The constitution as a black box

John Lunstroth

“There go the people. I must follow them, for I am their leader.”
(attributed to both Benjamin Disraeli and Alexander Ledru-Rollin.)

Noah Feldman addresses an important topic in the NY Times Magazine, the management of international law by the Supreme Court. It is an immensely complicated subject. His piece is welcome because it more or less identifies the problem, but his characterization of it lacks the proper proportions, and omits fundamental aspects of the context in which the narrow problems he identifies are occurring. Since international law is indeed a different kind of legal beast, and it is famously misunderstood by many lawyers and judges, descriptions of it provide the opportunity to see the Constitution and our Constitutional order from a slightly different point of view. I have two comments: 

1.                  In describing what the Supreme Court does, Feldman says: 

Although they differ deeply about what the Constitution teaches, the two sides share a common image of what the Constitution is. Both imagine it to be a blueprint offering a coherent worldview that will allow us to reach the best results most of the time. According to this shared assumption, the way to find the real or the true Constitution is to identify the core values that the document and the precedents stand for, and to use these as principles to interpret the Constitution correctly. 

…. Deciding what deep principles emerge from our history can help resolve even problems unimagined by the framers, … 

But when we are talking about the basic direction the country needs to face in order to achieve its goals in the modern world, deriving principles from history is often inadequate to dictate outcomes. … 

For this reason, when the world has changed drastically, the Constitution has always had the flexibility to change along with it. … 

On each occasion that the Supreme Court has had to confront such drastically changed circumstances, it has adopted the approach of seeing constitutional government as an ongoing experiment. …Justice Robert Jackson … admitted frankly that nothing in the document, the case law or the scholars’ writings got him any closer to an answer. Then he tried to come up with his own rules, … 

Looking at today’s problem through the lens of our great constitutional experiment, it emerges that there is no single, enduring answer to which way the Constitution should be oriented, inward or outward. … 

… the fact that the Constitution affects our relations with the world requires the justices to have a foreign policy of their own. … 

… The reason for this is straightforward: the court is in charge of interpreting the Constitution … 

Strictly speaking the judges cannot interpret the constitution, since by definition the cases it takes are ones the Constitution does not address. By Constitution is meant not only the document, but the stream of cases decided in its name, taken together with legislative and executive acts that also define the contours of constitutional law. Feldman notes this, and although his reference to the Courts reliance on social circumstances, values and opinion is weak, he notes that too. At the end of the day what is left in the word “Constitution” is not much from which we can predict what the Court will find in it. The job of the Court is to look long and hard at society and interpret society, not the Constitution. In this sense we are in good company if we say that political society is the constitution. That is what Aristotle said. A constitution is the unspoken, natural agreements and arrangements that provide national identity and justice for a group of people, and of necessity it exists prior to the document, otherwise the document could not be written. That gives us two likely referents when the Constitution is invoked. The first is a social, economic and political history contained in a literary tradition called the Constitution. The second is the peoples, the nation. In either case, the word Constitution is a black box that contains opinions and many other things, including the words and norms of a 220 year old document. The Court when it issues opinions is giving the final word on contemporary constitutional values. It expresses these values in its real time reflexive interaction with society and the polity. It cannot be interpreting the Constitution (except as the peoples), rather it is describing it, discovering it, as it inteprets society and the polity. 

2.         Professor Feldman is right to identify the relationship between the constitutional and international orders as one of the utmost importance. But one hears in his description of the international order the voice of someone who is not an international lawyer. He refers blithely to the EU as though it is an example of a no-brainer when it comes to development of a regional political order. He does not mention the relevant and interesting fact that the US Constitution can easily be read as a treaty between the states creating a federation, a form of government and treaty that dates to antiquity. 

What I think is most lacking is a sense of the immediacy and power of the international order. All constitutional orders are facing the same thing, something often identified as globalization. Globalization means lots of things, but if we interpret it to refer to the growth of a true international polity, whether we agree with its oligarchic form of government or not, we are close to its import. We are witnessing the formation of an international constitution that is, or will be, creating a world or global federation. 

The Federalist Society and its ilk take the position we can take or leave IL. They generalize from weaknesses and contradictions in the law of war to the entire body of IL. What they ignore are the some 14,000 treaties without which our economy, society and polity could not exist. Of course we abide by IL, and we do it 24/7/365. That includes private and public law. And, now the immediacy and importance of IL has never been stronger, as Feldman notes. 

I think the driving force is the increase in population. From about 1970 the world’s population doubled, from about 3.4 billion to the current 6.5 billion more or less. That growth is the equivalent to the addition to the planet of about 1 city per week with a population of 1,000,000. A moderate projection shows it doubling again by 2050. Arguably globalization arose in response to the resource needs of all the new people. The growth is staggering. 

Its implications for constitutionalism are profound. We are naturally moving towards an international federation, not because of the desire of any individuals or states, but because it is the natural outcome of so many people living together. Sovereign boundaries and powers will begin to look more and more like administrative regions, and the move to a planetary federalism (in 20 – 40 years) will not be as unnatural as it seems today. Sovereignty has as one of its main functions the creation and maintenance of systems of private property and control of resources. But the additional people will be putting such strain on existing systems they will be forced to change to accommodate them, since the idea of justice, from which flows the idea of private property, has as a more fundamental feature the idea of fairness. The structures for global federalism are in place now, but the systems of justice are not yet adequate inasmuch as the existing sovereign powers are used by global corporate entities to maintain an extremely unfair form of resource distribution. 19^th century forms (names and categories) of international existence and powers are no longer adequate to manifest political justice on the required scale. 

In any event, Feldman’s image of the relationship between the Constitution and the international order is still somewhat entranced by the increasingly empty powers of sovereignty. What disturbs the conservatives is their correct observation or intuition that the system of private property on which they have gotten fat will change; and what is disturbing about the liberal openness to the international order is that it seems blind to the rapaciousness and raw power of the international corporate entity in today’s international order. So Feldman is right, that the Supreme Court will be making policy; but it will be policy that ultimately guides (or follows) the US in the surrender of some of its Constitutional sovereignty in the same way our colonial states surrendered their sovereignty to the US federal state. The black box of Constitutional “interpretation” with regard to the international order contains the history and pull of the future.