What is Elena Kagan's legal philosophy

Law and Democracy in the United States. Collective review on:

  • Jack N. Rakove (Ed.), The Annotated U.S. Constitution and Declaration of Independence, The Belknap Press of Harvard University Press, Cambridge, MA / London 2009, XII + 354 pp., Hardcover, $ 24.95.
  • Seth Lipsky, The Citizen's Constitution. An Annotated Guide, Basic Books, New York 2009, XVI + 336 pp. Hardcover, $ 25.95.
  • Barry Friedman, The Will of the People. How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Farrar, Straus and Giroux, New York 2009, 614 pp., Hardcover, $ 35.00.
  • Barbara A. Perry, "The Supremes". An Introduction to the U.S. Supreme Court Justices, 2nd edition, Peter Lang Verlag, New York / Bern etc. 2009, VIII + 165 pp., Cart., € 20.00.
  • Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government, Cambridge University Press, Cambridge, MA / New York 2009, XIX + 204 pp., Carton, $ 18.00.
  • Beatrice Brunhöber, The Invention of “Democratic Representation” in the Federalist Papers (Fundamentals of Jurisprudence, Vol. 14), Mohr Siebeck Verlag, Tübingen 2010, X + 294 S., carton, € 59.00.
  • Gordon S. Wood, Empire of Liberty. A History of the Early Republic, 1789-1815 (The Oxford History of the United States), Oxford University Press, Oxford / New York 2009, XIX + 778 pp., Hardcover, $ 35.00.

Not only statements from politics and from other sides in the summer of 2010 about the subsequent preventive detention of criminals in view of the judgment of the European Court of Human Rights, but also those about Lower Saxony's Minister of Social Affairs Aygül Özkan in spring 2010, thanks to the so-called crucifix, which was a little longer ago - Judgment of the Federal Constitutional Court came back on the agenda, make the tension between law and democracy clear. Elementary democratic legal principles, such as that of equality before the law, which is at issue in both cases, appear to be difficult to accept depending on one's political attitudes. In principle, it is no different in the United States. But the network of effects between law and democracy is about more than day-to-day politics. The interpretation of law and the constitution under the realities of democracy has to be faced scientifically and politically, especially in Germany. American history offers a wide range of answers for this, so that the view over the Atlantic can be enlightening and fruitful.

Jack N. Rakoves "Annotated U.S. Constitution and Declaration of Independence ”is a handy volume, intended for the general interested reader by what is today probably the most recognized expert on the origins of the American constitution and its meaning. Here you can quickly and reliably look up what the individual sections or clauses of the Constitution and Declaration of Independence mean and how they can be explained historically if necessary. This is clearly arranged: the official text on the right, Rakove's comments on the left. If these require more space, carefully selected additional illustrations fill the pages to be bridged. An approximately 70-page introduction, 30 pages "Calendar of Events" and a selection bibliography round off the successful volume. There is currently no more competent one-volume commentary on the Constitution and the Declaration of Independence, but one should always be aware that it is the work of a historian and not the comment of a lawyer, although Rakove the American constitutional development and relevant case law of the Supreme Court up to the immediate The present with a sovereign overview.

Seth Lipsky's interpretation of what he calls the “Citizen's Constitution”, on the other hand, is based more on “The Constitution of the United States Defined and Carefully Annotated” by George W. Paschal (1868), which he also quotes, and goes like this this the constitution provision for provision through with subsequent comments. Here, however, it is not that of the historian, but that of the newspaper man in his everyday confrontation with the constitution. Therefore, he does not offer academic analyzes of origin and meaning, but rather, often without comment, a series of statements, initially often by anti-federalists, then increasingly by Supreme Court decisions, whereby he prefers the decidedly conservative positions on critical current questions makes no secret of Scalia and Thomas. The respective introductory sentence with which the 18th Amendment (Prohibition) is commented on may make the difference to Rakove clear. Lipsky says: "This is the only amendment to restrict liberty" (p. 268). In Rakove, on the other hand, one reads: "Prohibition can be described as the only successful effort, however brief, to convert a social policy into a constitutional mandate" (p. 278). Nevertheless, Lipsky's access to his “citizens' constitution”, a designation with which he ultimately wants to express its democratic content, certainly has its merits. I have learned some new details here. But if you want to know, beyond ramifications and sometimes marginalia, where a certain article comes from and what it specifically means, you should still turn to Rakove first. What he will miss in both volumes, however, are, if you want to put it that way, the gaps and deficits in the constitution, particularly glaring about the problem of the importance of federalism that has pervaded American history. As is well known, the constitution says little about this. Accordingly, little will be found in the two comments.

