Ed Fallone’s post last week on finding negative space in the Constitution got me to thinking about the uses – and dangers – of metaphors in legal thinking. What does it mean for there to be “negative space” in the Constitution. We could think of it, as Ed does, like the open areas in a soccer match (or, for that matter, a football game). Creating negative space opens possibilities. Drawing a defender away creates opportunities.
Ed’s post plays off the fact that the United States Constitution, unlike the Wisconsin Constitution, creates a government of enumerated – and not plenary – powers. (This is one of the reasons that the state constitution looks rather different than the federal charter.) Ed sees the negative spaces as areas of opporunity, but emphasizes filling those “empty spaces” where the Constitution has not created federal authority with … federal authority. The negative space is for government – at least where exigency is thought to be served by the expansion of state authority.
It will surprise precisely no one that I see it differently. In fact, to continue our soccer metaphor, improperly invading them (as the image at the top of this post illustrates) leaves us offside.
I love Escher prints and one of the reasons is that show us how what artists refer to as “negative space” – the interstices between displayed objects (or what seem to be interstices) – can be put to use; can be turned into something.
But isn’t it usually something else? Birds rather than fish. The opportunity presented by negative spaces is that they allow the creation of something else. In constitutional terms, they prevent breathing room for the creativity of the states and civil society. That is why textualism – seen as an attempt to remain faithful to the original solution in a contemporary context – is hardly as discredited as Ed suggests.
But if the Catholic notion of subsidiarity tells us something (and I hope it does since I have two papers in progress on the idea), it is that the “negative spaces” left for (more properly belonging to) individuals and mediating institutions are not open areas waiting to be occupied. They are places for the exercise of and respect for human subjectivity.
Of course, exigencies will always create pressure for action, notwithstanding the old constitutional debate about whether emergency can create power. Dissastification with the Contitution as an obstacle to power – expressed in different ways by the left and the right – has a long history. Woodrow Wilson was an advocate of a living Constitution, writing that “”Government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin.” The Constitution could, he believed, mean “one thing in one age, another in another.”
This is where textualism and subsidiarity prove to be something other than two sides of the same federalist coin. Textualism seeks legal sanction. What have we agreed the law is? If the constitution is to mean something else for a new age, there must be political assent to that new meaning.
Subsidiarity makes a claim about the nature of human beings and the proper form of social organization. What should the law be? Limited government does not reflect an archaic social understanding but an enduring truth about human beings.
Both suggest that negative spaces are, as Ed’s soccer and jazz metaphors suggest, places of creativity. But, as in an Escher print, that creativity is not served by filling them in.
We’ve now seen two different attempts to claim the negative space within the constitution for two very different purposes, or alternatively, we’ve seen two attempts to describe what might already implicitly occupy the space between expressed powers. I’ve also now seen enough soccer metaphors to conclude that they’re not particularly useful for settling this debate. Negative space is necessarily unexpressed, so we probably shouldn’t be surprised that there are differences in how it might be interpreted.
All that aside, it seems to me that the beauty of negative space lies precisely in the very ambiguity and the flexibility it allows–not just in providing breathing room for individual subjectivity or the possible expansion of federal authority as a response to necessity, but also in providing room for the two to interact. It is precisely because negative space provides us with a flexible boundary between those two things that the constitution can even possibly function the way we intuitively seem to think it does–presumably allowing for both governmental expansion as necessary and a buffer of autonomy for individuals. Chances are we will never agree on a firm line where one ends and the other begins, but because there is negative space, we don’t have to. The give and take taking place within the negative space at any given time is also probably a large part of why the constitution is even still usable to us today instead of its significance quickly being relegated to the realm of the historical –as an outdated document in an ever-changing world.
