The American political order is exceptionally adept at inviting scholarship that questions the very foundations of its authority and legitimacy. Perhaps it is due to the United States’ youth that serious and sustained debates about our most fundamental institutions and practices rage on. In particular, legal scholars debate the legitimacy of the practice of judicial review and disagree about whether it is acceptable for the courts to overrule laws passed by a majority of elected representatives. Despite the intensity of these disputes, their content reveals a shared commitment to democracy that appears to be beyond contestation; the presumption that democracy should be preserved is the starting point that frames our discussions. Many of those who oppose judicial review claim that it is antithetical to democracy, while its supporters often maintain that it does not affect the quality of our democracy – or even enhances it. However, if we are to use democratic legitimacy as the accepted point of departure for positions on judicial review, we must be precise in our understanding of how our democracy actually functions. We cannot leverage the concept of democratic legitimacy in theory without a thorough grasp of what it looks like in practice.
This paper will keep the tensions of the legitimacy of judicial review in sight while venturing outside the contemporary debate to provide fresh analysis of the true structure and function of American democracy. Contemporary legal scholars have fruitfully explored these questions, but this paper will instead consider the works of two foundational political theorists: Thomas Hobbes (1588-1679) and Karl Marx (1818-1883). Although neither of these thinkers wrote directly about American politics or judicial review, their theoretical and temporal distance from the current debate is useful in providing external perspectives not biased by prior commitments to democracy. This will allow us to examine some of the premises of both sides of the debate concerning the legitimacy of judicial review in a way not usually possible by considering only contemporary scholarship.
I will first adopt the perspective of Thomas Hobbes to identify the “sovereign” of the American political order – the component that wields ultimate control – as a committed supermajority of the electorate. Because the courts, with their power to review legislation, play only a marginal role under a Hobbesian analysis of the structure of governmental power, I suggest that in order to justify judicial review in terms of democracy, one must first recognize the power of the true sovereign. If theorists truly care about the legitimacy of democracy, it would make more sense for them to first consider the legitimacy of the structure of sovereignty. In the second section I adopt the perspective of Karl Marx on inequality to look beyond the formal structure of our political order to see how democratic institutions have developed in a way that systematically disenfranchises certain groups of people. I will argue that scholars concerned with the legitimacy of judicial review must recognize that the courts are often complicit in a system in which power can be highly unequally distributed.
Hobbes’ and Marx’s political theories diverge dramatically in many respects, but what unites them for the purposes of this paper is their investigation of the underlying power structures of a society. Both thinkers were ultimately concerned with that which is capable of wielding power in a polity, and the contribution of this paper is to apply this classical power analysis to the contemporary debate over judicial review. My aim is not to advance a substantive argument for or against judicial review, though I will consider how Hobbes and Marx themselves might contribute to the debate. Rather, I hope to show the importance of considering the foundational power structures of the American government. We must think deeply about the way our democracy actually functions before we can productively consider the merits of judicial review as a means of preserving it.
SECTION I: HOBBESIAN ANALYSIS
(i) The American Sovereign
Thomas Hobbes composed his seminal work, Leviathan, in the midst of the political tumult of the English Civil War, and the account of the state he develops reflects the anxiety of the times. Hobbes is supremely concerned with securing order in political life, a conclusion he reaches through his “state of nature” thought experiment. He contends that humans are locked in a perpetual state of conflict in the absence of political coercion. Only by coming together to form a government can individuals escape the state of nature and ensure the security they need to go about living productive lives. People cannot be expected to honor commitments they make, unless they have a credible threat that raises the costs of breaking them: this is the necessary function of government.1 This establishes Hobbes as a legal positivist, committing him to the idea that it is incoherent to speak about the law in the absence of political institutions. It is therefore essential for every political order to settle the question of who or what is sovereign – defined as the person or institution that wields ultimate decision-making power, the “Author of all the Actions” of government.2 Despite conventional political imagery and rhetoric, every society must have a final decision-maker. In order to truly understand the United States government, according to a Hobbesian perspective, we must answer who or what is sovereign.
