Elements of Law 3.0 Notes and Readings IV-E(2) (The Role of the Courts: Constitutional Interpretation; A Special Case? Contemporary Theorizing)

(Pix (c) Larry Catá Backer 2013)

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 continue to consider the last part of section IV of the materials:  IV.E.The Role of the Courts: Constitutional Interpretation, A Special Case? Contemporary Theoretical and Academic Approaches   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? Contemporary Theoretical and Academic Approaches

Notes for

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 367 U.S. 497 (1961) (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).

In the first part of our consideration of these materials (Elements of Law 3.0 Notes and Readings IV-E (The Role of the Courts: Constitutional Interpretation; A Special Case?)), we considered the sociology and semiotics of a core objective of the judicial function--the enhancement of the authority and legitimacy of the courts as the supreme source of constitutional interpretation and application in the context of resolving disputes between parties. (e.g., Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003)) We focused especially on the issue of the constitutional role of the court, that is, whether the usual judicial role in statutory )or administrative regulation) construction acquires a different character, or is subject to a different set of interpretative rules, when the court is asked to consider issues of constitutional interpretation.  We focused on a germinal case in American jurisprudence to set the context--McColloch v. Maryland, 17 U.S. 316 (1819).

That consideration provided a basis for understanding both the essential similarities of the judicial mechanics of interpretation, whether of administrative regulation, statute or constitution, and the unique features of constitutional interpretation. Those unique features, we have come to understand from the founders' generation, touch on the differences in function between statutes, regulations and constitutional provisions.  Statutes and regulation intend specificity, precision and rigor.  It is meant ot be understood and applied in a precise way.  Constitutions cultivate ambiguity precisely because the document must organize and provide a basis for the functioning of a workable government over the long term. Specificity is attained not merely by the interpretive work of the courts, but of the behaviors of the coordinate branches of government--both horizontally (Congress and the President) and vertical (general and state governments). Constitutions are not meant to provide precise norms of behavior and constraint, but instead to specify the broad areas of discretion and power that are assigned to government and protected against government for the people. What actually falls within and without these broad borders of constraint must be understood as highly contextual--as a semiotic exercise deeply embedded in the time and context in which the issue arises. Thus Congress may be accorded specific powers of legislation, but its exercise in specific legislative acts may not be clear.  Analysis in constitutional interpretation is also guided by political premises. Recall our understanding of the Constitution as a means of structuring politics within the language of law and norm.  These include the fundamental premises of avoiding tyranny avoidance and encouraging efficient government.  Thus, constitutional interpretation contains both elements of deference to choices made by the coordinate branches of government and a willingness to protect the political boundaries of government written into the legal text of the constitution. 

All of these notions, and more precisely the judiciary's constitutional role, has been highly contentious almost from the founding of the Republic. Throughout our history, certain decisions have exploded onto the political landscape and contributed to political discourse and action.  Yet the role of the courts in constitutional interpretation has not been seriously undermined. Instead, generations of academics have sought to try to make sense of the role of the courts in statutory and constitutional interpretation, both as a descriptive project (how can we understand what courts do) and as a normative project (what courts ought to do to enhance their authority or keep to their constitutional role). Most of these efforts have contributed to markets for academic prestige as university faculty compete for influence (at least among their peers) in shaping the conversation about  statutory interpretation and the role of the courts. Sometimes these engagements spill over into the political realm, either as an instrument useful to political actors in the coordinate branches, or as a means of furthering political agendas among civil society actors.  Still, courts and lawyers tend to remain aloof, preferring the certainty of discussion in the cases than the more theoretical discussions of the academy. That has changed a little, over the last century, as the political taste for appointing academics to the bench has grown, and the willingness of judges with academic pedigrees to test their theories in the cases before them (something of questionable choice within our rule of law and common law culture one might argue).

For at least a century, the principal concern of jurists in constitutional matters have touched on issues of principles of constraint of the discretion of judges in interpreting the constitution, and more importantly, in applying those interpretation to test the validity of legislative or executive action. At the end of the 19th century, courts tended to operate under rules of deference in constitutional matters.  This was an era characterized in the academic realm by proposals such as those of James Bradley Thayer ("The Origin and Scope of the American Doctrine of Constitutional Law,"  Harvard Law Review 7:129 (1893)).  These theories suggested that courts defer to Congress and the executive.  Though the scope of statutory construction remained unfettered, the role fo the courts in reviewing  the actions of the coordinate branches for conformity to constitutional norms should be constrained. Specifically, Thayer suggested that the legislature and executive had constitutional responsibility and that shifting all review of constitutional sufficiency to the courts would weaken the constitutional roles of the coordinate branches, making executive and legislature dependent on the courts (Ibid., 155-56).  He proposed a rule of deference, that courts strike down legislative action only if they determined that the act was clearly unconstitutional perhaps beyond a reasonable doubt. This has survived in modern form among academics and jurists who believe that the courts ought not to get too involved in the review of the actions of the coordinate branches absent some high degree and material degree of non conformity. (e.g., discussion in Robin West, "The Aspirational Constitution,"  Nw. U. L. Rev. 88:245 1993-1994).

