Posted on 11/14/2003 10:24:09 PM PST by NutCrackerBoy
Constitutional interpretation proceeds by reading the text of a provision in the light of its general purpose and in the light of precedent (that is, the history of previous interpretations). The text, rather than the adopters' subjective states of mind, is the primary guide to the purpose of a provision. The evolution of doctrine through precedent generates a tradition which Justice John M. Harlan aptly describes as a living thing. The tradition provides stability while also allowing constitutional change.
I will call this the classical approach, because it describes how the Constitution usually has been interpreted during its two-hundred-year history, and also because its focus on text rather than intentions is how the adopters themselves interpreted state statutes and constitutions.
From time to time this approach to the Constitution has come under attack from people who urge so-called strict construction, by which they usually mean focusing on the adopters' specific intentions. We are in such a time again. During the recent past Edwin Meese repeatedly urged this view from his platform as the attorney general of the United States.
Much of the impetus for strict construction has been the hope that it will restrain judicial activism - that strict adherence to the intentions of the adopters can prevent judges from reading theirown views into the Constitution. In fact, strict construction cannot achieve this end. Because it is based on mistaken views of language, intentionality, history, and law itself, it invites - even encourages - interpreters to read their own pre-dispositions into the Constitution. This tendency is exacerbated because strict construction gives relatively little weight to precedent as compared to supposed new insights into the adopters' intentions; it therefore forgoes the moderating forces of tradition. Let me emphasize that none of this occurs because strict constructionists act in bad faith. It occurs because of limitations inherent in the enterprise.
Before going into this at greater length, let me make a collateral point, just to set the matter to rest. People often equate classical construction with an interventionist judicial stance - that is, a readiness to strike down legislation - and strict construction with an approach which gives more deference to legislative decisions. In fact, whether judges are interventionist or deferential has nothing to do with whether they are strict constructionists.
For example, Justice Frankfurter was anything but a strict constructionist. He believed that the due process clause had substantive content; that it incorporated so-called fundamental values. It embodied, in his words, a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. But Frankfurter was the quintessential noninterventionist, believing that the Court should only strike down a law which was egregiously inconsistent with these fundamental values. On the other hand, Justice Sutherland often was a strict constructionist: The whole aim of construction, as applied to a provision of the Constitution is ... to ascertain and give effect to the intent of its framers, and the people who adopted it. That was written in dissent of the Blaisdell case, where the majority deferred to the judgment of the Minnesota legislature and upheld a mortgage moratorium during the depression. Sutherland, joined by justices Van Devanter, McReynolds, and Butler, would have struck down the law. These were the so-called four horsemen who did battle against the New Deal. Not infrequently, they rode under the banner of strict construction.
The issue between classical and strict constructionists might be posed this way: On what level of generality should an interpreter try to ascertain and apply the adopters' intentions? Should the interpreter try to learn precisely how the adopters would have applied the provision to the case at hand (what we might call their specific intent - assuming that they had intentions about the case at hand), or should the interpreter focus on their more general purposes?
Let me use as an example the familiar text of the equal protection clause of the Fourteenth Amendment: No state shall deny anyone within its jurisdiction the equal protection of the laws. A strict constructionist would ask: How would the adopters of the Fourteenth Amendment have decided the case at bar, for example, Brown v. Board of Education.
Raoul Berger tries to do just this in his book Government by Judiciary. He uses congressional debates and other sources to conclude that those who adopted the Fourteenth Amendment intended only to provide blacks minimum civil rights, such as holding property, entering into contracts, and the like. They would not have wanted their children to go to school with blacks and did not intend to outlaw segregation. Under Berger's reading, the Court was not faithful to the adopters' intentions when it prohibited school segregation in Brown.
This strict constructionist venture faces some troublesome historiographic problems. Let me outline a few of them.
First, what ultimately matters are the intentions not of the relatively few members of Congress who framed the equal protection clause or the even fewer who publicly talked about their intentions, but rather the intentions of those who adopted the Fourteenth Amendment. What theoretically matters are the commonly held intentions of two-thirds of the members of both houses of Congress and the legislators in three-quarters of the states. It is plausible to describe the general aims of these multitudes of people. But it is obviously impossible to describe their specific intentions. It was partly for this reason that in describing the task of statutory construction, Justice Frankfurter wrote: All these years I have avoided speaking of the legislative intent. ... Legislation has an aim; it seeks to obviate some mischief to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn ... out of the air; it is evinced in the language of the statute, as read in the light of other external manfifestations of purpose. That is what the judge must seek and effectuate, and he ought not to be led off the trail by tests that have overtones of subjective design. We are not concerned with anything subjective. We do not delve into the mind of legislators or their draftsmen, or committee members.
