The basic structure of constitutional interpretation and the limits of interpretive theory

JB

The question of fidelity asks what do you have to be faithful to to be faithful to the constitution? (My view is you have to be faithful to original meaning and underlying principles)

The question of interpretation asks what sources may you or should you look to to (a) figure out what the original meaning of the text and the underlying principles are and (b) flesh out how to apply the Constitution in practice? (My view is that there are a wide range of sources you can look to, including history and traditions leading up to adoption, original expected application, previous precedents, past interpretations and traditions of practice. There are also a number of textual rules you can employ).

The question of construction asks what kinds of doctrinal rules (if you are a judge) or laws or institutions (if you are the political branches) may you or should you create to implement the Constitution and constitutional values? (This is a far more complicated subject than I can do justice to here; I will only note that doctrinal construction and elaboration, over time, often gets out of sync with the requirements of fidelity, and when it does, judges should change doctrine. The basic idea is that doctrine implements text and principle; it serves the requirements of fidelity but does not and should not displace them.).

Finally, the question of constraint asks what features of the system keep judges (or members of the political branches) from imposing arbitrary or extreme interpretations or constructions of the Constitution? Alternatively, what features of the system keep judicial interpretations and constructions (or intepretations and constructions by members of the political branches) within the mainstream of constitutional thought and practice? (Note that these two formulations are somewhat different. The first asks what avoids arbitrariness, the second asks what keeps interpretations and constructions within a bounded range whose center is roughly correlated with mainstream opinion).

My central point is that the issue of what fidelity requires is not the same thing as the question of how the system produces constraint. That is to say, it's possible (in fact it is likely) that the requirements of fidelity permit people to arrive at a wide range of different answers to constitutional questions over time, and that the work of constraining interpretation and construction is achieved by other features of the system. It is often assumed that what constrains judges are a set of rules of interpretation and construction, that, if followed, will produce correct answers that will also constrain judges, or, less ambitiously, keep judges from making arbitrary decisions (and poor decisions) or keep them from moving too far out of the mainstream of constitutional thought.

My view, by contrast, is that theories of constitutional interpretation, even the best theories, offer only part of the constraints necessary for the practice of judicial review, particularly when constitutional issues become most strongly contested. Rather, much of the work of constraint is produced by structural and institutional features of the constitutional system. These features include the following:

(1) All courts must offer legal arguments using generally recognized forms of legal argument. (This is far broader than the requirement that they adhere to a single correct theory of interpretation)
(2) Judges have professional norms that bind them to rule of law values and respect for democratic institutions. Judicial socialization and fidelity to judical roles are instilled not only in the general legal culture but particularly in legal education.
(3) Lower courts must follow the precedents of higher courts until those precedents are changed. Although precedential argument is more flexible than most laypersons think, this requirement instills some degree of constraint on lower courts.
(4) The U.S. Supreme Court is a multimember body whose direction in contested cases is driven by the need to form coalitions that include moderate or swing Justices. As a result, the Court's work tends to hew to the views of these moderate or swing Justices rather than the views of the most extreme members of the winning coalition.
(5) The appointments process keeps the Supreme Court (and to a lesser extent lower federal court judges) roughly in line with the views of the national political coalition, causing the Supreme Court, over time, to moderate its views and keep them roughly in line with the needs of the national political coalition.

These institutional features do not guarantee that judges will reach correct answers to difficult questions of constitutional law. They do not even guarantee that (some) judges will not occasionally overstep their appropriate role. However, they do keep the system of judicial review roughly functional and in sync with the political system.

A related, but different reason to doubt that theories of interpretation can do most of the work of constraint is not premised on the limits of what even the best interpretative theories can do. It is based on the realistic assumption that whatever the best theory is, judges and legal commentators often disagree heatedly about what that theory is and how it should work in practice. Moreover, there is no reason to expect that the work of a multimember body like the Supreme Court, whose decisions are the result of shifting coalitions, will conform to the views of any comprehensive theory of proper interpretation. Therefore, whatever the best interpretive theory is, it does not and cannot, in real life, do most of the work in constraining judicial practice.