Douthat on Nonjudicial Constitutional Obligations

Apropos of my post below, have a look at this column by Ross Douthat this morning about judicial restraint.  I have some doubts about the work that judicial restraint is sometimes asked to do, and the contexts in which it is invoked.  But Douthat, it seems to me, is onto something important when he says: “It should be a point of bipartisan consensus that the judiciary is a political body rather than a panel of Platonic Guardians, and it’s a healthy thing for our democracy to have the other branches of government ready to push back when the high court seems to overreach.” 

The “push back” might take the form of the sorts of structural reforms Douthat discusses.  But it need not do so.  In fact, it may be better if it did not do so.  It might instead take the form of substantive push back, based on the obligations of nonjudicial actors to think the merits of constitutional issues through on their own and to live up to their Article VI oaths.

It is “up to” you, Governor

The Rhode Island legislature recently sent a bill to Governor Lincoln Chafee designating a latin cross which is part of a war memorial in Woonsocket, Rhode Island as having attained “secular, traditional, cultural, or community recognition and/or value,” notwithstanding the cross’s “recognizable identification with a known or established religion.”

Governor Chafee has indicated that the bill will become law without his signature.  The story above reports that the Governor stated that it is “up to” “the courts” to determine whether the cross violates the Establishment Clause: “‘[P]assing the bill does not change the fact-finding mission in which the courts must engage to resolve these questions.”

Actually, Governor, it is “up to” you, too.  Article VI of the Constitution is plain that “[t]he Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .”  Of course, opining on questions of this kind is politically delicate.  But it is quite wrong for the Governor to suggest that it is not explicitly his responsibility as the chief executive officer of the state of Rhode Island to form an opinion based on his own “fact-finding” about the constitutionality of this symbol.

(h/t Religion Clause blog)

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer — as a moment for loose impromptu brilliance.  And in his exceptional piece, “Constitutional Cadenzas,” Dan Farber argued that there are sections of the Constitution which contain cadenzas — “instructions for the interpreter to improvise on the Constitution’s grand themes.”  Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment’s Privileges or Immunities Clause as such sections.  “[B]oth of these constitutional provisions,” he wrote, “call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration.”  Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation — specifically, “transnational legal sources” and “contemporary social consensus” — the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius.  The performer of the cadenza may know something about previous performers — he may perhaps take notice of past interpretations — but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind — the appoggiatura.  The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody.  In Italian, ‘un appoggio’ is a support or something to lean on in a moment of weakness or indecision.  Like the cadenza, the appoggiatura is an embellishment — it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example.  But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will.  The appoggiatura cannot stray very far at all from the melody — it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after.  It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura?  There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation.  Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution.  Each has an interpretive role to play.  Madison put it this way in Federalist 49:

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