Ira L. Strauber is Professor of Political Science at Grinnell College.

Neglected Policies-CL

By IRA L. Strauber

Duke University Press

Copyright © 2002 IRA L. Strauber
All right reserved.
ISBN: 9780822329459

Chapter One

The Purposes of an Interpretive Community

[To] argue in a lawyerly fashion today is not to argue the way a lawyer would have done fifty years ago, although both the lawyer of today and the lawyer of fifty years ago would, if competent, fit comfortably within … an interpretive community.

The community consists of advocates, who undertake through the interpretation of legal materials (texts) to advance their client’s cause; the judges, who pick and choose among arguments and engage in disinterested interpretation (disinterested at least in the sense that it is not oriented toward one’s client); and the teachers and critics, who evaluate outcomes and seek to shape tomorrow’s results.-Harry H. Wellington (1991)

With these words, Harry Wellington, former dean of both the Yale Law School and the New York Law School, matter-of-factly posits the existence of a collective discursive enterprise constituted by three separate, yet interdependent conventional activities-advocacy, judgment, and scholarly analysis-all of which are shaped and animated by the intellectual authority of legal reasoning and arguments about legal texts.

This book challenges readers to question, very deeply, the intellectual and political implications of the enterprise Wellington characterizes for us. In particular, I argue that a gulf exists between the reasons and arguments made in the course of the first two activities (advocacy and judgment) and practical and quite common social, economic, and political conditions and relationships. This gulf is perpetuated largely because these conditions and relationships are neglected by teachers and critics and their audiences, who, intentionally or unintentionally, too closely mimic the reasoning and argument mode of litigators and adjudicators. Admittedly, there are some adjudicators, litigators, and teachers and critics (inside and outside law school) who are alive to the existence of this gulf. But by and large their descriptions and evaluations of it are framed in such defiantly ideological or partisan terms that the gulf is merely reproduced in ideological or partisan forms. (Much more of this later.) Some others, of course, do see more deeply into the gulf than their more ideological or partisan colleagues. Consider for instance those in the interpretive community who commented on the misleading way oral arguments before the U.S. Supreme Court framed issues in the assisted suicide cases of Vacco v. Quill and Washington v. Glucksberg (1997). But such recognition of the gulf between legal commentary and neglected policies is not only relatively rare but also is not perceived as fundamental to commentary as civic education. Making it fundamental is what I want to do in this book.

This first chapter defines and elaborates on the concepts of the ideology of involvement, intellectual jurisprudence, political sufficiency, and agnostic skepticism. These terms establish the context for the analytic points I make throughout the rest of this book about the gulf between legal reasoning and politics, why it is costly to constitutional and legal commentary, and how commentators might go about reducing those costs and recovering neglected policies. Let me begin then with a full description of all four terms.

The term “ideology of involvement” refers to the current self-image of teachers and critics in relation to litigators and adjudicators. “Intellectual jurisprudence” refers to the scholarly habit of mind that accompanies this self-image, specifically in regard to legal reasons and arguments and the intellectual authority of the Supreme Court as the pinnacle of the judicial system. The term “political sufficiency” refers to alternative reasons and arguments for commentary that put a brake on intellectual jurisprudence. And “agnostic skepticism” refers to an alternative self-image that reorients teachers and critics both to the ideology of involvement and the significance of more common relationships and conditions. The specific roles these four terms play in promoting a politically more constructive constitutional, legal, and political discourse will become apparent in a closer examination of Wellington’s words about the purposes of constitutional commentary.

The Ideology of Involvement and Commentary as Civic Education

You will note that Wellington’s matter-of-factness about the interpretive community is so deep-rooted that he does not think it necessary to provide either a historical or a theoretical defense for its existence. Apparently, both its history and its theory are sufficiently established by reference to the activities of its three constituencies and by the allusion-in those words about lawyers being members of the same craft even though legal methods may change-to the community’s stability over time. There are, as it happens, some very good reasons to treat the interpretive community in this matter-of-fact way. First, as John Brigham has so aptly (if not approvingly) put it, legal “professionalism has come to characterize the interpretive community” (Brigham 1987: 73-74), so much so in fact that few would challenge the conviction that the intellectual skills of lawyers make the interpretive community what it ought to be.