Second, is the relevant question,
(a) how would the adopters have applied the equal protection clause to the issue if it had arisin in 1868, or
(b) how would they apply it today?
Either approach requires that we put ourselves in the adopters' heads; imagine how they understood the relevant part of their social, political, or economic world, and then imagine how they intended the clause to affect (or not affect) it.
Answering either question requires going beyond the ordinary task of the historian, for it requires changing the adopters or their world in a speculative, hypothetical way - for their world and worldview are not the same as ours. The problem is easiest to grasp if you think of technological change: for example, how would the adopters of the commerce clause have dealt with the regulation of the interstate transmission of electromagnetic signals? The problem is far more difficult when the changes have been social: Consider, as Chief Justice Warren noted in Brown, the vastly different role of public education in 1868 and in 1954.
None of this means that history is useless in constitutional interpretation. But it does impose significant limits on the level of specificity with which one can discern the adopters' intentions.
Third, if we really care about the adopters' intentions regarding the application of a provision, we need to distinguish these from various other mental states they may have had - such as their hopes, fears, and expectations - and sometimes even from how they themselves would have applied the provision. Let me focus on the last of these, for it seems strange to imagine that the adopters of a provision could intend that others might apply it differently than they would.
The point is nicely made by the great British legal philosopher H. L. A. Hart. In describing the inevitable open texture of legal provisions, Hart explains why we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives. He goes on to say:
Put shortly, the reason is that ... we are men, not gods. It is a feature of the human predicament (and so of the legislative one) that we labour under two connected handicaps whenver we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact; the second is our relative indeterminacy of aim ...
Human legislators cannot know all the possible combinations of circumstances which the future may bring. This inability to anticipate brings with it a relative indeterminacy of aim. When we are bold enough to frame some general rule of conduct (e.g. a rule that no vehicle may be taken into the park), the language used in this context fixes necessary conditions which anything must satisfy if it is to be within its scope, and certain clear examples of what is certainly within its scope may be present to our minds. They are the paradigm, clear cases (the motor-car, the bus, the motor-cycle); and our aim in legislating is so far determinate because we have made a certain choice ... On the other hand, until we have put the general aim of peace in the park into conjunction with those cases which we did not, or perhaps could not, initially envisage (perhaps a toy motor-car electrically propelled) our aim is, in this direction, indeterminate. We have not settled, because we have not anticipated, the question which will be raised by the unenvisaged case when it occurs; whether some degree of peace in the park is to be sacrificed to, or defended against, those children whose pleasure or interest it is to use these things. When the unenvisaged case does arise, we confront the issues at stake and can then settle the question by choosing between the competing interests in the way which best satisfies us.
What Hart suggests is that adopters may intend to delegate discretion to subsequent decisionmakers. Indeed, the adopters have no choice but to delegate, for as the distinguished American lawyer Charles Curtis wrote: Words in legal documents are simply delegations to others of authority to give them meaning by applying them to particular things or occasions.
Fourth, Hart's and Curtis's observations suggest some other features of the relationship between intention and language: That which is voted on and adopted is not a set of intentions but a set of words. Although the words don't mean much - or else they mean too many different things - without our having some understanding of the adopters' general aims, the words also provide an important clue about how closely the adopters intended to bind future interpreters. Curtis noted that the more imprecise the words are, the greater is the delegation, simply because then they can be applied or not to more particulars. This is the only important feature of words in legal draftsmanship or interpretation. And Justice Frankfurter wrote in National Mutual Insurance Co. v. Tidewater Transfer Co.:
The precision which characterizes [the jurisdictional provisions] of Article 3 is in striking contrast to the imprecision of so many other provisions of the Constitution dealing with other very vital aspects of government. This was not due to chance or ineptitude on the part of the Framers. The differences in subject-matter account for the drastic differences in treatment. Great concepts like Commerce ... among the several States, due process of law, liberty, property, were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this nation knew too well that only a stangnat society remains unchanged.
Or, as Professor Paul Freund once remarked in a class, We ought not read the Constitution like a last will and testament lest it become one.
An interpreter faced with almost any clause, and especially one as broad as the equal protection clause, must posit a theory or principle for the clause. The starting point for this enterprise is the language of the clause and our understanding of the adopters' purposes. But the principle inevitably will be more general than anything that one can describe as the adopters' intentions. And the choice of the principle will necessarily force the interpreter to exercise discretion or judgment.