It may here be objected that Hobbes’ concern with delineating the rules that enable social order may not be very useful in analyzing the contemporary American political order; Washington, though polarized and perhaps uncivilized, is surely no state of nature. Yet aspects of modern debates about the direction and role of government and policy reveal intractable differences among Americans. As Alasdair MacIntyre has argued, contemporary disagreement over moral issues may be on some level insurmountable; arguments often stem from different moral premises or empirical assumptions, preventing conclusions as the two sides talk past each other and leaving “no rational way of securing moral agreement in our culture.”3 There are also persistent disagreements about what our fundamental ideals of liberty and equality require of us and of our political system. These arguments often play out in the arena of the Supreme Court. In Roe v. Wade, for example, the justices seemed to disagree at a basic level about whose rights counted more – those of the mother or those of the state governments. This would come as no surprise to Hobbes. The reality that these sorts of stubborn disagreements will always exist is the reason he thinks having a sovereign is paramount – and the reason why Hobbes remains relevant. Without a sovereign, the United States would be consumed by the intensity of its internal disagreements.
The task is now to determine who or what the sovereign is in the American political order. I should first concede that applying Hobbes’ concepts to American democracy is at times a stretch; he would vehemently object to many aspects of our government. I only intend to employ his thinking to the relatively specific issue of the following analysis. Given that some scholars in the debates surrounding the legitimacy of judicial review question the appropriateness of the Supreme Court acting in the capacity of sovereign, I begin the search with the Court. It has the power to overturn law, and in some cases dramatically so. Landmark cases like Brown v. Board of Education and Lawrence v. Texas, in which the Court overturned years of precedent and established new paradigms of jurisprudence, seem to fit the definition of sovereign as the actor that speaks the final word on national disagreements. As Chief Justice John Marshall famously stated in Marbury v. Madison, “it is emphatically the province and duty of the judicial department to say what the law is.”4 However, the Court’s ability to arbitrate disputes is structurally limited. It can only weigh in on issues that appear before it in the form of cases. Moreover, it is dependent on the executive branch for enforcement of its judgment. Perhaps the most serious blow to the idea of the Supreme Court as sovereign is the fact that its interpretive powers are fundamentally contingent upon another component of the political order: the Constitution. No matter what strategy of interpretation the justices invoke, they must ultimately remain faithful to the Constitution. The Supreme Court, then, does not meet Hobbes’ definition of the sovereign.
If the Court’s power to mete out final judgment is dependent on the Constitution, perhaps the Constitution is in fact the sovereign. The Constitution marks the true founding of the United States government as it stands today and enjoys a correspondingly preeminent role in our civic culture. Yet the Constitution by itself is not sovereign in any active sense. It is a document incapable of unilaterally adjudicating between competing forces in our democracy. Rather, the Constitution encodes the terms of American sovereignty. It sets the principles by which government functions, including who can change the basic structure of the government. Article V specifies the process by which the Constitution may be amended, thereby providing an avenue by which yet another entity may enter the complex web of American decision-making: the citizenry.5
Through the amendment process, American citizens have ultimate authority to make changes to the Constitution and thereby to the political order. Yet it is important to note that it takes a special and motivated group of people to do so. Bruce Ackerman describes these as committed supermajorities – instances of “We the People” taking the wheel of power and steering government in a different direction.6 The New Deal coalition’s refutation of the Lochner-era’s emphasis on freedom of contract in exchange for greater state involvement in the economy represents one such instance. For Ackerman, this is a legitimate democratic expression of a supermajoritarian movement. The rarity of and amount of energy required for these events shows that Article V does not allow the American people to exercise real sovereignty as Hobbes envisioned it. But when these supermajorities do mobilize effectively, their actions ripple through the mechanisms of American power: as the Constitution changes, so must the perspective of the Court whose charge is to interpret it. It should be noted that citizens do not directly vote to ratify constitutional amendments; the approval of state legislatures or special state ratifying conventions is required. Yet the momentum required for reaching that stage can really only result from a popular movement of the kind Ackerman describes. “We the People” are the final theoretical piece of the sovereignty puzzle – the citizens are the final arbiters, at least when they are able to form supermajorities capable of starting a constitutional movement. The great irony – and the fundamental problem for Hobbes – is that even though the people are sovereign and thus supposedly the source of ultimate decision-making power, they frequently disagree and are often unable to form consensus on an issue.
