Copyright (c) 2000 First Things 103 (May 2000): 12-14.
There’s an old and famous story about a community of people who live in a cave. Fires burn behind them, throwing shadows of various shapes onto the cave wall; and never having seen real objects in the sunlight, the cave people think these shadows are the only and most complete reality. One day, though, one of the cave dwellers happens to find a passageway to the outside world. He heroically struggles up the passageway and emerges into the world. At first the sunlight blinds his eyes, but after his vision adapts he sees, for the first time, a world far more real and rich than any he and his community ever imagined. Out of a sense of duty, the enlightened one then returns to the cave, hoping to guide his fellows to a similar illumination.
The storyteller suggests that if it were wise, the cave community would submit to the governance of this enlightened person, since he alone understands the higher truths and more complete realities. The political program associated with this story is often described as one of rule by "philosopher–kings," or Platonic guardians.
In a political community devoted to democracy, or government "of the people, by the people, and for the people," the rule of philosopher–kings is bound to offend. The objection is captured in one of Learned Hand’s most famous statements: "For myself it would be most irksome to be ruled by a bevy of Platonic guardians, even if I knew how to choose them, which I assuredly do not." In this democratic climate of opinion it’s not surprising that critics of a particular legal regime, such as the regime of modern constitutional law enforced by judicial review, will often accuse the regime of being in effect a sort of Platonic guardianship, and defenders of the regime will typically and emphatically deny the charge.
At first glance, the proposition that constitutional law is the dogma of an educated elite seems calculated to be provocative. But on reflection it may seem that the question is not really controversial after all. When I mention this proposition to people of different jurisprudential leanings, their reactions are usually similar: "So what’s to argue about?"
So what makes this idea so intuitively controversial? Consider the issue as a proposition for debate. Resolved: that constitutional law is the dogma of an educated elite. The case for the proposition is obvious enough, I suppose; speakers for the affirmative will emphasize decisions out of touch with popular sentiments, like those protecting the speech rights of Communists, the abortion decisions, the flag desecration cases, the school prayer decisions, and so forth. But how should the case for the negative be crafted? One can imagine three possible negative cases, which we might call the flat denial position, the "interpretation" position, and the "constitutional–law–as–reason" position.
Perhaps the most straightforward negative case would simply deny the proposition outright—by asserting that the content of modern constitutional doctrines and decisions is no closer to the views and values of more educated classes of citizens than to those of citizens generally. Although I have made no empirical test of this contention, it seems on the whole not very plausible.
Take, for example, the area of law I focus on—the religion clause of the First Amendment. It has long been settled law that teacher–led prayers in the public schools are unconstitutional, and I cannot recall hearing any law professor (or anyone else in an academic setting) dissent from that basic proposition. Yet for decades surveys have consistently shown that sizable majorities of citizens favor school prayer. So it seems pretty clear whose dogma is reflected, and whose is rejected, in constitutional law.
A second argument might deny that constitutional law is the dogma of an educated elite by insisting that judges are merely interpreting the Constitution. We needn’t spend much time on this claim, though, because the people who will defend modern constitutional law as an "interpretation" of the Constitution will also—typically and, I think, necessarily—advocate a creative kind of interpretation in which the interpreter’s perspectives and values figure directly and prominently in the process and the results of interpretation.
In Ronald Dworkin’s well–known account, for example, constitutional interpretation must satisfy two requirements: fit and justification. The interpreter cannot do or say just anything he likes; his interpretation must achieve an adequate fit with the legal materials, such as text and precedent. But once that threshold has been passed—and especially with quite amorphous provisions like the Fourteenth Amendment the fit requirement is not very stringent—the interpreter may and indeed must make the provision "the best it can be" by choosing the construction most in accordance with sound political and moral philosophy. In this way, the interpreter’s own substantive views enter directly to determine the result.
To be sure, the interpreter can still deny that in creatively interpreting the Constitution he is imposing his own political preferences, or perhaps his own values, on the law. The proponent of creative interpretation maintains that there is a vast difference between promoting one’s own political agenda and following the dictates of the best available moral and political philosophy. The former is an activity of pure self–interest; the latter is dedicated to pursuing and then following something called "reason."
This observation leads us to the third negative position: the claim that the Constitution, or constitutional discourse, is a way of letting human affairs be governed by reason rather than by mere force or fortuity. This claim might cause us to see the proposition at issue in a new light. It may be true that the substance of constitutional law correlates with the views and values of the educated classes, but that correlation might merely reflect the fact that educated citizens are on the whole more prepared, or perhaps more willing, to understand and respect the teachings of reason in the realm of politics. So in this view, even though constitutional law does coincide with or in a sense reflect the views and values of an educated elite, it would be as misleading to accuse the constitutional regime of being "elitist" as it would be to make the same charge against a university if in its science classes it emphasized the views of the best astronomers with the best telescopes over popular folklore about the stars.
This depiction of constitutional law as the expression of reason provides a connection between modern constitutional law (and constitutional law scholarship) and the constitutional project initiated two centuries ago. The framers self–consciously understood their project as one of freeing human affairs from the tyranny of force and chance and bringing them under the governance of reason. Modern constitutional discourse is in an important sense a continuation of that project.
