The Higher-Law Function of the Constitution and Its Unintended Consequences
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By Anonymous, October 6, 2010 in Outside the Classroom

Constitutions describe government and limit their authority.  But they also have normative purposes.  The U.S. Constitution not only describes American governmental institutions, it can legitimate them and tutor Americans on what shouldbe the ends of government.  After 220 years, does the U.S. Constitution still perform these functions?

As of 2010, the Constitution, unlike its state counterparts, has been amended only 27 times, notwithstanding thousands of proposed amendments over the course of its existence.  This suggests the solemnity with which legislators in Congress have treated the law.  Amendments have been effectively achieved by the method of judicial review.  The Supreme Court’s embrace of the power to determine whether a statute comports with the Constitution famously expanded during the last century.  The Warren Court (1954-1969) remains the most notable example of constitutional change from the bench.  That Court’s willingness to exercise its power to strike state laws as contrary to the Constitution has done more than any other element to increase cynicism regarding its role as a political institution.

Nevertheless, the Court retains authority and deference is accorded to almost all of its decisions.  What accounts for this?  It may be, as political theorist Robert Dahl famously argued, that the Court is largely a majoritarian institution.  Dahl, writing in 1957 in the context of the New Deal Court and early Warren Court decisions, argued that the Court was not counter-majoritarian, but rather reinforced legislative policy preferences and was (and should be, in Dahl’s view) a policy-making institution.  Dahl used the concept of a “law-making majority” in order to determine what is a majority policy preference, reasoning that public opinion was usually in line with congressional policies.  Thus, he equated a legislative majority (i.e., the majority that enacts a bill into public law) to a “national majority” of the citizenry.  Similarly, the Supreme Court was usually also in line with the Congressional majority.  If the Court thwarted majority opinion, then it often did so only temporarily, either being reversed by legislative action or eventually reversing or distinguishing prior cases.  Thus, Dahl could conclude that the elite in Congress were not divergent from, or counter to, the majority in the American context.

Dahl was writing in an effort to refute the conventional wisdom among academics of the time that the U.S. Supreme Court was a counter-majoritarian institution.  This was based on the Court’s increasing role during the twentieth century as a defender of individual liberties pursuant to the Due Process and Equal Protection clauses of the Fourteenth Amendment, and in the application of some provisions of the Bill of Rights to the states, such as the Free Speech and Free Exercise clauses of the First Amendment.  The vindication of individual rights often comprises a simultaneous repudiation of a majoritarian legislative enactment.  In this sense, when the Court that thwarts a legislative majority to protect an individual it is being counter-majoritarian.

Dahl had the misfortune to write prior to the 1960s activism of the Warren Court.  The U.S. Supreme Court proved to be a truly counter-majoritarian institution during the 1960s and 1970s.  The Court did not reinforce or acquiesce to dominant values.  The Court participated in shaping public policy through its constitutional holdings, statutory interpretations, and appellate reviews of state supreme courts’ decisions.  These holdings were famous (or infamous) for finding new conceptualizations of individual rights contained in the Bill or Rights or in the Fourteenth Amendment.  For example, in Goldberg v. Kelly(1970) the Court held that welfare benefits were protected by the Due Process clause and a hearing was needed before the benefits could be terminated.  This holding treated state-provided benefits like property.  The Fourteenth Amendment’s Due Process clause prevents states from depriving a person of “life, liberty, or property without due process of law.”  Decisions like this did not merely perform a counter-majoritarian function.  They also put certain public policy issues (such as New York City’s processes for termination of welfare benefits) beyond the reach of simple majorities. 

Thus, not only has the Court performed a counter-majoritarian function, it has also created a new higher law, or law beyond the reach of temporary legislative majorities.  Once a policy preference has been “constitutionalized,” or deemed by the Court to be a matter that has constitutional standards that must be observed when implementing the policy preference as a matter of positive law, then that some aspects of that policy preference have been put beyond the reach of legislative simple majorities.  The Constitution, by its terms, is the “supreme law” of the nation, meaning that any constitutional provision will trump any state policy that attempts to contradict it.  A Court willing to entertain novel theories of constitutional rights will be appealing to political minorities who hope to have their policy preferences protected by the Court since they cannot get their preferences enacted through the majoritarian process.  Simply put, once a matter is constitutionalized, then it often takes a constitutional amendment (or a change in the Court’s jurisprudence on the matter) to allow for elected majorities to exercise their will on that matter.

Is the Constitution still “higher law”?  It is because the Court still recognizes the Supremacy Clause and frequently exercises its judicial review power to protect individuals against majoritarian decisions.  Yet, there is a unintended consequence of this higher-law function.  The function provides incentive for Court majorities to implement their policy preferences with relative immunity from the pluralist pressures felt by the other branches of government.  Courts that are willing to create new rights do so for the very reason that the justices know the public and other branches of government will (usually) abide by its holdings.  Ironically, the higher-law status of the Constitution and the Court’s rulings interpreting it have allowed a subversion of the republican principles of majority rule, which undergirded the Constitution at its creation and continue to resonate with the public today.     

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Lee Trepanier on Oct 9, 2010 at 5:17 pm

I wonder what possible solutions there are to this problem of judiciary supremacy. Would it be possible for Congress to restrict the jurisdiction of the court, or is this merely speculative thinking? It seems to me that the solution lies in re-asserting equality among the branches of government rather than advocating this or that type of justice on the Court. But perhaps this is not a realistic solution?