|
Article Excerpt
NOTE CONTENTS
INTRODUCTION I. POPULAR CONSTITUTIONALISM, JUDICIAL SUPREMACY, AND CONTEMPORARY CONSTITUTIONAL CULTURE A. Reviving a Lost Tradition B. A Friendly Amendment: "Democratic Constitutionalism" C. The Rise of Judicial Supremacy II. POLITICAL SOCIALIZATION, CIVIC EDUCATION, AND PUBLIC SUPPORT FOR THE SUPREME COURT A. Civic Education: A Source of Support for a Mysteriously Popular Court? 1. A (Very) Brief History of American Civic Education 2. The Role of Civic Education in Political Socialization 3. The Persistence of Public Support for the Supreme Court 4. The Key Factors Altering Previous Beliefs B. The Enduring Role of Textbooks in American Public Education III. WHAT IS BEING TAUGHT TODAY? A. Civic Education Today (and Yesterday) B. Constitutional Themes, Canonical Cases, and U.S. History Textbooks C. The Court as Redeemed Institution D. The Court as Authoritative Constitutional Interpreter: Or, the Judicial Supremacy/Judicial Review Confusion IV. POPULAR CONSTITUTIONALISTS: HISTORY'S VILLAINS OR LEGITIMATE INTERPRETERS? A. Chase, Marbury, and Jefferson's Challenge to the Judiciary B. Jackson, Marshall, and the Rights of the Cherokee Nation C. Jackson and the Second Bank of the United States D. Roosevelt and "Court-Packing" E. Alternative Challenges to an Aggressive Court: Public Campaigning, Social Movements, and Judicial Nominations 1. The Lincoln-Douglas Debates 2. Norm Contestation and Social Mobilization 3. Reagan and Judicial Nominations 4. The Southern Response to Brown and Nixon's "Southern Strategy" CONCLUSION APPENDIX: METHODOLOGY
INTRODUCTION
Constitutional law is, at least in part, about storytelling. Through the exercise of our collective constitutional imagination, vague words written centuries ago are given life. Broad rights are given specific applications. In the process, the American Constitution becomes our Constitution. (1) As Jack Balkin explains, this imaginative process focuses on constructing a "constitutional story--a constitutive narrative through which people imagine themselves as a people, with shared memories, goals, aspirations, values, duties, and ambitions." (2) A generation earlier, Robert Cover poetically wrote, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture." (3)
At any given moment, different communities are likely to craft different "constitutional stories." Our constitutional tradition, with its concise text and malleable history, is susceptible to multiple interpretations. A segregationist Southerner may construct a narrative featuring states' rights, focusing on the Tenth Amendment and statements from Thomas Jefferson, (4) Andrew Jackson, (5) and John C. Calhoun. (6) A civil libertarian may create a narrative stressing the nation's enduring commitment to free expression, connecting the First Amendment and the election of 1800 to New York Times v. Sullivan (7) and Texas v. Johnson. (8) A race-conscious liberal may understand Brown v. Board of Education (9) as realizing the earlier promise of the Reconstruction Amendments and Justice John Marshall Harlan's dissent in Plessy v. Ferguson. (10) It is through these stories that we come to understand the promises guaranteed by our Constitution as commitments realized over time--commitments to the proper scope of religious freedom, property rights, free expression, and equal protection, among others. As Bruce Ackerman notes, "[T]he Constitution is more than an idea. It is an evolving historical practice, constituted by generations of Americans as they mobilized, argued, resolved their ongoing disputes over the nation's identity and destiny." (11) It is through these imaginative acts and ongoing disputes that we become citizens of a constitutional tradition that extends through the centuries. It is through constructing these narratives that we truly become "We the People."
Even so, our constitutional narratives are frequently contested. H. Jefferson Powell describes American constitutional law as "an historically extended tradition of argument." (12) Through these arguments, we often wage the same battles, decade after decade. Nevertheless, over time we sometimes reach a new consensus on key issues--sometimes at gunpoint (slavery), other times by resounding electoral mandate (the commerce power). Regardless, these debates are the subject of countless articles and books--and so they should be. They shape our constitutional culture (13) and the structure of our public discourse.
