Knowledge And Decisions

In the law, the question is not precisely what “due process” or other constitutional terms mean in all conceivable cases, but whether it precludes certain meanings in a given case. No one knows precisely the original meaning or boundaries of the constitutional ban on “cruel and unusual punishment” — but it is nevertheless clear from history that it was never intended to outlaw capital punishment. Therefore its “vagueness”³²³ is not carte blanche to substitute any standard that Supreme Court justices happen to like. In the same vein, Chief Justice Earl Warren’s remark in Brown v. Board of Education about the “inconclusive nature” of the Fourteenth Amendment’s history “with respect to segregated schools”³²⁴ confused the crucial point that there was no evidence that the writers of the Amendment intended to outlaw any kind of segregation, and much evidence that social policy issues were outside the scope of the Amendment.³²⁵ Because we do not know precisely what the boundaries of the Fourteenth Amendment are does not mean that we cannot know that certain things are outside those boundaries. A border dispute between Greece and Yugoslavia does not prevent us from knowing that Athens is in one country and Belgrade in another. Decisiveness is not precision.

The precisional fallacy — the confusion of decisiveness with exactness — runs through the literature advocating judicial activism: the Constitution lacks “precision” or is not “exact,”³²⁶ and is “muddy”³²⁷ or “clothed in mystery.”³²⁸ The self-serving nature of “convenient vagueness” was exposed by Felix Frankfurter long before he became a Supreme Court Justice. The question he asked was “‘convenient’ for whom and to what end?”³²⁹ While genuine agnosticism might be associated with caution, tolerance, or indecisiveness in the area of uncertainty, judicial avowals of agnosticism are frequently preludes to revolutionary changes in the interpretation of the Constitution. Even some supporters of judicial activism recognize the judicial tendency “to resort to bad legislative history” as an excuse to reinterpret the law.³³⁰ A fictitious legislative history may even be fabricated out of whole cloth, as when the Supreme Court majority in Bakke claimed that Congress had not considered “reverse discrimination” when writing the Civil Rights Act of 1964,³³¹ even though it is a matter of record that reverse discrimination issues came up again and again during the debates.³³² Much of what has been done under the claim of vagueness has been directly counter to intentions that were quite clear as regards those particular interpretations, regardless of how unclear it might have been on other things. It is the kind of judicial approach that has been called “statesmanlike deviousness”³³³ and “dissimulation” that is “unavoidable”³³⁴ by a partisan of judicial activism and “merely window dressing”³³⁵ by a critic who considers it “a Marxist-type perversion of the relation between truth and utility.”³³⁶

More fundamental than the question as to whether original constitutional meanings and intentions can be discerned is the question whether those meanings and intentions should be sought and followed as rules for present-day judicial decisions. Admirers of judicial activism emphasize the need for “the evolution of principles in novel circumstances,”³³⁷ that the Constitution is “a complex charter of government, looking to unforeseeable future exigencies”³³⁸ and virtually “an invitation to contemporary judgment.”³³⁹ The framers of the Constitution “did not believe in a static world”³⁴⁰ or in a constitution “forever and specifically binding,”³⁴¹ and we must use “our own reasoned and revocable will not some idealized ancestral compulsion.”³⁴² Therefore we must “update the Constitution”³⁴³ to “keep the Constitution adjusted to the advancing needs of time.”³⁴⁴ In this context, the original interpretations of the framers of the Constitution are merely “artifacts of verbal archeology”³⁴⁵ and to take them seriously is a “filiopietistic notion”³⁴⁶ which would allow the founders of the republic “to rule us from their graves.”³⁴⁷