I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.
With this post I continue to share with the class and interested "others" summary study notes for the course readings. For this post we consider the first part of section IV of the materials: IV.E.The Role of the Courts: Constitutional Interpretation, A Special Case? Comments and discussion most welcome.
The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.
IV.E.The Role of the Courts: Constitutional Interpretation, A Special Case?
Readings: The section applies the statutory interpretation materials that we have already covered specifically to the constitutional context, with the addition of other readings identified below
--Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003). READ INTRODUCTION AND PART II (pp. 117-28; 152-72).
--McColloch v. Maryland, 17 U.S. 316 (1819)
1. Originalist Theories: Textualism
a. Word textualism
b. Clause bounded textualism
c. Holistic textualism (the document)
d. Structural textualism (text in light of overarching principles)
--James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
-- William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976)
--Poe v. Ulman (Harlan dissent)
2. Originalist Theories: Original Understanding
a. Social-cultural plain meaning—Intention of the Founders
b. Original Purpose (interpretation the best reflects Framers’ original purposes)
--Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series; Princeton University Press (July 27, 1998) (ISBN-9780691004006)) READ pp. 3-18 and 23-47.
3. Legal Process Theories
--John Hart Ely, Democracy and Judicial Review, 28 Stanford Lawyer 3-9 (Spr./Sum. 1982) (printed as Vol. 17(1)).
4. Evolutive Theories
a. Republican Theories
b. Anti-Subordination Theories (Feminist and Critical Race Theories)
c. Customary Law Theories
--Gary Minda, The Jurisprudential Movements of the 1980s, 50 Ohio St. L.J. 599 (1989)
--Poe v. Ullman, 367 U.S. 497 (1961) (Harlan dissent)
--Optional: David Strauss, The Living Constitution (New York: Oxford University Press 2010).
The mechanics of that role, and its sociology, is explored in the first reading, Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003). Judicial meaning making is made not merely as against text, but is part of the larger function of creating institutional structures for meaning making which reinforces the authority of the meaning makers. The judge thus assumes a relationship to the construction of text, and especially of constitutional text, that mimics that of the priest with divine text. "despite two centuries of inconsistent juridical constitutionalism, and the warnings of Presidents and commentators, the authority of judges has grown. That privileged place is protected by the cultivation of neutrality. This neutrality based on devotion to the law, rather than to law’s partisans, becomes essential to the judges’ status." (Ibid., 105-106). And, indeed, the techniques of judicial interpretation may well deepen reliance on the judge as the sole ostensibly neutral interpreter of text, one whose role is form ally constrained precisely by a fidelity to the document and to an avoidance of personal or political agenda and whose deviations form this ideal cause tremendous criticism. (Ibid., 122-25). The semiotics of the judicial engagement with text (Ibid., 140-144) is considered in its dual role--both in making meaning and in constructing of institutional mechanics that reinforce the essential roile of judicial interpretation for the preservation of the structures of law.
If the courts are said to have the constitutionally assigned task of both interpreting constitutional text but also of assessing the constitutional legitimacy of assertions of legislative and administrative authority thereunder, then, how is the Constitution itself to be read to determine the extent of the limited powers assigned to the legislative branch; and what effect would this exercise have on the residuary power of states? Are the methods to be used to interpret the Constitution special to that document, that is distinct from the techniques and methods we have been discussing relating to statutory interpretation? These are the questions taken up in this last section pof Part IV of the materials.
As a general matter, the methods of interpretation, whether of statute or constitution, tend to be structured along the same general lines. At the greatest level of generality, courts will strive to embrace methodologies that reduce the appearance of personal engagement with law or application. That is, courts, as an institution, retain their legitimacy by adopting any one or more of a number of techniques that separate the individual judge from the process of decision. Rule of law is thus intertwined with the methodologies of judging and we have considered a number of distinct techniques that have been developed and applied that are meant to enhance the legitimacy of the judicial function by grounding it on methods and sources extrinsic to the individual judge.
Those techniques, as we have come to understand them, can be categorized as falling within two broad camps. These camps aggregate premises about the most desirable best approach to the issue of interpretation and then elaborates techniques that are meant to effectively apply these premises. We have identified these distinct camps as formalist and functionalist. Formalist approaches start from the premise that the product of the legislature (or of the people) ought to be accorded great respect. It implies a narrow scope of judicial engagement with that product, grounded in another premise--that the judicial function is quite limited in the face of legislation or constitutional provision, and that it performs its function best by interfering with the legislative power (represented in its statutes) or the administrative power (represented in administrative decisions) as little as possible. Formalists privilege text and exercise substantial restraint in deviating from the meaning of text. The techniques of textualism, then, proceed form a formalist approach. Functionalist approaches start from the premise that words matter less than objective. While the legislative power is respected, and the courts remain committed to non-interference with legislative action (as long as it can be reconciled to higher law), the courts seek to mold the specific text of legislation to the will of legislature. That approach is based on the premise that bad or ambiguous language of a specific text is always subordinate to the will of the legislature that sought to memorialize its intention or objectives in the words of the statute. Functionalists, then, privilege either the intention of the legislatures that enacted a provision, or the objectives of that legislation discerned from sources intrinsic and extrinsic to the text itself.