One important set of constitutional stories, however, has not been the subject of focused study. These stories subtly shape our constitutional culture but have received scant attention from legal scholars. They are often the product not of robust public debate, but of bureaucratic decisions shaped by market forces and narrow interests. I am speaking of the constitutional stories we tell our schoolchildren. These stories are often derived from school curricula and textbooks shaped by a clandestine process that few parents (not to mention legal scholars) take the time to understand. Although important studies have been conducted on the portrayal of race and gender in our school curricula, (14) little attention has been paid to the broader constitutional stories we tell our schoolchildren--stories that shape their early conception of the proper role of government in their lives and the relative balance of power between the constitutive branches.
In the case of the U.S. Supreme Court, in many ways the least publicly visible branch, these stories can be vitally important in shaping children's long-term views about the role of the Court in our constitutional system. Is the Court properly understood as the authoritative constitutional interpreter, or instead as merely a coequal voice in an ongoing debate? Do these stories flame judicial review as part of our dynamic system of checks and balances, or do they advocate outright acquiescence by Congress, the President, and the People in the face of an assertive Court? These questions are central to the current debate over judicial supremacy and popular constitutionalism--a debate focused on the proper scope of judicial interpretive authority and the overall state of contemporary constitutional culture.
In this Note, I explore one possible source of public support for an active Supreme Court--or, as popular constitutionalists call it, "judicial supremacy." I examine the underappreciated role that political socialization, particularly civic education, may play in shaping the People's beliefs about the proper role of the Court in the American constitutional system. In particular, I focus on the consensus narratives presented in our high school textbooks--narratives that communicate powerful (but implicit) messages about the proper role of the Court in American society.
In Part I, I discuss popular constitutionalism, the rise of judicial supremacy, and the current state of our constitutional culture--mostly as understood by prominent popular constitutionalists, especially Larry Kramer. I then contrast Kramer's popular constitutionalism with a competing account offered by Robert Post and Reva Siegel, which they call "democratic constitutionalism." To that end, I focus on various methods available to check an overly aggressive Court, contrasting blunt institutional checks (like jurisdiction-stripping and "court-packing") with longer-term checks (like social mobilization and judicial nominations). Part II outlines the mechanism that underlies public support for the Supreme Court, paying particular attention to the role of civic education.
Part III turns to the constitutional stories we tell our schoolchildren and what these stories communicate about the proper role of the Court in our constitutional system. My primary focus will be on the narratives that are presented in today's most widely used high school U.S. history textbooks, although I will also draw upon older textbooks to suggest trends over time.
Part IV focuses on the textbooks' portrayals of important public challenges to the Court's interpretive authority. I concentrate on their treatment of such blunt checks as President Jefferson's challenge to the judiciary in the early 1800s, President Jackson's repudiation of Chief Justice Marshall in Worcester v. Georgia, (15) President Jackson's veto of the Second Bank, and President Franklin D. Roosevelt's attempt to pack the Court in the late 1930s, as well as such subtler checks as Abraham Lincoln's attack on Dred Scott v. Sandford (16) during the Lincoln-Douglas debates, the southern response to Brown, Richard Nixon's "Southern Strategy," and President Ronald Reagan's judicial nominations. I will be sensitive throughout to the important distinction between the blunt institutional checks advocated by Kramer and the "persistent and nuanced" checks that are stressed by Post and Siegel.
Part IV concludes that contemporary high school textbooks offer little support for blunt institutional checks on the Court (and even less support than in the past), but offer some legitimacy to other public challenges to the Court. Indeed, all textbooks are open to non-Article V constitutional change through judicial nominations and accept key instances of norm contestation through public campaigns and social movements. This suggests that, although the textbooks are critical of blunter checks on the Court's interpretative authority, they subtly accept longer-term, alternative forms of constitutional contestation and change.
I. POPULAR CONSTITUTIONALISM, JUDICIAL SUPREMACY, AND CONTEMPORARY CONSTITUTIONAL CULTURE
There is a growing consensus among legal academics on both the left and the right that the Supreme Court has taken on an outsized role as the authoritative constitutional interpreter in the modern American constitutional system. Kramer argues that "we have for all practical purposes turned the Constitution over to the Supreme Court." (17) He adds that "we--and by 'we' I mean not just members of the legal profession, but political leaders and the American public as well-assume that the Supreme Court is responsible for [the] final resolution" of constitutional controversies. (18) In so doing, the People have acquiesced to "judicial supremacy."
