What would judicial review be based on, without the Constitution?
It would be based on our values. I take no position on judicial review in this book. What I do think is that if we are going to have judicial review, judges have an obligation to be honest with us about what they are doing. As things stand now, they are not being honest. Important decisions rendered by the Supreme Court on issues like abortion, the rights of gay men and lesbians, and affirmative action, have virtually nothing to do with the Constitution. Instead, they reflect contestable value judgments made by the justices. It’s important to emphasize that this is not something I’m proposing—this is how things are now. Maybe it’s a good idea to have an elite body, somewhat insulated from political majorities, making judgments of political morality that bind the political branches. But people need to decide on that question without being confused by the pretense that the justices are only enforcing the Constitution. One of the virtues of my proposal is that it would force the Supreme Court to be more honest about what it’s actually doing.
How would our rights to, say, free speech, be protected without the Bill of Rights?
Freedom of speech and the press are important rights that we ought to protect. In the long run, though, if we’re going to have freedom of speech, we’re not going to have it because people are told, “Your betters said this was something you’ve got to have.” The people who favor it have got to do the hard work of telling their fellow citizens why this is something we should cherish and why it’s important to all of us. One of the problems with constitutional obligation is if people start depending on it, they get lazy, and they stop making arguments that make sense to people today.
If we don’t have to obey the Constitution, does it still have value? What should its place be?
The Constitution, in the great words of its preamble, speaks of “we the people,” of forming “a more perfect union” and providing “for the common defense” and “general welfare.” Those are things that anybody could favor. To the extent that we treat the Constitution as kind of a poem that inspires us, or even as a framework that allows us to debate how we should achieve these things, I don’t have a problem with that. Poems inspire us, but they don’t command obedience, and I don’t think the Constitution should either.