Hardly anyone today can doubt that constitutional scholarship has reached its lowest point of declension. The studies that have appeared in recent years are distinguished by their singular inability to take constitutional issues seriously. In an older parlance, they do not address regime questions—those questions that bring to light fundamental constitutional principles. They do not do so because, by and large, their authors do not believe that the Constitution contemplates any kind of regime—let alone one informed by fundamental principles. Rather, these studies are more apt to view the Constitution as merely a procedural instrument informed by no ends or purposes beyond the procedures themselves. As John Hart Ely remarks, with his characteristic infelicity, “Contrary to the standard characterization of the Constitution as an ‘enduring but evolving statement of general values’ is that in fact the selection and accommodation of substantive values is left almost entirely to the political process. . . .”1 Thus, the various provisions of the Constitution serve simply as undifferentiated means that are indifferent to the substantive results they produce. Of course, a constitution that is wholly indifferent to the results it produces does not deserve to be taken seriously.
The more intelligent of these commentators, however, use the procedural argument as a way of disguising their ideological liberalism. They are content to argue on the basis of procedures when they are assured of the right results, but when the results do not comport with their ideological liberalism, they criticize results under the guise of criticizing means. These luminaries are quick to point out that in a democracy, constitutional procedures can sometimes go awry. They thus cast the Supreme Court in the role of guarding those procedures, intervening on the appropriate occasions to correct procedural breakdowns. In these instances, the Court is expected to make the decisions that would have been made had constitutional procedures been functioning properly; i.e., producing the right results. As Professor Jesse Choper has remarked, “The task of custodianship has been and should be assigned to a governing body that is insulated from political responsibility and unbeholden to self-absorbed and excited majoritarianism.”2 Choper’s unabashed argument for judicial oligarchy is justified in terms of “the ultimate values that are integral to democracy.”3
Consider, for example, the typical voting rights case, involving a challenge against at-large elections. Such electoral schemes are said to be a violation of the Equal Protection Clause because they “dilute” the voting strength of minorities. The evidence for vote-dilution is said to be the fact that minorities are not elected to office in proportion to their numbers. The assumption is that an electoral scheme that was “equally open” would produce proportional results. When these results are not forthcoming, the inevitable conclusion is that the political process is not “equally open” in the sense that minorities “had less opportunity to elect legislators of their choice.” The typical remedy in such instances is to order an electoral scheme which produces—not indeed the certainty but the probability of—proportional results. Thus the argument always appears to remain on the purely procedural level. This kind of argument, of course, was the hallmark of the Warren Court, and its use has not been abated in the years of the Burger Court.
Barber’s On What the Constitution Means attempts to answer the procedural argument by positing a theory that is “fully conscious” of the Constitution’s ends or purposes—ends that are inferable from the Preamble or from “constitutional logic.” These ends, according to Barber, should be understood “in ways ‘that contribute to some picture or notion of the just and good society, or the moral aspirations of the American people; or moral growth simply” (p. 11). It becomes progressively evident, however, that the principal difference between Barber and his protagonists is that Barber’s guileless liberalism is completely undisguised.
Barber’s “leading assumption” is that “the Constitution has a meaning independent of what anyone in particular might want it to mean” (p. 13). But beyond this seemingly unobjectionable point of departure, Barber has produced a sometimes tedious, but always turgid account of his theory of the Constitution. Barber wrestles with a number of elementary constitutional questions-and along the way, so obfuscates and confuses the issues that it is almost impossible to make sense out of his deleterious diatribe.
Whatever else this book is about, it is not about constitutional statesmanship. As Barber writes, “My aim is to discover what the Constitution means, not whether it is workable” or “politically feasible” (p. 8). Indeed, Barber continues, “if we are to make sense of the Constitution we must understand its provisions in light of an ideal way of life to which those provisions, as a whole, and in a sense, point” (p. 10). Barber throughout describes this as an “aspirational approach to constitutional meaning” (p. 10). The Constitution is always in tension with its aspirations (the “ideal way of life”), and it is this tension which provides the basis for progress, a “value” which therefore has “constitutional status” (p. 9).
