Constitutional Interpretation, I

1
Constitutional Interpretation, I

• The Mysteries of the Constitution
• Separation of Powers
• Two Models of Interpretation

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The Mysteries of the Constitution

• There are two great legal traditions common law
  and civil law.
• From Great Britain, we inherited the common-law
  tradition, which continues to govern torts and
  contracts in 49 states.
• From Continental Europe (and Rome), we inherited
  the civil (statutory) tradition.

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The Common Law

• Common law is judge-created.
• The principle of stare decisis is central
  respect for precedents.
• Sharp distinction between what the law is (the
  underlying principle) and the words of past
  opinions, decisions.
• Dominated legal training in U.S. since Harvard
  adopted the case method.

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The Civil Law Tradition

• Dates back to ancient Rome, especially the Code
  of Justinian.
• Revived during the Enlightenment the
  codification and rationalization of the law.
• Clearest expression Napoleonic code.
• Moved the Founders to adopt a written
  constitution.

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Principles of Civil Law Interpretation

• Focus remains on the text of the statute, not on
  past decisions.
• No role for stare decisis.
• Emphasis on grammar, linguistic structure,
  overall context.
• Jurists interpret the code teleologically
  discerning the organic purpose of the code as a
  whole.

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Written vs. Unwritten Constitutions

• In Great Britain, the common law tradition
  coexists with an unwritten constitution.
• In continental Europe (e.g. Germany), we have
  written constitution and civil law tradition.
• Only in the U.S. do we combine common law with
  written constitution.

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Can a Constitution be Written Down?

• Article VI This Constitution...shall be the
  supreme law of the land.
• Article VII The Ratification of the Conventions
  of nine States shall be sufficient for the
  Establishment of this Constitution between the
  States so ratifying the Same.

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A Meta-Constitution?

• There must be some principle making the process
  by which the Constitution was drafted and
  ratified valid.
• This principle surely must be part of our
  constitution, and yet it cannot be part of the
  text so established.
• The text of the Constitution cannot be the
  constitution of the United States.

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Where do we find the Principles of Constitutional
Interpretation?

• Can a written text include rules as to how that
  very text is to be interpreted?
• An infinite regress how do we interpret the
  clauses laying out such rules?
• Did the constitution (not the text) include such
  principles implicitly? How did they become
  established?
• How do we discover them?

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Scalias Charge

• J. Scalia has argued that the common law
  tradition has corrupted constitutional law in the
  U.S.
• The text of the Constitution is a kind of
  super-statute, and so must be interpreted by the
  traditions of the civil law.
• Instead, attention to past cases now dwarfs
  attention to the actual text.

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What would a Civil-Law approach to the
Constitution look like?

• Abandon, or severely limit, stare decisis.
• Focus on actual wording of the Constitution,
  taken as a whole.
• Shift emphasis away from individual rights, and
  toward the organic functioning of govt.
  separation of powers, federalism, checks and
  balances.

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Separation of Powers

• Recognition of three distinct functions has
  ancient roots Plato, Aristotle, Aquinas.
• Tripartite structure (executive, legislative,
  judicial) clearly formulated by Montesquieu and
  Locke.
• Legislature makes, judges interpret and apply,
  executive enforces the law.

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Relation between Legislators and Judges 2 models

• Chain of command model
• Legislators are the judges superiors.
• Laws are orders issued by legislatures.
• Lawmaking is a kind of communication of
  intentions.
• Lawmaking is a performative act.
• When legislatures pass a law, it is the text
  only, which they thereby establish as a standard.
  Their intentions are irrelevant.

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Intentionalism vs. Textualism

• Chain of command model leads to intentionalism.
  
• Legislative history becomes crucial -- provides
  clues about intentions.
• Performative model leads to textualism.
• Legislative history is irrelevant -- only the
  final product matters.

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Judiciary Subordinate or Coordinate Branch

• The Command model makes the judiciary a
  subordinate branch. Merely the agents,
  instruments of the legislature.
• The Textualist model makes the judiciary a
  coordinate branch. The legislature establishes
  authoritative texts, but the judges must
  interpret them.

