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Jan 28, 2010 6:26 pm


Dissenting Opinion



Glenn Greenwald is a constitutional lawyer by training, so he has a particular view of what the “rule of law” means. That’s fine. On most points, I am in complete agreement with him, especially in recent years where investing the constitution with actual authority puts you at odds with pretty much the entire US state apparatus. But I regard his claim that Citizens United vs. FEC is “good law” with all sorts of reservations. As he puts it:
One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like.

In other words, while this decision might have pernicious effects in practice, he gives priority to the decision’s theoretical justification, the fact that it is “good law,” that it follows the constitution’s explicit guidelines. I don’t particularly think that he’s wrong. But I don’t think you can be right on this kind of question, or at least not in the simple way he‘s pretending to be. The “rule of law” is a convenient fairy tale for both simple-minded people and for whip smart lawyers like Greenwald who, for whatever particular reason, find it congenial to act as if they believe there is a clear line dividing legal from illegal or constitutional from unconstitutional. But as Jeffrey Toobin put it during the Sotomayor confirmation hearings (a man who knows a thing or two about Supreme Court history), it is a fiction that “the law” can exist separate from the minds that, in interpreting it, radically re-create and transform it:

Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution.

Within the significant ambiguities left by the constitution’s “majestic vagueness,” the Supreme Court makes law and needs to be regarded as a law-making body. Every issue the Supreme Court takes up has come to them precisely because there is more than one plausible answer to the question being decided, because — for reasons having everything to do with desired outcomes and procedural practice — one of the possible correct answers needs to take precedence over the others. If it were simply about reading and applying the law, we wouldn’t need a Supreme Court to re-decide cases that prior courts have already ruled on; if it were simply a matter of reading the constitution and acting on what it says, we wouldn’t need to take “precedent” seriously in the way we do. In other words, while dogmatic partisans and constitutional lawyers might take seriously the idea that a decision can be right, this is largely because they have a vested interest in a process which functions, in practice, to legitimize and render authoritative (and make law out of) what are, in essence, politically determined opinions.

This is not to say that all opinions are equal, of course. But the kind of cavalier disregard of the law that was marked by, say, John Yoo’s approach to the issue of torture is wrong for very importantly different reasons. After all, Yoo didn’t argue against precedents that said the opposite of what he wanted to argue or offer a reinterpretation of them; he simply ignored them. And most of the US’s illegality on the issues where we have been in the wrong — what Greenwald means by “the Bush era” — have been, it seems to me, easily and demonstrably wrong on these kinds of procedural grounds: they have not operated within the wiggle room of the law’s vagueness, but have simply pretended that the law didn’t even exist.

Yet while “the law” does profoundly and importantly limit what it is possible to regard as legal — and some things are just clearly and indisputably out of these bounds — the range of the “legal” is still quite dramatically broad. To go back to the Supreme Court ruling that Greenwald is writing about, while I take seriously his argument that the majority decision actually is good law, even granting this proposition doesn’t exclude the possibility that other readings of the law — say, the dissenting opinion — are good law as well. As Justice Stevens dissented, for example:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.

I don’t have any illusions that I know “the law” better than Stevens, Kennedy, or Greenwald. But they are professional interpreters of the constitution, a profession which requires a certain pragmatic and practical heads-down close-mindedness about all the ambiguities and contingencies of their exegetical process, the useful pretense that one answer being right precludes other answers being right. After all, that entire process falls apart if we acknowledge that none of these words were handed down from on Mt. Sinai, that their meanings change unpredictably, that the founders were (as every Supreme Court justice is) subjective and limited in their perspective, and that the difference between “right” and “wrong” is, in many cases, simply a difference of (politically informed) opinion. The job of such people, after all, is to pronounce authoritatively on questions that lack obvious answers, and in doing so, investing and reinforcing consequential questions with answers that we can, in accepting, invest with social legitimacy.

But sometimes two answers are both right, and sometimes the language of the constitution allows us no way to choose. It is, in fact, precisely the Supreme Court’s function to makes the law in such cases: when they decide a particular point, they are almost always choosing one convincing and coherent argument over another convincing and coherent argument, a decision they make based on which principles they decided to elevate over others. And their subjective beliefs about the world we all share are always part of the process.