(ii) Implications for the Debate over Judicial Review
For Hobbes, the key to understanding a political order begins by identifying the sovereign, the entity that exerts ultimate control. The preceding analysis concludes that the sovereign in American democracy is “We the People.” Yet it is important to note that the mobilization of a committed supermajority is exceedingly difficult. Citizens must first agree on the terms of a specific amendment and then overcome profound collective action problems to organize a group with any chance of succeeding. The process is so onerous that only ten amendments have been ratified in the past century. Ballot initiatives and state referenda offer other avenues of popular sovereignty and require fewer organizational hurdles but still do not allow the people the full exercise of Hobbesian sovereignty. If the supposed sovereign exercises its decision-making powers so infrequently, who or what fills the void the rest of the time?
We must consider Ackerman’s distinction between “normal politics” and “higher lawmaking” to make sense of this discrepancy.7 “We the People” only exercise sovereignty during instances of higher lawmaking, i.e., particularly intense political moments that incite citizens to campaign as a supermajority. The vast majority of the time, we relegate political authority to the system of government the Constitution delineates – including our representative institutions and the judiciary. Even though “We the People” may be the nominal American sovereign, they can only exercise that sovereignty when sufficiently mobilized. This suggests that our political order in fact consists of multiple sovereigns whose ability to express power depends on the circumstances. In effect, American democracy consists of a system of divided sovereignty – the type of system that Hobbes thought was sure to fail. The Constitution contains the conditions of sovereignty that undergirds the system, our representative government (including the courts) acts upon it most of the time, and “We the People” have the power to change it when the political conditions are favorable.
Hobbes would argue that I simply misidentified the sovereign, because there has to be one. If the significance Hobbes ascribes to understanding who or what the sovereign is in a government is correct, then the fact that the United States has a system of divided sovereignty is the most basic reality about our democracy. Therefore, when we speak of the “American democracy,” we are referring to the structure of divided sovereignty as the basis of government. Because the opposing sides in the debate over the legitimacy of judicial review claim to be committed to preserving democracy, a solid recognition of the fact that we have no single sovereign should inform our discussion in a fundamental way. I submit that the contemporary discourse over judicial review does not adequately understand the divided nature of sovereignty in the American system. Scholars’ use of the term thus reveals significant differences in their conceptions of democracy.
Even though some constitutional theorists define democracy differently, it does significant work in their theories about judicial review. Jeremy Waldron is concerned with democracy’s commitment to majority rule, and is deeply distrustful of the legitimacy of any decision made by nine justices over the deliberations of the will of the majority enacted through its representatives.8 For Ronald Dworkin, in contrast, such interpretations are merely “statistical”; they focus on the technical details of numbers rather than democratic norms and are therefore inadequate. Judicial review is democratic insofar as it ensures an outcomes-based respect for all citizens – that is to say, judicial review should legitimately be used to advance the rights of marginalized Americans and not necessarily in virtue of its structural accountability to majority rule.9 When the Supreme Court struck down the Texas sodomy law in Lawrence v Texas, it was protecting the rights of gay Americans to be treated equally and so was not acting undemocratically, according to Dworkin’s conception.
What these and other theorists share is the use of the word “democracy” – not any mutual understanding of what our democracy actually looks like. For Waldron, democracy’s virtue is in its procedural advantages – attributes which judicial review endangers. But for Dworkin, democracy is a robust commitment to a specific political and moral egalitarianism, which can be buttressed by judicial review. These fundamental discrepancies risk diluting the debate over the legitimacy of judicial review by allowing scholars to talk past one another.
From a Hobbesian perspective, the most important fact about American democracy is that the nominal sovereign – We the People – plays only an infrequent role. The appeals to democracy that theorists like Dworkin and Waldron make must recognize this reality to be valid, instead of assuming that our system of interlocking checks and balances provides for a uniformly seamless execution of power. In order to align the debate more closely with a Hobbesian analysis, then, we have at least two options. First, theorists may keep their preoccupation with democracy and explore questions about the legitimacy of the nature of sovereignty in America. This would move the debate away from the merits of judicial review and towards more general questions about the kind of democracy we want to have. Hobbes, for his part, would be very troubled by a government without a single, fixed sovereignty to resolve disputes. Or second, theorists could consider dropping democracy as a justification for their positions on judicial review. This would perhaps lead to other premises with less conceptual inconsistency among the theorists. Given that democracy holds such rhetorical weight, though, it is unlikely that everyone would agree to immediately drop it from their arguments’ arsenals.