Continuing with the previous example, what theory or principle might underlie the equal protection clause? Let me mention four contenders:
1. the clause forbids discrimination against blacks;
2. the clause forbids discrimination based on race - whether against blacks or whites;
3. the clause forbids discrimination against any group that is systematically disadvantaged by those in power;
4. the clause forbids discrimination against any group.
The first of these is the "narrowest" in terms of the adopters' intentions. If the equal protection clause only forbids discrimination against blacks, then Brown is correct, but the justices in Bakke and more recent decisions overreached in thinking that the Fourteenth Amendment had anything at all to say about reverse discrimination. Also, all the decisions extending the equal protection clause beyond blacks - for example to Chinese, Mexican-Americans, or women - would be wrong.
This seemed to be Judge Bork's position in an important article he wrote in 1971. He said that the Fourteenth Amendment was intended to enforce a core idea of black equality against governmental discrimination. In the same article, however, he asserted that in order for the Court to be neutral, it should choose a general principle of equality that applies to all cases. This might suggest the fourth and broadest possible interpretation of the equal protection clause: no discrimination against any group - whites, women, men, homosexuals. Of course, Judge Borke does not adopt this position. Like former Attorney General Meese and most other conservative lawyers, he seems to choose a much narrower principle, which would prohibit all racial classifications but would not be concerned with most other classifications.
You may or may not agree with this stopping place. My own view is that the language of the equal protection clause suggests a more general principle of equality: In what must surely have been a self-conscious decision, the adopters did not even mention race but prohibited denying equal protection of the laws to any person.
What is important for present purposes, however, is not the particular choice that Judge Bork, Attorney General Meese, or you, or I, or even the Court ends up making. The point is, first, that a choice must be made; and second, that though the adopters' language and purposes can be suggestive, they cannot determine the choice - the right level of generality on which to interpret the clause.
This does not mean that the choice is based on the justices' personal whim. For the justices operate in an environment of legal, social, and political values and against the background of a tradition which constrains these choices. Let me quote from Judge Bork again - this time from a lecture, in which he drew a parallel between law and theology: Both ... fields purport to rest upon sacred texts, and it seems odd that in both the main bulwark against heresy should be only tradition. Law is certainly like that ... As Alexander Bickel observed, all we ever had was a tradition, and in the last thirty years that has been shattered. Now we need theory, theory that relates the framers' values to today's world
I agree with Judge Bork about the centrality of tradition. But I disagree with the suggestion that it has been shattered or that tradition can ever be replaced by mere theory. For better or worse, our traditions are quite resilient. More importantly, one can only think of them as being shattered in the last three decades if we imagine tradition as something static and unchangeable by those who participate in it. But that's to confuse tradition with orthodoxy. To quote Justice Harlan, our constitutional tradition is a living one.
To be sure, that tradition has not been smoothly continuous. To use Bruce Ackerman's term, we have had two major constitutional moments - two significant changes in the tradition - since the founding. One was the adoption of the Fourteenth Amendment; the second, the changes occasioned by the New Deal - an informal amendment, if you will. The last thirty years have seen considerable constitutional activity. But, as someone who teaches constitutional law and organizes his course in a chronological fashion, I have no sense of an abandonment of tradition.
The claim that tradition has been shattered lends itself to a radical form of activism in the form of ignoring well-established precedents under the guise of returning to the original understanding. I doubt that Judge Bork intends this. However, this view has been urged by Attorney General Meese, who for example, would have the Court reject the long-standing series of decisions holding that the Bill of Rights applies to the states through the Fourteenth Amendment. Our tradition of giving considerable weight to the interpretations of earlier courts tends to assure that constitutional doctrine is relatively stable, and equally important, it provides a safeguard against the justices' importing their own ideologies into the Constitution by claiming to have new insights into the intentions of the adopters. For one fact that history, or more precisely the history of doing history, has taught us is that our view of the true meaning of a provision can never be free from our own preconceptions. No matter how pure our motives, we tend to see what we expect or want to see.
Let me close by quoting against from Charles Curtis, who sums up eloquently what I have been trying to say:
Should we not pay the authors the compliment of believing that they meant no more than they said? What they left unsaid, they left open for us to decide. What then are the judges looking for, if it is not the intent of those who made the Constitution? They are engaged in doing something, not looking for anything ... The Court is not dealing with the men who made the Constitution, but what they made.
The Constitution has become something in its own right. It is an integral part of what men do with it. It has long ceased to be no more than what other men hoped they would do or intended them to do. The Constitution, together with the Court's work, is not so much pushed by the plans of the past as pulled by hopes of the future. It is not stuffed, but pregnant with meaning.
