McGinnis: The Court as Schoolmaster

The Court serves a bigger purpose than resolving controversies and cases, he argues.
In a notable essay, University of Chicago political theorist Ralph Lerner captures this essential function of the Court. The Court is, in his terms, “a republican schoolmaster,” bringing to life the enduring text of our fundamental law and applying it to a new age. As Lerner notes, Alexis de Tocqueville saw the Court early in its tenure as “the educator, molder, or guardian of those manners, morals, and beliefs that sustain republican government.” The Court thus has an educational task—bringing each generation back to consider anew the foundations of the American republic.

The Roberts Court faces a tough task because it must speak to the American people through channels in which most messengers and interpreters—the press and the academic world—are radically hostile to its messages. Indeed, their hostility is magnified by the recognition that Court is now the one institution historically dedicated to reason, which progressives do not control. Progressives may have an easier time accepting that elections may sometimes go against them: politics can be dismissed as an arena of base interests and manipulation. But when an institution dedicated to reasoned deliberation and interpretation is not aligned with the progressive program, it creates a serious threat to progressive hegemony over social thought. The Court’s opportunity to contest that hegemony and restore the fixed foundations of our republic thus provides the crucial social context of its opinions this term.
Ironically Martha Nussbaum made a very similar argument in her works aimed at getting the Supreme Court to endorse gay marriage and similar practices. The court's rulings serve to teach the public about morality, showing them how to fit together questions of religious or cultural traditions, emotional processes like disgust, and ideals of fairness and equality. People may have been raised to view homosexuality as immoral, but the court by its example can teach them to view it in another way that is more sensitive to the feelings of their fellow Americans who happen to be gay.

This is a similar project, except that the thing being taught is to resolve these matters in ways that accord with our democratic political tradition:
...the Constitution’s text should ideally be understood today as the Framers would have understood it. And the Court makes clear the benefits of its interpretation to the public. On controversial issues on which the Constitution is silent, democracy offers the flexibility to make varied compromises over time....

Because the dissenters cannot contend that anyone thought that the provisions of the Constitution at the time of their enactment contained a right to abortion, they advance three distinct attacks on the majority’s originalism. First, they suggest that, at least on issues of concern to women, the document’s original meaning may not be binding, because women did not participate in making the Constitution. It is true that women did not vote to ratify either the original Constitution or the Fourteenth Amendment. But how does it follow from that observation that the Constitution should be interpreted to include a right to abortion? No evidence suggests that if women had voted in the ratification process that a right to abortion would have been on the agenda. Even now, the percentages of men and women who favor and oppose abortion rights are roughly equal....

...the Constitution provides a mechanism for evolution: the amendment process. In contrast, there is no provision that delegates to judges the authority to “evolve” the Constitution. Indeed, in his famous defense of judicial review in Federalist 78, Hamilton was at pains to dispel the anti-federalist fear that equitable interpretation would give the courts the freewheeling authority to consolidate all power in the federal government. Not so, said Hamilton: they would be bound by “strict rules.”

The Supreme Court has been the favored mechanism for altering the Constitution for decades because amendments are very hard to come by. They require a level of consensus almost impossible to achieve in America today. Yet by insisting on them, and rolling back to the Constitution as it was adopted rather than as it was adapted by earlier Courts, the Supreme Court is being genuinely conservative. They could move faster, even though their present speed appears to scare the Democratic party a great deal. They are, instead, simply rolling back and insisting on change coming through the democratic process.

That may, indeed, teach people to use that process again -- and how to use it. 


E Hines said...

They [the Supreme Court] could move faster, even though their present speed appears to scare the Democratic party a great deal.

If the Progressive-Democratic Party is so scared of a Court ruling on what the text of our Constitution actually says, its members could stop bringing so many of their beefs to the courts, and they could accept more readily appellate court decisions.

But it's easier to fight and lose--and so have something to whine about at the tops of their lungs--than it is to do the hard work of getting enough consensus to alter statutes, within the bounds of our Constitution, or do the harder work of getting a much larger consensus on what our Constitution actually says. Roe, for instance, was a ruling largely in the making over the last 50 years by others will to do the work and fight the fight.

It's also easier to shoot for the moon and get an occasional ruling that lets them impose their will on all of us.

But patience isn't a strong suit for Progressive-Democrats. After all, of the four oldest Justices currently sitting, two are textualists, and one is a squish conservative (who might be pressurable if the other two retire during another Progressive-Democrat administration.

Eric Hines

Assistant Village Idiot said...

I didn't participate in making the Constitution either.