For everyone who is seriously concerned with the constitution, its development and constitutional jurisdiction, whether in America or Germany, Barry Friedman's “Will of the People” is indispensable. It is about the question of the development and today's significance of constitutional jurisdiction, the "judicial review", in the democratic state, which Friedman as a constitutional lawyer at New York University addresses. In what is it legally legitimized and with it the American Supreme Court and its jurisprudence, whose judges appointed for life are not accountable in a democratic sense? To answer this question, the author undertakes an impressive walk through American constitutional history from the end of the 18th century to the present day. According to Friedman, this story shows “how the Supreme Court went from being an institution intended to check the popular will to one that frequently confirms it. And it explains that this occurred as the American people gradually came to understand and then to shape the role played by the justices, thus defining the terms of their own constitutional democracy "(p. 4).

Based on an extremely wide range of sources and relevant literature, the focus is on the role and enforceability of the court, political disputes with the court, political and public opposition to its judgments and the refusal to implement them - in Germany still a taboo and for a traditionally oriented jurisprudence methodically hardly manageable topic - and the resulting political, legal and public learning process in dealing with one another over time. Perhaps the most impressive chapters in the book are therefore those on Franklin D. Roosevelt's “Court-packing plan” from 1937, which appears here in a new light, and its further development up to the present day. How was the court able to assert itself in all these decades, and especially since 1937, and in doing so take and maintain its rank of the most respected violence in the country, which is undisputed in public opinion today? According to Friedman, the Supreme Court failed to achieve this because he repeatedly opposed the public by cashing in laws. In his opinion, the answer should rather be, “the Court ran in the range of popular opinion, sometimes ahead, sometimes behind, but never far from the mainstream. When the Court deviated substantially, it was quickly brought into line ”(p. 364).

Even if you want to read one or the other a little more closely and miss one or the other judgment from more recent or further past years, because it may be a little more difficult to classify in this general thesis, Friedman is in his final chapter that at the same time An attempt at theoretical weighting is, honestly enough, to go into "Korematsu" (pp. 372-374), the judgment of 1944, which is appalling not only from today's perspective, with which the internment of over 100,000 Americans of Japanese descent during the Second World War was declared legal . So does that orientation towards public opinion mean - and Friedman must certainly fully agree with this - that even the current Conservative Supreme Court refuses to this day, despite all political pressure, to approve Roe v. To revoke Wade across the board because the form of legalized abortion, which has been weakened since "Planned Parenthood" (1992) at the latest, has found a majority in the American population, does this consideration of public opinion ultimately also mean willingness to follow the "mob"? This problem undoubtedly goes beyond "Korematsu" and Friedman faces it (pp. 382-384), but he also underlines that American history provides no examples of the court, despite all opposition from politics and the public, would have always stood up as a fearless and uncompromising fighter for the observance of human rights. That would have overwhelmed the institution and, in the worst case, would mean its end. "Americans have abolished courts, impeached one justice, regularly defied court orders, packed the court, and stripped its jurisdiction. If the preceding history shows anything, it is that when judicial decisions wander far from what the public will tolerate, bad things happen to the Court and the justices ”(p. 375). Here, the George W. Bush era would have offered further, even positive examples - just think of Rasul and Boumediene - which Friedman no longer goes into.

