Taming the Law’s Coercion

“To do things by law is to do them by force.” So writes Professor Tara Smith in the introduction to her incisive and important new book, Judicial Review in an Objective Legal System, reminding us of the gravity of the stakes involved in judicial review.

A court’s decision to uphold government conduct may result in the deprivation of liberty, property, or even life. Carrie Buck (and more than 60,000 other young Americans deemed “socially inadequate” by predatory state health boards) may be forcibly sterilized in the name of  eugenics purposes. Fred Korematsu (and 120,000 other American citizens of Japanese ancestry) may be forcibly evicted from the West Coast and held in an internment camp. The working-class neighborhood in which Susette Kelo lived, including her now-iconic little pink house, may be bulldozed for “economic development.” How judges evaluate assertions of government power matters to real people.

A philosopher at the University of Texas who also teaches at the law school, Smith articulates an approach to judicial review that is designed to place government power under the rule of law—to ensure that the government only exercises its power for constitutionally proper reasons and that mere will does not trump individual rights. While there is no shortage of books on judicial review, Smith’s stands out in a crowded field, owing to its focus on the role of epistemology and political philosophy—the Constitution’s political philosophy—in constitutional interpretation and her incisive criticism of the jurisprudential status quo. Smith’s approach holds the promise of equipping judges to gain accurate knowledge of what the law is and to consistently hold the government to the terms of our Founding document.

Any proposed approach to judicial review must rely upon some account of how judges can reach accurate conclusions about the meaning of constitutional terms like commerce, freedom of speech, and due process of law. Smith places epistemology in the foreground, undertaking in the first chapter of her book to explain how we can “gain an accurate understanding . . . of actual, mind-independent existents,” from physical objects to legal concepts.

Her means to this end is objectivity. Objectivity is a mode of reasoning that consists in pursuing “the actual nature of the specific object or phenomena in question,” relying solely on “relevant evidence and logical inferences therefrom.” Importantly, objectivity is contextual. What counts as relevant evidence depends upon the goal of the inquiry; one does not test cough syrup’s safety by determining whether children like its taste. Further, because the end of objectivity is accurate knowledge of mind-independent facts, objectivity requires that we revise our conclusions as we learn more about the objects of our inquiry. While we can arrive at incorrect conclusions in spite of our most disciplined efforts, objectivity enables us “to gain the strongest possible assurance” that our conclusions at any given time are correct.

Because objectivity is contextual, determining what objective judicial review consists in requires an understanding of the goal of our legal system. Thus, Smith’s focus on epistemology leads her to political philosophy: What is the proper function of government? Smith’s answer is the same as that of the men who signed the Declaration of Independence. For Smith, as for the Founders, the need for government is grounded in the need to protect individual rights to free action that, in turn, are grounded in “facts of human nature.” We are rational beings—we depend upon our reason to gain knowledge of the world and to inform our actions, to survive and to achieve happiness. The need to protect our freedom to reason and act in accordance with our own judgments—freedom that can be obliterated by the coercive interference of others—serves as the “basis and standard” of the “moral authority” of legitimate governments.

How must the government operate in order to serve its proper function and preserve its moral authority? Smith explains that the formal requirements associated with the “rule of law”—among them that legal rules be clear, stable, and non-arbitrary (that is, the product of predetermined, public-oriented reasons, not mere will)—must be maintained. To breach these requirements is to “convert a legal system into a positive threat” to individual rights.

For example, an unclear law effectively requires people to “refrain from acting in ways that are properly prohibited as well as from acting in ways that are not,” lest they violate any one of the several meanings that could be attributed to the law. Further, since any one of several meanings could be attributed to the law, the meaning of the law is necessarily dictated by the will of government officials. Unclarity thus wrongfully constricts individual freedom and exposes people to arbitrary power. By contrast, a law that defines actions that are properly prohibited in clear, specific terms protects individuals from wrongful interference with their freedom and enables them to exercise their freedom without fear of punishment. Thus, ensuring that the government acts consistently with the rule of law “help[s] to ensure the proper exercise of government power” and thus protects individual rights—a service that is “morally good.”

Smith argues that a written constitution that “serves as the single, overt, definitive repository of a system’s ultimate law is the best means available” for ensuring the rule of law because it can render the identity of the law “firm and fixed” and “impos[e] firm, philosophically considered limits on government power.” Fortunately, she finds that Americans are blessed with an “essentially sound” Constitution that is not only grounded on the correct political-philosophical premises but defines and limits government power in a manner calculated to protect individual rights. Whether our legal system delivers the goods, however, depends upon whether the courts—our “last resort” against the abuse of government power—keep the government within constitutional limits. Accordingly, the security of our rights depends upon objective judicial review—judicial review that “accurately render[s] the meaning of existing law.”

