprovides fertile ground for
skepticism about judicial supremacy. If the Constitution is so central to
what we are, is so constitutive of everythingthat we the people stand for,
and is the vehicle for the formationand transformationof nationalidentity,

95. DWORKIN,supra note 48, at 204-05.

96. And sometimes courts have a special role to play even when rights are not at issue, as with
dealing with the coordinationand cooperation issues that lie at the heart of the dormantcommerce
clause.
97. See SANFORDLEVINSON,CONSTITUTIONAL FAITH(1988).
98. See Post, supra note 16, at 30, 37; Post & Siegel, supra note 16, at 1980-84.

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2004] THEMODESTCONSTITUTION 1065

then leaving such a central role in democratic self-governance to judges

should be a source of concern. Such an allocation of power would involve
an abdicationof democraticgovernanceitself.
Yet there is another view of the Constitution, one that is far more
modest. The Constitution, although it does set out the basic structureof
governmentand delineates the proceduralrules by which that government
will operate, says remarkablylittle about what the governmentshould do,
and that is as it should be. By and large, such centralsubstantivedecisions
about public policy should be made in more public, more representative,
and more deliberative forums, whether those forums be the chambers of
legislatures or the more importantand more diffuse networks by which
public opinion is formed, reformed,and implemented.For all such tasks,
the modest Constitution is appropriatelya bystander. To believe in the
modest Constitution is not to disagree with the popular constitutionalists
about the primarylocus for determiningmajor questions of public policy.
It is, instead, to disagree with the notion that when these questions are de-
terminedby the people the debate is or should be channeled throughthe
Constitution.There are examples in which it is, to be sure, but just as the
owner of a hammerneeds to be wary of seeing every problemas a nail, so,
too, does the constitutionalist-especially the Americanconstitutionalist-
need to be wary of seeing every problemas a constitutionalone.99
Yet althoughthe modest Constitutiondoes not aspire to be at the cen-
ter of all or even most debates of either policy or principle, there is good
reason not to have a regime of unlimitedlegislative or popularsovereignty.
Neither legislaturesnor the people are best suited to recognize and enforce
the necessary limits on their own power, nor are they well suited to imple-
ment and, if necessary, create the side-constraintson policy optimization
that are so apparentin cases like the ones that commenced this Reply.
Here, and arguably only here, it is popular (or congressional) supremacy
and not judicial supremacythat is the problem.This is not because there is
something wrong with the people, but rather because well-meaning and
informed people pursuing policies that are, from their own perspective,
well-meaning and informed, are still sometimes in need of an external
check to ensure the aggregate common good. Sometimes this check exists

99. Thus the issue is antecedentto the question whetherthe Constitutionis, as ProfessorKramer
puts it, "ordinarylaw." KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND
JUDICIAL REVIEW 224 (2004). The antecedentquestion is whetherwe see the Constitutionas the vessel
into which much of the shape of the nation is poured,or from which much of that shape emerges, or by
contrastwhether we see the Constitutionas more modestly being about the development of a certain
category of side-constraintson the political process. It may be that choosing the latter produces the
conclusion that the Constitutionis best treatedas ordinarylaw, and it may even be that the conclusion
that the Framersand others did not view the Constitutionas ordinarylaw produces some historical
support for the former. But if the question is the largely nonhistoricalone of institutionaldesign, the
Constitutionas ordinarylaw (or not) is at best the conclusion ratherthanthe premise.

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1066 CALIFORNIA
LAWREVIEW [Vol.92:1045

in the service of protecting systematicallyunderrepresentedinterests,1'"as

the SupremeCourtrecognized at least as long ago as CaroleneProducts."o'
Sometimes the check exists to apply the same constraintsof conflict of in-
terest in popular decision making as we apply in other settings. In still
other cases, the check exists to resolve Prisoners' Dilemmas and related
problems of cooperative behavior. The modest Constitutionis focused on
such tasks,102 and as long as it stays so focused, there is little dangerthat
entrustingits enforcementto a strongjudiciary supreme in its interpreta-
tions of the Constitution(a necessary condition for the task of imposing
second-order constraints on even well-intended first-orderpolicy prefer-
ences) will represent a substantialderogation of the idea of government
and policy shapedlargely by the people themselves.103