According to Barber, the Constitution must be viewed “aspirationally” because of its status as “supreme law.” The supremacy of the Constitution holds out the possibility of injustice because it could appear merely as the imposition of one generation upon another—a “paternalism” which imposes an unjustified “inequality of treatment” (p. 46). But we know that law is something that stands over and against the inclinations of those who are the subjects of the law. If, therefore, the Constitution is to be supreme law, it must be a law that the people have the inclination to disobey, even to the extent of rejecting the Constitution as supreme law. This situation requires the people to possess what Barber calls a “constitutional attitude,” an attitude held “by those who are aware of their inclinations to disobedience and who, accepting the law’s supremacy, seek to reaffirm the law itself and not their conceptions of it” (p. 114). Since, in some sense, the Constitution will always be an imposition of the Framers and therefore potentially unjust, the Constitution, in order to remain supreme law, requires “continual reaffirmation”: “Reaffirmation . . . entails a self-critical search for the best conceptions of constitutional norms—a search, in other words, for the best in us—and a continuing criticism of constitutional norms as ingredients of the good society—a continuing willingness to ask whether the best in us is good enough.” The constitutional attitude, above all, “entails a desire really to be good or to achieve goodness as a society rather than merely to proclaim or assert our righteousness” (p. 115). As Barber laconically remarks, “At the center of this constitutionally ideal state of affairs is a typical citizen, who is governed by an attitude that places the highest social or political value on the activity of reasoning about how one ought to live.” This “constitutionally ideal state” is described by Barber as a “kind of liberalism because it tolerates, even as it works through government to weaken, such unconstitutional attitudes as racism, sexism, self-righteousness, zealotry, willfulness, acquisitiveness, and moral skepticism” (p. vii). The institutionalization of this national self-examination is best typified by such organizations as the Legal Services Corporation and the Civil Rights Commission (p. 176).
Each reaffirmation, however, is provisional, representing only the “current conception” of the best possible in us. Americans have not always lived up to their constitutional potential as this self-critical constitutional attitude has, at crucial times in American history, turned into self-righteousness. Barber adduces several instances which “should be cause for national shame” because they represent the “immorality of self-righteousness.” These include, among other things, “slavery, the Japanese-American ‘relocations’ of World War II, McCarthyism, and the attempts to suppress protest against the Vietnam War” (p. 49). These are instances where the self-critical dialectic with our better selves failed because it lapsed into irrationality, surely an unconstitutional attitude, because the Constitution seeks, more than anything else, to foster reasonableness and rationality. But, as Barber notes, these lapses into “hypocrisy” serve to underscore the importance of a regime of principle. After all, we would not know they were lapses unless we had some notion of a constitutionally ideal state of affairs.
Barber views the Constitution as the means for producing an enlightened reason of state. In fact, Barber’s constitutional theory might fairly be characterized as enlightenment run riot. His position is—quite literally—that constitutionalism requires Americans (at least those with the constitutional “attitude”) to be members of a great debating society. Consider the following desultory argument about how a true constitutionalist would confront the problem of racism. Members of a sovereign state, Barber contends, “accept no authority higher than self-critical reason,” and aspire, more than anything else, “to be and to be recognized as reasoning creatures.” The “racist,” on the other hand, “does not seek to be and to be recognized as such a creature. He joins the sexist, the zealot, the skeptic, [and] the determinist” in making claims that are “beyond the affirming power of reasoning creatures.” The way to end such “patently unconstitutional” practices as racism is “to talk to racists in order to show them that . . . their prejudice[s] [are] indefensible.” As Barber concludes, “the ultimate success of constitutionalists depends on their capacity to enlighten and the capacity of racists to see the reasons why they do not really want to be racists” (p. 93).
Barber does recognize, however, that Madison may have had a point when he remarked in Federalist No. 49 that
In a nation of philosophers . . . reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.
Barber’s answer is that the “constitutional attitude” will foster self-conscious prejudice, prejudice which recognizes itself as prejudice, or perhaps prejudice which knows itself to be merely prejudice as opposed to knowledge or truth (in which case it would be true prejudice?). As Barber notes, “Surely, the prejudiced themselves presuppose, as part of their prejudice, that the laws make sense or would make sense to the very thoughtful” (p. 51). This self-conscious prejudice appears to be at the very heart of the self-critical constitutional attitude that Barber insists characterizes a regime on the way to becoming the best it can be. But it would be a mistake to identify the constitutional attitude with any notion of patriotism because the critical stance engendered by the “constitutional attitude” must be open to the “possibility of [the Constitution’s] failure.” Self-criticism, in short, must always “be open to evidence against assumptions on which the Constitution’s authority depends” (p. 162). If all this makes Barber sound like a fourth-rate Hegelian, his discussion of Roe v. Wade clearly puts him into the camp of the left Hegelians.
