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Constitution as Judicial Creed

-- By DanielButrymowicz - 12 Feb 2008

Draft II, Still too long:

The Constitution is a fundamental creed in American society. It determines what is and is not politically acceptable. However, the society lacks objectively observable techniques for determining the constitution’s position on current issues. This ambiguity creates a fundamental problem akin to the inability to determine guilt. As in the latter case, this problem is solved through the application of legal magic. Such issues are sent to the Supreme Court, which determines whether actions are constitutionally permissible. Competing social factions perpetually vie for the mantel of constitutionality and develop strong opinions about whether the Court is correctly applying the magic. These conflicts implicitly affirm that a valid form of legal magic exists, even if it was not applied, and stabilize the overall framework of the constitutional creed.

I. The Constitution Creed

a. The Constitution is a Fundamental American Creed

The United States Constitution is an important creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears." In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend." The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, but they strongly believe that the constitution supports their position. Implicit in this belief is a conviction that the constitution is the ultimate test of legitimacy for political or social decisions.

II. The Constitutionality Problem

1. Constitutionality Creates a Fundamental Problem

The political centrality of the constitutionality highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the constitution. Therefore, when we enact a new law or initiate a new practice, our society must determine whether it comports with the Constitution. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the first amendment or whether women are guaranteed a right to abortion. In short, we have no observable or empirical way of determining whether most contemporary laws are constitutional. This difficulty is akin to the fundamental problem Jerome Frank identifies in criminal law: the inability to determine guilt from innocence. In both instances, we employ legal magic to draw a connection we are empirically unable to.

b. The Supreme Court Represents a Magic Solution to this Problem

The most visible application of constitutional magic occurs in the Supreme Court. The Court has long asserted that one of its primary functions is determining whether laws are constitutional or not. It has positioned itself as the preeminent keeper of legal magic. The Court has the final say in whether the constitution supports or opposes a given policy decision. Further, the Court has frequently emphasized that its power is rooted in the constitution. It must defer to the constitution to determine whether it is even allowed to hear a case. (The fundamental problem arises even here, as is not always clear from the text what cases they can hear. Legal magic in the form of the political question doctrine or standing must be employed to divine what the constitution says on the matter). The court reinforces the constitutionality creed by insisting that they are bound by the Constitution and must interpret it within that framework. One might say that "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally." The Supreme Court employs a number of ritualistic elements to reinforce its magical stature. The nine wise elder are named “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments at the Court are similarly ritualized. They begin with the chant “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed.

II. The Sleight of Hand

1. Opposing Factions Seek the Creed’s Approval

Due to the public and political nature of Supreme Court decisions, “thinking men” are expected to evaluate the Court’s decision to determine whether the magic was applied correctly. In present-day America, there are two main types of thinking men: the thinking democrat and the thinking republican. This is an oversimplification, but it describes a general trend. These two standards of reasonableness have become two competing sub-creeds that disagree on relatively minor political and social points while both taking a predominantly conservative approach to maintaining the status quo. Both seek the aid of constitutional magic to affirm that their sub-creed is in keeping with the deeply imbedded constitutional creed.

b. This Internal Conflict Reaffirms the Overall Creed

The battle for constitutionality ultimately serves to increase the stability of the organization by reaffirming the overall creed. In a given case, one side’s views will be validated and the other’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect; that the court applied the wrong magic. The decision was unconstitutional. This faction will blame the demagogues on the Court who failed to reach the conclusion that a reasonable thinking person would arrive at. Both of these approaches take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity their agendas. The conflict between ideological factions is a sleight of hand that distracts the organization from examining the actual creed. There is no discussion about whether it makes sense to base our political decisions around a document that could never have been intended to apply to 21st century problems. The skirmishes between liberals and conservatives or textualists and realists reaffirm the boundaries of the argument. The constitution remains the core of our social and political system.

III. Conclusion

As Arnold observes, internal inconsistencies are inevitable in any organization. They are an essential part of its stability. The constitutionality issue is one example of the mechanism through which internal conflicts reinforce the organization’s broader identity. It helps to confine our political battles to manageable sizes and consolidate the power of the judiciary as a means for making important policy determinations.

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