The Progressives’ Creative, Parasitic, and Unsustainable Constitutional Jurisprudence

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Today, Professor Rappaport posted the aptly-titled “Originalism for Me, but not for Thee,” concerning Professor Peter Jaworski’s fascinating new article, Originalism All the Way Down: Or, the Explosion of Progressivism.

The article reminded me of the approach to constitutional interpretation that Professor Robert Scigliano at Boston College taught in his class on the American Judiciary: Judges should interpret the Constitution the way they would like their own writings to be interpreted.

Professor Scigliano’s maxim, however, is unworkable for the judge who undertakes to “creatively interpret” the Constitution, an approach expressly celebrated by future Justice Ruth Bader Ginsburg.

As Professor Jaworski points out, a creative judge requires the cooperation of many uncreative persons.  Judges, after all, have very little proximate power.  They’re not very scary.  They wear impressive robes, but they’re typically rather old, with only gavels for immediate weapons.  They have a limited budget and at most, a tiny coercive force at their immediate direction.  As Hamilton noted, the judiciary is the least dangerous branch, for judges depend, for the execution of their judgments, on the cooperation of others, especially the executive.  And in establishing effective precedents, appellate judges also rely on the cooperation of the judges of the lower courts.

In order for their creative rulings to be effective, judges need the cooperation of at least some Dudley-Do-Rights.

Judicial creativity thus involves an implied but essential rule.  “Do as I say, not as I do.  Obey my rulings with fidelity, while I interpret the law with creativity.”

Human nature poses a problem with this ethic.  The Dudley-Do-Rights won’t always be content with their assigned task.  At the extreme, they will say, “Why should five Supreme Court justices have all the fun?  Why should those five have the exclusive right to don not only the robe, but also the beret?”

As I suggested in a prior post, it was probably this persistent human phenomenon of self-love or pride that led progressive jurists to abandon judicial restraint in favor of judicial activism.  Especially in the second and third generation, progressive jurists were not content with the subordinate and largely irrelevant role of getting out of the way, of not obstructing the movements of the democratic zeitgeist, and its scientific implementation by administrative experts.  The judges wanted to the right to wear the robe, the beret, and the labcoat, all at the same time.

Such progressive, creative jurisprudence has a parasitic character.  Every time the courts, especially the Supreme Court, engage in a manifest, even deliberate, abandonment of fidelity to law in favor of creativity, there is a parasitic effect on the culture of the rule of law.  The enforcement of the creative, unfaithful judicial decision depends upon a faithful, and thus uncreative, implementation. But with each such ruling, the Court teaches, by prominent, authoritative example, a disregard for such fidelity and obedience.

And insofar as it is parasitic, creative jurisprudence is also unsustainable.

While the culture of obedience continues, the Supreme Court can wield enormous power.   But at some point, judicial activism may consume so much of that virtue that the judiciary will become not only the least-dangerous but the impotent branch.   At some point, the Dudley-Do-Rights will do otherwise; they will stop doing as the judge says, and start doing as the judge does.

Imagine, say, a President, in a time of national crisis, who will be popular both with the people and with military officers. How would the courts—and the rule of law—fare if such a President should undertake his own creative interpretation of the law, whether the Constitution, treaties, statutes, or judicial rulings?  My bet is on the one guy with the Marine Corp instead of the nine, or even nine-thousand, with the gavels.