In conclusion, it can be said that this is an extremely stimulating and thought-provoking book, which, thanks to its questioning, extends far beyond the United States even without the assistance of the author, and which has an impact on future discussions on the development of the American constitution and, in particular, on the "judicial review". and the role of the Supreme Court is left behind. Nevertheless, many intellectuals will find it difficult to classify the current Roberts Court with its conservative majority, which is resolute in many questions, under Friedman's thesis and will rather agree with Ronald Dworkin, who recently stated: “True, the right-wing phalanx of the Court has used its power to overrule the will of the majority in what strikes many of us as an indefensible and dangerous way. " (1) However, this is opposed by the fact that Gallup was able to announce almost a ten-year high on September 9, 2009 with an approval rate of 61% for the work of the Supreme Court. (2)

A comparably broad and sustained public debate about the highest court and its judgments from the perspective of their democratic legitimation is still missing in Germany, regardless of its democratic necessity, where even a book like Barbara A. Perry's “The Supremes” is still difficult to imagine . At one point or another it could read like a confirmation of Friedman's thesis, but this would by no means be the author's intention. Your presentation of the judges of the American Supreme Court first appeared in 1999 and has now been updated to include the two appointments of George W. Bush (John G. Roberts and Samuel A. Alito) and brought to the state of 2008. This can already be understood as an indication of the importance of the court within its democratic environment. In addition to a short introduction, the thin volume is divided into nine chapters, a 20-page chapters about the new Chief Justice and eight 14-page chapters about the eight Associate Justices, arranged according to seniority in office. Each Justice is presented with an introductory biography and his or her legal positions, which he took up in the so-called “landmark decisions” of his tenure at the Supreme Court - in the case of the two most recently appointed judges, partially supplemented by their judgments at the respective Federal Circuit Court. It is inevitably always about the respective decisions on “abortion”, “affirmative action”, “school prayer” and “gun rights” and thus about current interpretations of the central articles of the Bill of Rights and the 14th Amendment.

In this way, the book offers a clear and consistently reliable introduction to the composition of the Supreme Court before the Obama administration took office. The author didn't want more, and that's why the reader shouldn't expect more. He will not find any critical examination of the court's rulings, no judgmental weighing of different positions and their legal philosophical or political justifications. In view of the concentration on the problem areas mentioned, others are practically completely ignored, such as federalism. Even the domestic and legal dimensions of Bush's war on terror tend to be marginalized. This may be related to the author's conservative attitude, but the impression of the purely hagiographic court report is much stronger, largely based on newspaper reports (Washington Post and New York Times), court judgments and a minimum of scientific literature. This basic tenor is regrettable, especially since the author is recognized as a constitutional lawyer, since it significantly reduces the value of the volume for any further dispute with the Supreme Court and its classification in the problem of law and democracy.

Public opinion, which Friedman said is an essential reference point for Supreme Court jurisdiction today, is the central theme in Colleen A. Sheehan's James Madison and the Spirit of Republican Self-Government, an in-depth study of James Madison's political thought , the "father" of the American Constitution of 1787 and the Bill of Rights of 1791 and the fourth President of the United States (1809-1817). Sheehan builds her analysis of Madisonian thinking in particular on his so-called "Party Press Essays", those 17 essays that Madison published anonymously in the National Gazette in 1791/92. She relates this to his contributions to the Federalist (1787/88) and to countless other utterances by Madison, including his "Notes on Government" (1791/92). The chronological focus of her treatise falls accordingly in the early 1790s and the disputes over the financial and economic policy of Alexander Hamilton, although the political scientist also looks beyond that time, especially since she deals in detail with the influence of French authors (including Condorcet) on Madison differentiates his thinking from that of the Hamiltons, John Adams, Jeffersons, and others.

The result is a completely new approach to Madison and his thinking, for she is "the first democratic theorist in America to make explicit the central importance of public opinion to free government and the conditions that are needed for its proper formation and articulation" (P. 178) and in this way sought to reconcile law and democracy. For Sheehan, Madison is not the elitist thinker who mistrusted the “people” and wanted to keep them away from political decisions or to patronize them, but rather the one who sought ways to prevent the tyranny of the majority, public opinion in a democracy an effective counterbalance to a slide into tyranny. In this sense, Sheehan understands the decades-long historiographical controversy over liberalism and republicanism in the American Revolution as a skirmish with words and symbols of the 20th century, which bypasses the thinking and self-image of the actors of the late 18th century and - one could add - is also based on the erroneous assumption that the American Revolution was about the enforcement, including constitutional law, of an individualistic social order as it exists today in the United States. In fact, until well into the second half of the 19th century, the country was shaped by the notions of the well-being of the general public and of the “well-regulated society” to which the individual had to subordinate himself in his demands and legal claims, without this as a defense against democracy and a To understand advocacy for a hierarchically structured social order under the political-social dominance of an elite. All of this is worked out convincingly and carefully by the author, making the book both challenging and profitable to read.

