As you already know, the Supreme Court’s claim to, and exercise of, the “power of judicial review” has been controversial from the beginning. This controversy has ensued because of both power and philosophy.
The power issue is basic: the power to interpret the Constitution is one of the most important powers in all of American society. Consequently, it is highly coveted by all segments of American politics.
The philosophy issue is more abstract: it asks whether a democratic society can or should entrust final say over public policy to the one branch of government that is unelected and, therefore, not directly accountable to the people. Those who object to this arrangement emphasize democracy and argue that judicial review is intolerably antidemocratic. Those who defend the status quo emphasize justice and argue that judicial review is the great bulwark against majoritarian excess and injustice.
Given this philosophical disagreement, the following brief overview introduces some basic points relating to the ideals, sources, canons and viewpoints that guide or influence the courts’ interpretation of the Constitution under the present set of arrangements. These judicial interpretations are, of course, the act or process of creating Constitutional Law through judicial review. By knowing these crucial background factors, reading Con Law opinions should become a less exasperating experience. Understanding this important background should better allow you to decipher any opinion, whatever the judge may be opining. This overview, by definition, over-simplifies complex points or concepts, and is intended only to help you see the big picture and organize your thoughts stemming from the assigned readings and class discussions.
Virtues and Vices: Democracy Versus Justice, and Politics Versus Law
The Constitution is supposed to foster both democracy and justice — the former through representative government that responds to the will of the people, and the latter through a court system of principled judgment, rather than a simple extension of prevalent passions, prejudices and politics. This delicate balance recognizes that democracy does not necessarily yield justice and that justice sometimes is, and must be, antidemocratic. Hence, the world of democracy is politics — the rough and tumble contests among factions fighting for power, wealth and status — while the world of justice is law. Under the Constitution, politicians need not be principled because they are elected by partisan factions for political advantage, but appointed judges are supposed to rise above the politics of the day and adhere to neutral principles of law to ensure that democracy does not violate the rule of law or inflict injustice on individuals. Under this scheme, politics is no vice in the partisan world of democracy but it is also no virtue in the principled world of law. Under this traditional view of the Constitution, politics and democracy are the norm of everyday government “by the people” but law and justice should be supreme when the two collide. In this constitutional framework, law effectively limits politics. This hierarchy is the essence of the “Rule of Law” in a constitutional democracy. This law-politics distinction therefore is key to perceptions of judicial legitimacy in constitutional lawmaking, especially when courts use their judicial review powers to trump the results of democratic politics.
Consequently, one of the worst things that can be said of a court ruling or opinion is that it amounts to “mere politics” — in other words, that it reflects only or chiefly the personal views and political values of the judge (and the factions to which s/he belongs) — rather than a detached judicial judgment produced through an impartial and consistent application of the legitimate sources of law in conformance with the basic canons of interpretation. If so, the judge improperly may be using the court’s power of judicial review for personal reasons and purposes. If so, as we saw above, the ruling or opinion may be deemed “unprincipled” and, thus, illegitimate. While rulings deemed unprincipled and illegitimate may be obeyed as the law of the land, they will also be criticized and will not be given respect in intellectual and moral terms. Judges, of course, do not enjoy being seen in this light. While judges are not supposed to act on the basis of popular (or personal) views or politics, they nonetheless remain concerned about the way in which their peers and posterity assess their professionalism and performance of duties. Judges are aware that we — other members of the legal profession with similar training — will review their opinions and reasoning to judge them under the standards and ideals of their office. In addition to helping you to better decipher Constitutional Law opinions, this User’s Mini-Guide also should help you judge the judges and their judging in a principled way. In this sense, Bertrand Russell, addressing the study of philosophy, eloquently describes the state of mind that should prevail when reading, analyzing and judging Constitutional Law opinions:
In studying a philosopher [or a judicial opinion], the right attitude is neither reverence nor contempt, but first a kind of hypothetical sympathy, until it is possible to know what it feels like to believe in his theories, and only then a revival of the critical attitude, which should resemble, as far as possible, the state of mind of a person abandoning opinions which he has hitherto held. Contempt interferes with the first part of this process, and reverence with the second. Two things are to be remembered: that a man whose opinions and theories are worth studying may be presumed to have had some intelligence, but that no man is likely to have arrived at complete and final truth on any subject whatever. When an intelligent man expresses a view which seems to us obviously absurd, we should not attempt to prove that it is somehow true, but we should try to understand how it ever came to seem true. This exercise of historical and psychological imagination at once enlarges the scope of our thinking, and helps us to realize how foolish many of our own cherished prejudices will seem to an age which has a different temper of mind.
Bertrand Russell, History of Western Philosophy 47 (Taylor & Francis e-Library ed. 2004).