SECTION II: MARXIAN ANALYSIS
(i) Beyond the Formal Structure
If adopting Hobbes’ analytical perspective helped elucidate the essential power structure of the United States government, employing a lens influenced by Karl Marx will now allow us to explore some of the consequences of that power. Marx was intensely concerned with the influence material factors have on our lives and how our socioeconomic positions determine opportunities in life to an overwhelming degree. Moreover, our rank in the economic system dictates class positions that form the lion’s share of our identity and are the primary loci of social action.10 Marx believes we must examine the history of institutions and their effects on various classes in order to truly understand what is happening in any political order; it is not enough to simply describe the institutional arrangement. Before we can ask questions about whether or not judicial review is legitimate, we need to examine how the formal structure of our political order has treated or mistreated its citizens. In this way, Marx challenges contemporary assumptions that idealism and hard work are universal antidotes to economic and political misfortune. Like Hobbes, Marx holds no entrenched commitment to the intrinsic virtues of majoritarian representative democracy, so this analysis does not presume its infallibility. This Marxian critique reveals powerful forces that have caused serious disenfranchisement based on race and class lurking below the surface of the formal political structure.
Any analysis of the history of race in the United States, however brief, must consider the institution of slavery. Although chattel slavery was abolished with the 13th Amendment, scholars like Cheryl Harris argue that a legacy of structural racism persists.11 Harris examines the effect one’s racial identity has on one’s position in society, an approach with which Marx would sympathize. Specifically, she associates the quality of being white with the idea of property, maintaining that the benefits of being white are similar to the broad expectations and liberties conferred through property regimes – that is to say, whiteness confers on a person the degree of social capital exclusive to individuals of that race. Furthermore, this bias is not just a psychological factor, but rather a component of our political order that has been reified and legitimized through law, creating a kind of “phantom objectivity”.12
Harris’ project shows that the political order has perpetuated a legacy of racial oppression through the legal system. The Supreme Court’s jurisprudence reveals insensitivity to the sordid tradition of racial oppression. For example, the plaintiff argued in McCleskey v Kemp that Georgia’s capital punishment policies were “racially disproportionate” in effect and resulted in excessive sentencing for African-Americans. Although McCleskey and his team marshaled statistical evidence indicating a significantly higher death penalty usage rate for African-Americans, the Supreme Court upheld his sentencing on the grounds that it was impossible to prove discriminatory purpose.13 For Harris and perhaps for Marx, this failure on behalf of the Court to remedy his situation was predictable. The problems lie with the structure of the government itself. Attempts to engage with the system to rectify the negative effects of racial distinctions, through traditional political avenues and movements are destined to fail.
Of course, sometimes our political institutions have acted in ways that protect racial minorities, potentially challenging Marx’s critique. In Brown v Board of Education, the court declared that segregation in public schools was unconstitutional (although a committed Marxist would claim that even this superficially progressive ruling was made to serve the interests of those in power.) Owen Fiss, while not a Marxist, draws a distinction that is helpful here in determining why the Court sometimes acts to protect the rights of minorities and sometimes does not.14 Fiss maintains that the courts may interpret the Equal Protection Clause of the 14th Amendment with either an antidiscrimination principle or a group-disadvantaging principle. The antidiscrimination principle does its best to root out arbitrary bias in the law while ostensibly preserving a commitment to racial neutrality. The group-disadvantaging principle, in contrast, recognizes that there are some classes of people – like racial minorities – that suffer from a lasting and significant history of discrimination; the principle then interprets the Equal Protection Clause to try to remedy injustices.15 In Brown, it is not quite clear which principle is being used, because both apply: school segregation policies were both racially discriminatory and actively discriminated against a historically disadvantaged group. The McCleskey decision, though, was a clear refutation of Fiss’ hope that the group-disadvantaging principle would guide justices to a more robust interpretation of the Equal Protection Clause.16 It seems the Court does not consider the effects of racial discrimination as sufficient grounds for action, but demands proof of discriminatory intent.
