Logic of Law
BRENNAN AND DEMOCRACY
Frank I. Michelman
Princeton University Press, 1999,
xii + 148 pgs.
Frank Michelman is famous among law professors for his acute critical intellect, and his powers
of demolition are much in evidence in Brennan and Democracy. But he has set himself an
impossible task. He endeavors to show that the high handed judicial dictatorship of Justice
William Brennan-my language, I hasten to add, not Mr. Michelman's-was an entirely proper
expression of democratic self-government.
As the author notes, the Supreme Court occupies a paradoxical role in our political system. We
live, it is alleged, in a democracy, i.e., a government in which the will of the majority of the
people (or at least the voters) prevails. But an unelected body, the Supreme Court, claims the
power to set aside duly enacted laws of Congress and the state legislatures. "The Supreme
Court's opinion in Cooper v. Aaron, issued in the name of the Court as a whole but mainly
written by Justice Brennan, declares the Justices `supreme in the exposition of the law and
Constitution.' Similarly, but even more assertively, the decisive opinion in a recent abortion case
claims for the Court the role of `speak[ing] before all others' for `the Constitutional ideals'... of
the country" (pp. 9-10).
How can these assertions of the Court be reconciled with majority-rule democracy? There is an
obvious answer to this question, but it escapes our author's convoluted mind. The problem that
Mr. Michelman has posed is insoluble-if the Supreme Court has the final say on constitutional
matters, then we do not live in a majority-rule democracy.
Far from adopting this commonsensical dissolution of a false problem, Professor Michelman
tightens the paradox further. He rightly rejects theories that postulate a collective will: as if he
were a Misesian in good standing, he holds that only individuals act. "We do not understand a
nation or a people or a political community to be a being possessed of its own mind, its own
ability to feel or experience or decide-possessed...of a capacity for self-directive agency for
which we have any final, moral reason to care" (p. 14).
Though I think he could have made his point in fewer words, Professor Michelman's defense of
the individualist thesis is beyond challenge. And along with the thesis, he advances a moral
premise: each person ought to govern himself.
At last we are in a position to consider the ultimate version of Michelman's paradox. Each
person ought to govern himself, and this requirement cannot be met by merger into a General
Will in the style of Rousseau. How is this requirement to be reconciled with a Brennanesque
Of course, no reconciliation is possible. Indeed, self-government, if understood in a robust sense,
cannot be combined with majority-rule democracy, let alone with what our author has in mind. If
you must subordinate yourself to the decisions of others, then you do not govern yourself: it is as
simple as that.
Among philosophically inclined lawyers of leftist bent, Ronald Dworkin stands foremost. He has
endeavored to solve Michelman's paradox; but our author finds Dworkin's approach wanting.
Cutting through numerous complications, Dworkin's answer is in essence this: Morality demands
that everyone be treated with equal concern and respect. To secure this noble end, in our
American system, certain provisions of the constitution must be interpreted in a "moral" way. (A
"moral" way is one that suits Professor Dworkin's egalitarian predilections.) What better means
of achieving this style of interpretation than a Supreme Court composed of disciples of Dworkin?
You might think that, even if we had a "moral" Supreme Court in Dworkin's sense, Michelman's
paradox would remain untouched. Has not Dworkin passed the paradox entirely by? If you
thought this, you have underestimated Dworkin.
Dworkin's "claim is that an independent judiciary can, by rightly construing and effectuating
constitutional law, secure fulfillment of certain rational preconditions for an individual's
identifying his or her political agency with the lawmaking acts of his or her political
community...the practice of judicial review can, if well conducted, solve the Institutional
Difficulty. Eureka!" (p. 31).
Michelman's "Eureka!" is not bad, and he elsewhere displays flashes of wit; but, on the whole,
he badly needs to retake Dumbbell English. If he cannot spare the time, will he not agree to
curtail the incessant "his or hers"? But this is by the way.
The Institutional Difficulty is another name for the paradox: how can a system be one of
individual self-government if the ruling authorities sometimes act in ways that particular
individuals oppose? Michelman demolishes Dworkin's pseudo-solution to the paradox with
consummate ease. Suppose, he asks, that you accept Dworkin's conditions for proper
constitutional law. Why should you think that the decisions of the Supreme Court that you
disagree with are, in a sense, your own decisions? At best Dworkin has shown that you will
regard the decisions as reasonable to accept. But unless you can identify the decisions as your
own, the paradox remains.
I commend to readers the outstanding discussion our author presents about this point (pp. 30ff).
Michelman's stellar reputation, it is apparent, does not rest entirely on nothing. That said, it is
disappointing to see our author's own resolution of his paradox.
His response, so far as I can make out, is simply to throw up his hands in despair. Fair minded
people that we all are, Mr. Michelman claims, we recognize that other fair minded people can
reasonably differ with us on vexed questions such as abortion and welfare rights. At the same
time, we recognize that in a stable political system, rules about basic constitutional issues must
be established. The result-I hope you are not surprised-is the Supreme Court in the style of
Justice Brennan. Disagree with its decisions all you like, you must recognize-mustn't
you?-that Brennanism is the best we can do.
Mr. Michelman has given us a variant of Dworkin's solution, with the latter's bizarre views
about identification excised from it. Good riddance-but Michelman has failed to resolve his
own paradox. In no discernible sense are people in his sense self-governing. Nor has he even
resolved the less exigent version of the paradox with which he began. Even if you recognize both
that we need fixed rules and that people cannot be expected to agree about them, how does this
make the Supreme Court compatible with democracy? To say "this is the best we can do" is not
to say that our best is good enough.
Mr. Michelman does have one crumb to throw us. The "empowered basic-law interpreters, i.e.,
Brennan and his colleagues, are exposed to the full blast of sundry opinions and
interest-articulations in society, including on a fair basis everyone's opinions and articulations of
interests" (p. 60). Again, behold this master of English prose in action! In sum, if you are lucky,
Brennan will listen to you.
Or will he? When Michelman gets down to informing us of Brennan's principles of
interpretation, it quickly develops that he does not listen to "the full blast of sundry opinions."
Neither does he believe in fixed principles. (I speak of Brennan in the present tense, although he
is no longer with us. Unfortunately, his spirit lives on.)
As Mr. Michelman presents his hero, Brennan was a "romantic constitutionalist." He believed
that institutions must be designed so that individuals "transcend their customary modes of
behavior" (p. 69). Somehow, this translates into abolition of capital punishment, welfare rights,
affirmative action programs, and other nostrums of the left. In what way these programs promote
"transcendence" and the romantic self, I am at a loss to discover. And what if you disagree with
Brennan's brand of advanced thought? Will he, or his acolytes on the Court, listen to your views?
Don't bet on it.