Last summer’s hearings in the Senate Judiciary Committee on the nomination of now-Justice Sonia Sotomayor to the Supreme Court were, as such hearings (unfortunately) now tend to be, unenlightening. Those who hoped the occasion would highlight and sharpen the terms of our constitutional debates, educate the public about our legal traditions, or simply entertain could only have been disappointed.

The senators, by and large, recited interest-group-composed sound bites packaged in the form of questions; the nominee, in disciplined and familiar fashion, parried with poll-friendly talking points of her own. Republicans fretted over the remote possibility that Sotomayor thinks “wise Latina” judges are preferable to white male ones; Democratic senators who just a few years ago sniffed at Chief Justice John Roberts’s comparison of judges to umpires swooned over her embrace of “judicial restraint” and her recitation of the mantra that “judges apply the law.”

What does it mean, though, to “apply” the law? How should a conscientious, careful judge go about the task of identifying—or, perhaps, creating—that which is to be applied? Does it matter that the “law” in question is our Constitution, or that the judge applying it is unelected, or that its application sometimes involves the invalidation of other, duly enacted laws?

Questions like these are difficult and important but the recent hearings did little to help us answer them. They are also both perennial and timely, as the Supreme Court’s recent Citizens United decision confirms. In that case, a narrow majority of the Justices reversed a twenty-year-old precedent and struck down certain restrictions on campaign-related advertising by corporations, reasoning that the limits violated the First Amendment. Did these judges “apply the law”? Or did they substitute their own philosophical or policy preferences for those of the legislators who enacted the restrictions? Did the Court—in the famous words of Chief Justice John Marshall—appropriately “say what the law is,” or should they instead have deferred to the perhaps self-interested views of members of Congress? Michael Perry’s new book, Constitutional Rights, Moral Controversy, and the Supreme Court, is a welcome effort to guide us through this debate and others like it.

Perry’s subject is the Supreme Court’s “proper role in enforcing constitutionally entrenched human rights.” This is, of course, a subject that has been treated (and mistreated) many times. What distinguishes Perry’s account is his appreciation for a fact about the Constitution and the work of courts that is often overlooked—namely, that there is an important, if sometimes elusive, difference between the Constitution’s meaning, on the one hand, and the doctrines, standards, tests, and methods that courts use to enforce and implement that meaning, on the other.

The Constitution’s First Amendment, for example, provides that “Congress shall make no law…abridging the freedom of speech.” Whatever this impressively sparse snippet of text really means is not the same thing as—though we should certainly hope it is related to!—the elaborate edifice of maxims, balancing tests, and categories that courts have constructed for use in enforcing it. The constitutional text is given to judges by “We the People,” but the doctrinal and other tools necessary for constitutional decision-making usually are not, and so must be constructed by judges.

Now, these tools do not, and probably should not, fully capture the Constitution’s meaning. That is, some of our constitutional commitments and values are left underenforced by judges. This is not because the commitments or values are unimportant. In some cases, it is because courts lack the institutional capacity to craft rules that will really hit the mark. In others, it is because it is more consistent with the Constitution’s overall plan to leave its full enforcement to another branch of government. And, as Perry explains, this underenforcement—in the right circumstances, anyway—reflects a judicial humility that is appropriate in a democracy like ours.

Perry’s central claims are that judges should not always strike down laws that they believe are unconstitutional, and that even conscientious, liberty-cherishing citizens should not want them to. “Whether a law is unconstitutional,” he contends, “and whether the Supreme Court should so rule are distinct questions.” It makes good sense, Perry shows, for a democracy like ours to “entrench”—that is, to put beyond the reach of ordinary politics—protections of fundamental human rights. With our Constitution, we have done this, in various ways. A separate, trickier question is what the role of courts should be in vindicating these entrenched rights. And it is a mistake to ignore or discount the contributions that other actors—legislators, administrators, executive officials, jurors, et al.—make to their defense.

Drawing on a famous late-nineteenth-century article by James Bradley Thayer, Perry contends that when reviewing the actions of other government actors, courts should adopt a “deferential attitude,” employing what Alexander Bickel called “the rule of clear mistake,” and only invalidate laws that are obviously unconstitutional. As Thayer put it, a court—including the Supreme Court—should strike down a challenged law only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.” This approach might well leave some constitutional mistakes uncorrected—by courts, anyway. On the other hand, Perry believes (as Thayer did) that it avoids another “serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and experience that comes from fighting the question out in the ordinary way, and correcting their own errors.”