But the great theorizing movements of the 20th century sprang from a near century long academic effort, joined by some prominent members of the judiciary, that sought to challenge the views of 19th century orthodox legal theory that  legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics.  Generations of legal realists, academics and jurists alike, advanced the claim that indeed, politics, culture, class, and personal agendas pervaded the processes of judicial decision making. (e.g., Lon Fuller, "American Legal Realism", 82 University of Pennsylvania Law Review. 82:429 (1934)). The forms of judicial autonomy and authority, derived from the common law cultures of the courts, were sometimes dismissed as providing nothing more than a formal cover for political decision making.  They rejected the notion advanced by late 19th century legal academics that law could be understood as a science and decried what had been a common law commonplace that  judges sought plausible results rather than the one and only "right" result.  The attack simultaneously dismissed law and the processes of judging as illegitimate because they were not scientifically capable of arriving at the right result, and sought to theorize mechanics by which such perfectly right answers might be discovered. Rather rejected the organic and social relational aspects of common law processes, dismissed the idea that plausible results could be right and insisted that in the absence of a system that could be invoked like a machine, the results of the judicial function was inherently suspect.  (Compare Thayer, supra, "the ultimate question is not what is the true meaning of the constitution, but whether legislation is sustainable or not") They sought transcendence from a system whose legitimacy was grounded in immanence, and they aspired to universal and eternal principle over transitory communal consensus.  Perfection required something other than the system that they had inherited, and the illogic of custom.   Legal realists could sneer at logical anarchy of the canons of judicial construction as proof of their failure to constrain discretion without appreciating the value of this justificatory canons as means of guiding such discretion within the confines of the mass of prior judicial gloss.  They could mock plain meaning rules because as they rightly pointed out words have no inherent meaning, but failed to appreciate the constraining value of objectives based analysis.  Looking only for the worst in the system, they were able to extract examples aplenty.  In a a sense, the legal realist project was grounded in a rejection of the forms and cultures of the traditional judicial function, and to replace it with something more to their liking, something that would abandon the connection between law and the social system within which it was embedded in favor of a more scientifically developed law embedded in the organs and apparatus of the state. We move here form Holmes' "Path of the Law," Harvard Law Review 10:457(1897) as a description of a viable system to one in which the system stands indicted by its own  premises and practices. It was not so much that the legal realist projects criticisms were wrong; it was that the premises underlying the critique were either submerged or ultimately hostile to the traditional ordering of the American legal enterprise in favor of one more closely tied to the state and more functionally instrumental in its character.

Yet the traditional approaches have survived as well, at leats in some form.  A useful example of traditional approaches can be gleaned from Justice Harlan's dissent in Poe v. Ulman, 367 U.S. 497 (1961).   The case arose form a challenge to the constitutionality of Connecticut statutes prohibiting the use of contraceptive devices and the giving of medical advice about the use of such devices.  A majority of the Supreme Court dismissed the petition for cert on grounds of justiciability.  Justice Harlan dissented and  his opinion on the constitutionality of the Connecticut provisions lay out a more traditional view of the role fo the judge when confronted with a challenge to constitutional legitimacy of state legislation.  

For all that, a century of legal realist critique had an effect on the American legal academy, though perhaps less so on the judiciary and legislature.  The problems the legal realists exposed--going to the structural grounding of the legitimacy of the judicial function--could not be dismissed, and required a solution if the integrity of the judicial function was to be preserved.  This was so even if one did not admit to the specific reform programs of the realists.  If the traditional bases and premises of judicial legitimacy are suspect, then what can one offer as a substitute.  Three distinct approaches appeared from the mid 20th century.  The first, legal process theory proposed a new form of judicial deference to legislative and executive application of constitutional authority.  The second sought legitimacy in the unchanging hand of history. The third sought to untie the courts from either deference or history and develop new approaches for applying contemporary values and politics directly and transparently (turning the realist critique into a source of legitimacy).

Justice Harlan starts with  an interpretation of the appropriate form of judicial construction of constitutional text drawn from McColloch v. Maryland.  He acknowledges that such review necessarily constrains state power, and that this constraint may not be imposed by a court in the absence of direction from the words of the constitution itself.  But Harlan rejects a narrow textualist approach to construing the words of the constitution, drawing from McColloch.  "But precisely  because it is the Constitution alone which warrants interference in sovereign operations of the State, the basis of judgment as to the Constitutionality of state action must be a rationale one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government." (Ibid).

This process of rational construction grounded in text read through the principles underlying the constitution itself is particularly important, Harlan argues, in the context of those substantive provisions constraining the power of states to interfere with the life, liberty or property of its citizens. Yet it is precisely here that the words of the constitution provides little more help than as a starting point for an intention or objectives based analysis, grounded by those constitutional principles themselves also extracted from the entirety of the document. Harlan argues that due process is by now broader than a mere guarantee of procedural fairness;it has acquired a substantive element with respect to deprivations so severe no amount of process protections could render the deprivation fair. At the same time the due process clause applies to state action within its borders not just those  applicable to federal action.

But beyond that, the content of due process is vague.  Harlan then suggests those principles of constitutional construction useful in extracting meaning:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. (Ibid).

