The Authoritarian Impulse in Constitutional Law

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the principle of judicial exclusivity in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we should all engage in constitutional debate. We should stop relying on the courts to shoulder the burden of resolving the constitutional consequences of our political decisions. According to this argument, our methods of resolving moral issues in this country are deeply flawed. The flaw is that we have delegated to the courts, rather than kept for ourselves, the moral responsibility for our decisions. By protecting, cherishing, and relying upon judicial review, we have essentially alienated our moral public lives to the courts. I agree with Brest that our methods of resolving issues of public morality in this culture are deeply flawed, but I view with skepticism both the diagnosis--insufficient community participation in constitutional processes--and the cure--increased community participation in constitutional processes--suggested by the participation theorists. The call for increased participation in constitutional thought rests on the assumptions that constitutional questions are moral questions, and that constitutional debate is the forum in which we engage in moral decision-making. From these assumptions it follows that all citizens, not just courts, should take up issues of constitutionalism. If we take very seriously the text of the opinions in a significant number of recent constitutional cases, however, it is clear that as a descriptive matter, the assumption that constitutional questions are moral questions is flatly false. According to the Justices themselves, constitutional issues are by definition legal issues, as opposed to moral issues. Countless neutral principles constitutional theorists as well insist upon making a distinction between constitutional issues and moral issues. Thus, according to a well-respected strand of constitutional theory, as well as an increasing number of recent cases, constitutional questions are definitionally amoral, as are the answers they propose