American Constitutional Law 8E, 2-VOL SET

2-VOLUME SET

Ralph A. Rossum

• Publisher: Routledge
• ISBN:
  9780429711251
• Edition: 8
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

American Constitutional Lawprovides a comprehensive account of the nation's defining document. Based on the premise that the study of the Constitution and constitutional law is of fundamental importance to understanding the principles, prospects, and problems of America, the volumes in this set put current events in terms of what those who initially drafted and ratified the Constitution sought to accomplish. The authors examine the constitutional thought of the founders, as well as interpretations of the Constitution by the Supreme Court, Congress, the President, lower federal courts, and state judiciaries. Volume I focuses on federal rights and powers, and volume II focuses on individuals' rights and responsibilities. Available individually or as a two-volume set, they are perfect for a one- or two-semester course on constitutional law and civil liberties.

1 Interpretation of the Constitution

DOI: 10.4324/9780429037191-1

1. Approaches to Constitutional Interpretation
2. The Approaches in Perspective
3. The Ends of the Constitution
4. Constitutional Means to Constitutional Ends
5. Notes
6. Selected Reading

"We are under a Constitution, but the Constitution is what the Court says it is."¹ In the century since Charles Evans Hughes, then governor of New York and later chief justice of the United States Supreme Court, uttered these now famous words, they have been repeated so often and in so many contexts that they have assumed a prescriptive as well as a descriptive character. But exactly how valid is this prescription for understanding the U.S. Constitution?

Hughes's observation certainly contains a degree of truth. Many or the provisions of the Constitution are not self-defining and hence have been the objects of considerable judicial interpretation and construction. Various criminal procedural protections found in Amendments Four through Eight immediately spring to mind. What, after all, makes a particular search or seizure "unreasonable"? What is sufficient to establish "probable cause"? What constitutes "due process of law"? What is a "speedy" trial? What is an "excessive" fine or bail? What is "cruel and unusual punishment"? These constitutional provisions resemble empty vessels into which the Supreme Court has had to pour meaning. Hughes's claim also portrays accurately the perspective taken by lower-court judges and practicing attorneys. However erroneous they might believe the Supreme Court's understanding of a particular constitutional provision to be, they generally shy away from breaking with the previous decisions of the High Bench and offering contrary interpretations. Rather, they usually attempt to accomplish their objectives within the framework of the prevailing Court view.

Although valid to some extent, Hughes's assertion is also misleading (and therefore harmful) in several ways. Above all, it fails to recognize that governmental bodies other than the Supreme Court also contribute to an overall interpretation of the Constitution. By passing the War Powers Resolution of 1973, for example, the U.S. Congress undertook to define the constitutional limits of the president's powers to initiate and conduct undeclared war, an issue the Supreme Court refused to consider. Likewise, in the Speedy Trial Act of 1984, Congress took upon itself constitutional interpretation in the sphere of criminal procedure, declaring that a defendant not brought to trial within one hundred days of arrest can move for a dismissal of the charges. By so doing, it gave meaning to a constitutional provision that the Supreme Court itself has acknowledged to be more vague than any other procedural right. To cite still another example, in the Voting Rights Act of 1982, Congress held that the Fifteenth Amendment (barring states from denying citizens the right to vote "on account of race, color, or previous condition of servitude") bans not only intentional discrimination against the voting rights of minorities (what the Supreme Court had held) but any electoral scheme that has the effect of preventing minority voters from electing "representatives of their choice." Constitutionally significant pronouncements have also emanated from the executive branch and from the lower federal and state courts. (Statements made by President Abraham Lincoln have had more to do with defining the outer bounds of presidential prerogative than have any statements of the Court, just as actions taken by President Franklin D. Roosevelt altered the balance of power between the national government and the state far more than any judicial opinion.)

