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The New Supreme Court Commentators: the Principled, the Political, and the Philosophical, 10 Hastings Const Hastings Constitutional Law Quarterly Volume 10 Article 4 Number 2 Winter 1983 1-1-1983 The ewN Supreme Court Commentators: The Principled, the Political, and the Philosophical Laurence E. Wiseman Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Laurence E. Wiseman, The New Supreme Court Commentators: The Principled, the Political, and the Philosophical, 10 Hastings Const. L.Q. 315 (1983). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol10/iss2/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The New Supreme Court Commentators: The Principled, the Political, and the Philosophical By LAURENCE E. WISEMAN* Table of Contents Introduction .................................................... 317 I. The Background in Moral Philosophy ..................... 318 A. The Criticism of Utilitarianism ....................... 320 1. Bernard Williams ................................. 321 2. John Rawls ....................................... 322 3. Charles Fried ..................................... 323 4. Ronald Dworkin .................................. 325 5. Summary of Criticisms ........................... 325 B. New Foundations .................................... 325 1. John Rawls ....................................... 325 2. Ronald Dworkin .................................. 329 3. Charles Fried ..................................... 334 4. Other New Theorists .............................. 335 H. The Nexus Between Moral Philosophy and Constitutional Law Commentary ......................................... 338 Im. The Traditional Commentary ............................. 344 IV. New Theories in Constitutional Commentary .............. 355 A. The Principled ....................................... 355 1. Kenneth Karst .................................... 355 2. Paul Brest ........................................ 361 B. The Political .......................................... 369 1. Terrance Sandalow ............................... 369 2. M ichael Perry ..................................... 375 3. Harry Wellington ................................. 381 4. Owen Fiss ........................................ 384 * A.B., 1978, Harvard University; M.A., J.D., 1982, Ph.D. candidate (Yurisprudence and Social Policy), University of California at Berkeley. The author wishes to express his gratitude to Professor Martin Shapiro for his guidance throughout the writing of this article. 1315] 316 HASTINGS CONSTITUTIONAL LAW QUARTERLY [VoL 10:315 5. Summ ary ......................................... 391 C. The Philosophical .................................... 395 1. Laurence Tribe ................................... 396 2. Frank Michelman ................................. 405 D. Summ ary ............................................ 417 Conclusion ..................................................... 419 Winter 1983] NEW SUPREME COURT COMMENTATORS 317 The New Supreme Court Commentators: The Principled, the Political, and the Philosophical By LAURENCE E. WISEMAN Introduction The power of a United States Supreme Court Justice to change American society has inspired much scholarly debate. That five indi- viduals could, without obstacle, prohibit racism, sexism, unfair treat- ment, and economic injustice within the country, is like a dream. That five individuals could, without concern for that which the country desires, and without restraint of the majority voice, create policy that is merely a reflection of their particular prejudices, is a nightmare. Aca- demics have sought to determine whether the power available to the Justices of the Supreme Court is more likely to lead to a dream world or a nightmarish existence. In order to determine whether we should be under the influence of a few superdecisionmakers, we must decide whether the decisions will be made correctly. This question may be split into two parts. First, is there such a thing as a right answer or a correct decision? Second, are the Justices of the Supreme Court the people best situated to attempt to pronounce "correct" decisions? Although the Supreme Court can de- cide only specific cases or controversies,1 the precedential weight of its decisions causes them to have widespread influence in our society. The Justices of the Supreme Court must view their decisions as having gen- eral application, and therefore must consider the questions at hand on an abstract and theoretical level. Consequently, the determination of the correct answer to any specific question often involves the Court in consideration of the broader question of what are the principles and values of our government. In the recent past, the academic commentators of constitutional law have tended to favor the view that there are no right answers to value questions independent of those answers that result from the majoritarian processes in our country.2 Therefore, if any body is fit to 1. U.S. CONST. art. III, § 2. 2. See Wright, Professor Bickel, The Scholary Tradition and the Supreme Court, 84 HAly. L. REV. 769, 772-75, 781-83 (1971). 318 HASTINGS CONSTITUTIONAL LAW QUARTERLY [VoL 10:315 make governmental decisions, it is the state or federal legislature, and not the Court.3 Having the Court assert its decisions at the expense of those made by the legislature is, in their view, nightmarish. In the more recent past, however, several constitutional law commentators have argued that indeed, where questions of values are raised, there are answers whose validity is independent of legislative decision, and that, further, the Court is the governmental body best fit for deciding such questions. Constitutional law commentators are not alone in asserting the existence of values whose validity does not rely on a formalized moni- toring of consensus.4 Recent work in moral philosophy has shown a trend away from utilitarianism-essentially, a system of deciding moral questions according to a tally of the preferences of every member of the society-toward the assertion of determinate values as the basis of moral systems. This article analyzes the relationship between the de- velopment of value-asserting theories among constitutional law com- mentators and the development of nonutilitarian theories in moral philosophy. Part I provides the background of moral philosophy and discusses several philosophers who have abandoned utilitarianism. Part II describes the nexus between moral philosophy and constitu- tional law commentary. Part III analyzes the traditional constitutional law commentary; and part IV presents and analyzes the new theories emerging in constitutional commentary. Finally, this survey of authors is used as a basis for comment on the foundations of these value-assert- ing constitutional theories. It will be argued that, to the extent modem philosophers are correct in attacking utilitarianism, the new constitu- tional law commentators are correct in their attacks on the traditional commentary. I. The Background in Moral Philosophy H.L.A. Hart recently described the ongoing transition among phi- losophers, from a focus upon utilitarianism to concern with a doctrine of basic human rights: I do not think than [sic] anyone familiar with what has been pub- lished in the last ten years, in England and the United States, on the philosophy of government can doubt that this subject, which 3. See generally Brubaker, From Incompetent Imperialism to PrincpledPrudence: The Role of the Courts in Restoring "he State," 10 HASTINGS CONST. LQ. 81 (1982). 4. The word "formalized" is used here to acknowledge that some of the recent anti- utilitarian moral theories assert values on the basis that they are almobt universally held. See, e.g., infra text accompanying notes 55-62, 82, and 115. This may be seen as involving an appeal to consensus, but such consensus is not strictly a function of individual inputs as is the utilitarian calculus. See infra text preceding note 152. Winter 1983] NEW SUPREME COURT COMMENTATORS 319 is the meeting point of moral, political, and legal philosophy, is undergoing a major change. We are currently witnessing, I think, the progress of a transition from a once widely accepted old faith that some form of utilitarianism, if only we could dis- cover the right form, must capture the essence of political moral- ity. The new faith is that the truth must lie not with a doctrine that takes the maximization of aggregate or average general wel- fare for its goal, but with a doctrine of basic human rights, pro- tecting basic liberties and interests of individuals, if only we could find some sufficiently firm foundation for such rights to meet some long familiar objections.5 Tracing the development of this philosophical movement over the past ten years is a topic too broad for the present discussion. It is possible, however, to gain insight into the movement and its effect on constitu- tional law commentary by examining the works of several philosophers abandoning utilitarianism who are most often cited in the recent works of the new constitutional law commentators. This group comprises professional philosophers and law faculty writing philosophy, and in- cludes John Rawls,6 Thomas Nagel,7 Bernard Williams,' Ronald
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