Before we delve deeper into this traditional model of constitutional analysis, however, we must pause to consider a second level of analysis with regards to these issues concerning will, judgment, democracy, justice, politics and law. We cannot be so naïve to think that personal considerations, particular ideologies or even partisan preferences do not influence judges’ opinions. A total absence of passion and prejudice would not only make them principled, but also something other than human. Additionally, it is too simplistic to consider that judges are totally unaccountable to the people. After all, some state judges are elected, all judges are vulnerable when faced with public (or even private) criticism and pressure, and even federal judges with lifelong appointments are subject to impeachment by Congress. And finally, being a branch of the government after all, the Judicial Power will, on occasion, face off in power struggles against other governmental actors. To give just one example, we should not forget that the Judicial Branch’s budget falls under Congress’s appropriation power, and their physical safety is guaranteed by the Executive’s armies. To require an absolute purity and detachment from politics of our judges would not only be naïve, but also unrealistic, and perhaps even undesirable. Having said all this, as a general rule, in our everyday legal endeavors, the model of constitutional analysis described above, and developed in more detail below, should guide our appreciation of constitutional interpretations. We should also bear in mind that certain infringements by judges upon this general model (such as blatant partisanship, promotion of personal benefit or actual bias) are much worse than others (such as institutional self-preservation or popular accountability).
The Ideal: Principled Decision-Making
Under the current system, all sides of the debate generally agree that the Supreme Court should not invalidate legislative or executive acts simply because it does not like them. It is sometimes said that courts should “defer to the legislature” and exercise judgment rather than will — meaning that will is the act of making basic policy choices through the democratic process. The power to exercise judgment and will is, consequently, a central feature of the Constitution’s overall commitment to a separation of powers among the branches of government. Judgment is for the Judicial Branch while will is reserved for the democratic branches. Logically, then, the court should respect the will of the people, as expressed through their popularly elected representatives in the legislative and executive branches of government. The only reason for courts to disturb the will of the people is when that will violates the Constitution, which itself was adopted “by the people” at the nation’s founding and designated by them as the Supreme Law of the Land. In this scheme, courts are supposed to render principled judgments based only on the legal merits of a case: Constitutional Law questions always require courts to decide whether today’s democratic will violates the Supreme Law of the Land. To do so legitimately, judges are also supposed to perform their public duties in accordance with the Constitution and other laws. Thus, principled decision-making is the judicial ideal and duty.
“Principled decision-making” therefore describes the ideal of impartial and reasoned judgment, which is said to minimize the “counter-majoritarian difficulty” by inhibiting abuse of the courts’ awesome power of judicial review. On the other hand, unprincipled decisions are said merely to impose on society the personal views and values of the unelected judges. Consequently, a principled exercise of judicial review is generally viewed as more legitimate or tolerable by all sides because it is a reflection of reasoned judgment rather than raw will. But how can we distinguish principled from unprincipled rulings? How can we determine when our unelected judges are legitimately deciding cases on the merits and when they are simply abusing judicial review illegitimately to impose their personal views and values on the rest of us? How can we separate will from judgment or politics from law within a judicial opinion?
These questions raise complex issues, but a crucial feature of principled decision-making is consistency. Of course, consistency refers to the relationship of one thing to another — i.e., is “this” consistent with “that”? In Constitutional Law, this notion of consistency actually refers to several types of relationships at once: is the opinion under study consistent with the text of the Constitution? With the Framers’ intent? With prior precedent? With history, tradition or custom? Each of these questions in effect asks whether the judge is deciding an issue consistently with an external source — a source that can be independently checked and verified. However, not every or any source is deemed a legitimate basis for constitutional adjudication. The next section of this overview introduces you to the various sources of constitutional interpretation.
The Means: Sources of Constitutional Law
Over time, various concepts or devices have been offered as means toward principled judicial decision-making, which in turn may help to ensure that only legitimate exercises of judicial review take place. Generally, five sources are deemed legitimate; another is used but remains contested; and yet another is deemed illegitimate. The five sources of constitutional interpretation generally acknowledged as legitimate are: (1) Text; (2) Intent; (3) Precedent; (4) History, Tradition or Experience; and (5) Social or Textual Structure. The questionable source is Natural Law. The illegitimate source is the Individual Judges’ Partisan Views or Personal Values.
Generally, the idea is to begin with the text of the document to give effect to its “plain meaning” — but the problem is that the text oftentimes is phrased in very general, abstract, incomplete or ambiguous terms. Therefore, the text oftentimes needs to be “interpreted” — and this is where the other legitimate sources come into play. The notion, then, is that, by turning to evidence of intent or to prior interpretations that serve as precedent or to the history of the issues presented in a case or to the social context and consequences of a potential ruling, judges can “interpret” the text in a principled manner. These seven sources will be presented in detail through class lectures and additional readings. The important point now is to introduce you to this basic scheme and to alert you to its significance vis-à-vis the concepts we have already encountered — concepts like “separation of powers” and “democracy” and “justice” and “judicial review” and “counter-majoritarian difficulty” and “principled decision-making” and “consistency.” Each of these is a term of art within Constitutional Law, and must become part of your vocabulary in this class and for the rest of your legal career.
In practice, as we shall see, the use of these sources is sometimes implicit or disguised. Even when explicit, their uses also sometimes overlap. These factors can cause confusion among sloppy or superficial readers. Therefore, the next section of this User’s Mini-Guide aims to develop your capacity not only to spot and identify the various sources, but also to understand how they are being used.
