I interviewed UT Law's own Professor Lino Graglia, my first-year con law professor. (Video embedded at bottom.) He has been described as a radical democrat, and his scholarship shows he is quite conservative with how he believes the U.S. Constitution operates. He disdains judicial review, succinctly condemning it (like many scholars do) as a piece of rhetorical sleight of hand that achieved short-term political results and set up a disastrous precedent by which the Supreme Court arrogated to itself an incredible policymaking power.
Graglia seems to believe that the Supreme Court uses the tool of judicial review and the pretense of constitutional interpretation to hijack policy choices away from the popular, interactive process among voters, legislators and the presidency. He has written extensively on this topic, and from this coherent theory of this, extends it to several hot topics in constitutional literature. He has attained a certain degree of notoriety for his beliefs that the Constitution has nothing to say on affirmative action policies, or on race discrimination generally. Simply, because the Constitution had "due process" language during a time when society enshrined slavery and (by corollary) segregation, it did not magically become a violation of due process in 1964 to segregate Blacks and Whites in public society; nor can we pin it down on "Equal Protection" language which did the job in Brown but failed to do the job in Bolling (Bolling concerned the Fifth Amendment's due process language for states, and Chief Justice Warren acknowledged that Equal Protection and Due Process can basically do the same thing, which makes their language respectively meaningless).
Using the Court's power of judicial review and the sham of constitutional interpretation, the Court singlehandedly makes policy decisions, which, to me, threatens to delegitimate these decisions. On the other hand, Graglia believes that the people seem to want an expansive government, and that's why they vote and do not revolt. Extending that argument, we might also say that they are obviously okay with the weird structure by which they seek to expand or narrow government through the proxy of the Legislature so long as the Court can cut in and shut down or enshrine some government action -- the people vote these people into power, and do not revolt. It might be premature and illogical to presume that the absence of political violence betokens consent to a certain state of affairs, but perhaps not - as some would say (outside of the realm of sexual assault), qui tacet consentit.
EDIT: I have subsequently asked Graglia for his input on this tension of public consent and the Court's policymaking. There does seem to be a difficulty between a constitutionalist theory of how to read the Constitution and the political shapes that derive from the reading. Graglia seems to believe that the public gets what it votes for - he cites in the interview the re-elections of FDR to show that the people wanted expansion in government - so it seems that a consequence of this democratic approach is to accept the total state of current affairs through acceding to the current way of doing American politics, including the impositions of the Court. So, whether an originalist normative way of reading the Constitution obtains or whether a more liberal set of readings holds sway, and despite the different social facts that occur based on either norm, it seems democratically irrelevant which constitutionalism is applied in any Court reading - the people stick with the same system of relationships between the government and the governed.
Graglia has an "original intent" approach, much reviled and discussed by liberal scholars, and much maligned by conservative detractors. Graglia, luckily, avoids getting bogged down in trying to discuss the theoretical underpinnings of originalism to which the Court, in interpreting the Constitution, should adhere. This is because Graglia does not believe that the Court should be interpreting the Constitution at all, and when it purports to do so, it in fact does not. The only reason the Court can interpret the Constitution in the way it chooses to do so today is due to the self-imposed power of judicial review, which he quips, "was born in sin and has rarely risen above the circumstances of its birth." See Lino A. Graglia, Constitutional Law without the Constitution: The Supreme Court's Remaking of America, in A Country I Do Not Recognize: The Legal Assault on American Values Robert H. Bork ed.; Stanford, Calif.: Hoover Institution Press, 2005).
Judicial review was an act of politicking, plain and simple. Graglia discusses this in the interview, and gives a nod to Posner's views on the subject as well, who has often written that courts do not "read" or "make" law without an eye to political ramifications. In fact, the Supreme Court is chiefly "a political organ." The political power of the Court was established in Marbury v. Madison, in which Chief Justice Marshall "created a statute to hold in violation" a constitutional prohibition which had not beforehand existed. Marshall desired this power in order to expand his Federalist reach and survive some political machinations by the new President Jefferson (for a different historical argument about the significance of this decision, see this piece) and then the Court withheld from this might until the Dred Scott decision, which indirectly spurred the Civil War.
Wherefore the judicial splits on any constitutional topic? Not that they can't read! So what? The text is there, and it does not change. The explanation lies in why the Dred Scott Court refused to enfranchise Blacks (i.e. free or slave, Blacks were not U.S. citizens), and the Brown Court demanded that no discrimination was allowed at all by any part of the government: the attitudes and policies changed. The Fourteenth Amendment was passed a decade after Dred Scott, and it took a century for some type of juristic attitude adjustment to re-evaluate Blacks' roles in American society. The policy choices of the Court explain why any decision on the Constitution comes out in any way, especially in splits. (An empirical query: how often does the Court split on purely statutory questions?)