Second, Wellington’s implication that each of the three constituencies is a full partner in the community resonates with participatory democratic values deeply embedded in the civic culture. In fact, I suspect that commentators outside law school, as well as journalists, undergraduates, and perhaps even politically active citizens, readily and comfortably read themselves into Wellington’s little portrait of a community wherein they play the role of the judiciary’s watchdogs and agents of social change.

Third, and most important for the concerns of this book, Wellington’s words bespeak an ideological self-image (Bourdieu 1977) that shapes and motivates the academic enterprise of commentary. This self-image, which I refer to as “the ideology of involvement,” is structured by a set of beliefs and values implicit in the idea that constitutional interpretation is a form of civic education.

By “civic education” I mean the lessons that litigation, adjudication, and commentary are supposed to teach about the conservation or, alternatively, the transformation of law, policies, and culture in a liberal-democratic polity. The idea, both within and-equally important-outside law school, is that all those who engage in constitutional and legal commentary thereby help to articulate competing visions of lawmaking that are essential to building a vibrantly free political community. They believe also that a partnership in commentary is indispensable for maintaining a connection between the creed of democracy and the rule of law. Most especially, they have the deeply held belief, as Wellington’s portrait implies, that the text of the Constitution alone, by virtue of its being an object of legal adjudication and commentary, is sufficient to constitute participation in the interpretive community for all those who engage it.

There is no denying one commendable consequence of this ideology: it elevates the academic and journalistic enterprises of commentary so that all those who purposefully engage in them may see themselves as contributors to the intellectual, moral, and even spiritual understanding of law and policies. It could be argued that this assessment of commentary and those who practice it owes much, historically and theoretically, to the Protestant ethic, whereby education-especially civic education-is encouraged as essential to preserving democracy and intellectual vitality in a free polity (Madsen 1994). But finally it is more to the point to locate the roots of the idea of commentary as civic education in a relatively recent conception of scholarship and the political role of the Supreme Court. Pursuing this inquiry will permit us to gauge just how far commentary’s view of itself is to be commended.

The Ideology of Involvement and the Supreme Court

It was Eugene Rostow, arguing that the “democratic character of judicial review” would advance the cause of individual rights, who most prominently fostered the academic belief that civic education was one of the Supreme Court’s main functions. Rostow portrayed the Court as the institution in American politics responsible for developing comprehensive moral principles in the face of the politics of expediency practiced by the legislative and executive branches of government. Thus the Court was to be seen as an “educational body,” and the education it offered concerning the nation’s fundamental “moral code” had the potential to constitute a “community experience” that would revitalize and motivate democratic forces in the polity to move toward social change (Rostow 1952).

In portraying the Court as an agent of civic education and social change, Rostow was inspired by hope and a felt necessity to build a bridge from the Court to the populace and thereby offset objections that judicial review was hierarchical and antidemocratic. This hope of casting the Court as an agent of community opinion is no less powerful today among contemporary teachers and critics than it was for Rostow half a century ago. It is true, of course, that over the intervening years both political events and social science should have made us more skeptical about civic education. For example, the Warren Court did teach us about how Supreme Court litigation and adjudication may encourage social change and inspire a polity and its citizens to higher political and moral aspirations. But juxtaposed to those lessons are others learned from experience: that Court intervention may inflame public prejudices as much as it may educate to egalitarian civic values, and that judicial intervention may just as easily supersede or immobilize as encourage broad-based political action. There is, in addition, considerable social science evidence that courts and law are in many instances rather feeble instruments of social change (Rosenberg 1991).

Moreover, despite the role that legal rights and the consciousness of them have played in mobilizing political constituencies to action at all social and economic levels (Minow 1987, 1990; Cain and Harrington 1994; McCann 1994), too many citizens are too ignorant of the Court as an institution and usually too oblivious to its opinions to participate in Court-conducted civic education in any meaningful way. And as if this weren’t enough, there is evidence that many citizens are increasingly cynical about participation and less willing than in the past to take part in associational activities that help build citizenship (Fukuyama 1995; Putnam 2000).

Yet even in the face of such sobering considerations, there is ample evidence, on both the left and the right, that Rostow’s image of the Court as an agent of civic education remains a central tenet among teachers and critics, who eagerly accept leadership from the law school community. Consider five of our most prominent scholars, all of whom clearly have had an impact on commentary inside and outside law school. Each of them invents an encompassing phrase-like Wellington’s “interpretive community”-to convey two convictions: that there is, and ought to be, an educational relationship between the Court and the populace, and that academics (if not necessarily journalists) have a role, if not the crucial role, via legal and political commentary, in this Court-centered process of civic education.

