Rights and Structure in Constitutional Theory

Rights and Structure in Constitutional Theory

Description

Ever since the constitutional revolution of the 1930s, constitutional law and theory have been dominated by questions of civil rights. The expansion of rights under the Warren Court constituted a deep-seated shift in judicial attitudes that has proved remarkably stable over time. Despite protests in some quarters that the Burger Court (1969-1986) and the current Rehnquist Court have undermined civil rights recognized during the Warren Court era (1953-1969), the fact is that the changes have been surprisingly marginal. Even precedents that were widely believed to be endangered species a decade ago – such as Miranda and Roe v. Wade – continue in force, although they have indeed been pruned back. Despite their importance, however, these high-profile cases do not go to the core of the Supreme Court’s agenda. The core is epitomized by Brown v. Board of Education on the one hand, representing an aggressive and interventionist attitude toward government discrimination against discrete minorities, and footnote four of the Carolene Products case, on the other hand, representing an extraordinarily deference to the political process with respect to economic regulation. The Rehnquist Court’s commitment to this core agenda is not dramatically different than that of its predecessors, at least not when the broad sweep of constitutional law is taken into account. Until quite recently, the debate about constitutional law has been dominated by the question of which rights or classes should receive the special constitutional protections of strict judicial scrutiny. These were not the issues that most deeply concerned the Framers of the Constitution. Instead, the Framers were overwhelmingly concerned with matters of government structure: separation of powers (by which I mean both that governmental powers should be separated and that they should be related to one another through checks and balances) and federalism. Separation of powers and federalism form the fundamental matrix of Euclidean plane of our constitutional law. These issues dominated the minds of the Framers at least as fully and completely as questions of individual rights dominate contemporary constitutional thought. Individual rights, to be sure, were important to the Anti-Federalists as well as the Federalists, and the Bill of Rights was adopted so soon after the Constitution’s ratification that it would not be inappropriate to deem it part of the founding period. Yet the Framers of the Constitution believed that a bill of rights, while not necessarily dangerous, was largely superfluous because liberties were sufficiently protected under the structural scheme of the original Constitution. In suggesting that individual liberties have dominated twentieth-century jurisprudence, I do not mean to imply that structural issues have been ignored completely. Matters of government structure have always played an important role in constitutional thought and on the Supreme Court’s docket; they continued to do so even during the modern period. The Court, in a variety of contexts has adjusted the rights of state and national government under the rubric of “Our Federalism.” It visited questions of separation of powers in cases such as Myers, Humphrey’s Executor, Steel Seizure, and the like. Yet this undercurrent of constitutional adjudication and thought was long eclipsed by the burgeoning importance of civil rights. Recently, however, structural issues have again begun to emerge at the forefront of constitutional debate. Concerns about federalism were galvanized by the Court’s recognition, in National League of Cities v. Usery, of a state immunity from federal intrusion in matters of traditional state responsibility. Although the Court later abandoned this approach in Garcia, the genie of federalism was loosed. Partly in consequence, a number of modern scholars have begun to rethinking the fundamental questions of federalism from the standpoint of modern economic and political theory. Questions of separation of powers have also reappeared: the Supreme Court’s decision in United States v. Nixon initiated a remarkable and sustained line of important precedents adjusting the rights of the legislative, executive, and judicial branches. The renewed judicial recognition of separation of powers has been mirrored at the scholarly level by a number of attempts to sort out and define the content of separation of powers as a doctrine of constitutional law. These efforts, while in my judgment not entirely successful, suggest that separation of powers, like federalism, is returning to a central and appropriate place in American constitutional thought. The renewed importance of structural considerations raises questions about the relationship, in modern constitutional law and constitutional theory, between our two great systems of fundamental law: the system of rights (including individual rights and economic liberties) and the system of government structure (including separation of powers and federalism). For these systems obviously do not operate in hermetically sealed compartments. We should expect, on the contrary, that any fully satisfactory theory of constitutional law would offer insights about the relationship between structure and rights as well as, more fundamentally, provide an account that explains, justifies, and articulates both systems. A basic challenge of modern constitutional law, in other words is to develop a Grand Unified Theory that would explain both the system of rights and that of structure as manifestations of deeper underlying principles. This challenge is enormously daunting, and not one that can be even remotely handled in the scope of a paper such as this. Nevertheless, I want to offer some preliminary and tentative observations that might at least identify some of the broad elements to be included in the Grand Unified Theory. To this end, I first suggest the utility of cross-fertilization between the two systems. The focus on liberty which dominates the analysis of individual rights can usefully be brought to bear on questions of government structure – not as an immediate criterion for decision, but as an end against which the constitutional means of government structure should be tested and evaluated. At the same time, the focus on allocation of powers to defined organs of government which dominates the analysis of government structure can fruitfully be applied to the area of civil rights. In the case of the Bill of Rights (although not necessarily in the case of the Reconstruction amendments, which I do not discuss in this paper), the analysis of constitutional rights should be informed b the understanding that the first ten amendments are not only a denial of power to the federal government, but functionally and effectively are a grant of power to the Supreme Court at the expense of the other branches of the national government. I then attempt to probe deeper by asking what elements might be included in a unified theory. One quite appealing version of a unified theory is already available in the form of the Federalist Papers. The brilliantly synoptic constitutional theory it proposes can, with minor adjustments, be used as a basis for both the system of government structure and that of civil rights. The key concepts here are energy and faction. The Constitution is based on the premise that the government will have sufficient power and authority to fulfill its assigned responsibilities. Accordingly, it is appropriate to ask in any constitutional case whether a proposed resolution leaves the national government with the requisite energy. As to faction, the overriding concern of the Federalist Papers is that a group in the populace might gain control of the government and use the government’s monopoly on force to repress other citizens or expropriate their wealth. It is, accordingly, entirely appropriate in constitutional analysis to ask whether the governmental structure or action at issue can be challenged as facilitating faction or justified as deterring faction. I suggest that these principles of energy and faction might usefully be applied to the analysis of issues arising both under the system of individual rights and that of government structure.

Source Publication

Reassessing Civil Rights

Source Editors/Authors

Ellen Frankel Paul, Fred D. Miller, Jr., Jeffrey Paul

Publication Date

1991

Rights and Structure in Constitutional Theory

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