The Rules of the Game: Four Canons of Interpretation
The sources are used to help interpret the text of the Constitution, but over time the judiciary has evolved basic norms of conduct that now are viewed as canons of interpretation to guide the exercise of judicial power. The four main canons outlined below can be understood as a code of official judicial conduct in constitutional interpretation designed to help individual judges use the legitimate sources, and lead to legitimate outcomes. As a set, the canons of interpretation are designed to minimize the potential for abuse of judicial power, and even more specifically, to lessen the concerns of the counter-majoritarian difficulty. In other words, the canons of interpretation are designed, first and foremost, to reduce the likelihood that the unelected judges of the Supreme Court or other courts will use the power of judicial review to strike down an exercise of democratic will, whether in the form of legislation or executive action. The idea is to minimize the antidemocratic effects of judicial review in several ways, as follows:
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Avoid Constitutional Conflict if Possible. Courts should not reach constitutional questions, if possible. This mandate of avoidance calls for courts to rely on less drastic bases, such as statutory, procedural or policy grounds, for their rulings. The basic idea is to avoid cluttering the Constitution with unnecessary pronouncements, and to avoid the potential for constitutional conflict among the branches of government.
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If Not, Keep It Narrow. If reaching the constitutional question is unavoidable altogether, courts should decide it in the narrowest terms and bases as is possible under the circumstances of the case. This second canon is a corollary of the first. These two canons are designed, first, to avoid and, second, to minimize the effects of judicial review in American politics. As you will notice, so are the next two basic canons summarized below.
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If Possible or in Doubt, Harmonize and Uphold. When reaching constitutional issues, courts should uphold the challenged state action if possible under a fair and principled reading of the Constitution. Conversely, courts should strike down the actions of the other branches of government only when their unconstitutionality is fairly clear. If in doubt, judges should try to construe the challenged state action in a way that harmonizes it with the Constitution to avoid unnecessary or doubtful exercises of judicial power over democratic policy choices. The deference to state action, however, cannot amount to abdication of judicial responsibility in any given case. Judges should neither hesitate nor itch to exercise judicial review.
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Sever and Strike Down only as a Last Resort. If harmonizing is impossible, unprincipled or impracticable in the whole, courts should sever the unconstitutional portions of the challenged state action from other portions or aspects of the larger statute, program or policy under review. Through severability, courts can contain and minimize the counter-majoritarian effects of judicial review. This fourth canon, like the prior three, is designed to limit the exercises and consequences of judicial review that upset democratic policy choices.
As you can see, these four basic canons of constitutional interpretation are designed to avoid confrontations between the judiciary and the other two branches of government. Each counsels against judicial “activism” and all are generally accepted by judges, regardless of jurisprudential viewpoint. The canons’ cumulative message to the judiciary is: uphold the actions of the people’s representatives as much as possible; use your counter-majoritarian powers of judicial review to disturb the results of the democratic process only sparingly, and when certain of your grounds and reasons.
But these canons are not the whole story, either. Under the constitutional scheme, courts oftentimes are called upon to vindicate the rights and liberties of individuals against the will of the majority. Indeed, this unique power to stop democratic excess in the name of constitutional principles is one of the reasons why federal judges are unelected to begin with — and why they cannot be removed from their offices except by Congress through impeachment proceedings. While the canons of interpretation counsel against unduly active uses of judicial review, the system of checks and balances constructed by the Constitution has come to depend on judges exercising their antidemocratic powers precisely to rein in democratic excess. While courts are not supposed to be “activists” in exercising their powers to help minimize the so-called counter-majoritarian difficulty, courts are also not supposed to shirk away from their duty to uphold the Constitution despite a majoritarian desire to the contrary.
Briefing Constitutional Law Opinions
The points presented in this overview call for a particular type of case briefing in this course, a method that builds on your first-year briefing of Facts, Issues, Holdings and Rationales. In this course, in addition to the first-year basics, you need to answer the following set of questions to complete your case brief. For every opinion assigned in this course, please go through the following analysis as part of your regular class preparation:
- Which sources are used in the assigned opinion(s)?
- How is each used; to what effect, or toward which outcome?
- Is their use in this opinion to produce this outcome consistent with their use in other similar or analogous opinions?
- If not, why not: does logic, reason or factual differences explain the inconsistency, or does the inconsistency seem to stem from a strategic manipulation of the sources to produce an inconsistent outcome?
Conclusion
In closing, please note that this overview not only introduces you to key concepts and terms, but that it also sets forth a thought process. Mastering this process will take time and practice. It cannot simply be memorized because it requires an ability to see nuance and analyze critically. Therefore, make the time for practice and mastery by going through these analyses carefully for every assigned opinion. Then, come to class prepared to speak, but prepared also to listen intently and to follow the nuance of our discussions. If you consistently do both — solid preparation and attentive attendance — you should be well prepared for the exam; if you circumvent either, you will probably underperform because there is no way that you will be able to cram a solid mastery of this intricate thought process into your brain at the end of the semester.