“American Constitutional Communication: Appellate Court Opinions and the Implications for ‘The Judicial Power of the United States.’”
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The London School of Economics and Political Science “American Constitutional Communication: Appellate Court Opinions And The Implications For ‘The judicial Power of the United States.’” A Dissertation Submitted for the Degree of Doctor of Philosophy (Ph.D.) Department of Government By David Seymour Leibowitz London, England August 1997 1 UMI Number: U484059 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U484059 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Th-£S£ S h 7 5 iif~ ABSTRACT The replacement of traditional seriatim opinions with an “Opinion of the Court,” offers what initially appears to be an interesting but seemingly trivial characteristic of American law. In fact, this departure from convention represents an exceptional shift in the behavioral actions and expectations of American appellate judges. This switch in the method of judicial communication is an exemplar for the belief that institutions, and the rules that regulate them, matter seriously. Failure to appreciate and insist upon “sincerity” as a distinctive judicial trait has impoverished historical and structural approaches to constitutional argument and has aided in the conflation of judges and legislators. Moreover, the initial demotion of sincerity as a cardinal value of American judicial power was an amendment of constitutional structure of rather dubious motive and utter lack of process. Anglo-American history reveals that judges performing their appellate functions consciously and consistently attended to a sincere, individual execution of their duty. Furthermore, an exploration of important Anglo-American jurisprudence reveals that sincerity is a presupposed though often neglected judicial virtue. This tripartite argument also includes a review of important constitutional theory and legal commentary regarding judicial communication. In the broadest sense, I endeavor to explain that the nature of law is inextricably related to its delivery and that the Constitution admits of a conversing, plurally-voiced dynamic of communication. These sorts of inquiries are true to American founding beliefs that a new science of politics can apply to old problems of governance. These arguments also highlight a guiding principle for any judiciary functioning in a constitutional democracy: public communication is critical for any consenting polity to discern the worth and import of the rule of law. 2 P r efa ce like an opinion of a Supreme Court Justice, this paper is addressed to several audiences. The aim is to suggest that each of these audiences has neglected an important tradition of American law, and that this neglect has consequences. Establishing historical and jurisprudential foundations for this tradition is a large part of the goal for the argument which follows. Additionally, there is a secondary benefit which is accrued in making the attempt to establish foundations that I believe should be made more explicit: whatever the degree of persuasion attained, the vast bulk of materials which would be relevant to a debate on whether the tradition is either important or relevant can be found in the notes and bibliography of this paper. Before the attempt is made though, I wish to inform any constituent of the possible interested groups of my basic approach to the existing scholarship. It is fair to say that each of the three parts of my argument is greatly influenced by a portion of the available materials. My exploration of American legal history, for example, is in the main a review and analysis of case law, certain selected statutes, and one or two exceptional letter-writing colloquies. In general, I have eschewed history by personal biography. Private speeches and comments have not been the basis of the argument from history laid out here. To the community of legal theory, there is no doubt that my discussion is guided by the philosophical reconstructions and distillations of a coterie of contemporary scholars who- through their extraordinary effort- have given students such as myself access to the insights of great thinkers on the subject of law. Gerald Postema’s masterful- and indispensable- exploration of Benthamite positivism and its relationship to Common Law theory is one illustration of this. To the allegation that this dependence is harmful I can only respond that I would rather carry the additional baggage of great scholars than pretend that I could myself provide 3 the knowledge and context needed for each of the jurisprudential giants I explore. The third part of the paper, which deals with American constitutional theory and practice, can be indicted on a similar charge, that I am simply reacting to a small, influential argument about the American judiciary. The remarkable thing is that the argument I am reacting to is forwarded by a rather large number of constitutional commentators; the coterie in this case is in fact a thundering herd. I leave a great deal untouched in this area as well; Publius is only the tip of the iceberg, for example. These disclaimers of method are not sufficiently powerful to warrant omission at the outset by the interested student. The word “acknowledge” does not convey the deep appreciation and respect I have for the group of people who have inspired and supported my endeavors. I was especially fortunate to come into contact with Dr. William Harris at an early point in my undergraduate career at the University of Pennsylvania. Professor Harris’ dedication to his craft and to his students was unmatched and remains for me the model of what undergraduate teaching at its best can be. My years of study at the London School of Economics were both challenging and wonderful. The simple reality of being a graduate student at the LSE is that your primary supervisor is all-important. I could not have asked for a better mentor than Alan Beattie. What sets Alan apart from others I have discussed my ideas with is that the healthy concern and scepticism he brings to discussions with his students is tempered by trust. When a student feels that he is trusted- that an initial reciprocal respect is accorded his attempts at scholarship- the result can be rations of confidence which are indispensable to the lonely struggles of argument construction. He has been a friend and a colleague to a Yankee in Queen Elizabeth’s Court; I will miss him deeply. A Cheryl Schonhardt-Bailey provided important insights in the earlier stages of my work, and her general interest and friendship were also greatly appreciated. Cheryl always made me aware of the professional and practical facets of the academy, and in that way rounded out the education of a graduate student. I will miss Thanksgiving in Brockley. Many people gave their time by meeting with me and reading portions of the manuscript at different stages. Gary McDowell at the University of London allowed me to audit his graduate seminar in American constitutional history, and met with me individually to discuss my ideas and provide suggestions. Sanford Levinson of the University of Texas confirmed the general possibility and importance of a thesis such as this at an early stage and pointed me in the direction of some pivotal material. Ronald Dworkin of Oxford University in a brief discussion introduced me to a few articles which proved indispensable to my thesis. Leonard Leigh was also an accessible and insightful audience for my chapters of legal history. Mark Tushnet, Louis Seidman and Sherman Cohn of Georgetown University Law Center also took the time to meet with me and discuss certain aspects of my paper, confirming the maxim that the best academics are accessible. Paul Kelly’s total critique of an early rough draft of the paper at the LSE was indispensable. The British Library of Political and Economic Science has an exceptionally knowledgable staff and proved helpful throughout my registration at the LSE. The staff of the Government Department is comprised of cheerful, diligent staff who never tired of my endless questioning and bothering. Finally, my thoughts are always of my parents, my sister, my family and my close friends who supported me while we were separated by the Atlantic. One of those friends became my wife recently, and this paper is dedicated to her. S Table of Contents Abstract...................................................................................... 2 Preface........................................................................................ 3 Introduction................................................................................ 9 Part I Chapter 1. A Concise History of Judicial Expression...................... 28 2. John Marshall and the Break from Sincerity............... 73 Part II 3. Judicial Sincerity........................................................... 92 4. Classical Natural Law and Common Law Theory 141 5. Legal Positivism ....................................................... 163 6. “Post-Positivist” Legal Theory...................................... 195 Part III 7. Judicial Sincerity