The New York Review of Books

On the other hand, the members may be laying down a particular conception of fairness; I would have done this, for example, if I had listed my wishes with respect to controversial examples or if, even less likely, I had specified some controversial and explicit theory of fairness, as if I had said to decide hard cases by applying the utilitarian ethics of Jeremy Bentham. The difference is a difference not just in the detail of the instructions given but in the kind of instructions given. When I appeal to the concept of fairness I appeal to what fairness means, and I give my views on that issue no special standing. When I lay down a conception of fairness, I lay down what I mean by fairness, and my view is therefore the heart of the matter. When I appeal to fairness I pose a moral issue; when I lay down my conception of fairness I try to answer it.

Once this distinction is made it seems obvious that we must take what I have been calling “vague” constitutional clauses as representing appeals to the concepts they employ, like legality, equality, and cruelty. The Supreme Court may soon decide, for example, whether capital punishment is “cruel” within the meaning of the constitutional clause that prohibits “cruel and unusual punishment.” It would be a mistake for the Court to be much influenced by the fact that when the clause was adopted capital punishment was standard and unquestioned. That would be decisive if the framers of the clause had meant to lay down a particular conception of cruelty, because it would show that that conception did not extend so far. But it is not decisive of the different question the Court now faces, which is this: can the Court, responding to the framers’ appeal to the concept of cruelty, now defend a conception that excludes death?

Those who ignore the distinction between concepts and conceptions, but who believe that the Court ought to make a fresh determination of whether the death penalty is cruel, are forced to argue in a vulnerable way. They say that ideas of cruelty change over time, and that the Court must be free to reject out-of-date conceptions; this suggests that the Court must change what the Constitution enacted. But in fact the Court can enforce what the Constitution says only by making up its own mind about what is cruel, just as my children, in my example, can do what I said only by making up their own minds about what is fair. If those who enacted the broad clauses had meant to lay down particular conceptions, they would have found the sort of language conventionally used to do this, that is, they would have offered particular theories of the concepts in question.

Indeed the very practice of calling these clauses “vague,” in which I have joined, can now be seen to involve a mistake. The clauses are vague only if we take them to be botched or incomplete or schematic attempts to lay down particular conceptions. If we take them as appeals to moral concepts they could not be made more precise by being more detailed.¹

The confusion I mentioned between the two senses of “strict construction” is therefore very misleading indeed. If courts try to be faithful to the text of the Constitution, they will for that very reason be forced to decide between competing conceptions of political morality. So it is wrong to attack the Warren Court, for example, on the ground that it failed to treat the Constitution as a binding text. On the contrary, if we wish to treat fidelity to that text as an overriding requirement of constitutional interpretation, then it is the conservative critics of the Warren Court who are at fault, because their philosophy ignores the direction to face issues of moral principle that the logic of the text demands.

I put the matter in a guarded way because we may not want to accept fidelity to the spirit of the text as an overriding principle of constitutional adjudication. It may be more important for courts to decide constitutional cases in a manner that respects the judgments of other institutions of government, for example. Or it may be more important for courts to protect established legal doctrines, so that citizens and the government can have confidence that the courts will hold to what they have said before. But it is crucial to recognize that these other policies compete with the principle that the Constitution is the fundamental and imperative source of constitutional law. They are not, as the “strict constructionists” suppose, simply consequences of that principle.

III

Once the matter is put in this light, moreover, we are able to assess these competing claims of policy, free from the confusion imposed by the popular notion of “strict construction.” For this purpose I want now to compare and contrast two very general philosophies of how the courts should decide difficult or controversial constitutional issues. I shall call these two philosophies by the names they are given in the legal literature—the policies of “judicial activism” and “judicial restraint”—though it will be plain that these names are in certain ways misleading.