It is important to distinguish between judicial supremacy and judicial review. (19) On the one hand, judicial review simply refers to the idea that courts, including the U.S. Supreme Court, have the authority, "in the context of deciding a particular case, to refuse to give force to an act of another governmental institution on the grounds that such an act is contrary to the requirements of the Constitution." (20) Importantly, Keith Whittington notes, "Judges, in this reading, are the agents of the people, not merely of the legislature. As such, they have an independent responsibility to adhere to the mandates of the Constitution...." (21)
Judicial supremacy, on the other hand, is associated with the belief that "[c]onstitutions require a single, authoritative interpreter, subject to neither popular pressure nor electoral instability." (22) The term itself was first used in the early twentieth century, at the height of the Lochner era. (23) It tends to be justified by a variety of familiar arguments: that judicial supremacy "is essential to preserving the rule of law and preventing constitutional anarchy"; (24) that it "provide[s] substantively desirable legal outcomes"; (25) and that through it, the judiciary (particularly the U.S. Supreme Court) "functions as a countermajoritarian institution securing the liberties of individuals and political minorities." (26) Whittington adds, "The bridge from constitutionalism to judicial supremacy has been built on the contention that the courts are preeminently the American 'forum of principle,' whereas the non-judicial arenas are characterized by a politics of power driven by conflicting interests and assertions of will" (27)--a "bridge depend[ing] more on caricatures drawn by academic lawyers than on the examination of historical political experience." (28)
In the context of the U.S. Supreme Court, the key symptom of "judicial supremacy" is "the all-but-complete disappearance of public challenges to the Justices' supremacy over constitutional law.... regardless of what the Justices say, and regardless of the Court's political complexion." (29) Judicial supremacy "posits that the Court does not merely resolve particular disputes involving the litigants directly before them.... It also authoritatively interprets constitutional meaning." (30) Whittington explains, "Judicial supremacy requires deference by other government officials to the constitutional dictates of the Court, even when other government officials think that the Court is substantively wrong about the meaning of the Constitution...." (31) Judicial supremacy refers to "[t]he judiciary's authority to set its opinions about the correct meaning of the Constitution above those of Congress, the president, or the electorate." (32)
A. Reviving a Lost Tradition
Embedded in this account of judicial supremacy is both a normative and a historical claim. Normatively, critics of the Court argue that the common sense of the American people is being consistently overturned by a handful of insulated, elite lawyers in robes, and that the American people (either consciously or unconsciously) have acquiesced to this practice. Historically, critics further argue that this was not always the case. For instance, David Currie notes that "[i]n the early Congress virtually everything became a constitutional question--from great controversies like those over the national bank and the president's removal power to ephemera of exquisite obscurity." (33) Kramer calls for a revival of this tradition. He affirms "popular constitutionalism" as a practice rooted in the early American constitutional tradition and carried on throughout American history by Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin Roosevelt, among others. (34)
Importantly, popular constitutionalists believe that "constitutional discourse ought not to be the exclusive province of judges and lawyers" (35) and should not be dominated by the U.S. Supreme Court. They observe that throughout American history the democratically elected branches and the People have often challenged the Court's authority and asserted their right to interpret the Constitution. Presidents, in particular, have often played a key role in checking the Court. Whittington cites the President's propensity for constitutional storytelling as a key reason for his potential strength as a constitutional counterweight to an aggressive Court: "The president 'tells us stories about ourselves, and in so doing he tells us what sort of people we are, how we are constituted as a community. We take from him not only our policies but our national self-identity.'" (36) In Parts III and IV, I will focus on how textbooks characterize key "reconstructive" presidents like Thomas Jefferson, Andrew Jackson, and Franklin D. Roosevelt.
