ELB Book Corner: George Thomas: “The Inescapability of Constitutional Judgment”

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the final of three posts:

ELB Book Corner

In the first post I pointed out that unwritten understandings play a central role in attempting to faithfully interpret constitutional text, which was followed by the second post where I argued that this leads to a process where constitutional meaning is constructed over time, rather than simply being draw out from the text itself. In this last post, I highlight the fact that we must inescapably make judgments about how to order, weigh, and understand different textual provisions and values as part of a constitutional whole.

There is no getting around this. There is no safe space that allows us to avoid making constitutional judgments that are not determined by text, just the reasons we give for making them. When should courts defer to democratic legislation, and when should they protect rights against democratic legislation? The text does not answer these question for us.

In a recent voting rights case, Justice Ginsburg argued that given the history of discriminatory voting procedures—particularly against blacks in many southern states—the Court ought to give wide latitude to Congress in order to protect minority voting rights. In doing so, she urged the Court to defer to Congress’s information gathering and past record in eliminating race-based discrimination in voting, which had historically plagued America’s democratic process.

The Court, in an opinion by Chief Justice Roberts, argued that on the basis of “principles of federalism,” the Congress should not require that certain states and counties get approval from the national government before enacting any law related to voting. True, there was a history of racial discrimination in these districts, but given that it was 50-plus years ago, the Congress should not treat states differently in this regard without a recent showing of discriminatory voting practices on the part of particular states. Chief Justice Roberts would defer to states and, in doing so, overturn sections of a congressional statute. Roberts took seriously the gravity of his decision, but argued it was unconstitutional to subject certain jurisdictions to rules from the federal government without new evidence that these jurisdictions had engaged in racially discriminatory voting practices.

Like Justice Ginsburg’s judgment, the chief justice’s judgment was rooted in how he constructed relations among the states and national government, voting rights, and the Court’s role in the constitutional scheme. Neither simply turned to constitutional text. Rather, based on different textual provisions, an examination of history, and weighing constitutional principles, they arrived at their judgments of what the Constitution, taken as a whole, required. Most crucial to their respective judgments was the weight they gave certain constitutional principles. Justice Ginsburg prioritized voting rights against a history of racial discrimination, while Chief Justice Roberts prioritized federalism given the recent decline in racial discrimination in voting.

It was these judgements about how to order different part of the Constitution that informed their understanding of text. Textual readings we take for granted are often built up as part of an historical process and are not simple givens. Such constructions are a sort of political theory, guiding us to make sense of text, offering standards to shape our judgment in applying the written Constitution to particular cases.  At the most foundational level, how we view the character and nature of the Constitution—what we imagine the Constitution to be—will shape our reading of its text.

There is no getting around these “unwritten” understandings. We should acknowledge them, justifying why we think they make the best sense of our written Constitution as part of our ongoing project of constitutional self-government.

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