Having delineated the function of our legal system and the role of the judiciary in maintaining the rule of law, Smith turns to the nuts and bolts of judicial review. In Chapter 6, she summarizes and critiques five methodologies that currently dominate the debate over how judicial review should be performed: textualism, public understanding originalism, democratic deference, perfectionism, and minimalism. None of them, Smith argues, equips judges to preserve the rule of law. Her critiques of public understanding originalism and perfectionism are particularly noteworthy, both because these methodologies initially seem to be compelling and because her criticisms reveal the unique character of her own approach to constitutional interpretation.

As Smith has written in previous articles, the appeal of public understanding originalism stems in part from its promises of consistency with the rule of law and of objectivity. The rule of law requires stability, and the public’s understanding of particular constitutional provisions at the date of their enactment does not change over time. Public understanding originalism also demands empirical inquiry of a kind one might expect Smith to embrace. Public understanding originalists seek to identify the communicative content of words by studying facts concerning patterns of word usage at the time text is adopted.

Smith finds that public understanding originalism cannot deliver on its promises. Recall that objectivity requires revising our understanding of any particular object of study as we learn more about that object. Public understanding originalism, however, binds judges to the state of people’s understanding of the meaning of constitutional terms at a particular time—it “locat[es] the fundamental authority of a legal system” in the beliefs of those who ratified the Constitution. This is a recipe for the rule of men rather than the rule of law. A legal regime under which certain men hold “the complete and unimpeachable power to determine what the enacted law means,” and, thus, how the government may exercise its power, is essentially arbitrary, grounded in will rather than reason. In the final analysis, public understanding originalism may produce stable rules, but it is not objective and is incompatible with the rule of law.

But while Smith ultimately rejects public understanding originalism, she regards as “perfectly sound” originalism’s insistence that judges not “replace the concept[s] originally expressed in a law with a different concept.” Judges may not, for example, read the phrase “domestic violence” in the Constitution to refer to spousal abuse—an entirely different kind of thing from the phenomenon that phrase referred to in 1789. And in order to determine what kind of thing “domestic violence” referred to in 1789, judges must study contemporaneous word usage. Judges must, however, also think for themselves about what kind of thing domestic violence is, just as they must think about what “speech” is—what its distinctive characteristics are, and whether activities unimaginable to the Framers, like films or video games, are protected by the First Amendment’s Free Speech Clause.

Smith’s critique of public understanding originalism might lead one to expect that she would sympathetic to perfectionism, as advocated by the late Ronald Dworkin (and, today, by Professor James Fleming). Dworkin contended that certain constitutional provisions should be understood to refer to normative concepts rather than the specific conceptions of the Framers—for example, “cruel and unusual punishment” should be understood to refer to punishments that really are cruel and unusual, not merely to punishments that the Framers thought cruel and unusual. Dworkin also argued that judges should draw upon their “own moral and political convictions”  and interpret the Constitution in a way that best justifies our law as a whole—though their interpretations must still “fit” with previous legal materials. Dworkin famously deployed the analogy of a chain-novel, urging that judges “transform the varied links in the chain of law into a vision of government now speaking with one voice.”

Smith accepts Dworkin’s distinction between concepts and conceptions. She also agrees with him that the Constitution sets forth a “vision of government” and that it should be interpreted in a “holistic” manner, informed by the Constitution’s guiding political philosophy. But ultimately Smith finds that perfectionism, like public understanding originalism, fails to secure the rule of law. Under perfectionism, the law is not firm and fixed but an ever-changing, unpredictable mixture of previous legal materials and judges’ own moral and political convictions. Further, Smith understands perfectionism to allow judges to rely upon political philosophy to reach conclusions that are “expressly contradicted by . . . particular provision[s] of the Constitution.” This is not context-sensitive review. Even if a judge were correct that a particular provision was inconsistent with the Constitution’s guiding political philosophy, that judge would be defying context by disregarding that provision. As Smith puts it: “Dworkin’s judge may depart from the law. Mine may not.”

What alternative does Smith offer? Under her approach, judges would engage in a logic-guided, context-sensitive effort to capture the meaning of constitutional provisions, to identify what kinds of things those provisions refer to. They would scrutinize relevant historical evidence concerning word usage and draw upon an understanding of the Framers’ political philosophy in order to identify constitutional concepts, but they would also take into account present knowledge (say, the existence of new technologies for engaging in searches or whether experience has shown it to be realistic to expect a layman to be able to competently defend himself in a criminal trial). They would then apply those constitutional concepts to the facts of a given case.

