Knowledge And Decisions

As in the case of precision, so in the case of change, a great amount of effort (and airs of “realism”) go as into arguing something that is both obvious and irrelevant to the conclusion actually reached, in the situations in which it is applied. To argue about “change” in generalized terms is to argue with oneself, for no sane person denies change since the writing of the Constitution. The question is — what kind of change: technological, verbal, philosophic, geographical, demographic, etc., and in what specific way does the change affect a particular constitutional provision or its application? This the activists shy away from. Clearly there are technological changes, such as electronic listening devices, which raise questions about the constitutional right to privacy in a context unforeseen by the writers of the Constitution. But the great controversies raging around the Warren Court’s judicial activism have involved things that have existed for hundreds or thousands of years — the death penalty, the segregation of racial groups (the very word “ghetto” derives from the Jewish experience in centuries past), the arrest of criminals, the power of bureaucracy (both the Roman Empire and ancient China developed stifling bureaucracy), the gerrymandering of political districts, and the different weighting of votes. In this particular context, the constant reiteration of the word “change” is little more than a magic incantation. It is hard to imagine why the writers of the Constitution would have set up a congress or a president as decorative institutions if they thought there would be nothing for them to do in meeting the evolving needs of the nation. Incantations about “change” cannot drown out the central question in any social process — not what is to be done, but who is to decide what is to be done, and under what incentives and constraints? This question is at the heart of constitutional government, and no amount of insistence that something be done — or that something new be done — can be allowed to obscure it.

Words and “original intentions” become important as constraints — not as historical or archaeological artifacts, nor as pious ways of showing reverence for the Founding Fathers. Knowledge costs are crucial in conveying “the law of the land” across a vast and diverse nation, and through time across the centuries. What is crucially different about the original meaning of a given permutation of words in the Constitution (compared to alternative meanings that might accord just as well with a dictionary or a grammar book) is that that particular meaning has been documented, reiterated, analyzed and diffused throughout a vast decision-making network, and major public and private commitments made within the framework of that meaning. Frameworks sometimes have to be changed despite enormous losses, but the issue is who is to decide when and how. Shall it be elected officials subject to feedback from those who actually pay the many costs of changes in the social framework, or shall it be an appointed judiciary influenced only by those particular viewpoints to which it is arbitrarily responsive (known as “moral conscience”) and arbitrarily oblivious to other views (known as “public clamor”)? Shall the change be made openly, weighing the costs and benefits in the light of all the knowledge and experience diffused among all the people, or shall it be accomplished by verbal sleight-of-hand in the Supreme Court chambers and in the light of the constricted experience of nine individuals? Important as these issues are in particular constitutional decisions, they are truly momentous when considering a general policy of judicial activism which throws doubt over the whole framework of laws, not merely those particular laws arbitrarily changed by judicial fiat. The “above the law” thinking implicit in judicial activism can also spread beyond the courts to other branches of government, as the Watergate episode illustrates. The very rhetoric of a “flexible” constitution which can be interpreted ‘‘in the light of modern needs” was used in the Nixon inner circle.³⁴⁸ The extralegal transfer of the constitutional war-making power from Congress to the president, so bitterly resented during the Vietnam War, was in the same tradition. The selective indignation of the press and the intellectual community generally to these very similar usurpations for very different purposes is part of the environment within which judicial activism flourishes.