The recently (re)discovered Center and what it means for the federal courts

This is going to get thick, just short of 1400 words. Hang in there.

Yesterday, I posted about a fascinating survey of Americans conducted by experts on the right and left hired by Esquire and NBC News. I urged readers to take the survey and tell me what, if any, relevance the results have to the federal judiciary. It is that question dealing with the relevance of the survey results to the federal judiciary that I address here. Realizing that many may disagree, I believe the survey methodology was sound and the results dependable, that is to say, they would be reproduced if done over and over again–for the moment, assume I am right.

The survey

Before we can ascertain the relevance of the survey results to the federal judiciary, we must understand what the survey found. A good explanation appears here and here.  It is from those discussions that I summarize the points especially relevant to the federal judiciary:

*There is a large group of American voters—a majority (51% percent)—who make up a “New American Center” that is passionate, persuadable, and very real. When we talk about the Center, we are not talking about some shapeless, shifting mass of voters who just can’t make up their minds about where they stand. They are a discrete group although they are not homogeneous .

*Nearly half of those in the Center identify themselves as liberals (20 percent) or conservatives (25 percent). But moderates make up 55 percent of the group.  The Center’s views do not correspond to traditional definitions of liberal and conservative despite how Center members might identify themselves. Religion is not a major part of the Center’s life, and Center members firmly believe that religion has no place in the public sphere. Nearly two-thirds of the Center often agree with some ideas that Democrats have and some ideas that Republicans have.

*The Center has a socially progressive streak, supporting gay marriage (64 percent), the right to an abortion for any reason within the first trimester (63 percent), and legalized marijuana (52 percent). Women, workers and the marginal would also benefit if the Center had its way, supporting paid sick leave (62 percent); paid maternity leave (70 percent); tax-subsidized childcare to help women return to work (57 percent); and a federal minimum wage hike to no less than $10 per hour (67 percent).

*But the Center leans rightward on the environment, capital punishment, and diversity programs. Majorities support offshore drilling (81 percent) and the death penalty (90 percent), and the end of affirmative action in hiring and education (57 percent). Most people in the Center believe respect for minority rights has gone overboard, in general, harming the majority in the process (63 percent). And just one in four support immigration reforms that would provide a path to citizenship for those who came here illegally.

*The Center is mostly white (78 percent) but so is most of the American voting public (72 percent) — and the Center is changing. Already it contains a fifth of African-American voters, one in two Latino voters, and half the women in America.

Our history

The publishers of the survey describe this group as the “New American Center.” But, in this respect, I think they are wrong. This Center is not new. It is old, very old. Indeed, as I read the results, I kept hearing Alexis de Tocqueville (1805-1859) in my mind.

Let’s remember who he was:

Alexis de Tocqeville (1805-1859) was one of the French intellectuals who deeply convinced that a new type of human being was emerging in the New World. He looked at America as a fascinating social experiment of vast proportions and with portentous implications for the future of the world. He spent a year in the United States to study the penal system of this young republic. After his return, from 1835 until 1840, he wrote and published the book that made him famous, Democracy in America. His descriptions and analyses of the United States are such that political scientists and historians of culture find them informative and useful to this day; they have given generations of readers an idea of what it might mean to be an American, and what the role of America might be in the modern world.

PHILOSOPHICAL FORUM, Department of Philosophy, Frostburg State University, De Tocqueville: Individualism in America.

What did Alexis find when he too surveyed Americans? As relevant here, he found two things. First, he found that Americans were practical and did not rely upon political or philosophical theories. He wrote:

I think that in no other country in the civilized world is less attention paid to philosophy than in the United States. The Americans have no philosophical school of their own; and they care but little for all the schools into which Europe is divided, the very names of which are scarcely known to them.

Id.

 And, Americans were individualistic. That is:

As to the influence which the intelligence of one man has on that of another, it must necessarily be very limited in a country where the citizens, placed on a footing of a general similitude, are all closely seen by each other; and where, as no signs of incontestable greatness or superiority are perceived in any one of them, they are constantly brought back to their own reason as the most obvious and proximate source of truth.