But there is more to judicial review than constitutional interpretation. Attention to the full context in which judicial review takes place today means reckoning with a status quo in which judges reflexively defer to the government in most constitutional settings. Judges applying the so-called “rational basis test”—the default standard of review applied to governmental actions that do not implicate any rights deemed “fundamental” by the Supreme Court or involve “suspect classifications”—require constitutional challengers to demonstrate that no reasonably conceivable state of facts could justify the government’s actions. Judges using this test also disregard evidence that the government is pursuing illegitimate ends, and even invent justifications for the government’s actions that have no support in the record.

Even the most rigorously objective approach to constitutional interpretation will not protect people against unjustified coercion if judges give the government’s actions the benefit of an effectively unrebuttable presumption of constitutionality—a presumption that, as Smith notes (drawing upon the scholarship of Professor Randy Barnett), is incompatible with “the design, structure, and content” of the Constitution. Smith therefore calls for “exacting judicial inspection” of the constitutionality of the government’s actions in every case and for placing the burden on the government to demonstrate that its actions are legally justified—a posture similar to what constitutional litigator Clark Neily calls judicial engagement.

How would Smith’s approach differ from the status quo?

Consider the current circuit split over the constitutional status of “occupational speech”— the speech of tour guides, therapists, and others who earn their living through vocations that consist almost entirely of speaking. Under current law, regulations that burden speech are subject to heightened scrutiny, whereas burdens on the right to earn a living in the occupation of one’s choice—a right consistently acknowledged by the Supreme Court—only trigger rational-basis review. Some federal courts of appeals have subjected restrictions on occupational speech to heightened scrutiny, on the grounds that “speech is speech, and it must be analyzed as such for purposes of the First Amendment”; others have concluded that such restrictions only burden “conduct” and have applied rational-basis review. Because occupational speech is in fact both speech and conduct, the “choice” to brand it as one or the other is necessarily arbitrary—and this arbitrary decision can mean the difference between  meaningful and meaningless judicial review.

Under Smith’s approach, no such conflict could emerge because all burdens on constitutionally protected freedom would be subjected to impartial, evidence-based judicial inquiry. In every case, judges would seek to determine whether the government’s actions were designed to guard the public against force or fraud or sprang solely from political will.

At a time when some prominent scholars deny that objective judicial review is even possible in consequential cases, particularly those involving contested (and contestable) interpretations of value-laden constitutional provisions, Smith’s confidence in the power of reason to ascertain truth and her goal of placing government under reason’s rule recalls the Framers’ own. Her book, however, is not a call to return to a supposed golden age—it is a call to construct a rational, rights-protective approach to judicial review today, “brick by brick.” Those who share her desire to ensure that the say-so of men does not trump the law of the land owe it to themselves to grab a trowel.

Evan Bernick

Evan Bernick, who received his JD from the University of Chicago Law School, is assistant director of the Center for Judicial Engagement at the Institute for Justice.

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  1. gabe says


    I struggle with Smith’s approach / reasoning. While I certainly agree that anything that would limit the power of judges to *make* law based upon something other than an objective (whatever that may be in practice) assessment of the text, context, etc., it would appear that this reason based approach may also fail. Reason, itself, has been said to be “un-reasonable” in that it assumes that one must start with a blank sheet, proceed from that to an observation of facts, and thereby draw inferences / conclusions when, in fact, it is perhaps capable of neither achieving a “clean sheet” nor drawing conclusions that are not in some ways directed towards an already perceived end.
    Perhaps, the following comments may make that point:

    1) “We are rational beings—we depend upon our reason to gain knowledge of the world and to inform our actions, to survive and to achieve happiness. The need to protect our freedom to reason and act in accordance with our own judgments—freedom that can be obliterated by the coercive interference of others—serves as the “basis and standard” of the “moral authority” of legitimate governments.”

    It is not entirely clear that reason alone dictates or circumscribes our civil actions; one could (and should, I think) recognize the value and import of tradition when discussing that force(s) which impels certain civic action.
    Even such an astute critic of Rationalsim such as Michael Oakeshott, in his essay “Rationalism in Politics” appears to forget that. He claims that the Founders were motivated by the then current vogue of Rationalism in Politics, “the new science of politics” in their words. Yet, it is also arguable that rather than a “rationalist / scientific approach to government, these men were in fact simply attempting to conserve *tradition* (the Rights of Englishmen, and all that), albeit with a healthy dose of sound reasoning. (This becomes important, as I will try to show in my own feeble way).

