Monday, August 28, 2006

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


In previous posts, I've argued against forms of originalism that look to the original expected application of the Constitution in favor of an original meaning approach, which I call text-and-principle, that is also a form of living constitutionalism.

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.


One needing believe that judicial interpretations of the Constitution are primary to reject the notion that the two questions--(1) meaning and fidelity and (2) institutional responsibility are conceptually interrelated. Indeed, one can say that institutional responsibility is derivative on meaning and fidelity and meaning and fidelity should for the most part be determined by non-judicial actors. I think Jack's post raises several related, but significantly distinct questions, which, if time permitted could be pursued in more detail here. Suffice to say several of the distinctions raised to do support the general argument, but, of course, I need to demonstrate this point, not just assert it.

Is "citizen's perspective" related to "We the People"? Is it clear that "We the People", in applying originalism, is not limited to those in being at the time of the adoption/ratification of the Constitution and its Amendments, so that living "We the People" have a voice?

I agree with your teleological framework in this article, JB. In tandem with your Slate article datelined tomorrow, to which you kindly linked, it states the case for dynamic development, while allowing for spontaneity.

There are many undercurrents worrisome to me in the development of the judiciary's place in our government and our society at present; some of these you address adroitly by exposing the sporadic sourcing favored by the most transparently political of originalist jurists.

Here are the most bothersome impetuses for me now: the judicial ethics charges now leveled at Judge Diggs Taylor have the potential to have adverse effects on philanthropy. I was thinking of this as I read the biographies of that circuit's senior and fulltime judges and found great depth of ongoing bonds with specific institutions within academia. I would hope the government in pursuing its case could avoid blazing trails which could impair the symbiosis between a university and legal professionals.

Another worry may be more transitory; there is a new proposed structure in the FISA remake whereby secrecy would hide the attorney general's determinations in certain cases, and the FISA judges appointed by the Chief Justice would continue that secret justice mode in those designated cases. Obviously secrecy is important to nations still; but too many efforts in the current government's acts of late point toward courts becoming increasingly complicit in what appears to be a weathering of the constitution.

One of the most energetic facets of many independents' political value systems is an appreciation of the rugged individualist spirit which formed this country; and we continue to revere this ideal, sometimes perhaps inordinately.

I think your observation that the system tends toward the middle and is vitally in touch with our society at any instantaneous sampled moment in time is important. The reward, looking back in history, and forward to our heritage, seems to be that the institution is well tempered and the fringes are forced to seek their most noble aspirations rather than pursue the heated rhetoric of the time. Nevertheless, all of these institutions are byproducts of our polity in all its humanness.

Since I raised the issue of judicial constraint in a comment posted here the other day, I want to make it clear that I don’t think that an expectations based approach actually constrains judges in practice. Far from it. I think Prof. Balkin is quite right that it does no such thing, and that, as he says, interpretive constraint is the product of multiple institutional features. I also don’t think that original meaning originalism should enjoy any privileged status in the hierarchy of interpretive methods either, although I did indeed assume that the point of the originalism debate largely has been about the relationship between fidelity to the text and the institutional responsibility of judges. So, I concede that I may have conflated these two questions.

On the other hand, this is quite understandable, I think, since it is not just adherents of original intent/expectation who conceive of the debate in precisely these terms. For example, in his recent book, Randy Barnett reproduces a decisional flowchart (adapted from Robert Clinton) to illustrate how his interpretive approach would function to “constrain the process of constitutional construction” by the courts (p. 127). To be sure, Prof. Barnett allows that the original public meaning circa 1789 or 1868, by itself, does not invariably produce concrete answers to contemporary questions (hence the need for constructions), but it does give a definitive shape to the proper method of adjudication and set boundaries on the scope of constitutionally justifiable answers. The entire premise of the argument is that “[h]ad judges done their job, this book would not need to be written” (p. 1).

By contrast, if I’ve understood him correctly, Prof. Balkin does not think that the original public meaning has any special purchase in determining how we actually adjudicate controversial constitutional questions, much less constrain appropriate constructions, since the judicial process will proceed pretty much as it always has. In other words, original meaning may be relevant to interpretation, but certainly not authoritative. Instead, it seems to function more as a form of civic education, if you will, a common vocabulary of political morality in terms of which each generation works out in practice what it means to be “faithful” to the Constitution as they collectively see it, as much through social and political activism as through litigation. It seems to me that this approach is much closer to Sunstein’s idea of constructing a “usable past,” that is, the appropriation of an intellectual tradition in order to endow one’s constitutional vision with a historical grounding. But this also implies that there is no particular theoretical perspective that can lay exclusive claim to being *the* historically validated theory of the Constitution, however influential it might have been at the founding (e.g., classical liberalism). This project seems to bear little resemblance Barnett’s version of original meaning originalism.

I sometimes think that gays who wish to be treated as equal citizens under the law need to study the success of the 19th Admendment.

As I recall, the first attempts to provide women the vote were coached in the terms that the 14th admendment applied to them. You could argue they were right. But they never got the legal ruling they wanted. Which is why the movement for the 19th Admendment was a "social" movement as much (if not more) than a legal one.

There are less gays in the U.S. than there are women, but I think the lesson is the same. The admendments to the Constitution are the last-end of a campaign to socialize the change.

"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."

I agree with much of this sentiment--we should distinguish interpretation of the Constitution itself from what should be done when exercising judicial power. And I agree that there may be differences in the roles of different officials that affect the occasions of constitutional interpretation. But I think that in some ways it's easier to start with the relationship of the Constitution to officials than to start with the relationship of the Constitution to mere citizens. For instance, why is the Constitution binding today? For mere citizens, this may be a sticky wicket, but for officials who have personally taken the Article VI oath, it's a pretty easy question. Likewise, determining the nature of the Constitution is easier if we have an Article VI hook on which to hang our hat, because we can use the Constitution's own indexical language ("this," "now," "here" and variants) to determine what the Constitution's own view of itself is. If the language of the "this Constitution" clauses embeds a constitutional self-understanding, and if officials have indicated their agreement with the constitutional self-understanding by taking the Article VI oath, then we have a foundation for saying what officials' constitutional ontology should be. But with citizens who haven't taken the oath, it's trickier.

Maybe this article by journalists in the publication Science states Prof. Balkin's thesis slightly differently.
Often I have wondered what might happen to our court system if some judges had to obtain certification in science, or other specializations, in order to hear cases with strong elements of the most arcane branches of human knowledge. But we have historical evidences that elitisms on the bench are perilous for society.

Death ends a life, not a relationship.
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