In this case, the idea that a for-profit corporation has the rights which the constitution accords to human beings is, perhaps, a good one. Yet so is the argument that it does not and should not; as Justice Stevens points out, what a “corporation” was in the year those words were written, after all, was fundamentally different than what it is now. And since all sorts of speech gets regulated in the service of the public welfare, everything from yelling fire in a crowded theatre to libel and slander, it isn’t at all clear to me that there is any pressing necessity why being an absolutist in this case is any more necessary than in those cases. I’m not saying Greenwald is wrong, in other words; I’m saying that his right answer isn’t the only one. And while being either a constitutional lawyer or a partisan hack requires a certain practical suspension of one’s awareness of that complexity and ambiguity, it doesn’t mean we should find such arguments convincing. Do we choose to regard the attitudes of the founders as the principles we regard as constitutionally valid? Or do we strip the words of their context and regard them as holy writ? Both approaches are valid, on their own terms, and both are “legal.” But the fact that they have profoundly different consequences — profoundly different outcomes — is what makes the distinction what it is.

Which is why I am illuminated by reading Greenwald’s opinion, but not convinced by and don’t share it. I would note, for one thing, that while he has argued we should not take our desire for certain outcomes into consideration, he also spends the entire column arguing that the outcome of this decision will not be nearly as bad as people think. I hope he is right about that. But outcomes are the only thing that matter as he implicitly admits even by his claim that reverence for the rule of law is the important thing right now. And even more than that, “outcomes” is simply a euphemism for the common good that the entire constitution’s reason for being is, explicitly, justified by. The constitution’s purpose is not to be a coherent set of principles that lawyers and judges and statesmen can use as a fig leaf for arguing that their opinions are legal while others’ are not. Its purpose is to “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” and if that isn’t to be part of what it is seen as doing, then it has no reason to be regarded as meaningful. Which is why Greenwald’s own argument for the constitutional protection of speech is framed the way it is: he argues, after all, that protecting free speech is more important than checking corporate influence over elections. The fact that he thinks Citizens United vs. FEC is good law is, at least rhetorically, subordinate to that argument and I think it should be. But it implicitly contradicts his underlying claim: he argues that we should put legality above outcomes because doing so produces better outcomes.

Anachronistic document that it is in all sorts of ways, the constitution is worth keeping because it mostly isn’t very vague at all, and because most of its principles are good ones and produce good outcomes. Centuries of jurisprudence have gone into filling in the many holes left by its omissions and ambiguities, and we can still operate according to the principles it sets forth because, while the document admits of some wiggle room on a variety of issues, that wiggle room is pretty clearly limited in other important respects. At the same time, all sorts of profoundly bad decisions were once invested with constitutional authority — human slavery, after all, is woven into every aspect of the constitution — and have since been changed because of the outcomes they produced. But the fact that one legal process for changing law is the process of writing and voting on amendments doesn’t mean we shouldn’t close our eyes to the other one, the always-activist and political process by which justices transform by interpreting the words on those pages. Whether or not “activist judges” were the way the founders intended the system to work is less important than the fact that it always has worked that way. Which is why we should stop giving the right wing the gift of respecting that framework: it leaves us demanding liberal in-activism at the same time as the wildly “activist” and ambitious Roberts court radically and legally transforms our political system.

But while the constitution might have been a nice job for Greenwald and a job well done for us, it is good to remember that we are a nation with two holy writs, and that unlike the relationship between the new and old testament, the 1787 covenant doesn’t replace the one that was written in 1776. Instead, they exist in a productive tension: the America of the constitution is always in silent conflict with the America of the declaration of independence, for while the first describes the terms under legitimate authority is to be established, the second describes the terms under which a revolution against established authority can be legitimized as moral. These are very different stories, but they are both “American.” The declaration of independence (and all it signifies) legitimizes the desires of people to argue that when the government has failed to be a good government (in a “social contract” understanding of what government is), then they are perfectly legitimate in arguing for a changed law that is better able “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” And let’s not forget that the founding of this nation’s legal system was an inescapably illegal act; official narratives of the United States tend to strategically collapse 1776 and 1787 into a single “founding,” but the legitimacy of our nation is founded in the moral principle that bad laws need to be changed. There are, then, no easy answers here, no perfect laws written down by God or founding fathers for us to mindlessly follow. Which is why it’s lucky that we’re adults, capable of thinking for ourselves.

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