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Constitution as Judicial Creed

-- By DanielButrymowicz - 12 Feb 2008

Preliminary Notes:

All comments are welcome.

In the canonical series of cases about the political question doctrine, the Supreme Court often emphasizes that they can't hear a case unless there are "judicially manageable" and observable standards by which they can decide the issue. Similarly, they claim to be constitutionally barred from hearing a case where the issue is "textually committed" to another branch.

It seems that the justiciability doctrines could be described as: "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally."

Our legal and political obsession with "constitutionality" has all the trappings of a creed. What is or is not "constitutional" has little to do with the actual document and more to do with centuries of confused socio-political decisions by various groups of nine justices. The doctrines are complex, confusing, and often contradictory. And yet, people and groups who know nothing about constitutional law constantly assert that Roe v. Wade is unconstitutional, or that prayer in schools is unconstitutional, along with any number of issues that involve complicated questions of constitutional law.

Or perhaps the "constitution" creed has evolved past "creed" status. Perhaps it has become what Arnold describes as a fact of the world, like democracy. There is debate about what is or is not constitutional, but essentially never about whether the constitution should be abandoned altogether.

Then there is the issue of the constitution as magic. Much has been read into the constitution over the lifetime of the country. To this day, Justices make tortured connections between the text of the document itself and modern political situations that could never have been foreseen by the framers. Does the constitution provide a right to abortion? Does the constitution prohibit the death penalty? Questions like these are not addressed in the text. So society deals with them the same way people deal with the fundamental problem of determining guilt.

Since we (especially the laymen) do not appear to have discovered an observable/technical means of determining what is or is not constitutional, we rely on the magic of the Supreme Court. The idea that the Supreme Court is able to accurately determine the constitution's view on present day issues is magic. It's a ritual; a way of justifying decisions that are often made (with varying degrees of transparency) for reasons of policy or social or political preference.

Hopefully I can distill these general thoughts into a clearer and more concise idea. Any suggestions on what to focus on would be appreciated.

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Section II

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