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Democracy and the Three Branches

• Why are two branches (legislative executive)
  subject to periodic election, while one
  (judiciary) consists of persons appointed for
  life?
• Federalist Papers 78 (Hamilton) provides a clue
  courts are to provide a check on temporary,
  tyrannical majorities.

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Then, Why Not Make All Three Branches Appointive?

• Advantages to representative democracy
• Protects against tyranny by small clique.
• In a large republic, tyranny of the majority is
  impossible in the long run (FP 10).
• No taxation without representation is a
  fundamental human right.
• Participation in a democracy contributes to
  personal development in virtue and wisdom.
• Which of these dont apply to the judiciary?

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Is the Judiciary the Least Dangerous Branch?

• Hamilton thought so (FP 78)
• No influence over the sword or the purse.
• Has neither FORCE nor WILL but merely judgment.
• Must ultimately depend upon the aid of the
  executive even for the efficacy of its
  judgments.
• No threat of tyranny no need for democracy, for
  checks on judicial power?

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Textualism vs. Literalism

• Textualism defended by Schauer, Scalia, Bork.
• Exceptions to a literal reading
• Canons of interpretation can override literal
  meaning.
• Slips of the tongue, results of careless
  draftsmanship, can be recognized.
• Each clause must be interpreted in the context of
  the whole.

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Canons of Interpretation

• Metonymy using a part to stand for the whole, or
  a partial listing to stand for an entire
  category. E.g.
• Speech and press mean any form of
  communication. (1st Amendment)
• Authors and inventors mean any similar sort of
  creator. (Article I, section 8)
• All criminal prosecutions includes any
  investigation that puts ones liberty or
  reputation at risk. (5th Amendment)

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More canons

• Generalizations are defeasible all means
  almost all, or all, excepting very unusual
  cases...
• Right to jury trial in all criminal cases means
  in all felony cases, not misdemeanors. (6th
  Amendment)
• Slips of the pen -- recognized by common sense.
• No double jeopardy of life or limb surely means
  of life or liberty. (5th Amendment)

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Textualist Model

• Data
• (a) Text (as a whole).
• (b) Context. Other laws at same time. Common
  knowledge of meanings.
• (c ) Evidence of linguistic usage - dictionaries,
  commentaries.
• Ideal reader well-informed, unbiased, applies
  common sense.

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Textualist model, cont.

• Result reconstruction of an ideal author, based
  on text, interpreted ideally.
• This is not to be identified with the actual,
  subjective intentions of the framers or
  ratifiers. It is a public, not a private, fact.

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Intentionalist Model

• Data
• (a) Text
• (b) Corroborative evidence of intent diaries,
  journals, records of debate, committee reports.
• Ideal reader a professional historian,
  biographer, employing best available methods.

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Intentionalist Model, cont.

• Meaning Intentions of the Primary Author
• Identify the appropriate intention-voters
  framers, ratifiers, general public.
• Aggregate these into a single, coherent Author.

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Common Features

• Both can discount slips of the pen.
• Both can ignore secret, disguised intentions.
  Only intentions that count are those that are
  made public.
• Both can rely on evidence of linguistic usage at
  the time.
• Both can employ ones own moral judgment in
  making sense of the text.

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Subtle Differences

• Canons of good interpretation can conflict with
  facts about actual intentions. Example qual
  protection was intended to be compatible with
  segregation, enforced social inequality.
• Ambiguous phrases, interpreted one way by most
  (all) framers, but best interpreted differently.
  2nd amendments unclear reference to the
  militia. Intended to protect individuals, but
  text is ambiguous.

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When is Textual Interpretation Most Controversial?