Graglia and the law - no revolt, no problem?
Graglia does not seem to consider the "original intent" all that important as a dispositive tool for lawmaking. Though he says in the interview that interpretation is an act of attempting to infer meanings from markings (that is, to read what is written is to try to receive a communicated message from the author), he fundamentally seems to believe that it is the people's laws which should be interpreted, rather than letting some dead letters interfere with our current political process. But at the same time, he frequently argues for an original intent understanding in interpreting the Constitution nonetheless; there is a kind of throwing up of hands in surrender to the public, and a wish that it would galvanize itself to resist encroachment by the Court. The Constitution, understood in this way, is like a contract or a will, where the "intent" of the parties / testator is to be inferred through reading and trying to approximate the communications contained in the text. Looking aside for advice outside of the papers believed to have legal effect is to open the interpretive schema to all kinds of finagling, and in this way you get justices asking for things like "natural law" or "social mores" and so forth, to fill in the gaps. But as soon as a judge reaches for a gap-filling mechanism, they let go of the source material, and turn to other lawmaking devices. The Constitution is forsaken in exchange for something else. This is why Constitutional interpretation is all bologna. Lino A. Graglia, Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy, 4 Tex. Rev. Law & Pol. 1, 4 (2009).
For Graglia, the law belongs to the people, and in a democracy, the people's law should be respected rather than undermined by the Supreme Court, which functions in an anti-democratic way by taking the decisionmaking power away from the people. What the people elect and allow is law good enough for him. The law and the Constitution are at serious odds with each other; it is Constitution which provides "the last resort for defenders of untenable positions."
Graglia on affirmative action and race-preferential admissions
All of this extends to his theories on affirmative action and his criticisms of the race-preference laws, passed under the guise of Constitutional scrutiny. These are not legitimate actions of Constitutional interpretation - they are just instances of hamfisted policymaking. Graglia entered the mainstream in a bad way years ago with some criticisms of affirmative action. In 1997, Graglia was publicly condemned by University of Texas officials, and (who isn't) made a target by the Reverend Jesse Jackson. Graglia argued that Blacks and Hispanics are not academically competitive with Whites primarily due to their respective cultures' attitudes towards success and achievement. This is not in and of itself an outrageous statement, until the alchemy of ideological synecdoche is invoked, equating the success of one minority-member with the Potential for Success of the Group. Invokers of this familiar refrain would most likely dislike it being pointed out that not all Nazis were bad, too, and not all Whites are racist, and not all Blacks are criminals. Obviously, absolute group-identity equations are not contemplated by most participants in the Racial Gap in Academia literature, and was likely not meant by Graglia (I did not get around to asking him this question, as it touched less o his constitutional theory than on his academics-in-politics beliefs).
Funnily enough, the same 1997 New York Times article discussing the furor stirred by these comments then seemed to prove the point he made, citing that as soon as the Hopwood case was allowed to stand by the Court (effectively banning UT from using race as an admissions- and scholarship-factor), UT Law's minority enrollment dropped from 73 the year prior to the decision to 30! That is to say, either admissions by minorities dropped due to a fear of a lack of competitiveness with Whites, or the admissions board passed on minority applicants because of better, White scholastic profiles. Fantastic - without the helping hand of the admissions board using minority status to select up, the minorities would not be able to get in. This was exactly Graglia's thesis.
During the Fisher debacle, Graglia articulated that the Supreme Court disallowed race-preferential admissions under the "remedy" theory (i.e. making up for the sins of the past by doling out costly educational-participation freebies to the unprepared / disenfranchised, modern descendants) but did allow the so-called "compelling interest" of "diversity." The marginal benefits of admitted underqualified non-Whites over qualified Whites is generally disbelieved. In fact, some scholars like Richard Sander, who wrote Mismatch and whom Graglia cites and we discuss in the interview, believe that refusing to participate in the diversity game and instead cleaving to schools wherein minorities can meaningfully compete would have several psychological health benefits (e.g. sense of achievement and capacity vs. sense of failure and incapability) and economic benefits (e.g. creation of a community of like-educated professional systems). What adds insult to injury is that the achievement gap is widening, and race-preferential admissions disregards this entirely, so the mismatch effects become more pronounced. Imagine a world where people are given the opportunity to take on debt to finance their academic failure because some letter neglected to mention that they were empirically underprepared to take on the tasks of higher education. That's our current state of affairs, and it sounds awful.
As to the preceding, I have added commentary on my other blog; I am attempting to curtail my opining to a limit on this project.