In the end, popular constitutionalists call for a return to a constitutional system in which final interpretive authority rests with the People and the Court is chastened by popular devices, such as jurisdiction stripping, budget cutting, court-size modification, and public challenges by political leaders. In such a system, "[p]roblems of fundamental law--what we would call questions of constitutional interpretation--[are] thought of as ... problems that could be authoritatively settled only by 'the people' expressing themselves through [established] popular devices," (37) "mainly through elections, but also, if necessary, by other extralegal means." (38)
B. A Friendly Amendment: "Democratic Constitutionalism"
Robert Post and Reva Siegel have offered a response to Kramer's popular constitutionalism which they have called "democratic constitutionalism." (39) Democratic constitutionalism can be understood as a middle way between judicial supremacy and popular constitutionalism, because it affirms both "the role of representative government and mobilized citizens in enforcing the Constitution" and also "the role of courts in using professional legal reason to interpret the Constitution." (40) It is an attempt to "prize" both law and politics in light of the fact that "we rarely imagine law and politics as respectfully coexisting, as they often do." (41)
Unlike Kramer, Post and Siegel do not "seek to take the Constitution away from courts," as they "recognize[] the essential role of judicially enforced constitutional rights in the American polity." (42) They acknowledge that "there are many circumstances when constitutional law requires separation from politics." (43) But they also "believe that a legitimate and vibrant system of constitutional law requires institutional structures that will ground it in the constitutional culture of the nation." (44) Indeed, democratic constitutionalists "appreciate[] the essential role that public engagement plays in guiding and legitimating the institutions and practices of judicial review," as "[c]onstitutional judgments based on professional legal reason can acquire democratic legitimacy only if professional reason is rooted in popular values and ideals." (45) In this view, controversial constitutional issues are not "settled merely by judicial decree." (46) Rather, "[w]hen the Court chooses to press a particular vision of the national ethos in the face of opposition, it is rendered vulnerable to political reprisal, which can take such various forms as civil disobedience, hostile Presidential appointments, or constitutional amendments." (47) Like Kramer's popular constitutionalism, the Post-Siegel account rejects the formal Article V amendment process as an unworkably time-consuming form of constitutional change, noting that "[m]ore persistent and nuanced forms of exchange are required to maintain the authority of those who enforce constitutional law in situations of aggravated dispute." (48) Furthermore, although Post and Siegel note that the "appointment of Supreme Court Justices" is "[o]ne important avenue for influencing constitutional decisionmaking," they criticize it as a "blunt and infrequent method[] of affecting the content of constitutional law." (49)
The key form of "persistent and nuanced" exchange in the system of democratic constitutionalism is "the practice of norm contestation, which seeks to transform the values that underlie judicial interpretations of the Constitution." (50) One key form of "norm contestation" is social mobilization. Siegel notes, "Social movements change the ways Americans understand the Constitution." (51) She adds, "Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding--a dynamic that guides officials interpreting the open-textured language of the Constitution's rights guarantees." (52) Post and Siegel share Kramer's fear that key constitutional dialogues are being threatened by the rise of an increasingly aggressive Court, especially in the context of Congress's enforcement power under Section 5 of the Fourteenth Amendment. (53)
C. The Rise of Judicial Supremacy
Far from an ongoing tradition of popular constitutionalism, Kramer sees a deepening constitutional crisis--namely, that "[s]ometime in the past generation or so ... Americans came to believe that the meaning of their Constitution is something beyond their compass, something that should be left to others." (54) This underlying change in our constitutional culture has permitted the rise of judicial supremacy, as political leaders, legal elites, and the People themselves have yielded to a rhetorically and substantively aggressive Court. Kramer blames a wide variety of factors for this shift, including "heightened skepticism about popular democracy occasioned by twentieth-century totalitarianism; the historical anomaly of the liberal Warren Court; two generations of near consensus about judicial supremacy among intellectuals and opinion-makers on both the left and the right (not to mention among high school civics teachers)." (55) Although I will spend much of this Note discussing the relationship between judicial supremacy and civic education, in the remainder of this Part, I will trace the development of judicial supremacy in the twentieth century.
The foundation of judicial supremacy is often traced back to Chief Justice John Marshall's bold declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." (56) Whittington notes, "Those who advocate judicial supremacy ... tend to treat it as a matter of normative directive and accomplished fact," rooted in the dictates of this historic case. (57) Following Whittington, I will refer to this origin story as the "Marbury myth." (58) Whittington counters that this is merely "wishful thinking" on the part of judicial supremacists, (59) as "the modern Court, not the early Court ... has been most aggressive in asserting the reality of judicial supremacy." (60) As Akhil Amar observes, "[T]he Rehnquist Court [was] fond of sweeping assertions of judicial supremacy, regularly proclaiming itself the Constitution's 'ultimate' interpreter, a self-description that nowhere appears in Marbury and never appeared in the United States Reports until the second half of the twentieth century." (61) Furthermore, our constitutional history "is littered with debates over judicial authority and constitutional meaning," with "judicial authority ... contested by important segments of the populace, from abolitionists to labor unions to segregationists to pro-life advocates." (62)
Whittington situates a key shift in the public's acceptance of judicial supremacy in the mid-twentieth century--most memorably, when Chief Justice Earl Warren declared in Cooper v. Aaron that "the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this...
|