Both formalist and functionalist approaches to statutory and constitutional interpretation have spawned a significant number of techniques for their application. We have considered the broad outlines of these techniques earlier in these materials (e.g.,Elements of Law 3.0 Notes and Reading IV-C (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation)). Do these techniques, and the premises underlying them, necessarily assume a distinct character, when the courts interpret and apply constitutional rather than statutory text? Are additional techniques necessary to enhance the legitimacy of the judicial role in interpreting and constitutional text as against the actions of the coordinate branches of government? Is there a role for "originalism" in constitutional interpretation that is distinct from the formal (textualist) or functionalist (intentionalist or objectivist) approaches to statutory construction?
To answer that question, it is perhaps prudent to start with the thinking of influential members of the Founders' generation. For that purpose we consider Justice Marshall's approach to constitutional interpretation, and the array of techniques he thought authoritative, in McCulloch v. Maryland, 17 U.S. 316 (1819). The facts of the case are not complex. The case revolved around political disputes over the power of the federal government to charter a national bank and of the states to tax this entity. The second Bank of the United States was established by legislation of 1816 as an incorporated entity under federal law. It was chartered as a private corporation but one with public functions. It was intended that the Second Bank of the United States handle the banking transactions for the general government and to that end was accountable to Congress and the President through the Secretary of the Treasury As chartered the general government owned twenty percent of the bank's capital, making it the bank's largest shareholder; the rest was owned by about four thousand private investors, including European investors. (See, Bray Hammond, Banks and Politics in America, from the Revolution to the Civil War, Princeton: Princeton University Press (1957)).
It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. (McColloch, supra).
In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion. (Ibid).
To resolve this ambiguity, Marshall derives theory from his sense of the intent of the framers and the original understanding of the times.Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people;" thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. (Ibid).
The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public.
Can we adopt that construction, (unless the words imperiously require it,) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed. (Ibid).
But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. (Ibid).
But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power. (Ibid).
The people of all the States have created the general government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constituents; and these taxes must be uniform. But, when a State taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole -- between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.
Because all states are represented in the general government, the community of states may act on all of them in ways that permit each to protect their individual interests. But the same is not true when a state seeks to affect the general government. There the representation of the general government is held hostage to the interests of only one state. That undermines the fundamental representative principle of the organization of the Republic. As such the state of Maryland on an instrumentality of the general government is beyond its power as a subordinate unit of government.
McColloch suggests that constitutional construction is both similar to but may be distinguished from the ordinary methods of statutory construction. Like statutory construction, the focus remains on text and intent. The Court will seek to read the text and discern meaning from the word, clause or from the entire document. The Court can seek to extract principles from the text and apply them to resolve the ambiguity or fill a gap. Again, as ion statutory construction, the Court will seek the intent of the drafters and situate meaning within the common understanding of the time of enactment. The object is functional--to ensure that the objectives of the document as a whole are not thwarted by a reading of the text of the specific provision at issue.
Yet there are differences. Marshall is at some pains to suggest that a constitution ought not to be read like a statute. American constitutional drafting cultivates ambiguity; statutes cultivate precise meaning. Constitutions have as their foundational objective, the preservation of the state and the welfare of the people over a long term; the objectives of statutes are more precise. Constitutions are meant to be inherently ambiguous, precisely because it is meant to provide a flexible framework for the long term operation of the state through its governmental instrumentalities. Plain meaning, then, may have less of a place within constitutional construction than in statutory construction. Likewise, core principles of government--anti-tyranny principles, federalism principles, and efficient government principles operate in constitutional construction in ways that may be irrelevant for statutory construction. There is room for acquiescence in constitutional construction; it is a political document as well as a source of higher law. Thus, perhaps, the differences may focus on nuance and the context of construction, rather than on the development of a palette of techniques that distinguish statutory from constitutional construction.
These notions have been tested by a century of more of constitutional theorizing at the hands of generations of American academics and judges who have sought to leave their own mark on an ideology of constitutional construction. These theorizing trends have left their ,ark on American law and politics; it has shaped the culture of legal discourse. But it is not clear that it has added much to the business of constructing and implementing constitutional norms. The readings listed above suggest some of the more long lasting movements that have marked these theorizing "schools" whose language has sometimes entered the common culture and the political discourse. We will consider these in our next class.