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Constitution as Judicial Creed

-- By DanielButrymowicz - 12 Feb 2008

Preliminary Notes:

All comments are welcome.

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.

Arnold points out that, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears." In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend."

American culture has certainly internalized this principle. Our constitution is regarded as containing the wisdom of our forefathers (this creed's heroes). It is impermissible for any political or judicial decision to "violate" the constitution. Unfortunately, since the constitution is so often silent, it is difficult for most people (or perhaps all people) to determine exactly when it has been violated. This creates a "fundamental problem" akin to the inability to determine guilt from innocence (Frank). There is no empirical or observable way to determine if unanticipated and attenuated social situations conform to the constitution as framed by our forebears. Instead, we employ magic.

Constitutional magic manifests itself most visibly in the form of the Supreme Court. In order to determine if a decision comports with our creed, we send it to nine wise elders (usually men) who are able to discern whether or not it is constitutional or unconstitutional. The entire process is a ritual. Magical/ritualistic elements permeate oral arguments. The nine "justices" (named so as to indicate that they represent an unbiased and objective ideal) wear flowing robes, have special and sacred titles (your honor), and command rituals to show respect (standing until they are seated). The court begins its sessions with a traditional ritualized chant ("Oyez, oyez, oyez...").

The magic of the criminal process occurs largely out of the public eye. It is easy for the general public to believe the system is working. They generally don't watch actual criminal trials. Instead, television and movies provide a dramatized view of the criminal justice process in which the system usually catches and convicts the bad guy, or lets off the innocent guy.

Constitutional magic, on the other hand, occurs more publicly. Supreme Court decisions are often highly anticipated and highly publicized. Further, Supreme Court decisions frequently have direct political and/or social implications (Brown v. Board, Roe v. Wade, Bush v. Gore). These cases tend to be the central front in a conflict between competing sub-groups both attempting to use the constitutional creed. Both sides seek to claim the mantle of "constitutionality" for their political/social agenda. This leads to an interesting split after a decision has been handed down. Typically, both sides will still attempt to retain the mantle of constitutionality. The victorious party will claim that the magic has been successful and that the constitution has been correctly interpreted and applied to the present issue. The losing party will claim that the court used inappropriate magic, and insist that the case was "wrongly decided." Both of these approaches take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court as a magical mechanism for determining the validity ("constitutionality") of various movements.

Constitutional magic is far more self-conscious than criminal magic. In criminal proceedings, the correct ritual is easy to identify. The facts of the case are applied to the law, providing a clear result. The attempts by competing ideologies and interests to claim the mantle of constitutionality has led to a self-conscious examination of the different magical approaches used and arguments over which should be applied. There is no more objective/observable reason to consider the constitution a "living document" than to decide constitutionality based solely on its text. Arguments can be made for the intent of the framers, but their intents often conflicted.

Evidence indicates that many justices take a fundamentally functional tact with their decisions. This can be seen perhaps most clearly in so-called "structural" or "prudential" arguments (i.e. Presidential Communications must be privileged in order to give the President the necessary freedom to use his executive power). Even in those instances when the court is making policy arguments, they still feel the need to ground their arguments in the magic of "constitutionality." Perhaps, then, constitutionality has become (or is becoming) a political "fact" akin to democracy. Perhaps the judiciary has determined, as has government, that they need to continue to provide an appeal to emotion to justify their existence to the majority of people while being practical behind the scenes and making "constitutionality" fit whatever policy the believe appropriate in a given instance

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