Fidelity to The Constitution And Constraining Judges-- Not the Same Thing

JB

A pretty familar objection to original meaning approaches is that they are indeterminate when the constitutional text employs abstract standards like "equal protection" rather than concrete rules; therefore, expectation originalists complain, original meaning (or text-and-principle in my version) does not sufficiently constrain judges.

That might be so if text and principle were the only things that judges consulted when they interpreted the Constitution. But in practice, judges (and other constitutional interpreters as well) draw on a rich tradition of sources that guide and constrain interpretation. These include pre- and post-enactment history, original expected application, previous constitutional constructions and implementations, structural and intertextual arguments, and judicial and non-judicial precedents, to name only a few.

In practice, judges that look to text and principle will face constraints very much like those faced by judges who purport to rely on original expected application. As I've pointed out before, the latter judges can not and do not use original expected applications for a very large part of their work, because a very large part of modern doctrine isn't consistent with original expected application. So even those judges like Scalia and Thomas who claim to follow the original understanding are guided and constrained in most cases by essentially the same sources and modalities of argument as judges who employ the method of text and principle.

I think there is a deeper problem with the objection that the method of text and principle does not sufficiently constrain judges. Many theories of constitutional interpretation conflate two different questions. The first is the question of what the Constitution means and how to be faithful to it. The second asks how a person in a particular institutional setting- like an unelected judge with life tenure- should interpret the Constitution and implement it through doctrinal constructions and applications. The first is the question of fidelity; the second is the question of institutional responsibility.

Theories about constitutional interpretation that conflate these two questions tend to view constitutional interpretation from the perspective of judges and the judicial role; they view constitutional interpretation as primarily a task of judges and they assess theories of interpretation largely in terms of how well they guide and limit judges. For example, one of the standard arguments for expectations-based originalism is that it will help constrain judges in a democracy. Alexander Bickel's theory of the passive virtues and Cass Sunstein's idea of "minimalism," although often described as theories of constitutional interpretation, are actually theories about the judicial role and how judges should interpret the Constitution. So, too, obviously, are other theories of "judicial restraint." From the perspective of these theories, non-judicial interpreters are marginal or exceptional cases that we explain in terms of the standard case of judicial interpretation.

I reject this approach. Theories of constitutional interpretation should start with interpretation by citizens as the standard case; they should view interpretation by judges as a special case with special considerations created by the judicial role. In like fashion, constitutional interpretations by executive officials and members of legislatures are special cases that are structured by their particular institutional roles. Instead of viewing constitutional interpretation by citizens as parasitic on judicial interpretation, we should view it the other way around.

Why emphasize the citizen's perspective? Each generation must figure out what the Constitution's promises mean for themselves. Many of the most significant changes in constitutional understandings (e.g., the New Deal, the Civil Rights Movement, the second wave of American feminism) occurred through mobilizations and counter-mobilizations by social and political movements who offered competing interpretations of what the Constitution really means.

Social and political movements often understand their grievances and their demands in constitutional terms- they argue for either a restoration of constitutional principles or a redemption of constitutional commitments. They make claims about how the Constitution's text and principles should be cashed out in present-day circumstances. Social and political movements argue that the way that Constitution has been interpreted and implemented before- for example, by judges or other political actors- is wrong- and that we need either to return to the Constitution's correct meaning or to fulfill the promises that the Constitution has made in our own day.

Often people do not make these claims in lawyerly ways; and usually they are not constrained by existing understandings and existing doctrine in the way that we want judges to be constrained. In fact, when social movements initially offer their constitutional claims, many people regard them as quite radical or "off the wall." There was a time, for example, when the notion that the Constitution prohibited what we now call sex discrimination seemed quite absurd. Yet it is from these protestant interpretations of the Constitution that later constitutional doctrines emerge. Many of the proudest achievements of our constitutional tradition came from constitutional interpretations that were at one point regarded as crackpot and "off the wall."

I hasten to add that most of these arguments go nowhere. Only a few have significantly changed how we look at the Constitution. Successful social and political movements must persuade other citizens that their views are correct; or, at the very least they must convince people to compromise and modify their views. If movements are successful, they change the minds of the general public, politicians and courts. This influence eventually gets reflected in new laws, new constitutional doctrines and new constitutional constructions. Successful social and political mobilization changes political culture, which changes constitutional culture, which, in turn changes constitutional practices outside of the courts and constitutional doctrine within them.

The causal influences, of course, do not run in only one direction. Judicial interpretations like those in Brown v. Board of Education or Miranda v. Arizona can become important parts of our constitutional culture. They can be absorbed into ordinary citizens' understandings of what the Constitution means, and they can act as focal points for citizen reaction. Nevertheless, we cannot understand how constitutional understandings change over time unless we recognize how social movements and political parties articulate new constitutional claims, create new constitutional regimes and influence judicial constructions.

To understand how these changes could be faithful to the Constitution, we need a theory that makes the citizen's perspective primary. I don't claim that all social mobilizations that produce changes in doctrine are equally legitimate or equally admirable. But some are both legitimate and admirable, and a theory of constitutional interpretation-which is also a theory of constitutional fidelity-must account for them. The text-and-principle approach can offer a much better explanation of how successful social and political movements make claims that are faithful to the Constitution than expectations-based originalism can. Indeed, expectations-based originalism is virtually useless for this purpose, because it views many of the most laudatory changes in our understandings of the Constitution as not faithful to the Constitution and therefore as illegitimate.

For similar reasons, expectations-based originalism cannot really constrain judges because too many present-day doctrines are simply inconsistent with it; as a result judges must pick and choose based on pragmatic justifications that are exceptions to the theory. Because expectations-based originalism conflates the question of constitutional fidelity with the question of judicial constraint, it offers the wrong answer to both questions.

Constraining judges in a democracy is important. But in practice most of that constraint does not come from theories of constitutional interpretation. It comes from institutional features of the political and legal system. Some of these are internal to law and legal culture, like the various sources and modalities of legal argument I mentioned above. Others are "external" to legal reasoning but nevertheless strongly influence what judges produce as a group.

First, judges are subject to the same cultural influences as everyone else-- they are socialized both as members of the public and as members of particular legal elites. Second, the system of judicial appointments and the practices of partisan entrenchment determine and limit who gets to serve as a judge. Third, lower federal courts are bound to apply Supreme Court precedents. Fourth, the Supreme Court is a multi-member body whose decisions in contested cases are usually decided by the median or "swing" Justice. Over time, this keeps the Court's work near the center of public opinion.

This combination of internal and external features constrains judicial interpretation in practice far more effectively than any single theory of interpretation ever could; it does much of the work in constructing which constitutional interpretations are reasonable and available to judges and which are "off the wall." Equally important, this combination of internal and external factors keeps judicial decisions in touch with popular understandings of our Constitution's basic commitments, continually translating, shaping and refining constitutional politics into constitutional law.

In short, we shouldn't confuse the question of what it takes for actors in the system-- including those actors who are not judges-- to be faithful to the Constitution with the question of what features of the system constrain judicial interpretation. We must separate these questions to understand how constitutional fidelity occurs over time. When we do, we can also see why fidelity to original meaning and belief in a living Constitution are not at odds.