September 01, 2014

Advance Sheet: Know Your Political Theory

The Constitution is not a mere code of laws; it needs special care and consideration whenever one goes to construe it.

Robert E. Shapiro

“[W]e must never forget that it is a constitution we are expounding.” These words, of course, even the italics, are those of Chief Justice John Marshall inMcCulloch v. Maryland, explaining the perspective from which he would construe the Constitution’s “necessary and proper” clause. 17 U.S. (4 Wheat.) 316, 407 (1819). They are often quoted by interpreters of and commentators on the Constitution, and they nicely communicate that the document is something lofty, out of the ordinary. As Marshall emphasizes, the Constitution is not a mere code of laws, nor catalogue of powers or procedures. It needs special care and consideration whenever one goes to construe it.

But what is it exactly? What significance is there to its being a “constitution”? What is a constitution anyway? Marshall doesn’t say. At least one prominent constitutional scholar has gone so far as to describe Marshall’s silence on the point as proof that his words are “an essentially vacuous bon mot,” one of those high sounding phrases that really does not tell us anything. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 161 n.15. (Univ. of Chi. Press 1985). Marshall seemed to think the point spoke for itself. Apparently, it doesn’t, at least not anymore.

What makes a constitution a constitution anyway? It’s striking how infrequently the matter is considered. The term originates in political theory. In ancient times, a politeia—translated as “constitution” or “regime”—represented the structure of politics in a city, the way things were done in public life, which for the ancients often meant in private life as well. The politeia preceded the day-to-day functioning of the city or any rule making domestically. Most famously, it was the title of what we now call Plato’s Republic, which is a discussion of the different ways a regime could be structured, culminating in the “best” regime or political structure, the rule of the philosopher-king.

A constitution was always at least as much about how as about what. Constitutions or regimes could comprise the rule by one, few, many, or some mixture of the three. They represented the essential political choices the city had made about the kind of government it would have. And because the political structure was viewed in the ancient world as decisive for people’s lives, it determined the fundamental way of life of its citizens in all or most respects.

In the modern world, particularly in the liberal West, we tend to separate our personal lives from our political ones, and so the term “constitution” became a reference to the structure of the latter alone. This is what Marshall seems to be referring to, the fundamental kind of political institutions we have and what they allow government to do. In our own case, this political structure is a republic, grounded in the people who act through representatives derived from them. It thereby conforms to the “republican principle,” which requires that the only laws the people must obey are those they make for themselves. It is, in the great phrase Lincoln championed, government “of the people, by the people, for the people.”

The Constitution and Political Structure

Our Constitution sets out this political structure and establishes proper procedures. It is not a statement of rights, the principal exception being the Bill of Rights. So convinced were the founders, however, that the right structure would ensure the right outcomes, many of the founders deemed the Bill of Rights superfluous. This is why these rights appear as amendments, later additions, to the Constitution.

In short, the Constitution is a political arrangement of powers “deriving its just powers from the consent of the governed,” as the Declaration of Independence alternatively put it. It is a structure designed not to create rights, but “secure” them. All debates about its terms have this high political, even theoretical, character. In his McCulloch decision, for example, Marshall was pitching his argument not on legal precedent, but on the political logic of the document. Notably, the principal authority he finds he must take issue with is not legal precedent but the very different view of the Necessary and Proper Clause stated in The Federalist, which in turn, relies little on legal reasoning.

So when Marshall says he is “expounding” a “constitution,” he means he is deciding based on the theoretical or structural underpinnings of the document. Necessarily, in Marshall’s day, this was a reference to “natural rights theory,” as it emerged from the writings of Thomas Hobbes and John Locke. The most important rights are natural (“endowed” by men’s creator), and government protects those rights, rather than creating them itself. It also, thanks to William Blackstone, incorporated the common-law process of divining rights, natural and legal, through deep reflection on human life and the long study and application of legal precedent.

Campaign Finance

It is striking, in light of this analysis, how little the Supreme Court and even constitutional scholars seem to understand the theoretical circumstances from which the Constitution arose or revert to political theory in applying it. When they do, it’s often mere and inapt window dressing. A particularly troubling example of this appeared in McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014). There the argument concerned the distinction created by the Court’s very first consideration of campaign finance reform in Buckley v. Valeo, 424 U.S. 1 (1976). This was the difference between contributions and expenditures. Essentially, Buckley had ruled that while Congress could regulate contributions to campaigns consistently with free speech, it could not properly regulate a person’s own spending. That distinction has been applied ever since, most (in)famously in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which ruled that the Constitution prohibited any restriction on independent expenditures by corporations and unions, as with those of natural persons.

In McCutcheon, the focus was on contributions rather than spending. Specifically, it asked whether the cap within the campaign finance laws on total contributions by a single person was constitutional. In accordance with Buckley’s distinction, which allowed controls on contributions, it would seem that it would be permissible for Congress to limit not only the amount one may contribute to a candidate but also the total number of contributions of that amount any person could make, so long as it served some legitimate purpose.

This was, surely, an unlikely place to find a reference to political theory. But when the majority ruled that the Constitution did not allow such an aggregate restriction, Justice Breyer demurred and offered one as part of his proof. The majority had opined that the only concern about money in elections, and therefore the purity of representation, was one of corruption, essentially purchasing a candidate’s loyalty. Because there was no ostensible connection between the aggregate limit and corruption, Chief Justice Roberts reasoned, a limit on aggregate contributions could not be constitutional. Twaddle, Justice Breyer insisted—there are many ways in which money can negatively affect the purity of elections and representation and therefore be regulated in defense of the republican principle. In a close vote, the Court decided regulation was not permissible.