The policy of judicial activism holds that courts should accept the directions of the so-called vague constitutional provisions in the spirit I described, in spite of competing reasons of the sort I mentioned. They should work out principles of legality, equality, and the rest, revise these principles from time to time in the light of what seems to the Court fresh moral insight, and judge the acts of Congress, the states, and the President accordingly. (This puts the policy in its strongest form; in fact its supporters generally qualify the policy in ways I shall ignore for the present.)

The policy of judicial restraint, on the contrary, argues that courts should allow the decisions of other branches of government to stand, even when they offend the judges’ own sense of the principles required by the broad constitutional doctrines, except when these decisions are so offensive to political morality that they would violate the provisions on any plausible interpretation, or, perhaps, when a contrary decision is required by clear precedent. (Again, this puts the policy in a stark form; those who profess the policy qualify it in different ways.)

The Supreme Court followed the policy of activism rather than restraint in cases like the segregation cases because the words of the equal protection clause left it open whether the various educational practices of the states concerned should be taken to violate the Constitution, no clear precedent held that they did, and reasonable men might differ on the moral issues involved. If the Court had followed the policy of judicial restraint, it would therefore have held in favor of the North Carolina statute in Swann, not against it. But the policy of restraint would not always act to provide decisions that would please political conservatives. In the early days of the New Deal, as critics of the Warren Court are quick to point out, it was the liberals who objected to Court decisions that struck down acts of Congress in the name of the due process clause.

It may seem, therefore, that if Nixon has a legal theory it depends crucially on some theory of judicial restraint. We must now, however, notice a distinction between two forms of judicial restraint, for there are two different, and indeed incompatible, grounds on which that policy might be based.

The first is a theory of political skepticism that might be described in this way. The policy of judicial activism presupposes a certain objectivity of moral principle; in particular it presupposes that citizens do have certain moral rights against the state, like a moral right to equality of public education or to fair treatment by the police. Only if such moral rights exist in some sense can activism be justified as a policy based on something beyond the judge’s personal preferences. The skeptical theory attacks activism at its roots; it argues that in fact individuals have no such moral rights against the state. They have only such legal rights as the Constitution grants them, and these are limited to the plain and uncontroversial violations of public morality that the framers must have had actually in mind, or that have since been established in a line of precedent.

The alternate ground of a policy of restraint is a theory of judicial deference. Contrary to the skeptical theory, this assumes that citizens do have moral rights against the state beyond what the law expressly grants them, but it points out that the character and strength of these rights are debatable and argues that political institutions other than courts are responsible for deciding which rights are to be recognized.

This is an important distinction, even though the literature of constitutional law does not draw it with any clarity. The skeptical theory and the theory of deference differ dramatically in the kind of justification they assume, and in their implications for the more general moral theories of the men who profess to hold them. These theories are so different that an American politician, like Nixon, can consistently accept the second, but not the first.

A skeptic takes the view, as I have said, that men have no moral rights against the state and only such legal rights as the law expressly provides. But what does this mean, and what sort of argument might the skeptic make for his view? There is, of course, a very lively dispute in moral philosophy about the nature and standing of moral rights, and considerable disagreement about what they are, if they are anything at all. I shall rely, in trying to answer these questions, on a low-keyed theory of moral rights against the state which I developed in an earlier essay in this Review (“Taking Rights Seriously,” December 17, 1970). Under that theory, a man has a moral right against the state if for some reason the state would do wrong to treat him in a certain way, even though it would be in the general interest to do so. So a black child has a moral right to an equal education, for example, if it is wrong for the state not to provide that education, even if the community as a whole suffers thereby.

I want to say a word about the virtues of this way of looking at moral rights against the state. A great many lawyers are wary of talking about moral rights, even though they find it easy to talk about what is right or wrong for government to do, because they suppose that rights, if they exist at all, are spooky sorts of things that men and women have in much the same way as they have non-spooky things like tonsils. But the sense of rights I propose to use does not make ontological assumptions of that sort: it simply shows a claim of right to be a special, in the sense of a restricted, sort of judgment about what is right or wrong for governments to do.