Fiss’ group-disadvantaging principle is crucial for a Marxian analysis because it captures the reality that there are deep societal pressures some minority groups face that others do not. His work translates Marxian insight into the language of the Court. Harris and Marx would likely argue that the group-disadvantaging principle should have been applied in McCleskey. It does not make sense to anatomize each individual case for evidence of explicit discriminatory intent, because doing so ignores the reality of group identity and the real consequences of invidious discrimination based on group. The McCleskey decision was inappropriate because it presumed neutrality of the races in capital punishment sentencing where none existed – and therefore overlooked the fact that the odds were already stacked against McCleskey.
In addition to leaving racial minorities disadvantaged, the structure of American democracy also disenfranchises some of its citizens by privileging the wealthy over the poor in the political process. Specifically, Court decisions have enabled individuals and corporations to spend lavishly on candidates in elections. In Buckley v Valeo, the Court designated campaign contributions as a form of free speech protected by the First Amendment. The Court further loosened restrictions on contributions in Citizens United v Federal Election Commission. The five-justice majority here argued that the government may not restrict the rights of corporations to donate to campaigns: “Political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”17 Even though these decisions might not compromise our political order’s formal commitment to the equality of citizens, a Marxian analysis encourages us to look beyond the face of these policies to examine their outcomes and view how they predictably disadvantage certain groups.
The liberalization of campaign finance law amplifies the political influence of wealthy Americans relative to the voices of the poor. Our system of representation forces politicians to continually solicit funds, naturally predisposing them to cater to the interests of their donors. Marx would interpret these policies as a move to protect the interests of those with wealth and systematically exclude the interests of poor citizens from the government’s proceedings. Economic power matters, and increasingly so. This provides another example of how American democracy – ultimately through the power of Court rulings – conceals important realities about inequalities. The Marxian analysis concludes that at least some of the social evils we see result from the structure of the American political order – specifically, in these cases, of the federal judiciary.
(ii) Implications for the Debate over Judicial Review
The aim of this paper has been to specify in more detail what the power of American democracy looks like in order to have a more informed debate about the legitimacy of judicial review, given the presumption that democracy is generally valid. Karl Marx’s contribution to this task is to point out just how far our sanguine civic rhetoric about the value of democracy is from reality. By identifying where our judicial system systematically fails to account for the interests of disadvantaged minorities, a Marxian analysis can help bend our conception of American democracy closer towards the truth. While Marx’s ideology is by no means free of controversy, his method of critically examining the material inequality of our society helps establish a baseline from which we can proceed. Theorists and politicians may dispute the connection between present inequities and historical oppression or prioritize other concerns over reducing inequality, but Marx is helpful in encouraging everyone to recognize some unfortunate realities of our society.
Some may interpret Marx’s positions as being sympathetic to strong judicial review. If only the Court would act more often with the group-disadvantaging principle in mind, the argument might run, then the practice of judicial review could be a proactive way to redress social ills. Within the context of any particular case, Marx might indeed advocate a decision that works to the benefit of historically disenfranchised groups, like the majority’s decision in Brown or the dissent in McCleskey. Yet it is important to note that strong judicial activism does not always benefit the disadvantaged classes of society. The fact that lawyers disagree about how best to interpret the Constitution means that sometimes the Court’s decision can further alienate certain groups.
This leaves present day Marxists in a bit of a quandary in regards to the contemporary debate over the legitimacy of judicial review. On the one hand, judicial review has been used effectively to counter aspects of our political order that systematically disenfranchise certain groups. But on the other hand, there is nothing intrinsic about the process of judicial review that guarantees equality-producing outcomes. Given my earlier conclusion that Marx would blame the entire political system for these and other problems, he would probably prefer to scrap the debate altogether rather than take a side. Judicial review requires interpreting the Constitution, which encodes the opinions of a profoundly privileged class. Even if they were not depending on a document with such a dubious history, the justices themselves are not likely able to truly account for the way racial minorities and poor Americans have been disadvantaged, Marx might say. In this spirit, it would be better to reform the system as a whole with an eye towards meaningful equality rather than attempt to tinker within the existing one. For Marx, then, no matter what answer we agree upon in the debate over the legitimacy of judicial review, we will be wrong.