In another important sense, though, modern constitutional thinking departs radically from the project as understood in the founding era. As described by historians like Henry May and Daniel Boorstin, the Enlightenment world in which the Founders worked understood nature not as a collection of particles in aimless motion, but rather as a kind of providential scheme or design in which human beings had a pre assigned part. The Founders’ view of politics was tied directly to their understanding of nature. As May points out, "A benign God, a purposeful universe, and a universal moral sense are necessary at all points to Jefferson’s political system." More generally, for the founding generation an essential part of politics was to protect natural rights, and the very existence and meaning of rights was bound up in founding–era commitments to "nature and nature’s God."
In this view of things, the function of reason was to discern the shape of the providential design in which ethics and politics were grounded. And the claim of reason to a role in governance was much the same as it had been in Plato’s thinking: reason was the human faculty that allowed us to perceive truths and realities that transcend merely human constructions.
Today, no doubt, many people still hold some version of this view. That is, they may still believe there is some kind of providential design in nature. But if there is any class that does not hold this worldview, it is the educated elite—at least when it is behaving as an educated elite. John Searle describes the modern worldview as containing two propositions that are beyond serious doubt: first, that everything that exists is composed of and reducible to atomic particles in motion, and second, that higher life forms are the product of unguided Darwinian evolution. With reference to older, more theistic, beliefs, Searle suggests that today "in our deepest reflections we cannot take such opinions seriously."
Searle’s description tells us a lot about the climate of opinion that prevails in academic contexts. Although constitutional scholars and judges rarely pay attention to this change in worldviews, the change complicates—and, I believe, seriously threatensfamiliar claim that constitutional law or discourse is somehow a way for reason to direct the governance of human affairs. Let me notice, very quickly, just two aspects of this problem.
First, if reason is no longer a faculty enabling us to discern some cosmic design, then it is no longer clear what claim reason has upon us, or upon our politics. On the contrary, the sorts of habits that we associate with "reasoning"—that is, reflecting and discussing and trying to achieve some kind of coherence among our various opinions—can come to seem like nothing more than the mental preferences (or prejudices) of a particular class of people—the dogmatic proceduralism of an educated elite.
Take what is probably the most fundamental commitment of reason—the commitment to intellectual consistency, or noncontradiction. Aristotle’s classic treatment derives the principle of noncontradiction from an assumption about the nature of reality—that "it is impossible for the same thing to be and not to be at the same time." On that assumption, contradictions in ethical and political thought are unacceptable because if two propositions are contradictory, then at least one of them must misrepresent the reality that they seek to describe.
Eliminate the assumption that ethical thought is about objective reality, though, and the aversion to contradiction loses much of its warrant. If someone sincerely reports that he believes abortion is wrong but capital punishment is right, then that is just how he feels, and there is nothing more to examine. Perhaps we could try to inquire into the consistency or inconsistency of these views; but the inquiry would be as pointless as asking whether someone who likes "sweet and sour pork" has an incoherent taste because "sweet" and "sour" are contradictory qualities.
In short, within this worldview, Walt Whitman had it right when he said (on behalf of the people): "Do I contradict myself? Very well then I contradict myself." And if some scholar finds this position offensive on logical grounds, or if he insists on trying to see his own beliefs (or the law in general) as a single coherent whole, we can only regard this poor soul as indulging a peculiar personal taste or prejudice.
A second problem (or at least interesting feature) generated by the change in worldviews is that in one sense the educated elite now serves a function just opposite to the one it served in the classical view. Back then, reason (and the classes of people trained to exercise reason) served to lead the people in accordance with a higher truth or reality of which the people in general were not fully aware. Now, on the contrary, it is more likely the people in general who retain some kind of belief in a higher truth and reality; and it is the educated elite who, as Searle said, cannot in their deepest reflections take that possibility seriously.
The function of reason now, as understood by many contemporary constitutional scholars or political philosophers, is not to direct human affairs in accordance with a vision of transcendent truth, but to prevent such a vision from entering into political decision–making. Reason does not infuse higher truths into public deliberations, but rather insulates those deliberations from the influence of residual belief in those truths.
So it seems we should end with a revised version of the classic story. In the contemporary rendition, there is a group of people who live in a cave and who mostly see only shadows passing on the walls. But many of these people also believe in a myth about an outside world in which the light is more pure and bright, and objects are more solid and real than the shadows in the cave. And their acceptance of this myth, it seems, affects the way these people live in a variety of ways; some of them go so far as to treat the myth as somehow regulative with respect to public policies and decisions.
A small group of more educated cave dwellers comes to understand, though (or at least it thinks it does), that this myth is mere wishful thinking, and that the cave is all there is. This group then sets about to develop a discourse for making group decisions in which all vestiges of the myth are eliminated, so that public affairs can be conducted in accordance with what the educated elite is pleased to call "public reason."
In sum, modern constitutional law and theory in effect manage to revive Plato’s story while in a sense standing the story on its head. That peculiar achievement is our contemporary contribution, for what it’s worth, to the age–old controversy of the cave.
Steven D. Smith is the Robert E. & Marion D. Short Professor at Notre Dame Law School. This essay is adapted from a presentation to the Constitutional Law section of the American Association of Law Schools conference in San Francisco in January 1998.