Having proposed his Thayerian defense of judicial modesty, Perry puts it to work in a discussion of capital punishment, abortion regulation, and legal recognition of same-sex unions. What, he asks, is the role of an appropriately deferential judge in resolving constitutional questions about these hotly contested matters?

For starters, Perry insists that the meaning of the Constitution’s rights-entrenching provisions should be determined by asking what they were understood to mean by those who did the entrenching. If we want to know what the constitutional ban on “cruel and unusual punishments” means, for example, we have to ask how these words “would have been understood by an ordinary, reasonably well-informed user of the language, in context, at the time, within the relevant political community that adopted them.” (Perry’s book is a helpful reminder that “originalism”—properly understood—is not the property or creation of political conservatives.)

Perry concludes that the death penalty is inconsistent with the Constitution’s meaning—its original meaning—but concedes that an entirely reasonable judge could come to a different conclusion, at least with respect to adult offenders who are not developmentally disabled. The right course, therefore, is probably for the Court to underenforce the Constitution, leaving it to other—no less duty-bound—actors to bring criminal-justice policy in line with the Constitution.

What about abortion? In Perry’s view, the Constitution, correctly understood, does not disable legislatures from regulating abortion, and the Court erred in concluding otherwise. The relevant constitutional norm—entrenched through the Fourteenth Amendment—is a prohibition on unjustified differential treatment, on treating “some citizens less well” than others. And, Perry explains, a “ban on previability abortions” does not “violate the mandate of equal citizenship.” Or, more precisely, it is not unreasonable for a legislature to determine that it does not. And so, an appropriately deferential judge should not overturn that determination.

The most provocative section of the book, certainly, is the chapter on same-sex unions. Perry argues that the Constitution, well understood, requires governments to “extend the benefit of law to same-sex unions.” What’s more, even a Thayerian judge should so rule, because the refusal to extend the benefit of law to same-sex unions is “not merely mistaken but unreasonable.” This refusal, he contends, treats some citizens as “second class,” does so without adequate justification, and clearly does so. Of course, many readers will disagree with Perry’s assertions that it is unreasonable to think that this refusal serves a public good in a proportionate way and that “no [secular] argument in support of the view that same-sex sexual conduct is immoral is plausible.” But even if one concludes that Perry has misapplied the Thayerian method he endorses, this mistake need not undermine the method itself. After all, Perry quotes another scholar’s observation that “Thayer’s rule, like all guideposts, is not self-applying.... The freedom and burden of decision-making remain.”

It is important that Perry’s argument not be misunderstood. He does not mount a full-scale attack on judicial review, or suggest that judges should abdicate their responsibilities and simply rubber-stamp the actions of politically accountable actors. The point, he insists, is not to pose a choice between “Thayerian deference and vigorously protecting the equal citizenship of all citizens. The Court can do both.” He is not proposing an “algorithm but only a judicial attitude or orientation.” This stance does not eliminate, but it does “leave…less room for the play of judicial subjectivity.”

Perry concludes with a caveat that is particularly relevant to the debate about the Citizens United decision and the regulation of political speech and advertising more generally. Many commentators have argued that an appropriately deferential Court—unlike the current Court—would interpret the Constitution’s free-speech guarantee as allowing legislatures to closely regulate political advertising and expression by corporations. As Perry warns, however, legislatures are not necessarily entitled to the “benefit of reasonable doubt” in cases involving the regulation of speech, press, and assembly. The question in such cases, he thinks, is whether judicial deference “is likely, in the long run, to enhance rather than diminish the capacity of the citizenry and their elected representatives to deliberate in an optimally informed way about contested political questions.” The Citizens United majority was confident that the regulations in question were more likely to distort the political conversation—by selectively privileging some speakers over others, and by undermining the ability of citizens to pool resources and voices through the corporate form—than to enhance it. The dissenters, and the decision’s critics (including Perry), charge that the decision was an activist overreach, one that removed a safeguard against “corporate” domination of public debate. Stay tuned.

 Perry’s book proposes a useful way of thinking about the role and capacity of judges in our constitutional system. The Constitution, after all, tells us less about the answers to difficult moral questions than it does about who decides. Perry reminds us that the Constitution exists—indeed, it can only survive—“outside the courts” as well as within. It belongs to all of us, not only to the Court; we are all bound, not only the justices among us, to consult its meaning thoughtfully when evaluating the actions of our governments.

Related: Steven H. Shiffrin on Citizens United: Who Approves This Message?
Cathleen Kaveny on Sotomayor and judicial empathy: Rules Are Not Enough

Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

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Published in the 2010-03-12 issue: View Contents
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