• When words and phrases whose meaning is
  open-textured or essentially contestable are
  involved
• just compensation (5th Amendment)
• the freedom of speech, the free exercise (of
  religion), etc. (1st Amendment)
• Cruel and unusual (8th Amendment)

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Two Views

• Originalist or Historicist.
• Nonoriginalist or Anti-historicist.
• Useful distinction (from Dworkin) between the
  Framers concepts and their conceptions.
• Concepts abstract, open-textured meanings,
  including ethical universals.
• Conceptions concrete, objectively specifiable
  conditions.

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Historicist Interpretation

• We should always be guided by the original
  understanding of the phrases involved the
  particular conceptions extant at the time.
• Not limited to the conceptions of the drafters,
  but includes the range of conceptions that would
  have been accepted at the time as reasonable.

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Anti-historicist Interpretation

• Judges must use their own conceptions of the
  corresponding concepts.
• Makes no sense for any of us to be bound by the
  moral beliefs and expectations of long-gone
  generations.

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Test case cruel and unusual punishment

• According to Bork Scalia, this phrase cannot
  include capital punishment, since the Bill of
  Rights itself makes reference to capital
  punishment 3 times.
• According to Brennan Dworkin, judges must use
  their own best judgment about what is really
  cruel unusual.

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A Third Category?

• Phrases with concrete, uncontestable meanings
  35 years old, ten dollars.
• Phrases with open texture, essentially
  contestable, ethically loaded content cruel,
  just, unreasonable.
• Stock-phrases phrases with specialized,
  technical meaning, not to be read
  compositionally establishment of religion,
  due process of law.

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Textualism and Stock-Phrases

• From a textualist point of view, stock-phrases
  must be interpreted as a unit, according to the
  established usage of such phrases, as technical
  expressions, at the time of ratification.
• Revisionist position allows the courts to
  re-interpret such phrases as compositional and
  open-textured.

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Dworkins Revisionism

• Dworkin argues that judges should treat the text
  as a set of data points to be explained by the
  best moral theory that best justifies the text.
• Since there may be no defensible theory that
  justifies all of the text, judges should be free
  to disregard certain passages.
• The reinterpretation of stock phrases is simply
  one way of revising the text.

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Neutral Principles?

• According to Bork Rehnquist, our constitution
  depends on the neutrality of judges.
• They must act according to principles, and they
  must derive these principles from the
  Constitution, define them, and apply them in a
  fully neutral fashion.
• This means, no autonomous use of moral reasoning
  or moral judgment.

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Value Judgments or Value Choices?

• Bork assumes a kind of moral skepticism there
  are no universal moral facts (or if there are, no
  one can know them with certainty).
• This means that moral judgment is essentially a
  choice, an act of the will.
• But, the judiciary is to have no will of its own
  -- only the legislature may make such value
  choices.

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Is the Bork/Rehnquist Position Self-Defeating?

• BR assert that judges are morally obliged to
  interpret the law according to neutral
  principles.
• This much of morality, at least, must be knowable
  by judges.
• If this much, then why not much more?
• Why should judges use only some of their moral
  knowledge?

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Principle of Charity vs. Neutral Principles

• In reading texts, we typically employ a principle
  of charity where the meaning of the text is
  ambiguous or indeterminate, we embrace the most
  reasonable alternative, and where the plain
  meaning of the text is absurd, we attribute the
  absurdity to a slip of the pen.

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Charity vs. Neutrality

• Such a principle of charity requires the reader
  to employ his knowledge of the subject matter.
  E.g., in interpreting Euclids Elements, we make
  use of our knowledge of geometry.
• The Bork/Rehnquist position seems to require that
  judges interpret the text of the law without
  employing their knowledge of justice.

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Range of Positions

• Strict neutralist judges must not exercise any
  autonomous moral judgment or reasoning in
  interpreting the text.
• Non-neutral originalist judges may use their
  moral knowledge, but only in order to discover
  the meaning of the text (as understood by the
  ratifiers).
• Moderate anti-originalist judges may use their
  moral knowledge, but only to make the best sense
  of the actual text.
• Revisionist (Dworkin) judges may set aside parts
  of the text that dont accord with the best
  interpretation of the whole.