 This is not a living constitution argument (e.g., William H. Rehnquist, "The Notion of a Living Constitution," Tex. L. Rev. 54:693 (1976)) as much as a conservative invocation of the essence of common law judging grounded in the dialogue between judge and the traditions of the governance community.  That involves not merely a rigid application of tradition as understood at the time of the drafting of the document but also a sense of those ancestral traditions that have been effectively abandoned by the community, the failure to recognize which would doom the decision to irrelevance. That requires an adherence and respect for history but also of objective. "Every new claim to Constitutional protection must be considered  against a background of Constitutional purposes, as they have been rationally perceived and historically developed."  (Ibid). The object is not to free the judge to roam as she will, but to provide a basis beyond the personal predilections of the judge, in which the will of the community may be recognized and applied."We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function.  Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole satire of our judicial process." (Ibid., 544-545).

Justice Harlan here appears to draw heavily on what Chief Justice Rehnquist would later call the Holmes' version of a "living constitution" approach to constitutional construction, one drawn from Holme's opinion in Missouri v. Holland,and suggesting a space within which courts might fill constitutional text with meaning. "Were the framers of the constitution have used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen."(William H. Rehnquist, "The Notion of a Living Constitution,"  Tex. L. Rev. 54:693, 694 (1976).  Justice Harlan then extracts from the history and traditions of marriage, and their regulation by the state, tied to constitutional notions of privacy of family life developed through prior precedent, a notion that the interference by the state of the nature of the marital intimacies which the state otherwise permits and encourages, and the use of the criminal law to regulate the forms of marital intimacies, produces an invasion of the privacy of the family relationship that exceeds the power of the state under the 14th amendment.

And, indeed, Chief Justice Rehnquist's short essay nicely captures the consequences of a century of legal realism and its slow erosion of confidence in the integrity of the judicial function and the authority of the courts under rule of law notions.  It also suggests the way that rule of law notions have changed from one grounded in plausible application to one grounded int he scientific search for perfection within structures that assumed the primacy of an instrumentalist characterization of law. (that is, that law had to be developed consciously to do something specific and coercive rather than merely to order relations in consensual arrangements).    For Justice Rehnquist, one consequence was the rise of what he called a new and radical "living constitution" notion.  He distinguishes traditional notions of living constitution, those embodied in the jurisprudence of Justice Holmes and inherent in the ideals of constitutional construction in McColloch, one in which the judiciary applies a generalized constitutional text and principles to new and changing circumstances in light of the text and objectives embedded in the constitution and as glossed by the courts in light of those texts and principles.

He also points critically toward what he references a new form of living constitution in which litigants seek to use the court to read the constitution instrumentally to embrace political, social or economic objectives where the political branches fail to act or impede progress in ways satisfactory to the litigants.

Here we have a living Constitution with a vengeance. Although the substitution of some other set of values for those which may be derived from the language and intent of the framers is not urged in so many words, that is surely the thrust of the message. Under this brief writer's version of the living Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so. (Rehnquist, supra, 695)

The difficulty here, of course, is a necessary consequences of the century long effort to undermine the legitimacy of the judicial function by ideologues of the left and right.  What remains, after that deconstruction, is an open field (for theorists and the political elements) to attempt to reconstruct a distinct ideology of the judicial function as a substitute for that now discredited. For Rehnquist, with strong ties to traditional judicial approaches, the answer lies with a stronger return to a specific sort of fidelity to constitutional text and original intent.

Since the judges will be merely interpreting an instrument framed by the people, they should be detached and objective. A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should  not change the meaning of the Constitution. A merely temporary majoritarian groundswell should not abrogate some individual liberty truly protected by the Constitution. (Ibid., 696-697).

Rehnquist offers three critiques of the move toward a more detached  set of theories of constitutional interpretation of courts no longer bound as tightly by the prudential restraints of either text or intent.  He argues that such moves toward "living constitution theory misconceives the nature of the federal Constitution, that it ignores the court's disastrous experiences those few times it sought to engage in such practices, and that it undermines the democratic principles of the Republic. (Ibid., 699-706).

Justice Rehnquist's article nicely frames the structure of the debate about the appropriate  structures of constitutional interpretation that have arisen in the aftermath of the great generative deconstructions of the American judicial framework in the 20th century.  This debate produced two influential camps within legal academia, whose work have seeped with more or less success into the political and judicial spheres.  The first include a number of methods and theories that seek to more rigidly tie constitutional interpretation to original text, interpretation or understanding. This is usually characterized as a great conservative resurgence (though one can understand its radicalism when compared to traditional approaches to the judicial function before the early 20th century).  The second include a number of theoretical approaches that seek to systematically detach constitutional construction from text and intent/understanding, refocusing it on other principles of political organization and substantive objectives inherent in the organization of the Republic.  These range from new "critical" approaches (usually labelled liberal) to efforts to re-center natural law and deference standards.  The rest of the readings suggest some of the dimensions of these approaches, several of them quite influential in the last half of the 20th century and quite popular among the current generation of American legal academics (and to some extent those nurtured on current strains of American academic thought elsewhere).