First of all, Beatrice Brunhöber's "Invention of 'Democratic Representation" in the Federalist Papers "seems to follow up seamlessly with Sheehan, whose book she was unfamiliar with, however, by clearly emphasizing the democratic character of the Federalist Papers. As much as we have to agree that this has still not arrived in German constitutional law theory (p.255) - to this extent the inclusion of her work in the prestigious series of “Foundations of Jurisprudence” is only to be welcomed - she has unfortunately forced herself into a corset that neither fits nor is appropriate to the matter. It makes little sense to approach the Federalist's analysis with the theoretical instruments of German constitutional law, to which this democratic perspective is methodologically alien, even if this may initially appear comprehensible for a Berlin legal dissertation under the supervision of Hasso Hofmann. If one wants to understand the Federalist, one must rather be informed about the development of the political institutions of the American colonial era, especially the “assemblies”, about the conflicts with the motherland of the 1760s and 1770s, about the way in which this happened Time in the colonies the British constitution was discussed, which in turn presupposes knowledge of the English constitution since the 17th century. After all, a detailed knowledge of the American state constitutions since 1776 is just as indispensable as the creation of the Federal Constitution of 1787, the interpretation of which - no more and no less - the Federalist is ultimately, and the immediate controversies surrounding it during the ratification campaign.

In all of these areas, Brunhöber is unfortunately nowhere near as firm as he is in German state theory. It starts with the fact that the English House of Commons does not represent the parishes, but rather the “counties” and “boroughs” according to very different criteria and legislation - apart from the universities and the church represented in the House of Lords. In order to understand the American concept of representation, the discussion of which and the controversies surrounding it have not lost any of their political explosiveness - the reallocation of seats in the House of Representatives due to the pending census results from 2010, which in many cases will only be given by the courts in the coming years A decision that has to be made has long since cast its political shadow - one therefore has to start very differently, and German state theory is rarely helpful here. The constitution, which the Federalist interprets, finds its justification - like the majority of the American state constitutions up to this point in time - in the verbal recourse to popular sovereignty. This is where the causal democratic legitimation lies, and the question that the constitution has to answer is how this is implemented in the political institutions and their actions. As a logical consequence, representative government is a core principle of this modern constitutionalism, as is the separation of powers, “limited government” and others. (3) One would have liked to have seen this worked out more clearly in the work - especially since it could have saved from many a minor error - even if Brunhöber in the actual analysis of the Federalist by and large has to be agreed with. The latter, however, with the restriction that the notion of representation also appears to be somewhat over-interpreted. The fact that the American Federal Constitution of 1787 did not contain a Bill of Rights - which the Federalist justifies - has nothing to do with "blind spots in the federalist representation theory" (as the title of the fifth chapter, pp. 238-254). Instead, it could have been mentioned that the constitutional structure of the completely new kind of federal order, about which the constitution hardly says anything and which has occupied the courts all the more, could have been mentioned as far as possible. But Brunhöber has already conspicuously marginalized this entire topic.

Gordon S. Wood does not help on this latter point either, and yet his “Empire of Liberty” is a masterpiece, and whoever closes the cover after 740 pages will do so with a certain regret that the sovereign and subtle reflections on American development from the beginning of the United States to the end of the second war against Great Britain, the war of 1812 - in a derogatory way also “Mr. Madison's War "- with it ended. In 19 chapters Wood tried to convince the reader that today's political-cultural and socio-historical development of the country essentially took place in this quarter of a century. Wood immediately and again and again restricts in the north of the United States, not in the south, which became more and more entangled in the abhorrent system of slavery, which politically still largely controlled the most important offices of the Union, but which - in the north - The unfolding democratic “middling” America, striving forwards, leveling, egalitarian, materialistic and employment-oriented, faced with growing misunderstanding. Nevertheless, no clichés and stereotypes are spread here, but the transition from the world of the Enlightenment, with its intellectual and social hierarchies, with its intellectual and social hierarchies, to the world of the middle classes and their egalitarian ones, which, thanks to the personalities of Jefferson, Madison, Adams, Rush and others, lasted much longer than in Europe Democracy is delicately traced, whereby the depths of the vulgar and brutal are also illuminated.