The intent of the framers when it is not expressed is only that we, the Congress, the President, and the Court, should be allowed to make good on their best hopes and cash in on their boldest bets. What our forefathers said, they said. What they didn't say, they meant to leave to us, and what they said ambiguously, indefinitely, equivocally, or indistinctly, is in so far not said.
If the words themselves are without stable meaning, why bother with a written Constitution in the first place?
The task for Judges and Justices, is to apply that meaning to current situations, not to bend the meaning to the fit the current situtation.
Precidence is all fine and good as a source of stability, but it should not be allowed to perpetuate earlier mistakes. Even Justices of the Supreme Court are human and subject to making mistakes, wether due to political views, or other factors such as racial or ethnic prejudices.
The whole area of the application of the Bill of Rights, the first 8 amendments that is and maybe the ninth as well, to state governmental action, is a very good example of the Justices not wanting to overturn precidents set by earlier Courts. The earliest cases after passage of the 14th amendment basically held that it did not apply the bill of rights protections to the states, even though that was the intent of it's authors as so stated and recorded. Rather than just saying, "the earlier decisions were mistakenly decided", the Court came up with the "selective incorporation" via the Due Process clause, rather than applying the Privleges and Immunites Clause of the 14th, which is what it's authors decribed as the rights protected by the Constitution, including the first 8 amendments (some of the rights/immunities are put forth in the main body of the Constitution).
They did not include "penumbras" and "emanations" in "what they made".
And to wilfully ignore plain English statements such as "the right of the people to keep and bear arms shall not be infringed" deserves tar and feathers.
--Boris
But the author has identified a valid problem. However, his preferred solution, the "living constitution" where judges are expected and encouraged to see in the Constitution whatever seems good to them, makes Constitutional interpretation into a Rorschach test--and results in a dead Constitution that might as well not exist. It replaces the rule of law with the rule of lawyers.
Just because it's not possible to read the minds of those who drafted the text of the Constitution and its ammendments does not justify letting bogus court decisions and wrongheaded traditions rob the people of their liberty. To paraphrase a certain highly respected religious personality, "they invalidate the word of the Founders' Contract by their traditions." The New Deal is an excellent example, and has since established a precedent and tradition of "ammending" the Constitution by the simple expedient of pretending the words mean whatever pleases the judge. The difference between the current traditions and the plain and unambiguous requirements of the Constitution as written is far larger than can conceivably be justified by the intrinsic problems of interpretation which he correctly describes.
The fraudulent idea of a "Living Constitution," as he envisions it, is neither a fair, honest, nor workable way of interpreting the terms of a contract--which is exactly what the Constitution is.
The copula "is" word attributes existential modality or state — and never addresses simple existence alone. (Oops...Does that mean Clinton was right?)
Brown decided that separate was not equal, not that equal protection, by itself, required integration. The reasoning went that the majority would never properly fund and staff segregated minority schools, but if the schools were integrated then all schools would get support from the majority. As it worked out, minority schools of that era were undoubtably better than the majority minority (that is were a majority of the students in an entire district are from a minority group or groups) do today.
Just today I heard that in Texas 49% of anglo 4th graders are performinag at the proficciency level for that grade, itself somewhat shocking and scandalous, but that Latino student were only doing so at a rate something like 25%, and black students at only a 15% rate. 15%, after almost 50 years of integration. Maybe segregation, while an abomination to me, wasn't the problem after all, or at least not the most important one? Maybe equality, or near equality of opportunity wasn't the problem. Maybe there was and is a cultural problem? If there is, it's spreading to all the cultures that make up American society, with a very few exceptions.
Interestingly, Texas students of Asian heritage did better than all the other groups, better than Asian kids in all but 4 states in fact. The interesting thing about that is that Texas has no large grouping of people of Asian extraction, at least none that have been here over a generation. Here and there there are clusters of asian businesses and neighborhoods with lots of asians, but for the most part they are fairly well dispersed. They are also mostly at the lower end of the socio-economic scale. Maybe not as far down as some other groups, but well below the middle on average (OTOH, 4 of of our family doctors have been Asian, two Thai, one Indian, and one Philipina, and I saw an immigrant (as a child) Korean dentist this week, who works in the same practice as my regular dentist who was on vacation this week.
So is the problem with Texas schools, or non Asian Texas students, or some of both? And how much of each factor?
The article seems to bear out my assertion that: The Constitution, to a large degree, is whatever at least five Justices (a majority) interpret it to be at any given time, based on their ideology, and regardless of what the Founders intended or what the citizens expect.
Yes:
cop·u·la
n.