This paper joins the debate over judicial review not to take a stand on its legitimacy or illegitimacy, but to show how the appeals to democracy both sides make ignore crucial realities of the concept. I adopted the perspective of Thomas Hobbes to explore the fundamental power mechanisms in the United States government and that of Karl Marx to demonstrate how that structure contributes to systemic disenfranchisement of racial minorities and the poor. Although these thinkers prompt different questions about American democracy, their approaches are complementary: Both allow for a clearer understanding of the way power is actually contained in and expressed by the United States government. With a solid understanding of the structure and function of American democracy in mind, legal theorists are then free to drop appeals to democracy from their arguments about judicial review or continue to use them. However, given the flaws in the outcomes our democracy has produced that have been pointed out in this paper, they would likely have to do so with further qualification and justification. Now that some of the conceptual cobwebs have been swept away and the most important issues brought to the foreground, a more intellectually honest and constructive debate over the legitimacy of judicial review can begin.
1 Thomas Hobbes, Leviathan, 88-90.
2 Ibid., 122-123.
3 Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 6.
4 Marbury v. Madison, majority opinion (1803).
5 U.S. Constitution, Amendment V
6 Bruce Ackerman, We the People, Volume 1: Foundations, 284
7 Bruce Ackerman, We the People, Volume 1: Foundations, 266-268.
8 Jeremy Waldron, “The Core Of The Case Against Judicial Re- view,” 20.
9 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution, 17.
10 Karl Marx, “On the Jewish Question” 1-2.
11 Cheryl Harris, “Whiteness as Property.”
12 Ibid., 1718-1720.
13 McCleskey v. Kemp, 556.
14 Owen Fiss, “Groups and the Equal Protection Clause,” 118-20.
15 Ibid., 147-50.
16 Jedediah Purdy lecture, 27 March 2014.
17 “Citizens United v. Federal Election Commission,” 3.
Ackerman, Bruce. We the People, Volume 1: Foundations. Reprint edition. Cambridge, Mass.: Belk- nap Press, 1993.
“Brown v. Board of Education of Topeka Kansas.” Supreme Court of the United States. Encyclopaedia Britannica, 24 April 2014.
“Buckley v. Valeo.” Supreme Court of the United States. Encyclopaedia Britannica, 26 April 2014.
“Citizens United v. Federal Election Commission.” Supreme Court of the United States. Encyclopaedia Britannica, 19 March 2013.
Fiss, Owen M. “Groups and the Equal Protection Clause.” Philosophy & Public Affairs 5, no. 2 (January 1, 1976): 107–77.
Harris, Cheryl I. “Whiteness As Property.” Harvard Law Review 106 (1993 1992): 1707.
Hobbes, Thomas. Leviathan. Text, 2007. http://ebooks.adelaide.edu.au/h/hobbes/thomas/h68l/.
“Lawrence v. Texas.” Supreme Court of the United States. Encyclopaedia Britannica, 23 April 2014.
MacIntyre, Alasdair. After Virtue: A Study in Moral Theory, Third Edition. 3rd edition. Notre Dame, Ind: University of Notre Dame Press, 2007.
Marx, Karl. “On the Jewish Question.” In Modern Political Thought: Readings From Machiavelli to Nietzsche, edited by David Wootton. Hackett, 1996. http://www.mediafire.com/?cmn5nqfw5m5.
“Roe v. Wade.” The Supreme Court of the United States. Encyclopaedia Britannica, 21 April 2014.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law. Princeton University Press, 1998.
U.S. Constitution. 1787, Philadelphia.
Jay Ruckelshaus is a junior at Duke University where he studies philosophy, political science, and their intersections as an Angier B. Duke Scholar. He is drawn most to the richness of opinion and clarity of thought one gains by viewing contemporary political phenomena through the tempered lens of philosophical inquiry. Jay loves ideas and people, and aspires to a career at the intersection of academia, policy, and the law.