Ronald Dworkin, one of our most prominent legal philosophers, views the Court as a “forum of principle” that is supposed to check and balance the interest-based orientation of politics as usual. Academic constitutional commentary, for its part, is supposed to watch over “modern constitutional jurisprudence” by evaluating how well constitutional opinions protect the rights of minorities from the politics of mere political prejudice (Dworkin 1984:31). In other words (to quote Dworkin’s extended metaphor), although the courts may be the “capitals of law’s empire, and judges … its princes,” they are not “its seers and prophets.” Rather, it “falls to philosophers, if they are willing, to work out the law’s ambitions for itself … within and beyond the law we have” (Dworkin 1986: 407). This ambition for the philosophically inclined echoes Rostow’s conviction that the Court has the responsibility to teach egalitarian political and moral lessons; it also amplifies it by assigning academics a central role in overseeing the work of the Court.

On the opposite side of the political spectrum is Robert Bork, who, as judge and scholar, shares with Rostow and Dworkin the conviction that the Court is responsible for sustaining a “community of ideas” for the polity at large (Bork 1990: 249). Dworkin and Bork diver, of course, on the legitimacy of majority power and the extent to which the text of the Constitution protects minority rights. Bork has been one of the most vocal advocates of the position that it is the task of academics to criticize a Court that fails to protect legislative majorities from those who use judicial power to advance the merely private and transitory prejudices of intellectual elites at the expense of the many (Bork 1990: 249). The point is that, despite their disagreements, on substance, they do agree that academics should watch over constitutional and legal ideas to ascertain whether the polity is headed in the correct direction.

Laurence Tribe, one of the more visible constitutional scholars and Supreme Court litigators, writes in much the same vein as Rostow, Dworkin, and Bork about commentary as civic education. He and coauthor Michael C. Dorf use the term “conversation” to characterize the activity that connects the Supreme Court and its academic commentators. For them, the Court instigates public debate, and commentary’s contribution is to help the polity discover how judicial opinions indicate the “nation we are becoming” (1991: 31, 110). James Boyd White, who seeks to bring the insights and criteria of literary analysis and poetics to bear on commentary, expresses the same thought when he writes that the Court and commentary constitute a “community of discourse” that conserves, critiques, and transforms fundamental constitutional, legal, and political values of the polity (White 1990: 267).

The similarity of terms is not a coincidence. Each of these scholars shares the conviction that commentary is politically indispensable. They, and those who read them, bear witness to the ease with which teachers and critics accept Wellington’s characterization and betray their and their readers’ susceptibility to the ideology of involvement. But to the extent that there is social truth to this ideology of involvement, in the sense that it conveys important beliefs and values operative in academic practices, it also represses-as ideologies frequently do-other aspects of the social truth it would constitute. To understand what I mean by this reference to repression, we need to reflect further on the significance of Rostow’s attempt to defend judicial review as a democratic institution.

Intellectual Jurisprudence and Other Academic Realities

In conceiving of the Court as an educational body, Rostow assumed that Court activism in defense of individual rights both reflected and encouraged a political consensus for civil liberties and social change (Smith 1985: 89). Whatever the validity of that image of judicial activism, the social truth it repressed was that, even then, the defenders of activism had seen but could not resolve the contradiction between their approval of post-New Deal judicial review in the name of civil liberties and their disapproval of pre-New Deal judicial review in defense of fundamental economic rights (Wolfe 1986: 25). The attempt to resolve that contradiction has helped produce a mass of commentary about such now familiar issues as neutral and general principles, the paradox of due process, traditionalist versus adaptationist conceptions of the competence of courts, Framers’ originalism, Coase’s theorem for an economic analysis of rights, the nature of legal rules and principles, textualism, interpretivist and non-noninterpretivist theories of the Constitution, and the influences of race, gender, and class on legal reasoning. Yet, despite its failure to resolve these issues, this literature is still dominated by the conviction that the Court and its commentators are the ultimate civic educators about judicial review, constitutional democracy, and fundamental rights.

Continues…
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