THE SOCIOLOGY OF KNOWLEDGE AND THE MINOR PREMISE I N CONSTITUTIONAL DECISIONS. Gray L. DORSEY

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1 THE SOCIOLOGY OF KNOWLEDGE AND THE MINOR PREMISE I N CONSTITUTIONAL DECISIONS Gray L. DORSEY The great constitutional decisions o f the Supreme Court o f the United States have been concerned wit h the "interpretation" o f the legal principle stated in the ma jo r premise. I t is suggested in this paper that recent developments in the sociology o f knowledge, together wit h the author's th e o ry o f validation, provide the theoretical basis fo r shifting the dispositive issue i n constitutional decisions t o th e content o f th e minor premise, wit h a considerable gain i n cla rit y and o b - je ctivity. In non-constitutional cases the Court, in fact, often disposes of the case b y its formulation o f the min o r premise, a s a n example f ro m anti-trust la w w i l l show: In 1936 the Supreme Co u rt decided a case that had been brought b y t h e Department o f Justice against sugar co m- panies and th e ir trade association alleging that advance public announcement o f prices, and other practices, had the purpose and effect of eliminating price competition between competing sellers and were, therefore, i n violation o f Section 1 o f the Sherman A ct, wh ich prohibits conspiracies " i n re stra in t o f trade" association and permanent injunctions against the companies. The Supreme Court studied all the facts about the marketing of sugar; found that advance public announcement o f prices was a deliberate jo in t lessening o f the price competition, but also found that such advance public announcements have the stabilizing effect th a t wit h respect t o o th e r commodities i s provided b y public exchange markets; concluded that buyers, sellers, and the public wo u ld be served better b y the lesser competition o f public prices i n a stabilized ma rke t than b y secret prices in a chaotic market; and, therefore, declined to dissolve the trade association or to enjoin the companies from

2 272 G. L. DORSEY making advance public announcement o f prices although i t approved a n injunction against other practices.) The advance price announcements part of the Sugar Institute case might be put syllogistically as follow: Ma jo r premise: Deliberate, jo in t actions that lessen competition are a violation o f Section 1 o f the Sherman Act. Minor premise: Advance public announcement of sugar p rices, is a deliberate, joint action that lessens competition, but, because of the absence of a public exchange market for sugar, f u ll competition o f secret prices produces a chaotic situation and it is better f o r buyers, sellers, and the public to have the limited price competition of advance public announcement of prices. Conclusion: Advance public announcement o f sugar prices by competing sugar companies is not a violation of Section 1 o f the Sherman Act. Implicit i n the conclusion is a modification o f the ma jo r premise to read: "Deliberate, jo in t actions that lessen competition b e lo w t h e le ve l reasonably attainable u n d e r a l l t h e circumstances of the market in the particular industry involved are a violation of Section 1 of the Sherman Act". It is suggested that no greater modification o f the ma jo r premise is involved in constitutional cases. Y e t th e Supreme Co u rt has labored mightily over the interpretation of constitutional phrases such as "equal protection" a n d " d u e process", seemingly under the assumption that the interpretation o f the legal principle in the major premise is dispositive of the case. In the first three decades o f this century, majorities in the Supreme Court of the United States "interpreted" the constitutional provisions against depriving persons o f lib e rty o r property "without due process o f la w" as requiring, even under conditions of severe economic depression, that the Court strike down a s unconstitutional legislation t o re lie ve f a rm debtors from mortgage foreclosures, t o establish ma ximu m hours, and minimum wages and working conditions for labor, to eliminate chaotic effects o f overproduction and to eliminate predatory and destructive competitive practices in distribution. Justices in the ma jo rity disowned any claim to a "substantive power"