Although Barber maintains that there may be reasonable arguments against the claim that there is a constitutional right to abortion, he disdains to engage the arguments. Instead he notes that the criticisms of Roe v. Wade have been fueled by “[r]eligious considerations.” But as Barber duly notes, “true believers” cannot be carriers of the constitutional attitude, because that attitude “can only be understood by men and women who continually subject both their beliefs about what should be supreme law and the Constitution’s claims to supremacy to their best critical effort” (p. 134). And, as Barber insightfully notes, “Such is not the way of those who do not admit a need for inquiry into the highest authority.” Based on a reading of “historical documents,” primarily Jefferson’s oft-cited argument that free government depends upon “the unbounded exercise of reason,” Barber concludes that “we can assume a constitutional preference for a secular society—a society that acknowledges that there is nothing beyond truth itself that is sacred to inquiring minds: no gods, no creeds, no taboos, perhaps not even the ‘inquiring mind’ . . .” (p. 135). Like all the professors of enlightenment rationalism, Barber’s idealism makes it impossible for him to take seriously the possibility of constitutional statesmanship. Barber is evidently incapable of understanding the Platonic statesmanship that he appears to admire because he would not allow “the government [to] lie to those ordinary folks whose passions are not strong enough to withstand the pain of breaking away from the security of the community’s dogmas” (p. 136).
Barber’s failure to comprehend the necessity of statesmanship is most evident in his discussion of constitutional rights. Barber claims that constitutional rights are absolute “trumps” on governmental power. This means that “Constitutional rights . . . are exemptions from granted powers; they remove certain means from those means available to the government for pursuing its authorized ends” (p. 113). According to this view, rights are “absolutes because it is possible for us utterly to defeat the exercise of constitutional powers in honoring them” (p. 141). This, Barber continues, “is an absolutism of the self-critical, not of the self-righteous” (p. 141). But, as Barber fails to note, this is also the absolutism of the self-destructive.
This idea of rights as a kind of categorical imperative was hardly the attitude of the Framers of the Constitution, some of whom surely understood the Constitution in terms of natural right. Madison, for example, wrote of “recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.” In a similar vein, Hamilton wrote that “no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government.” In speaking of the common defense, Hamilton also remarked that
[t]hese powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. (Original emphasis)
Thus, in Hamilton’s view, understanding rights as absolute trumps on the means government can employ to accomplish its legitimate purposes is to deny the possibility of constitutional government itself. As Hamilton wrote, “That best oracle of wisdom, experience” has taught the necessity of recognizing a principle higher than the Constitution which allows for its preservation against the “infinite” exigencies that threaten its existence. As David Epstein has persuasively shown in his recent study of the Federalist, “Madison quietly but unmistakably construes the necessary and proper clause . . . [so that] not only the proper means to the authorized ends, but even those improper means which are necessary are granted.”4 Who can doubt that this, rather than Barber’s “constitutional attitude,” is the genuine stuff of constitutional rule?
Barber dramatically demonstrates the impossibility of his theory of the Constitution in discussion of how a conflict of rights might be resolved from the point of view of the “constitutionally ideal state.” In an ideal state, of course constitutional rights will never conflict. Judges should therefore (at least those with the constitutional “frame of mind”) further the progress of the ideally best state by making decisions in a manner that minimizes the possibility of conflict. Consider the conflict between a reporter’s right to conceal his sources, and an accused’s right to a fair trial. Here is a conflict that confronts us every day. How would a judge with the constitutional attitude decide? A “constitutionally minded” judge, according to Barber, would dismiss the charges, since this is the only action he could take “consistently with his obligation to treat constitutional rights as real exemptions from granted powers[.]” That is, this is the only way a judge could deal with the conflict if he considered constitutional rights as categorical imperatives. Any attempt “to resolve this conflict by honoring one right at the expense of the other,” from this point of view, would be a violation of the judge’s oath “to honor all constitutional rights” (p. 166) Barber seems to have missed the point that the right of the defendant was in fact not honored since without a trial there can be no vindication of the right to a fair trial.