Another problem with Hughes's assertion is that it obscures the extent to which the meaning of the Constitution is agreed on by all concerned parties. Most constitutional provisions are settled; what questions are raised about them pertain not to fundamental meaning but rather to specific application. Relatively few constitutional provisions have sparked protracted debate and controversy: the Commerce Clause of Article I, Section 8, authorizing Congress to regulate commerce among the several states; the First Amendment guarantees of freedom of speech and of the press; the guarantees of the Fifth and Fourteenth Amendments that no person shall be deprived of life, liberty, or property without due process of law; the Fourteenth Amendment's guarantee that no person shall be denied the equal protection of the laws. Although these provisions are extremely important, the intense debate over them tends to obscure how ably the Constitution has governed our political actions for the past two centuries. By focusing exclusively on these provisions and arguing, implicitly or explicitly, that they are fundamentally without meaning until construed by the Court, some jurists and legal scholars have reinforced the view that the Constitution is deficient in decisive respects and therefore unworthy of vital public support. As a result, the Constitution is deprived of what James Madison, in The Federalist, No. 49, called "that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability." This is of no minor concern, for, as Madison continues, "the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side."²

Still another problem with the view that the Constitution means only what the Court says it means is that it denies the truth that the Constitution is a public document capable of being understood not only by those who made and ratified it but also by those who continue to live under it. Justice Joseph Story put the matter succinctly in his Commentaries on the Constitution of the United States:

[E]very word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context provides some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or extraordinary gloss.³

In a popular government, the people should take an active interest in the Constitution that gives form to their politics and protection to their liberties; they should not be discouraged from doing so by talk that the Constitution is some obscure document capable of being understood only by august justices on the Supreme Court.

A related problem: The view that the Constitution is whatever the Court says it is further misleads by suggesting that the Constitution has no meaning in and of itself. If all meaning must be poured into it by the Court, we are unlikely to turn to it for basic instruction on the principles, problems, and prospects of the American regime. The proudest claim of those responsible for framing and ratifying the Constitution was that it provided "a Republican remedy for the diseases most incident to Republican Government."⁴ If we strip the Constitution of all independent meaning, we are unlikely to remember the Founders' answers to the basic questions and dilemmas of democratic government—and what is even more regrettable, we are likely to forget the questions themselves.

Yet another negative by-product of presenting the Constitution as devoid of any independent meaning is the encouragement of uncritical public acceptance of Supreme Court decisions. If the Constitution has only that meaning ascribed to it by the Supreme Court, on what basis, other than subjective preference, can anyone object to the Court's interpretations? To illustrate with concrete examples, if the Constitution has no meaning apart from its judicial gloss, on what constitutional basis can anyone object to the Supreme Court's decisions in Dred Scott v. Sandford (1857), declaring that African Americans could not be citizens, and Plessy v. Ferguson (1896), upholding racial segregation? Students of the Court implicitly acknowledge this problem by routinely paying lip service to Hughes's assertion and then, as the scholarly journals attest, criticizing at length judicial interpretations that they find wanting in fidelity to the language of the Constitution, in scholarship, in craftsmanship, or in deference to the popularly elected branches.

Finally, Hughes's claim ignores the influence that political institutions can have on political behavior. The Court is seen as influencing the Constitution; rarely is the influence that the Constitution might have on the Court, or on politics more generally, even considered.

APPROACHES TO CONSTITUTIONAL INTERPRETATION

To avoid the unpalatable ramifications of Hughes's aphorism, we will argue, along with Justice Felix Frankfurter, that the "ultimate touchstone of constitutionality is the Constitution itself and not what the [judges] have said about it."⁵ But what, in fact, does the Constitution mean? How are we to understand its provisions and give them effect? In searching for satisfactory answers to these questions, students of the Constitution have come to employ several approaches to constitutional interpretation, each of which has its own strengths and weaknesses.⁶

Textual Analysis

One approach to constitutional interpretation involves explicating the constitutional text simply on the basis of the words found there. The basic claim of this approach seems unarguable: If the Constitution is to control the outcome of a case, and its unadorned text is plain, then constitutional interpretation should stop right there. As Justice Noah Swayne observed in United States v. Hartwell (1868): "If the language be clear, it is conclusive. There cannot be construction where there is nothing to construe."

