A review of God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History, by Laurence H. Tribe and Constitutional Choices, by Laurence H. Tribe and A Matter of Principle, by Ronald Dworkin
The title of the first of these books, God Save This Honorable Court, is a wry prayer from one of America's foremost authorities on Constitutional law. Its never-stated petition is that the lives of the sitting Supreme Court Justices be preserved until a more liberal President should come to power. However, because God moves in mysterious ways and does not always answer prayers, Professor Tribe means to set up a second and more reliable defense against the specter of Reagan appointments to fill the vacancies which the laws of nature promise to exact among an aging Court. (The current Court will soon become the oldest Court in American history, with five of its Justices reaching 80 or older before the next presidential election.) The book, rushed into print in the wake of Reagan's reelection, seeks to persuade the Senate that it may legitimately save what God might choose to destroy.
Tribe seeks to make it constitutionally and intellectually respectable for the Senate to reject a nominee not only on the grounds of incompetence, lack of integrity, or failure to adhere to the Constitution, but for a host of other reasons as well. Nominees, according to Tribe, should also be rejected on the grounds that they disagree with some recent important decisions of the Court (the late Justice Frankfurter would be outside the ranks of legitimate nominees today unless he recanted his opposition to the reapportionment decisions); that they do not see that our Constitution has lurched too dangerously in the direction of presidential power; that they do not contribute to a proper balance of political opinion on the Court (which is in danger of tipping too far toward conservatism); that their views are not sufficiently defended, and perhaps even that they are of the wrong ethnic group.
Although Tribe states his opposition to narrow partisanship and asserts that the Court should not be "merely a snapshot of the presently predominant social and political philosophies," the partisan bottom line of his argument is, to put it gently, blatant. Indeed, that seems inevitable given his understanding of the work of judges. According to Tribe, judges cannot avoid choosing among "competing social and political visions," and hence we (and the Senate) must examine nominees closely to be sure that their "choices will reflect our values." Such a standard would raise the Court above narrow partisanship only if "our values" are not-narrowly partisan. But many of our values have been, are, and always will be, narrowly partisan-the clash of faction and party is the very breath of our politics.
We must choose among "our values" to find some that are not simply partisan. Which are they? Traditionally the answer was the true principles of republican government as found embodied in the Declaration of Independence and the Constitution. When the Court upheld the Constitution against our values, we might find in its reasoning the higher principles we had forgotten in our partisan haste. Thus the Court might even contribute to our having principles that were not simply partisan.
But this way to reach the deeper principles of our political life is rejected by Tribe, Dworkin, and today's legal scholars generally. As Tribe and Dworkin see it, the Constitution is full of inconsistencies and indeterminate words, such as "unreasonable search" and "due process." Like some freshman's composition, it often expresses very poorly what it wishes to say (read "no one" for "Congress" in the First Amendment). We must look for principles behind the words, but the text is so incomplete and vague that it provides little guidance toward seeing what those principles are.
If the words of the Constitution cannot guide us to the principles that ought to rule us, neither can the intentions of the Founders. According to these two scholars, it is not only difficult to say what the intention of a collective body such as the Constitutional Convention or the state ratifying conventions is, but even could we determine this, "Why should we permit others to rule us from the grave?" Dworkin and Tribe prefer their rulers live, a preference whose merits are perhaps not quite as obvious as they think. Although technical arguments about whether it is possible to understand the past are often given to support these positions, at root they rest upon the belief that the American Founders did not understand the proper political order very well. Tribe has such little regard for the Founders that he is fond of belittling them by innuendo. At least three times in God Save This Honorable Court he reminds us, tsk, tsk, that the Founders did not even allow women to vote, as though anyone so benighted could hardly have anything to teach us. "Better Tribe or Dworkin than Madison" would be a cry endorsed by both Tribe and Dworkin.
Yet both men, along with the bulk of their professional colleagues, think that the Court should be guided by principle. And everyone agrees that the guiding principle should be equality. We find in these books, as in the dominant legal scholarship generally, some variation in emphasis. Tribe's plural title, Constitutional Choices, reflects his concern with working out choices case by case in various areas of law. On the other hand, Dworkin's singular title, A Matter of Principle, indicates his desire for the reign of the principle of equality. Yet both agree that the principle of the Constitution is equality, and, even more importantly, both understand equality in essentially the same way. Together with many others, they do not see the connection between a proper understanding of equality and an understanding of the limitations of human nature. Consequently they understand equality and its role in our law in a way that is not only independent of the requirements of republican government, but even contrary to them.