Yet it must be obvious to anyone with eyes to see that there is no conflict here, if, that is, one understands constitutional rights properly. The reporter’s “right” to conceal his sources is derived from the public’s so-called “right to know,” a right which is, at best, only inferable from the First Amendment. Even conceding the fact that the public has, in some sense, a right to know which is derived from the freedom of press provisions of the First Amendment, it is clear that the structure of the Bill of Rights as a whole provides for the protection of individual rights. The individual’s right to a fair trial obviously takes precedence over the derivative right of the public. Only if one is willing to concede that rights as “trumps” are illimitable or categorical—as apparently Barber does—can the dismissal of the charges against the defendant be justified as the only possible way to avoid an unresolvable conflict of rights.
Even more amazing from the point of view of constitutional statesmanship is the concluding argument of the book—an argument involving the reach of the Exceptions Clause. In recent years Congress has attempted to restrict the appellate jurisdiction of the Federal Courts in a variety of “illiberal” ways, ways that Barber describes as the attempt at “legitimizing a self-righteous willfulness that can destroy any possibility of achieving the self-critical frame of mind.” Among the measures that “are completely opposed to the attitudes and values of those who really accept the Constitution’s supremacy” are anti-busing, anti-abortion, and school-prayer bills (p. 205). There is no doubt that the Framers intended to make the power of Congress to regulate the appellate jurisdiction of the Federal Courts a part of the system of checks and balances, but Barber thinks the exercise of this power would somehow compromise the superior view of judicial independence. And, in Barber’s schema, judicial independence is necessary to maintain progress toward a constitutionally ideal state of affairs. Judicial independence is therefore a vital principle of the Constitution, and since the Exceptions Clause holds the “potential” for compromising that independence, it is necessary to regard the clause as “superfluous.” Judicial independence, in Barber’s view, will be the main vehicle for creating “a constitutional state of affairs . . . [where] the strong would not put wealth among their highest values or feel that they had a simple right to all that civil society had helped hem acquire. Possessing a constitutional attitude, the relatively strong would repress willfulness, prejudice, and self-righteousness” (pp. 212-13). For Barber, the exercise of congressional power under the Exceptions Clause is too much like the self-righteous willfulness that is disallowed by the “constitutional attitude.” After all, Congressional willfulness is apt to side with the “relatively strong.”
But what constitutional recourse is there against a nonprogressive or constitutionally recalcitrant judiciary? Barber’s answer is astounding:
A court must be arguably right about the Constitution in order to be seen as a court established by or under the authority of the Constitution. If the courts . . . should persist in decisions beyond the pale, we would eventually decide that we could not reaffirm the rules establishing the judiciary. We would believe at that point that the Constitution had ceased to be effective law and therefore that we were actually in a revolutionary situation. (p. 215)
Thus Barber’s inability to understand the necessities of constitutional statesmanship leads him to contemplate the destruction of the Constitution as preferable to an exercise of power under the Exceptions Clause. It is difficult to imagine that congressional power under the Exceptions Clause is not more akin to a “constitutional attitude” than the device of lapsing into a “revolutionary situation” as a way of curbing the judiciary.5 It should be clear that Barber’s aspirational idealism makes him incapable of taking the Constitution seriously or understanding the fundamental questions that confront constitutional government today. The exigencies that threaten the survival of Western democracies—the barbarisms so well chronicled by Solzhenitsyn—can never be understood from the point of view of Barber’s rampant idealism.
1Democracy and Distrust. A Theory of Judicial Review (Cambridge: Harvard University Press, 1981), p. 87.
2Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980), p. 68 (emphasis added).
3Ibid., p. 9. See generally, Erler, “Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education,” 8 Harvard Journal of Law and Public Policy (1985), p. 399.
4The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984), p. 44.
5Such loose talk about revolution is to be expected from one who believes that “sometimes anarchy is relative to one’s criteria of lawful order . . .” (p. 204).