Id.

How then did the Americans as Alexis saw them relate to the law and the judiciary? Because they were practical–they valued solutions–and individualistic–they valued self-reliance–Americans looked upon the law and the judiciary as the accepted tool for resolution of disputes (both as between themselves as well as with the government) and as a counterweight to the potential tyranny of the majority. Famously, he wrote:

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings . . . The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.

Alexis De Tocqueville, DEMOCRACY IN AMERICA, Book One, Chapter XVI, Causes Which Mitigate the Tyranny of the Majority in the United States.

And he recognized that Americans had willingly entrusted their courts with “immense” power:

Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence.  . . . The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone.

Alexis De Tocqueville, DEMOCRACY IN AMERICA, Book One, Chapter VI, The Judicial Power in the United States.

The point

Just as De Tocqueville found in the 1830s, America in 2013 has a Center. That Center is passionate but practical. It is not philosophical or partisan. It is individualistic. Most important for these purposes, the modern Center, like the Center Alexis found, is likely to be perfectly comfortable with a legal profession and a judiciary that play an integral and moderating influence in the life of our country. For those like me who venerate the legal profession and the judiciary, the belief that history has repeated itself is a great comfort.*

RGK

*When I took the survey, I scored among the 10 percent of those who were most liberal. (A big surprise to me.) One does not need to agree with the views of the new Center to appreciate that it seems very much like the old Center. This hopefully portends both a continuing stability and a reliance upon lawyers and judges as central components of the ongoing American experience.

9 responses

  1. Good to bring up DeTocqueville and point out (impliedly) that our “exceptionalism” has always been the center.

  2. I see the results of the survey as being at once irrelevant to Americans’ relationship with our judiciary and central to it.

    I’ve said before that I believe that the judiciary’s role is to apply the Constitution as written and then to determine the legitimacy of a legislative law and, given legitimacy, to apply that law as written. The judiciary’s role, then, is to act on the laws before it without regard to the momentary popularity of this or that trend in the population (‘s center). Thus, the survey’s results are irrelevant; the courts properly act independently of popular opinion, including popular opinion of the courts.

    This strict application of our Basic Law (as the Germans put it) and our legislative law has the salutary effect of producing stability in the law, which stability facilitates the population’s ability to generate this or that trend–and to push a trend that it finds good in the long run or to reverse an extant trend of long standing.

    The survey’s results, on the other hand, are central to that relationship because the results tend to confirm the population center’s continued confidence in our judiciary to continue, in the main, to deliver that stability. Your cites’ focus on the center notwithstanding, I think this confidence extends away from the center some distance. This continued confidence facilitates the judiciary’s ability to to its job properly.

    Eric Hines

  3. Terry,

    I have always had trouble subscribing to the notion that America is “exceptional.” “Different,” “experimental,” “practical,” “self-reliant,” I get. “Better,” I doubt.

    To be clear, I don’t mean to question your comment. Rather, I mean only to express my reaction to the word “exceptional.”

    All the best.

    RGK

  4. Eric,

    I think I agree with you in the main.

    I was, indeed, talking about popular acceptance and stability. Our, as you put it, “continued confidence facilitates the judiciary’s ability to do its job properly.”

    Where we might disagree is the extent to which on the hard left or the hard right “this confidence extends away from the center some distance.” Indeed, I worry about that probably more than I should.

    All the best.

    RGK

  5. DeTocqueville’s notion of American exceptionalism never meant that the United States was better than any other country, only that it was different. “Exceptional” can mean: out of the ordinary, uncommon, or rare–not just superior. He simply meant that America was qualitatively different from all other countries.

    DeTocqueville considered America to be an exception to the elitism of Europe based on the values of practicality, individualism, and self-reliance (the “American Creed”) and not that it was necessarily a superior nation.

    The phrase “American Exceptionalism” has been misused ever since; most recently by the right.