3 THE SOCIOLOGY OF KNOWLEDGE of review, saying that they were merely performing their duty to la y legislative acts against "the supreme la w o f the land, emanating fro m the people" and " if b y clear and indubitable demonstration a statute be opposed to the Constitution we have no choice but to say so" ever, that the ma jo rity Justices were reading the constitutional provisions i n the lig h t o f laissez fa ire social and economic theory down so cia l a n d economic experiments t yp ica lly t o o k th e position that members of the ma jo rity were embodying in the constitution their own personal economic and moral preferences The obstruction o f so cia l a n d economic le g isla tio n wa s brought t o a n e n d b y p o lit ica l pressure o n t h e Supreme Court, straint" '). Justice Douglas recently stated the doctrine as follows: " We do not sit as a super-legislature to determine the wisdom, need, a n d p ro p rie ty o f la ws t h a t to u ch economic problems, business affairs, o r social conditions" tion before the Court in the case in which Douglas made that statement wa s n o t wit h in a n y o f the enumerated areas, b u t concerned whether the legislature of the state o f Connecticut could make it a crime fo r licensed physicians to give contraceptive advice to married persons. Douglas' opinion, f o r the Court, h e ld that th e constitution creates a zone o f p riva cy around the marital bed which the state of Connecticut is without power to invade. Actually, lo n g before th e 1965 Connecticut contraceptive case, the Supreme Court had again become active in striking down state and federal actions as unconstitutional. The activism of the past two decades has been in the areas of racial justice, voting rights, rig h ts o f crimin a l defendants, a n d rig h ts o f privacy and liberty. Wit h the return to constitutional activism, the problem of the proper standard for interpretation of constitutional language wa s again raised. I t remains unresolved, as can be seen b y perusing the Justices' pejorative discussions of each other's standards in the several opinions in the Connecticut contraceptive case 8).

4 274 G. L. DORSEY Here a re the standards that Supreme Co u rt Justices have adopted from time to time and the objections that have been made b y fellow Justices. STANDARD OBJECTION The o rig in a l in t e n t o f t h e framers. Fundamental; basic; rooted in the traditions and conscience of o u r people. Dominant opinion. The judge's o w n considered values usually coupled with, - Gallup poll.") A constitution is a n organic document and mu st be capa pie of meeting current felt necessities. Meaningless words to wra p a judge's p e rso n a l v a lu e p re - ferences in a cloak o f immu - tability. Would n o t protect rig h ts o f unpopular min o ritie s against passions of the moment in the legislature. The Constitution is supposed to be the voice o f the whole people. Is it not time to conclude that there is no satisfactory standard fo r determining the value preferences to be embodied in the ma jo r premise o f constitutional decisions, i f both objectivity and organic growth are desired? One alternative is to accept the bad situation as unalterable. Another, suggested herein, is t o sh ift the focus o f controversy in constitutional decisions f ro m the ma jo r premise to the min o r premise. Until quite recently it would have appeared to be ju d icia l suicide to frame the issue in constitutional decisions in terms of the content of the minor premise, fo r the simple reason that to accept the proposition that developments in factual social relations provide the correct basis fo r conflict resolution was to accept some form of determinism, wh ich made meaningless the rational choice o f values supposedly in vo lve d i n le g a l

