The New York Review of Books

Moreover, this way of looking at rights avoids some of the notorious puzzles associated with the concept. It allows us to say, with no sense of strangeness, that rights may vary in strength and character from case to case, and from point to point in history. If we think of rights as things, these metamorphoses seem strange, but we are used to the idea that moral judgments about what it is right or wrong to do are complex and are affected by considerations that are relative and that change.

The skeptic who wants to argue against the very possibility of rights against the state of this sort has a difficult brief. He must rely, I think, on one of three general positions: a) He might display a more pervasive moral skepticism, which holds that even to speak of an act being morally right or wrong makes no sense. If no act is morally wrong, then the government of North Carolina cannot be wrong to refuse to bus school children. b) He might hold a stark form of utilitarianism, which assumes that the only reason we ever have for regarding an act as right or wrong is its impact on the general interest. Under that theory, to say that busing may be morally required even though it does not benefit the community generally would be inconsistent, c) He might accept some form of totalitarian theory, which merges the interests of the individual in the good of the general community, and so denies that the two can conflict.

Very few American politicians would be able to accept any of these three grounds. President Nixon certainly cannot, because he presents himself as a moral fundamentalist who knows in his heart that pornography is wicked and that some of the people of South Vietnam have rights to self-determination in the name of which they and we may properly kill many others.

I do not want to suggest, however, that no one would in fact argue for judicial restraint on grounds of skepticism; on the contrary, some of the best known advocates of restraint have pitched their arguments entirely on skeptical grounds. In 1957, for example, the great judge Learned Hand delivered the Oliver Wendell Holmes lectures at Harvard. Hand was a student of Santayana and a disciple of Holmes, and skepticism in morals was his only religion. He argued for judicial restraint, and said that the Supreme Court had done wrong to declare school segregation illegal in the Brown case. It is wrong to suppose, he said, that claims about moral rights express anything more than the speakers’ preferences. If the Supreme Court justifies its decisions by making such claims, rather than by relying on positive law, it is usurping the place of the legislature, for the job of the legislature, representing the majority, is to decide whose preferences shall govern.

This simple appeal to democracy is successful if one accepts the skeptical premise. Of course, if men have no rights against the majority, if political decision is simply a matter of whose preferences shall prevail, then democracy does provide a good reason for leaving that decision to more democratic institutions than courts, even when these institutions make choices that the judges themselves hate. But a very different, and much more vulnerable, argument from democracy is needed to support judicial restraint if it is based not on skepticism but on deference, as I shall try to show.

IV

If Nixon holds a coherent constitutional theory, it is a theory of restraint based not on skepticism but on deference. He believes that courts ought not to decide controversial issues of political morality because they ought to leave such decisions to other departments of government. If we ascribe this policy to Nixon, we can make sense of his charge that the Warren Court “twisted and bent” the law. He would mean that they twisted and bent the principle of judicial deference, which is an understatement, because he would be more accurate if he said that they ignored it. But are there any good reasons for holding this policy of deference? If the policy is in fact unsound, then Nixon’s jurisprudence is undermined, and he ought to be dissuaded from making further Supreme Court appointments, or encouraging Congress to oppose the Court, in its name.

There is one very popular argument in favor of the policy of deference, which might be called the argument from democracy. It is at least debatable, according to this argument, whether a sound conception of equality forbids segregated education or requires measures like busing to break it down. Who ought to decide these debatable issues of moral and political theory? Should it be a majority of a court in Washington, whose members are appointed for life and are not politically responsible to the public whose lives will be affected by the decision? Or should it be the elected and responsible state or national legislators? A democrat, so this argument supposes, can accept only the second answer.

But the argument from democracy is weaker than it might first appear. The argument assumes, for one thing, that state legislatures are in fact responsible to the people in the way that democratic theory assumes. But in all the states, though in different degrees and for different reasons, that is not the case. In some states it is very far from the case. I want to pass that point, however, because it does not so much undermine the argument from democracy as call for more democracy, and that is a different matter. I want to fix attention on the issue of whether the appeal to democracy in this respect is even right in principle.

The argument assumes that in a democracy all unsettled issues, including issues of moral and political principle, must be resolved only by institutions that are politically responsible in the way that courts are not. Why should we accept that view of democracy? To say that that is what democracy means does no good, because it is wrong to suppose that the word, as a word, has anything like so precise a meaning. Even if it did, we should then have to rephrase our question to ask why we should have democracy, if we assume that is what it means. Nor is it better to say that that view of democracy is established in the American Constitution, or so entrenched in our political tradition that we are committed to it. We cannot argue that the Constitution, which provides no rule limiting judicial review to clear cases, establishes a theory of democracy that excludes wider review, nor can we say that our courts have in fact consistently accepted such a restriction. The burden of Nixon’s argument is that they should have, not that they have.

So the argument from democracy is not an argument to which we are committed either by our words or our past. We must accept it, if at all, on the strength of its own logic. In order to examine the argument more closely, however, we must make a further distinction. The argument as I have set it out might be continued in two different ways: one might argue that judicial deference is required because democratic institutions, like legislatures, are in fact likely to make sounder decisions than courts about the underlying issues that constitutional cases raise, that is, about the nature of an individual’s moral rights against the state.

Or one might argue that it is for some reason fairer that a democratic institution rather than a court should decide such issues, even though there is no reason to believe that the institution will reach a sounder decision. The distinction between these two arguments would make no sense to a skeptic, who would not admit that someone could do a better or worse job at identifying moral rights against the state, any more than someone could do a better or worse job of identifying ghosts. But a lawyer who believes in judicial deference rather than skepticism must acknowledge the distinction, though he can argue both sides if he wishes.

I shall start with the second argument, that legislatures and other democratic institutions have some special title to make constitutional decisions, apart from their ability to make better decisions. One might say that the nature of this title is obvious, because it is always fairer to allow a majority to decide any issue than a minority. But that, as has often been pointed out, ignores the fact that decisions about rights against the majority are not issues that in fairness ought to be left to the majority. Constitutionalism—the theory that the majority must be restrained to protect individual rights—may be a good or bad political theory, but the United States has adopted that theory, and to make the majority judge in its own cause seems inconsistent and unjust. So principles of fairness seem to speak against, not for, the argument from democracy.

Chief Justice Marshall recognized this in his decision in Marbury v. Madison, the famous case in which the Supreme Court first claimed the power to review legislative decisions against constitutional standards. He argued that since the Constitution provides that the Constitution shall be the supreme law of the land, the courts in general, and the Supreme Court in the end, must have power to declare statutes void that offend that Constitution. Many legal scholars regards his argument as a non sequitur, because, they say, although constitutional constraints are part of the law, the courts, rather than the legislature itself, have not necessarily been given authority to decide whether in particular cases that law has been violated.² But the argument is not a non sequitur if we take the principle that no man should be judge in his own cause to be so fundamental a part of the idea of legality that Marshall would have been entitled to disregard it only if the Constitution had expressly denied judicial review.

Some might object that it is simpleminded to say that a policy of deference leaves the majority to judge its own cause. Political decisions are made, in the United States, not by one stable majority but by many different political institutions each representing a different constituency which itself changes its composition over time. The decision of one branch of government may well be reviewed by another branch that is also politically responsible, but to a larger or different constituency. The acts of the Arizona police which the Court held unconstitutional in Miranda, for example, were in fact subject to review by various executive boards and municipal and state legislatures of Arizona, as well as by the national Congress. It would be naĂŻve to suppose that all of these political institutions are dedicated to the same policies and interests, so it is wrong to suppose that if the Court had not intervened the Arizona police would have been free to judge themselves.