You Decide – S
Kevin Drum points out an interesting conflict in conservative values. They desperately want the Keystone pipeline, but making it happen requires using eminent domain for private interests. Which was the issue at stake in the Kelo case, which probably provoked as much conservative outrage as any Court case of the last couple decades. Drum asks:
So here’s the question: is it hypocritical for them to support the pipeline anyway? Or is their sole obligation to argue their position in front of the Supreme Court and then, if they lose, work within the court’s rules to their best advantage? Generally speaking, I’d say the latter. Just because the government passes a law you don’t approve of doesn’t mean you can’t — or shouldn’t — exploit the law to your full advantage. Once it’s passed (or handed down), the law is the law for all of us, even those of us who don’t like it.
This is a tough matter. I get where Drum is coming from, but I sort of disagree. This is because I don’t see the Constitution as a matter for (solely) judicial interpretation. I think political actors (which doesn’t just include legislatures or executives, but includes all of us as the citizens of a constitutional order) have a serious stake in the process of public reason and justification.
The Court plays a very important role, as the actor who settles (at least tentatively) major constitutional questions within the larger political structure. But the word of the Court should absolutely not be assumed to be definitive. To abandon our own capacity for constitutional judgment, by simply deferring to the Court, is anathema to meaningful constitutional law. Obviously, most people agree with this at some level—anyone who says the Court got any case wrong is asserting a personal interpretive capacity and denies the premise that the law simply IS whatever the Court says. I think if we take this responsibility seriously, it means continuing to affirm principles in some cases, even if the Court says otherwise.
I don’t, however, think that this means you are obligated to completely give up on the benefits of a Court judgment with which you disagree. Drum cites one legitimate reason, a strategic one. The metaphor of unilateral disarmament (cited often by liberal commentators on the issue of Citizens United and Obama’s willingness to use the funding sources unlocked by that decision) has something going for it.
There is also a second argument: while we shouldn’t simply defer to the Court automatically, that the Court DOES play its very important role in terms of structuring what is politically permissible at any given time. If we accept the premise that the Court produces genuine political value as the arbiter of these matters, we do owe something to its decision. It is the legitimately designated decider of a certain set of matters. Because the law is intersubjective, it doesn’t really possess any meaning outside of its collective affirmation. We can’t simply rely on our personal interpretations, because those interpretations only work assuming a background condition of collectively validated law.
Short version: people should affirm the law in the manner that reflects the values intrinsic to that law. One of those values is determined by your personal judgment of what the law really demands. Another value, however, is determined by the need for a social process of agreement. When those values balance against each other, there is no clear answer. And it’s a mistake to develop categorical responses: neither pure deference to the court setting ‘the law of the land’ nor intransigent commitment to one’s own view of the law in the face of judicial disagreement.