5 THE SOCIOLOGY OF KNOWLEDGE decisions. I t is now possible to suggest a theoretical basis fo r shifting to the minor premise without excluding rational choice of values. The n e w theoretical possibility rests o n t wo recent books on the sociology of knowledge and on this author's theory of validation. The books are The Social Construction o f Reality, by Peter L. Berger, o f the Ne w School for Social Research, and Thomas Luckmann, Un ive rsity of Frankfurt, published in 1966, and Reality Construction in Society, b y Burkhart Holzner, Un i- versity of Pittsburgh, published in As the titles indicate, the authors have broadened the sociology o f knowledge subject matter to include the sociological content of the ordinary person's vie w of the net of social relations in which he lives, which vie w he assumes to be re a lity itself, and on the basis of which he makes day to day decisions. This approach results in awareness of a mu ltip licity of social realities. Applying this insight to the conflict situation that is before a court f o r decision, th e dispositive action o f the judges is seen to be choosing between competing constructs o f social reality provided, th e judges a re capable o f escaping th e grip of the social re a lity projected b y the sociological factors in their own life histories, and, provided, an objective standard is available f o r choosing between competing constructs o f social reality. Both of these provisos are met b y this author's theory o f validation. The validation theory was stated, with respect to new forms of social organization, in his organizing paper for the American Colloquium a t the la st Wo rld Congress i n Gardone Riviera. This paper and responding papers we re published as Beiheft Neue Folge Number 5 of the Archives, under the title, Validation o f Ne w Forms o f Social Organization, edited b y Dorsey and Shuman, in The theory is that neither pure ideas nor objective condtions " in isolation b u t both in interaction are significant generating and guiding factors i n t h e fo rma tive process o f social order" In a later article this theory was applied to the problem of developing new standards fo r the objective selection o f social norms. The ke y propositions are these: " Th e contribution o f

6 276 G. L. DORSEY the philosopher is t o propose n o t abstract ideals, b u t social ideals... I f a philosopher's proposed social ideal is sufficiently in accord with prevailing ideas so that it can be generally accepted as true, i f it is sufficiently in accord wit h a realistic understanding of current social conditions so that men of practical affairs see in it the possibility of reconciling the demands of n e wly powerful interests and previously established interests, and if these men re wo rk the philosopher's social ideal to their o wn understandings and needs, and i f as reworked the principle becomes generally accepted b y those on a ll sides of conflicting interests then an objective standard of right and wrong [for the time and place] has been achieved" "). Under this theory, social norms can be identified th a t are responsive t o cu rre n t conditions a n d a lso h a ve o b je ctive validity, because they are not the product o f the thoughts o r the sociological experience o f a n y single in d ivid u a l o r a n y small, unrepresentative group of individuals. If this theory were applied t o constitutional decisions, th e issue wo u ld be wh a t construct o f social re a lity is correct and evidence wo u ld be adduced to show what social norms had been validated. Experience wo u ld be needed before rules o f admissibility for this kind of evidence could be formulated. But the general nature of such evidence can be indicated. In the constitutional cases discussed above, concerning the constitutionality o f social and economic legislation, if this theory had been applied) evidence wo u ld have been adduced t o sh o w the concentrations o f machinery, buildings, and other forms o f capital re - sulting fro m th e industrial revolution, a n d t o sh o w th a t b y accepting modern industrial organization th e people o f th e United States necessarily rejected norms of individualistic selfsufficiency and accepted norms o f collective action through labor unions, corporations, and representative government. The theory o f validation locates the general acceptance o f contemporary values in the norms resulting fro m acceptance of principles to limit and reconcile conflicting demands that are interest-motivated but that are sought to be ideally justified. If the theory of validation is correct, more objectivity in constitutional decisions could be achieved b y framing the is-

7 THE SOCIOLOGY OF KNOWLEDGE sue in terms o f the correct construct o f social re a lity in the minor premise, instead of in terms of the correct value content of the legal principle in the major premise. Washington University NOTES i) Sugar Institute v. United States, 297 U. S ). ') O pinion o f t he Co u rt Sutherland) i n Adk ins v. Children's Hos pital, 261 U.S. 525, ). of t he c ourt Peckham) i n Loc hner v. N e w York, 198 U.S. 45, 52 e t seq. 1905). seq. 1905); a n d Holmes dis s enting i n B aldwin v. Mis s ouri 281 U.S. 586, ), New York, ). " A c ollec tion of the catchwords and catch phrases inv ok ed by judges who would s t rik e d o wn under t he Fourteenth Amendment la ws wh ic h offend their notions of natural jus tic e would f ill many pages giv ing many ex amples f rom Supreme Court cases]. Ibid., at p. 511, n, , Sesquicentennial v olume o f St. Louis Univ ers ity ).