Representation is an important aspect of both liberal democratic theory and the republican principle, certainly. If the goal is for people to have to obey only laws they’ve made for themselves, through their representatives, representation needs to be as untainted as possible. So it is at least mildly surprising that Chief Justice Roberts offered so little to support his view that direct corruption was the sole concern. But as bad as that neglect was, Justice Breyer’s opinion contained something far worse, a quotation from the works of Jean-Jacques Rousseau to support his contrary view.

This was a historical blunder of the first order. There is absolutely no evidence that any of the drafters of the Constitution had read, let alone were influenced by, the writings of Rousseau. Thomas Jefferson may have read Rousseau’s works during his trips to France, but he was famously (and probably fortuitously) not at the constitutional convention itself. And no one else seems to have known or at least relied on Rousseau at all.

Breyer’s gaffe might have been forgivable if Rousseau’s ideas were appropriate to the discussion. But what makes the anachronism all the more telling is that Rousseau’s understanding of representation, not to mention of human nature, government, and the operation of the republican principle, was very different from that of Hobbes and Locke. Rousseau gives representation an almost mystical character, a qualitative transformation that occurs between the people and their representatives, in place of the more prosaic approach of expressed desires and the application of judgment that occurs in liberal democratic theory.

Simply put, Rousseau’s ideas, which were never part of the thinking that went into the Constitution, are in some sense antagonistic to that thinking and literally have no place in the interpretation of the document. It’s a little like using Einstein’s theory of relatively to explain Newton’s intention and thinking. The two scientists hardly see the same universe. What’s worse is that Justice Breyer seemed to have no comprehension of this fact. He seems to have ransacked the history of political theory to find a suitable quotation, ignoring both its historical and theoretical context.

But one should not single out Justice Breyer. He is hardly the only, or even the worst, offender. In the famed handgun decision of 2008, Justice Scalia used a quotation from William Blackstone as part of his argument. Blackstone at least occupies a place within the tradition of intellectual thought leading up to the Constitution. But his ideas, like Locke’s, were still seriously revised by the founders before being used. It is misleading at best and sophistry at worst to cite to such authorities without considering how they fit into the tradition and showing how they apply to the existing issue.

Such flaccid thinking seems unfortunately characteristic of much constitutional analysis these days. A recent example is an influential book by an eminent University of Chicago law professor who recommends that the Court use a “common law” approach to interpreting the Constitution. David A. Strauss, The Living Constitution (Oxford 2010). The idea is that the Court should engage in a slow development and adaptation of the Constitution’s terms based on developments in social trends. At the appropriate point in this development, it can replace existing analytical categories with different ones that set the Constitution on a new and arguably better ground. Numerous examples of this “common law” process are provided, though some seem not really to conform to what is described. It is questionable, for example, that Brown v. Board of Education changed the analytical categories used in Plessey v. Ferguson, as the author claims, rather than just rejecting Plessey’s invidious conclusions.

But there are larger problems. First, if one looks at the index to this volume, one will find no reference at all to Lord Coke, perhaps the greatest exponent and explainer of the common law. Blackstone, too, gets short shrift. Perhaps then it is not surprising that Strauss’s “common law” reasoning has very little to do with what these giants of the common law, who were read by the founders, were themselves talking about. As practiced by the common lawyers, common law reasoning did not entail the evolution of principles in an historical way. The whole idea of this kind of historical evolution did not even exist at the time of Blackstone, let alone Lord Coke (it actually starts with Rousseau). Rather, the common lawyers thought the principles they were discussing were fundamental and unchanging principles of human association. They were hard to discern and were worked out case by case by those steeped in the precedents and accustomed to deep and careful legal reasoning. But they were immutable, if not exactly exoteric, principles.

Not surprisingly, Strauss gets his idea not from any common law source but from an interpretation of the writings of Edmund Burke. To say this choice is peculiar is a considerable understatement. Burke was not a common lawyer. In fact, he abandoned the study of law at an early age. More important, in his writing, he takes on the mantle of the great opponent of the entire doctrine of “natural rights” and liberal democratic theory that underlies the Constitution as a whole. What is being suggested is no less than that we should interpret the Constitution through the political ideas of a thinker who rejected the Constitution’s basic premises. This is no minor quibble. To take Burke’s idea of the progressive development of basic principles by adverting to the convention and custom in a particular country—what later, somewhat ironically, morphed into historicism, an idea Burke would have abhorred—and simply apply it to a document based on diametrically opposed ideas is to invite real theoretical and practical confusion.

Of course, an argument to use Burke in constitutional decision making could be made notwithstanding. It just isn’t. The use of Burke seems as ill-informed as Breyer’s use of Rousseau, neither of which fits comfortably within an ordinary constitutional analysis. In both cases, the writer seems to have no idea that the use was improper at all.

So what, you may say? It is a big “what.” Ideas make a difference, particularly political ideas when construing our most basic laws. “[W]e should never forget it is a constitution we are expounding.” Chief Justice Marshall’s call for informed and clear understanding of the political, structural principles underlying the Constitution, so different from the ideas of Rousseau and Burke, and in some ways even Blackstone, is a reminder to us, our justices, and our scholars to know what we are talking about. Only then will we have the clarity and good judgment that expounding a constitution—our Constitution—requires.

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.