A friend recently told me about a conversation she’d had about jurisprudence. She was speaking with an attorney whose position was that a law is only unconstitutional if and when the Supreme Court says it’s unconstitutional. That is, he took the very strict “legal realist” position that constitutionality is determined solely by a majority of the Supreme Court. Whatever the majority of the Supreme Court says is ipso facto “true” as a constitutional matter.
She had never encountered this view before—she had always believed (as I do) that a law is either constitutional or unconstitutional when written, and that courts simply acknowledge that fact or fail to acknowledge the fact (whether rightly or wrongly being a different question). That is, she took the more classical view that constitutionality is a matter of logic or principle that exists independently of a court’s action, while the other attorney took the position that a court’s determination is both necessary and sufficient for a law’s constitutionality.
This gentleman’s position is pretty common, actually—I’ve run into it pretty frequently from so-called “realistic” lawyers who are much too sophisticated for abstraction. But here’s a curious paradox that I’d like to see such a person explain to me.
In Lawrence v. Texas, 539 U.S. 558, 578 (2003), the majority of the Supreme Court said “Bowers [v. Hardwick] was not correct when it was decided, and it is not correct today.”
Now, this sentence cannot possibly make sense to a person who believes that the Court majority’s say-so is both necessary and sufficient to determine constitutionality. If constitutionality is solely a function of the Court’s pronouncement, then it is not possible for a decision of the Court to be wrong when it was decided. A later decision might overrule it for some reason or other, but the decision can’t be wrong at the time that a majority issues that decision, because the rightness or wrongness of the decision depends solely on the fact that the majority issued it. A person holding the view that constitutionality is solely a function of the Court’s decision might say that Plessy v. Ferguson was right when it was decided and was later determined to be wrong in Brown v. Board of Education—but such a person cannot say that Plessy actually was wrong when it was decided, since anything the Court majority says is, ipso facto, right.
Now this person might say, “Well, that sentence in the Lawrence decision was simply wrong—Bowers was actually right when it was decided, but the Lawrence decision merely overruled it.” But that answer does not work, because the Court majority in Lawrence cannot be wrong. That was our starting premise: whatever the Lawrence majority says must be true as a constitutional matter. And the Lawrence majority was saying that Bowers was wrong when it was decided. That is, the Court majority itself was holding that its own mere say-so is not sufficient to make something constitutional or unconstitutional. If whatever the Court majority says is right, then it must be true that Bowers was wrong when it was decided—which is to say, that the majority is capable of being wrong at the time it issues its decision. If whatever the Court majority says is true as a constitutional matter, then it must be true that what the majority says is not necessarily true as a constitutional matter! It’s not logically possible for (a) the Court majority to be constitutive of constitutionality and also (b) for Bowers v. Hardwick to be “not correct when it was decided.”
(Note that what I’m saying does not depend in any way on one’s views about Lawrence. If one thinks that Bowers was rightly decided, then the whole argument still works in reverse: the Lawrence majority was wrong, and therefore it still cannot be true that constitutionality or unconstitutionality is only a function of the Court majority’s say-so.)See also The Cretan Paradox.
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