The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few days ago, looking for something else, I happened across this section of Justice Story's Commentaries on the Constitution. Story defends the independence of the judiciary based on something that sounds surprisingly like originalism. Some particularly interesting passages highlighted:
§ 1609. The argument of those, who contend for a short period of office of the judges, is founded upon the necessity of a conformity to the will of the people. But the argument proceeds upon a fallacy, in supposing, that the will of the rulers, and the will of the people are the same. Now, they not only may be, but often actually are, in direct variance to each other. No man in a republican government can doubt, that the will of the people is, and ought to be, supreme. But it is the deliberate will of the people, evinced by their solemn acts, and not the momentary ebullitions of those, who act for the majority, for a day, or a month, or a year. The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it, shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience. When it is constitutionally altered, then and not until then, are the judges at liberty to disregard its original injunctions. When, therefore, the argument is pressed, that the judges ought to be subject to the will of the people, no one doubts the propriety of the doctrine in its true and legitimate sense.
§ 1610. But those, who press the argument, use it in a far broader sense. In their view, the will of the people, as exhibited in the choice of the rulers, is to be followed. If the rulers interpret the constitution differently from the judges, the former are to be obeyed, because they represent the opinions of the people; and therefore, the judges ought to be removable, or appointed for a short period, so as to became subject to the will of the people, as expressed by and through their rulers. But, is it not at once seen, that this is in fact subverting the constitution? Would it not make the constitution an instrument of flexible and changeable interpretation, and not a settled form of government with fixed limitations? Would it not become, instead of a supreme law for ourselves and our posterity, a mere oracle of the powers of the rulers of the day, to which implicit homage is to be paid, and speaking at different times the most opposite commands, and in the most ambiguous voices? In short, is not this an attempt to erect, behind the constitution, a power unknown, and unprovided for by the constitution, and greater than itself? What become of the limitations of the constitution, if the will of the people, thus inofficially promulgated, forms, for the time being, the supreme law, and the supreme exposition of the law? If the constitution defines the powers of the government, and points out the mode of changing them; and yet, the instrument is to expand in the hands of one set of rulers, and to contract in those of another, where is the standard? If the will of the people is to govern in the construction of the powers of the constitution, and that will is to be gathered at every successive election at the polls, and not from their deliberate judgment, and solemn acts in ratifying the constitution, or in amending it, what certainty can there be in those powers? If the constitution is to be expounded, not by its written text, but by the opinions of the rulers for the time being, whose opinions are to prevail, the first, or the last? When, therefore, it is said, that the judges ought to be subjected to the will of the people, and to conform to their interpretation of the constitution, the practical meaning must be, that they should be subjected to the control of the representatives of the people in the executive and legislative departments, and should interpret the constitution, as the latter may, from time to time, deem correct.
§ 1611. But it is obvious, that elections can rarely, if ever, furnish any sufficient proofs, what is deliberately the will of the people, as to any constitutional or legal doctrines. Representatives and rulers must be ordinarily chosen for very different purposes; and, in many instances, their opinions upon constitutional questions must be unknown to their constituents. The only means known to the constitution, by which to ascertain the will of the people upon a constitutional question, is in the shape of an affirmative or negative proposition by way of amendment, offered for their adoption in the mode prescribed by the constitution. The elections in one year may bring one party into power; and in the next year their opponents, embracing opposite doctrines, may succeed; and so alternate success and defeat may perpetually recur in the same districts, and in the same, or different states.
§ 1612. Surely it will not be pretended, that any constitution, adapted to the American people, could ever contemplate the executive and legislative departments of the government, as the ultimate depositories of the power to interpret the constitution; or as the ultimate representatives of the will of the people, to change it at pleasure. If, then, the judges were appointed for two, or four, or six years, instead of during good behavior, the only security, which the people would have for a due administration of public justice, and a firm support of the constitution, would be, that being dependent upon the executive for their appointment during their brief period of office, they might, and would represent more fully, for the time being, the constitutional opinion of each successive executive; and thus carry into effect his system of government. Would this be more wise, or more safe, more for the permanence of the constitution, or the preservation of the liberties of the people, than the present system? Would the judiciary, then, be, in fact, an independent co-ordinate department? Would it protect the people against an ambitious or corrupt executive; or restrain the legislature from acts of unconstitutional authority?
An ensuing Twitter discussion questioned whether Story was really an originalist avant la lettre, or whether he's just participating in the debates of his time, in a way that sounds originalist to modern ears. I don't know enough about Story to know if this is an anachronistic reading. But the views expressed here certainly sound originalish to me. He says our Constitution isn't "an instrument of flexible and changeable interpretation," but "a settled form of government with fixed limitations"—one that sets out rules for its own alteration, and that makes no legal provision for changes outside these rules. That seems quite compatible with a view that our law is the Founders' law, as lawfully changed.
Story's legal theory was connected to a political theory. His discussion of "the deliberate will of the people" reminds me of Bruce Ackerman on dualist democracy, or maybe it should be the other way around. (Though Story is pretty skeptical of constitutional moments "inofficially promulgated.")
Now, maybe the Constitution isn't really the true expression of the Popular Will, any more than currently-serving presidents, governors, or legislators are. But Story could be all wrong on his politics while still being right about the widely shared assumptions that have shaped our legal system. Judicial independence makes some sense if judges are supposed to be apolitical experts, applying a shared body of technical knowledge; it makes less sense if they're supposed to have their ears to the ground, Divining the Spirit of the Age. And it also makes less sense to elect a wide variety of legislators, governors, or presidents, each to a specific job, and then say that the winners get to rewrite their job descriptions after the election is over.
A system based on written law always throws up procedural roadblocks to change. Even if every member of Congress actually favors a given tax hike or spending cut, legally nothing is supposed to happen until they actually take some votes. And no matter how many Americans might want to alter our system of government, legally nothing is supposed to change until that desire is expressed in a "solemn," formalized way. There are some real downsides to these roadblocks, but some real advantages too.