The original understanding of equality in the United States was both rooted in an understanding of nature and attentive to the requirements of self-government. It is too little noted that the Declaration of Independence is less directly concerned with individual rights than it is with establishing public rights and purposes. The principle that all men are created equal is not merely a statement about the nature of one particular human being, but a statement about the relationship of one human being to another. As Jefferson put it, it means that "the mass of mankind has not been born with saddles on their backs, or a favored few booted and spurred, ready to ride them legitimately by the grace of God." This equality is compatible with inequalities among men, for that we are equal in the right to govern ourselves does not specify what kind of self we have to govern. When we exercise our rights, we find that some are good speakers, others not; some have deep faith, others do not; some are capable entrepreneurs, others not. Furthermore, our inability to govern ourselves effectively-our inability to keep our rights secure from the deprivations of others-means that our effective self-government requires the assistance of a common government over us all. But government means not only inequality between the governors and the governed, but the public recognition of that inequality which enables some men to be good Senators and Presidents, and others bad. Our consent is required to government because we must artificially establish an inequality not definitively established, but required, by our nature.
The work of republican government is complex, because it must foster the sense of equality upon which it is based, but at the same time, it must allow, and indeed foster, the inequalities permitted in the exercise of one's rights and required for good government. The complicated structure of our government with its federalism, separation of powers, checks and balances, and so on, is meant to help bring about that reconciliation. The institution of judicial review itself serves the same end and can hardly be justified simply on the grounds of equality, even though it may sometimes serve the end of equality. The lordly judge presiding in his court is not, after all, a convincing picture of human equality.
This understanding of equality and its relationship to our political life is rejected by Tribe, Dworkin, and legal scholarship generally. The equality Tribe recognizes is not that which sees that by nature there are no rulers among men, His conception of equality is not rooted in nature, but nature itself is to be judged and, when found wanting, to be captured and changed. Speaking of the issue of sexual equality, Professor Tribe argues that the law cannot justly take account of differences between the sexes except to ensure that those differences do not require a different way of life. If the consequence of sexual intercourse is motherhood for women, but not for men, then it is the duty of the law to see that that burdensome state need not be the consequence. Otherwise something is required of women not required of men. Men and women are not to be regarded as human beings with distinctive bodies, but as entities who are unjustly imprisoned in different bodies. It is the duty of the state to liberate them from those bodily limitations. Although this legal theory continues to use the language of rights, the rights are no longer those possessed by actual human beings with all their human differences and limitations, but those possessed by the equal entities it would create. Consequently, government may direct our lives not only to protect the rights of others and the common good, but to make us equal in our abilities to exercise our rights.
Dworkin argues that the proper realm of judicial judgment is that of principle rather than policy. According to him, principled decisions are ones about the rights people have which stem from the "root principle that government must treat people as equals." Equality looks not to the qualities possessed by actual people, but to the attitude of the onlooker. To treat people equally means to treat them with "equal concern and respect," regardless of the sort of persons they are or the kind of lives they live. Whether a way of life is good or bad should have nothing to do with the concern and respect government must show its practitioners. This view leads him to the conclusion that there is nothing unconstitutional about affirmative action because there is no lack of concern and respect for the white workers who are admittedly its discriminatory victims. Discrimination against blacks, on the other hand, is unconstitutional because it is based upon prejudice against blacks. Similarly laws against homosexuality are unconstitutional because they are rooted in contempt for the homosexual lifestyle. "We can only harm others if we have a good will" might be Dworkin's Kantian motto.
One wonders whether this view provides a solid basis for our law, quite apart from even greater concerns. Can one be so sure that affirmative action is free of contempt for the formerly oppressive class? Is it so clear that the majority argument in Plessy v. Ferguson, which rested on the premise that blacks do not need to regard legal separation as a sign of inferiority, shows contempt for blacks? Perhaps, to the contrary, it expected too much from them. To base the constitutionality of our laws on the quality of the attitudes and emotions they allegedly contain seems a slippery slope indeed.
For Dworkin there are no principles of republican government; rather, all decisions of principle are decisions of right against government. Government has no dignity for him because its dignity is to be found in our peculiarly human nature, and his understanding of equality is divorced from that nature. As Aristotle taught, it is in politics that the uniquely human ability to discriminate the just and the unjust comes to fruition through speech. This speech distinguishes men from beasts who know nothing of justice, on the one hand, and from the Deity whose wisdom requires no discussion on the other. Politics is a realm in which men grope for justice and hence it embodies both the dignity and the limitations of human nature. When equality is understood as the judge and master of our being, rather than a reflection of our nature, we become unable to make the necessary distinctions of civilized, political life. We cannot see, as Dworkin does not see, that republican government requires that concern for all be tempered by respect for those who use their rights well or show the qualities of excellence our common life requires. We become unable to distinguish the beasts who have assumed human form among us, and hence we cannot appreciate those who are truly self-governing. And without studying human nature we cannot appreciate and preserve the principles, integrity, and reason of the Constitution.