Justice Antonin Scalia is most closely associated with the textualist approach. He argues that primacy must be accorded to the text, structure, and history of the document being interpreted, and he believes that the job of the judge is to apply the clear textual language of the Constitution or statute, or the critical structural principle necessarily implicit in the text. If the text is ambiguous, yielding several conflicting interpretations, Scalia turns to the specific legal tradition flowing from that text—to "what it meant to the society that adopted it." "Text and tradition" is a phrase that fills Justice Scalia's opinions. Judges are to be governed only by the "text and tradition of the Constitution," not by their "intellectual, moral, and personal perceptions." As he remarked in his concurring opinion in Schad. v. Arizona, "when judges test their individual notions of 'fairness' against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges."⁷

Justice Scalia applied this textualist approach in Coy v. Iowa (1988), a case in which he upheld the right of a defendant literally to "be confronted with the witnesses against him" and overturned his conviction because Iowa law allowed the two thirteen-year-old girls he was charged with sexually assaulting to testify behind a large screen that shielded them from the defendant. For Scalia, the text was unequivocal and governing: "Simply as a matter of English, it confers at least a right to meet face to face all those who appear and give evidence at trial.' Simply as a matter of Latin as well, since the word 'confront' ultimately derives from the prefix 'con-' (from 'contra meaning 'against' or 'opposed') and the noun 'frons' (forehead). Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: 'Then call them to our presence—face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.,'"

On the other hand, this approach often is difficult to apply. As Scalia himself acknowledges: "[I]t is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous amount of material—in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states. . . . And further still, it requires immersing oneself in the political and intellectual atmosphere of the time, . . . a task sometimes better suited to the historian than the lawyer."⁸

Additionally, although many provisions of the Constitution are perfectly clear, many require extensive construction. Moreover, even if the meanings of all relevant words are perfectly plain...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication Page
• Contents Page
• PREFACE Page
• NOTE TO THE READER Page
• 1 INTERPRETATION OF THE CONSTITUTION
• 2 CONSTITUTIONAL ADJUDICATION
• 3 THE JUDICIAL POWER
• 4 THE LEGISLATIVE BRANCH
• 5 THE EXECUTIVE BRANCH
• 6 WAR AND FOREIGN AFFAIRS
• 7 FEDERALISM
• 8 THE EXERCISE OF NATIONAL POWER
• 9 THE EXERCISE OF STATE POWER
• 10 THE CONSTITUTION AND NATIVE AMERICAN TRIBES
• 11 THE CONTRACT CLAUSE
• 12 ECONOMIC DUE PROCESS AND THE TAKINGS CLAUSE
• THE CONSTITUTION OF THE UNITED STATES OF AMERICA
• JUSTICES OF THE SUPREME COURT
• GLOSSARY OF COMMON LEGAL TERMS
• TABLE OF CASES
• Half Title Page
• Title Page
• Copyright Page
• Dedication Page
• Contents Page
• PREFACE Page
• NOTE TO THE READER Page
• 1 INTERPRETATION OF THE CONSTITUTION
• 2 CONSTITUTIONAL ADJUDICATION
• 3 RIGHTS UNDER THE CONSTITUTION
• 4 ECONOMIC DUE PROCESS AND THE TAKINGS CLAUSE
• 5 FREEDOM OF SPEECH, PRESS, AND ASSOCIATION
• 6 FREEDOM OF RELIGION
• 7 CRIMINAL PROCEDURE
• 8 THE EQUAL PROTECTION CLAUSE AND RACIAL DISCRIMINATION
• 9 SUBSTANTIVE EQUAL PROTECTION
• 10 VOTING AND REPRESENTATION
• 11 THE RIGHT TO PRIVACY
• THE CONSTITUTION OF THE UNITED STATES OF AMERICA
• JUSTICES OF THE SUPREME COURT
• GLOSSARY OF COMMON LEGAL TERMS
• TABLE OF CASES