American Constitutional Law, Volume I

The Structure of Government

Ralph Rossum, G. Alan Tarr, Vincent Phillip Munoz

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000124354
• Edition: 11
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

American Constitutional Law 11e, Volume I provides a comprehensive account of the nation's defining document, examining how its provisions were originally understood by those who drafted and ratified it, and how they have since been interpreted by the Supreme Court, Congress, the President, lower federal courts, and state judiciaries. Clear and accessible chapter introductions and a careful balance between classic and recent cases provide students with a sense of how the law has been understood and construed over the years.

The 11th Edition has been fully revised to include several new cases, including Trump v. Hawaii (2018), in which Chief Justice Roberts held that Korematsu v. United States "has been overruled in the court of history"; Murphy v. National Collegiate Athletic Association (2018), in which Justice Alito's majority opinion provides the most compelling argument to date against federal commandeering of state officials; and Sveen v. Melin (2018), a Contract Clause case that shows the Court's continuing refusal to give a textualist reading of that provision, even in the face of Justice Gorsuch's compelling and amusing dissent. A revamped and expanded companion website offers access to even more additional cases, an archive of primary documents, and links to online resources, making this text essential for any constitutional law course.

1
Interpretation of the Constitution

CHAPTER OUTLINE

• Approaches to Constitutional Interpretation
• The Approaches in Perspective
• The Ends of the Constitution
• Constitutional Means to Constitutional Ends
• Notes
• Selected Readings

“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 US Constitution?

Hughes’s observation certainly contains some truth. Many provisions of the Constitution are not self-defining and so have been the objects of 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”? Hughes’s claim also portrays accurately the perspective of lower-court judges and practicing attorneys. However erroneous they might believe the Supreme Court’s understanding of a particular constitutional provision, lower-court judges feel obliged to adhere to the Court’s interpretation. And lawyers usually seek to accomplish their objectives within the framework of the prevailing Court view rather than attempting to convince the justices to abandon that view.

Yet, Hughes’s assertion is also misleading in several respects. 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 US Congress undertook to define the constitutional limits of the president’s powers to initiate and conduct undeclared war, an issue the Supreme Court has 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 100 days of arrest can move for a dismissal of the charges. In so doing, it gave meaning to a constitutional provision that the Supreme Court itself has acknowledged to be vaguer than any other procedural right. And 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 states 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 clear and uncontroversial. 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’s establishment of religion and free exercise clauses as well as its guarantees of freedom of speech and of the press; the language of the Fifth and Fourteenth Amendments that no person shall be deprived of life, liberty, or property without due process of law; and the Fourteenth Amendment’s pronouncement 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 and a quarter 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.”

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

Every 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.²

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 Supreme Court justices or by those trained in the law.

A related problem: the view that the Constitution is whatever the Court says it is implies 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, as stated in The Federalist, No. 10, that it provided “a Republican remedy for the diseases most incident to Republican Government.” 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 effect of presenting the Constitution as devoid of any independent meaning is that it encourages uncritical 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? On what constitutional basis, for example, can one object to the Supreme Court’s decisions in Dred Scott v. Sandford (1857), declaring that African Americans could not be citizens, and in 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 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 these problems, 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.”³ 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 proposed several approaches to constitutional interpretation, each of which has its own strengths and weaknesses.⁴

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 if its 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.”

On today’s Supreme Court, the late Justice Antonin Scalia is most closely associated with the textualist approach. He argued that the Court is to interpret the text alone and nothing else. Thus in Coy v. Iowa (1988), he upheld the right of a defendant, under the Sixth Amendment, 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.’ ”

Textualism, however, has its limitations. Although many provisions of the Constitution are perfectly clear, others require extensive construction. Consider Article II, section 4, authorizing the impeachment of “the President, Vice President, and all civil officers of the United States” for “high Crimes and Misdemeanors”—a phrase some believe includes not only criminal offenses but also noncriminal behavior amounting to a serious dereliction of duty. Moreover, even if the meanings of all relevant words are perfectly plain, problems of emphasis remain. As Justice Stephen Breyer has noted, “All controversies of importance involve if not a conflict at least an interplay of principles.”⁵ In many cases, two or more constitutional provisions come into play, and the justices must decide which is to be given priority. To provide just one example of this problem, consider adverse pretrial publicity in a criminal case. Does the First Amendment guarantee of the freedom of speech and the press supersede the Sixth Amendment guarantee of a trial “by an impartial jury”? As this example indicates, the constitutional text in and of itself cannot resolve all the questions that the Constitution raises.

Precedent

When textual analysis alone is inadequate, many students of the Constitution turn to previously decided cases, searching for answers on the basis of precedent, or stare decisis (“to stand by decided matters”). That is, they seek guidance from how judges have interpreted a provision in prior cases.

Reliance on precedent, the primary mode of legal reasoning in Anglo-American law, adds stability, continuity, and predictability to the entire legal enterprise. But judges have relied on precedent only sporadically in constitutional law. Very good arguments can be adduced either to adhere to or to depart from precedent. No Supreme Court case presents these opposing arguments better than Payne v. Tennessee (1991), a 5–4 decision that overturned two recent precedents also decided by 5–4 votes—Booth v. Maryland (1987) and South Carolina v. Gathers (1989)—and held that “victim-impact” statements in the penalty stage of capital punishment cases do not violate the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Justice Thurgood Marshall in dissent attacked the Payne majority for departing from precedent, claiming that nothing “has changed since this Court decided both Booth and Gathers” other than “this Court’s own personnel” and concluding that “this truncation of the Court’s duty to stand by its own precedents is astonishing.” Justice Scalia in a concurring opinion replied that what would be truly astonishing is “the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.”

Many jurists and scholars believe that interpreters should look to the Constitution itself, rather than to prior interpretations of that document, in deciding cases. Then, too, constitutional cases deal with momentous social and political issues that only temporarily take the form of litigation, and there is wide recognition that these issues cannot be resolved satisfactorily on the same basis as other legal problems. To some critics, relying on precedent for constitutional interpretation is rather like driving a car down a busy street while looking only through the rearview mirror: we get a good notion of where we have been but not where we should be going. As Thomas Hobbes observed in A Dialogue Between a Philosopher and a Student of the Common Laws of England, “Precedents prove only what was done, but not what was well done.”⁶ This difficulty seems especially troublesome in constitutional law. Most areas of law lack clearly defined ends or purposes and so must evolve by way of precedent. The common law, for example, is based mainly o...