    2) “A legal regime under which certain men hold “the complete and unimpeachable power to determine what the enacted law means,” and, thus, how the government may exercise its power, is essentially arbitrary, grounded in will rather than reason. In the final analysis, public understanding originalism may produce stable rules, but it is not objective and is incompatible with the rule of law.”

    I think Smith has this precisely backward and evidences the weakness of pure reason / objectivity when attempting to determine the meaning(s) associated with our constituent law. Would not an analysis based upon reason factor in the concept of consent? – indeed, in this case supermajoritarian consent; is this the work of just “certain men” – or is it more likely to be a reflection of a cultural tradition?
    would not reason recognize that the constituent law, by provisions contained therein, allows for future revision by the supermajoritarian assent / consent of the polity; and in this way, tradition, having changed may be reflected in the revised constituent law. I use constituent advisedly here as it would seem to be more consistent with the central “holistic” vision (shared apparently by Smith) that this is to be a government of limited powers AND that the citizenry is to be free to exercise its own judgement / reason. Contrast this with a notion that the Judiciary, even under the most stringent, and universally approved rules of interpretation, are to be charged with determining (diving) the meaning of the drafters and ratifiers of our constituent law. No, it seems far more likely (and has been historically demonstrated) that the arrogation of such power to a small coterie of experts in “reason” may be more likely to exercise “arbitrary power;” and further that these experts may proceed under the guise of some theory of interpretation move the law and traditional notions of both governmental and civic bounds beyond their prescribed (albeit somewhat elastic) limits. Again, reason does not start with a blank sheet, but often begins with a telos towards which all abstractions and observables may be forced.

    “Smith’s confidence in the power of reason to ascertain truth and her goal of placing government under reason’s rule recalls the Framers’ own. Her book, however, is not a call to return to a supposed golden age—it is a call to construct a rational, rights-protective approach to judicial review today, “brick by brick.”

    Ans so we see the arrogance of reason – not only will we revise, elasticize, etc – but we will build brick by brick! OK, unfair in that Smith is clearly not proposing to rebuild our constituent law “brich-by-brick.” However, given the deficiencies in the reason(able) approach she advances, it would appear that this may be what she is engendering (and again, history seems to bear this out). Un-tethered to tradition, without the force of traditions binding power, we will (have?) transform(ed) our constituent law to a point beyond the recognition of those who initially gave consent, to those who later “re-consented” to inevitable change / adaptability as those traditions changed, and ultimately free ourselves of the burdens of reasonable consent – all in the name of reason.

    One must also ask: Is not “reason” the predicate upon which the entire edifice of the modern administrative state is based? How well has that served our liberty?

    take care

  2. Scott Amorian says

    I couldn’t finish this essay.

    The first problem is the difference between reason and rationality. Reason is thought. It is opinion. Rationality is math. It is the universe. Reality. Reason is the human attempt to comprehend the rational; it is not rationality itself.

    The essay equates reason and rationality too many times in too many ways, when they are completely different things.

    The other problem is the assumption of the correctness of the architecture of the Constitution. The essay (and book I assume) assert that the architecture is fundamentally sound and that the so much of the problem of the government is the problem of interpretation of law. If there are flaws we have the ability to correct them. There isn’t a structural problem. There is a people problem.

    The problem is that we don’t have the ability to correct critical flaws given the government construction and operation. Even the backup method of correcting the Constitution, the Article V states’ convention, is unworkable.

    The party system dominates the system of constitutional government, and the governmental system was not designed to accommodate such a party system. The malignancy of the party system is the source of a lot of corruption. The fidelity of the representatives belongs to the representees, not to the parties. To correct the problem of the party system the government must act. But the government is dominated by the parties and the parties don’t want to give up power. See the problem?

    The states’ convention requires two-thirds application to call and three-fourths to ratify. We learn part of the reason why this is unworkable from the story of Vermont’s 1778 constitution, which had a body called the Council of Censors who were responsible for proposing amendments. The censors proposed numerous amendments and only a few were ratified. The ratifying bodies were generally conservative while the censors were generally progressive. The math didn’t work out. And it doesn’t work out for the states’ convention for the same reason. That’s part of the reason we’ve never had a states’ convention.

    The party system extends its control from the federal government to the state governments, which is also part of the problem of political problem of enacting reform through the states’ convention.

    The system of correction is not basically sound, it is deeply flawed. As are other parts of the architecture.

    At this point I lost interest in the essay.

    The philosophy of adjudication is important to understand, and I am grateful still to the authors for contributing so much to the valiant cause. You just sort of lost me on a couple of key points.

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