If I’m right about the importance of the ambiguous aspect of negative space, then the biggest threat to it (and the ways it allows the constitution to function) is not the occasional expansion of federal powers into it or even the assertion that the space is, in some sense, already claimed for the individual, but the danger of dogmatically defining (one way or the other) what was best left unclear. I don’t think it’s particularly controversial to suggest that life does involve a great deal of ambiguity and I think we should be glad that our constitution provides us with enough internal ambiguity in the form of negative space to deal with that reality. It’s called negative space for a reason, and we ought to be extremely wary of the impulse to effectively destroy it by filling it up. I enjoy these Esenberg-Fallone back-and-forths, but in this particular instance, I think both sides are missing the point.
If I relied upon metaphor alone to make my case, I would be serving very thin gruel indeed.
There are many instances when neither the state nor federal power is clearly delineated in the text, yet the overall structure of the Constitution counsels strongly in favor of allowing the federal government to occupy the empty space. The power of congress to regulate immigration, for example, is nowhere enumerated by the text. Similarly, the power of the Supreme Court to hear appeals from the highest courts of the states, on matters of federal and constitutional interpretation, is an extrapolation from the structural design and not something explicitly addressed.
However, of greater weight, to my mind, is the historical record. Time and again in our nation’s history, our leaders have governed as if the Constitution leaves negative space for the federal government to grow so long as it does not supplant traditional state functions. Public opinion often supports these decisions. Examples, in addition to the Bank of the United States that I reference in my original post, include the Louisiana Purchase, the Embargo Act (not merely regulating trade, but prohibiting all foreign trade),and the Emancipation Proclamation — in the nineteenth century alone.
The historian Henry Adams observed long ago that the Presidential Administrations of Jefferson and Madison — the intellectual fathers of States Rights — in practice pursued policies that had the effect of strengthening and extending the federal power. These policies were widely popular with the public. In fact, Adams credits these two men, more than anyone else, with creating a single nation out of what had remained a loose confederation of states.
The Founders of this nation were nothing if not practical men. They were more concerned with creating a government that worked, as opposed to a government straight jacketed by doctrinal absolutes. While I do not agree with much of James MacGregor Burns’ history of the Supreme Court, I must admit that his criticism of unelected and unanswerable judges — appointees from prior Administrations who use doctrinal absolutes as a justification for telling the public why they can’t have what they voted for — rings true.
Ed
I cannot help but offer to stipulate that the gruel you serve is extraordinarily thick.*
I don’t think that the public “always” supports these efforts, although, to some extent, the expansion of federal authority won’t happen unless there is sufficient political support to make it happen. Still, it seems to me that expansions of federal authority associated with the Great Society and the expansion of the administrative state are of, at best, mixed popularity. Judicial impositions of federal standards are often wildly unpopular and, as in the case of abortion, make political peace impossible.
More fundamental is the question of the significance of public support. One of the conservative arguments for a charter of limited government is that programs create their own support and public choice theory disabuses us of the notion that this support is likely to be broadbased or rooted in some notion of the common, as opposed to the special, interest. A complete consideration of the pros and cons of limited government would include some assessment of what it has prevented and what the absence of intervention (keeping negative space “empty” of federal authority) has facilitated.
I am generally sympathetic to the criticism of “unelected and unanswerable judges — appointees from prior Administrations who use doctrinal absolutes as a justification for telling the public why they can’t have what they voted for …” It is one of the reasons that I tend to disfavor interpretive techniques that maximize ambiguity and problematize the otherwise unproblematic.
This is where I differ a bit from Mr. Leininger. He is certainly right to observe that ambiguity is often unavoidable and sometimes desireable. It is hard to imagine a contract – much less a Constitution – without it. (One of my pet peeves has always been attorneys who think that they can and should lawyer it away.)
But it is also correct to observe that there is a point at which the search for ambiguity begins to undermine the rule of law.
I think the difference that we have (again perhaps a function of the use of metaphor) is that I distinguish between negative spaces and the boundaries between them and areas in which the federal government is empowered. I do not see the former as areas to be filled and am not at all convinced that the latter ought to be defined with some presumption of federal authority.
*And, since I don’t like emoticons, I will, like a character in The Virginian, smile when I say that.