100. Professor Kramer follows Waldron in noting that there are a large number of obviously
nontotalitariansocieties-Great Britain, New Zealand, the Netherlands, Sweden, and France, for
example-that survive quite nicely withoutjudicial supremacy.Kramer,supra note 1, at 997. Yet it is
surely relevantto the inquiry,one which Kramerrightlytakes to be an empiricalone, that on issues like
criminalprocedure,freedom of the press when it is irresponsible,freedom of speech for the truly evil
(Nazis, Klansmen, and child pornographers,for example), and a strong separationbetween churchand
state that the United States diverges quite sharply from all the aforementioned countries in its
protectionof the relevant rights. It may be wrong for the United States to be so divergent,but setting
these countries out as models suggests a willingness to accept fewer defendant's rights, free speech
rights, free press rights, and separationof churchand state rights than exist in the United States even in
the RehnquistCourtera. Perhapsthat is where the issue shouldbe joined, for it may well be that it is in
the domain of rights carried by systematically powerless litigants that the argument for judicial
supremacyis strongest.
101. 304 U.S. at 152 n.4.
102. In this sense it is possible that I have fewer differences with the popular constitutionalists
than may appearat first sight. To believe in a modest constitutionwith judicial supremacywithin its
scope is not to object to the people and other branchesplaying the dominantrole in the formationof
national identity and the designation of enduring and fundamentalvalues. In this sense, the popular
constitutionalistsand I have a common opponent: those who believe both that the Constitutionis the
repository for most of the importantquestions about society's values and that the courts are to be in
charge of this process through the vehicle of judicial supremacy.Moreover, it is possible that at the
heart of some objections to judicial supremacyis an unwillingness to relinquishthe former view, that
the Constitutionreally is pervasively substantivelyimportant.But if the Constitution'saspirationsare
to be understood (or created) more modestly, as serving a vital but narrow function, then judicial
supremacywould seem less threatening.
103. A few words are perhaps in order about the decidedly nonhistoricalapproach I take here.
While I embracewith enthusiasmboth the lessons we can learn from history and the less instrumental
value of knowing and understandingthe past just for the sake of knowledge, to view history as having
an authoritativerole in contemporaryissues of institutionaldesign is to embrace a controversialview
aboutthe hold of the past on the presentthatrequiresdeeperexplorationthan is possible here for me or,
indeed, for any of the other participantsin this Symposium. National institutionaldesign is of course
path dependent,and there can be no doubt thatwhat the people and the Framersthoughtand did during
the founding period has profoundly influenced the array of options now available to us. This said,
however, the question about how we should now understandconstitutionalismin general and American
constitutionalismin particularas constrainedor framedby views on those subjects in the past is highly
contested, and my nonreliance on history here can be understood (in this Reply) as an unargued
assertion about the nonauthoritativeness(not the nonwisdom) of the events or views of the founding
period.

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2004] THEMODESTCONSTITUTION 1067

CONCLUSION

It should come as no surprisethat the debates aboutjudicial suprem-

acy track so closely the debates of earliergenerationsaboutjudicial review
and constitutionaltheory.1'04These earlierdebates were about the appropri-
ate allocation of decision-making authorityin a democracy and the more
recent debates aboutjudicial supremacyin interpretingthe constitutionare
but one facet of this largerissue.
The largerissue, however, is framedhere as a debate about the merits
and demerits of popular constitutionalism.If constitutionalismis under-
stood simply as governance, or grandlyas the location for decisions about
the fundamentaland foundationalvalues and ideals of a society, then judi-
cial constitutionalismis an assault on self-rule itself, and dramaticallyin-
consistent with most versions of democraticrule.
But if we understandconstitutionalismmore modestly, it is not about
grandiosenotions of self-rule or nationalidentity. It is not even about what
AlexanderBickel called "enduringvalues."'15Rather,in its most important
dimension, it is about the way in which self-rule is not only about rule but
about self. And if in numerous other dimensions of life we recognize the
importance of constraining as well as empowering the pursuit of self-
interest, we should not be appalled that this dimension of institutionalde-
sign might be reflected in the design of democracy.When we recognize the
importance of second-order constraints on first-orderdemocratic prefer-
ences of both policy and principle, then constitutionalismin this more
modest sense comes to the fore. The modest Constitutionhas ambitions
that are narrowerin scope but greaterin force, and as a resultjudicial su-
premacyand the modest Constitutionemerge as naturalpartners.

104. See Kramer,supra note 1, at 1003.

105. ALEXANDERM. BICKEL, THE MORALITY OF CONSENT (1975); ALEXANDER BICKEL, THE
LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 24 (1962).

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