Wood puts the emphasis on the political-idealistic goals and their social dimensions, on the disputes between supporters of the British monarchy and the revolutionary-republican France, on republican reforms and the disintegration of the classical churches through the expansion of what he called the "Republican Religion ”. The "Jeffersonian West" is treated in the same way as slavery and the continuation of a hierarchical social order in the south that is conditioned by it. The fundamental political contradiction that at the same time the hierarchically structured South became the bearer of Jeffersonian republicanism, while the North, where the Federalists were the supporters of a hierarchically structured social order, devoted itself to the ideal of egalitarian democracy, concerns Wood again and again. All this essentially excludes the situation of the individual states and the development of the new federal state as well as the economic history. Most relevant in our context, however, are the two central chapters on “Law and an Independent Judiciary” and “Chief Justice Marshall and the Origins of Judicial Review” (pp. 400-468). What Wood knows to say here, like everything else in his book, has depth and documents in all nuances, especially in the disputes over English common law and in the reservations of the democratic masses against an independent judiciary that is remote from them, the democratic roots of law and Jurisprudence and thus the connection to the subjects of Friedman and Sheehan, even if Wood does not use the term public opinion.

With all admiration for the Blackstone-like manner in which Wood overlooks the abundance of material and forces it into a rational order, a word of criticism is allowed. Wood, too, has succumbed to the myth that in the first three decades of the 19th century voting rights restrictions for adult white Americans fell and the "universal (white male) suffrage" was introduced everywhere (pp. 330, 542), a legend which runs through literature in unison. A look at the individual state constitutions would have been beneficial here and could give rise to the question of whether, even in the northeast, at least at the local and state level, political and social elites were sometimes more persistent than Wood suggests in such an impressive way.

The necessity of reconciling law and jurisprudence with democracy is a challenge that is thousands of years old and which was no less relevant in ancient Athens than in Germany today. Oliver Lepsius has just demanded: “The German science of public law has long thought constitutional law either in terms of the state ('constitutional doctrine') or in terms of the constitution ('Federal Constitutional Court positivism'). Both approaches were justified in their time. After 60 years of the Basic Law and over 120 volumes of decisions by the Federal Constitutional Court, both approaches have reached their limits, because they make the constitutional practice of a mature democracy more difficult. German constitutional law should adopt a new perspective, namely that of a democratic approach. " (4) In the United States, this approach, supported by both history and political science, has long been established, and the works of American authors presented here make this clear in their own way. The fact that this democracy discourse has been going on there for over 200 years gives it its special position, which is characterized by the richness and complexity of its arguments. Not only German constitutional law, but also at least constitutional history and historical studies should make use of this fund for their own discourses.

Horst Dippel, Kassel


    1Ronald Dworkin, The Temptation of Elena Kagan, in: The New York Review of Books, August 19, 2010,
    URL: http://www.nybooks.com/articles/archives/2010/aug/19/temptation-elena-kagan/ [5.6.2010].

    2 URL: http://www.upi.com/Top_News/2009/09/09/Poll-Supreme-Court-approval-rating-high/UPI-866812525 [08/27/2010].

    3 I take the liberty of referring to my essay "Modern Constitutionalism: An Introduction to a History in the Need of Writing", in: Tijdschrift voor Rechtsgeschiedenis 73, 2005, pp. 153-169, for a more precise justification and the resulting conclusions.

    4Oliver Lepsius, Law and Democracy. What are the tasks of constitutional law doctrine in a democratically constituted legal system ?, in: Jus Politicum 4, July 2010, URL: http://www.juspoliticum.com/Rechtswwissenschaft-und-Demokratie,246.html

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