1. Logic. The word or set of words that serves as a link between the subject and predicate predator of a and propositioner.
By focusing on original intent, strict constructionists do themselves a disfavor by making their argument too easily refuted. The issue is not what was intended but what was said. Expressions of intent in the legislature and general debate are important, as is the historical background, but the most important factor is the language of the law itself.
Viewed in this light, the equal protection clause is clear in its meaning: black males must enjoy the same rights and privileges as white citizens, i.e., as white males. If it could mysteriously be expanded by judicial fiat in its generality, why was an amendment necessary to give women the vote?
Here's a harder example though: Was legal discrimination against Chinese and Japanese immigrants in California and the West covered? If they were not covered, was it because the post Civil War debate discussed only people of African descent? No. Because this clause _says_ "all persons born or naturalized," meaning, no person not otherwise incapacitated from being a legal citizen (i.e., a woman, people prevented from becoming citizens of the United States, as the Chineses and Japanese were at some times) are covered. This means the _children_ of Asian immigrants (as persons "born" in the US) would have been covered.
What is actually said counts more than "intent" because it is the expression of that intent, and rummaging around the legislative debate and history is only useful when something is no longer clear (as in the term "well regulated" in the 2nd Amend.).
The real problem is that we actually have, for example, idiots who think the 2nd Amendment is a "collective" right. My point is that people who think that are not living in the same country that I am, and I'm not certain how much longer the 'cohabitation' will continue, because they are changing the most fundamental laws of my country without asking my consent.
The virtue of a judge consists in correctly implementing the law understood as a universal applied to particulars: but that requires the discipline not only to enforce the law in the face of popular opposition, but also to recognize that the law does not authorize judges to remedy all injustices, but only those expressed in the law.
The ultimate problem with Brest's argument above is that it violates the logical law of the excluded middle: I don't give a rats a$$ how many precedents come down the pike-- if you wind up in a situation where current case law says "not A" but the original statute says "A", somebody screwed up big time somewhere in the middle, and any judge worth his or her salt should have the guts to point that out.
Anything else is just sophistry.
The peer pressure not to succeed sadly wins out statistically over good parental role models and parental pressure to succeed.
Brest's argument ... violates the logical law of the excluded middle: ... if you wind up in a situation where current case law says "not A" but the original statute says "A", somebody screwed up big time somewhere in the middle.
Definitely, the current practice should be much more disciplined about standing up and correcting those instances. Still, I think there could be exceptions where it just works out that way.
The Founders were brilliant men, to be sure, but they knew very well that they didn't know everything, and they certainly knew that they couldn't see the future, and so they did not construct a document with the intention that we, succeeding generations, should simply shut off our brains and let them do the thinking for us. Look at the California state Constitution, for example - it's almost mind-numbingly specific in the subjects it addresses, the methods it proposes, and the situations it covers. Not that I mean to pick on California - many state Constitutions are like California's in that respect. But the Federal Constitution isn't like that at all - it's fairly specific about some things, like how government is to be organized, but purposefully vague about certain other things, such as the bulk of the Bill of Rights. It's a two-part document that is basically of the form "Here's how government is organized, and here's some general principles about what we think government ought not to do" - and putting the second part of that into action is left to us to do.
The Constitution relies on the citizenry to be wise and thoughtful and reasonable - it does not, and cannot, rely on a judiciary functioning as high-priests of the Constitution, divining things like "original intent" from wherever they can. Madison, Jefferson, Hamilton, et cetera - they would, all of them, rightly be horrified at the suggestion that their words were to be read as gospel, that we should essentially stop thinking for ourselves, and that is exactly what both of those doctrines require, when taken to their logical conclusions. There are too many situations that arise where "strict constructionism" or "original intent", rigidly applied, will lead to perverse results that are in opposition to the basic principles outlined in the Bill of Rights - the Constitution demands that we must think for ourselves, more so than those doctrines will always allow.
At the end of the day, discussions about the Constitution and the law and what-have-you are really nothing more than discussions about how we think the country and society should be. The First Amendment doesn't extend to cover the Internet because the Constitution, strictly constructed, says so - it doesn't - or because that was the original intent of the Founders - how could it have been? Instead, the First Amendment applies to the Internet because that's how we want it, how we think it should be, what we think the First Amendment should mean. And there are always going to be circumstances like that, where we must think for ourselves about how we want society to be, and what the Constitution should mean in order to remain faithful to those principles that those men set out for us, 227 years ago. Taking those general principles and thinking for ourselves in order to apply them to the issues of the day - that, more than anything else, was the "original intent" of the Founders.
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