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The passive voice is preferred by many students of comparative judicial politics during the prologue to their tales of judicial power. Constitutions are framed and ratified. Legal and constitutional rules and standards are announced. The precise meaning of these rules and standards is debated. Courts are established. Judges are appointed. Jurisdiction is conferred. Legal and constitutional disputes are placed on the agenda of these courts. Legal and constitutional arguments are made. Agency is absent from both sentences and analysis.
Constitutional politics shifts sharply to the active voice between oral argument and disposition. Judges make decisions. Many elected officials oppose those judicial rulings. Executives refuse to implement court orders. Legislators propose contrary constitutional amendments. Political activists demand that elected officials replace the offending judges by legal or extralegal means. Supporters who mobilize to defend the judicial decision wax eloquent on the virtues of an independent judiciary.
This article offers a new understanding of political justification and American constitutionalism. Previous scholarship relies on philosophical justifications of constitutionalism which regard the American Constitution as the blueprint of the good society. Such claims fail to explain why persons should interpret a constitution that does not conform to their conception of political justice. Scholars could offer better reasons for interpreting an imperfect constitution if they placed greater emphasis on two other models of political justification. Institutional justifications of constitutionalism regard Constitutions as standard operating procedures for allocating the resources available for achieving the good society. Social justifications of constitutionalism regard constitutions as compromises among people of fundamentally different views. By combining philosophical, institutional and social perspectives, scholars might strengthen the case for constitutional obedience and provide better foundations for a theory of constitutional interpretation.
This article explores an attitude which I call perfect constitutionalism. Perfect constitutionalists believe that, properly interpreted, the Constitution requires that our society conform to the best principles of human governance. This belief that the Constitution is nearly flawless not only underlies the so-called fundamental values strand of constitutional thought but also those strands of constitutional argument based on conceptions of the democratic process or the original intentions of the framers. Unfortunately, empirical and theoretical problems result when constitutional theory is reduced to political philosophy. In order to overcome these problems we need to essay a different interpretive approach, one which I call imperfect constitutionalism. Imperfect constitutionalism emphasizes the value of constitutions, even ones that might be improved in many ways.
Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”
Fair reviews of this work will highlight its seminal contributions to
the study of judicial behavior. In remarkably accessible prose, Lawrence
Baum demonstrates that existing models of judicial behavior fail to
account for the human factor in judging. Judges, Baum points out, are as
interested in being liked and maintaining their self-esteem as other human
beings. Judges and their Audiences then details the numerous ways
in which judicial needs for approval from various audiences may influence
judicial practice. While modest in tone, the work sets out a research
agenda likely to inspire the next generation of judicial behaviorists.
I am grateful to Professor Baum for his very generous review of
Dred Scott and the Problem of Constitutional Evil. I am also
grateful that Baum in his review and his response to mine highlights the
normative significance of his research on judicial audiences. Dred
Scott v. Sanford may have been wrongly decided, Baum suggests,
because antislavery justices, not being able to predict the actual impact
of their decision, should simply have freed Dred Scott as a matter of
simple justice. In fact, all five southern justices in Dred Scott v.
Sanford did simple justice by their light. More important, however,
Baum is now self-consciously exploring central questions of American