  6. Rich, it’s an interesting subject. The U.S. judiciary (particularly the federal judiciary) plays a role unlike that in any other country. That’s not to say that it’s on paper the most powerful judiciary in the world relative to the politics of its country. I am often fascinated when I read that the Supreme Court of some country has ruled that the President needs to be removed (which is usually followed quickly by a military coup).

    But relative to our closest jurisprudential cousins (English-speaking Canada, the U.K., etc.) the U.S. Supreme Court is a uniquely powerful institution, with the authority to declare laws unconstitutional and the political insulation that comes from Article III. (Of course, for all of the triumphalism regarding Article III and most of the rest of the Constitution, the issue was money. State courts were frustrating the efforts of creditors to collect on their debts, including British creditors whom we promised would be repaid in the 1783 peace treaty. That’s the reason that support of the new Constitution was strong in the North — banks — and weaker in the South — farmers).

    I put down some of de Tocqueville’s fascination with the “judicialization” of the U.S. to the relatively weaker role of the judiciary in the civil law countries, including and especially France. The primary motivation behind Napoleon’s famous codification of 1804 was that he wanted to make law more “accessible” to the common person. He wanted a civil code of written rules that would lessen the need for lawyers and reduce the importance of judges. The result was a very interesting work. In fact, if you wander into a law library with actual books in it (hard to find these days) and pick up the Louisiana annotated Civil Code you’ll find cryptic cross references to “C.N.” (“Code de Napoleon”). A lot of this was a reaction to the hypertrophy that was English common procedural law, but it didn’t really do much reduce the need for lawyers. The open-ended wording of statutes on subjects like “delictual liability” wound up looking a lot like common law negligence.

    As for the U.S. “center” — well, I don’t know whether that’s a large factor. I agree that there’s always been a deep streak of pragmatism in the U.S. populace. Best, Pat.

  7. Pat,

    Yes, I seem to recall that Alexis thought the idea of reasoning by analogy to precedent was sorta like enacting a secret code that in turn gave American lawyers and judges the keys to the legal castle. That ultimately turned out OK ’cause lawyers and judges were pretty restrained and inherently cautious. For example, the American courts would refuse to act unless there was a concrete dispute brought to them by the people.

    As for the Cajuns, I once had to apply that state’s law regarding what was the equivalent of a life estate. My head spun!

    All the best.

    RGK

  8. It seems to me, though, that that reasoning by analogy from precedent was inherently more clear–and accessible to the common man–from the Constitution’s relatively unique statement that it was the supreme Law of the Land, coupled with the fact that our Constitution was ratified by the people, through ratification delegates elected by the people with a broader franchise than was allowed for “ordinary” elections.

    That set pretty clearly the first and highest precedent: the Constitution. By extension from that, the legislative laws were the next precedent, and court rulings only after that. The system set up in Article III also gave greater weight to appellate court rulings than to “peer level” court rulings when dealing with any sort of precedent. That’s a pretty clear and narrowly defined ordering, which greatly facilitates reasoning by analogy from precedent–or other reasoning system that might have been chosen. “Even” the common man can follow along, now that the “reasoning from” part is clear.

    In contrast, other nations’ Constitutions, to the extent they were written down at all (another major advance of ours), were, and are today, passed by the government without much more than a wave to the people on the way by.

    Finally, without that relatively clear ordering of precedents, we’d have what other nations have, what Tamanaha cited Munroe Smith as saying at the end of the 19th century: ‘find[ing]’ [new law], and [finding] it in old cases. This can commonly be done by reexamination or re-interpretation, or, at worst, by ‘distinction.’…When the old rule is sufficiently worm-holed…a very slight reexamination will reduce it to dust, and a re-interpretation…will produce the rule that is desired. In other words, what other nations use, and our judiciary has largely eschewed (albeit with some serious failures involving the Commerce and Takings Clauses, among others), is use of that precedent which a judge finds convenient to his particular case.

    Separately, I’d say that makes us pretty exceptional in the modern sense, as well as in de Tocqueville’s.

    Eric Hines

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