Response to the Symposium

I am, of course, grateful to the editors of The Good Society for arranging this symposium. It is equally obvious that I cannot, in whatever space allotted, do justice to the full range of comments and criticisms. That might well require writing yet another book, especially if I take fully seriously the duty, suggested by Prof. Elkin in his gracious introduction, to elaborate, far better than I do in Our Undemocratic Constitution, what a genuinely democratic constitution might actually look like. This is especially important inasmuch as I want to reject an identification of “democracy” with a straightforward process of pure majority rule. However, I am not happy with the suggestion, proffered by another recent critic, Prof. Shep Melnick, that my program boils down to robust majoritarianism save for the monitoring that can be provided by federal courts to make sure that the majorities do not trample on such rights as I may happen to like. Among other things, I see no particular reason to believe that courts will be vigorous protectors of rights that do not have reasonably wide public backing. That has certainly not been the central lesson of our constitutional history, with a few splendid exceptions. It is well to be reminded that both Barnette and Korematsu were decided by the same group of justices. Perhaps all one can say with confidence is that the Court, historically, has been at least as likely to issue Korematsu-like decisions as Barnette-like.

In any event, much more needs to be said, and perhaps I will try to do that in my next book, which is now gestating as the result of teaching undergraduates for the first time in decades about the political system constituted by the hard-wired structures of our Constitution. One result of having once again to prepare systematic lectures—a very different format, of course, from that found in the American legal academy—is that I have become increasingly inclined to divide the Constitution into two quite different aspects, with concomitantly different narratives attached to each aspect. The first aspect involves what I keep describing as the “hard-wired” portions of the Constitution, almost all of them involving basic structures. These can also be described as truly “settling,” whether for good or for ill, some very basic questions of governance, surely a critical function of any constitution. Why have a constitution, after all, if it settles nothing? What offices, for example, are to be filled; by what process will they be filled; and for how long will the office-holders serve? These are, to put it mildly, absolutely crucial questions for any political system; it might even be said that our Constitution does a first-rate job of settling them, even if I am very critical of some of the particular solutions chosen. But it is no small matter for those holding the office of President of the United States, say, to know (and, of course, to accept) that their tenure is limited and that, on a day certain, they will return to the status of more-or-less ordinary citizen even as someone else moves into the Oval Office. The fact that we have a dumb Inauguration Day does not overcome the fact that it would almost certainly count as a mark against the Constitution if it provided that a newly elected President would be inaugurated “on any day the sitting Congress shall select.” Justice Brandeis once wrote that it is sometimes better that certain issues be settled at all than that they be settled correctly. Thus the respect given precedent, for example, which is interesting only when one regards an early decision as, at the very least, not an optimal one and, perhaps, quite stupid or, even worse, evil in its consequences. This also, perhaps, illustrates Stephen Elkin’s point that I do indeed believe there is a relationship between what is written down and a world that is shaped, in important ways, by the writing.

It will not, of course, be unnoticed that I did not include within the realm of the “settled” Constitution the actual powers to be enjoyed by public officials. Whatever the...