Sunday, January 08, 2006

Interpret this!!

In response to the challenge thrown down over at Dan's blog, I'll naievely present why I think this whole strict construction business is silly. Admittedly, my opinion on constitutional interpretation is fairly uninformed, so this may seem pure blather to anyone who actually knows something about the field. In any case, while this semester of Con Law should help, I imagine this is a question for the ages. That said, I'll hold my nose and take the plunge.

Advocates of judicial restraint urge caution in “reading prohibitions into the Constitution,” preferring to let congress, as the more "democratic" branch, make policy. Conversely, champions of judicial activism take the view that that judges should adapt existing laws to changing circumstances. Critics of this view argue that reverting to the Court on every issue tends to overlook the needs of society as a whole and that the persistent flip-flopping between interpretations weakens the Court’s authority. Despite these criticisms, activism has led the Court to overturn past rulings that most Americans would eye with suspicion, rulings such as Plessy v. Ferguson, Smith v. Allwright and Betts v. Brady.

In the Federalist Papers, James Madison wrote that within the American government “there ought to be a capacity to provide for future contingencies” (Federalist No. 34). For this reason, the authors of the Constitution strained to create a document composed of general laws so the document could mold to a dynamic society. Few of these eighteenth century elites could imagine a steamboat or a railroad, let alone the internet or fax machines—and their genius lies in recognizing this fact. Had the constitution’s authors given congress the ability only to regulate the interstate trade of goods with which they were familiar—such as cotton, sugar and slaves—today’s legislature would have long become hopelessly impotent. Instead, the commerce clause remains open-ended, and anything bought or sold between states is open to congressional regulation.

The constitution’s generality has played an essential role in its continued relevance, but this fact in itself doesn’t give the whole picture. If laws don’t spell out particulars, something must exist to translate those laws into everyday experience. For this reason, the Constitution established one Supreme Court and gave Congress the authority to create inferior courts. These courts serve as interpreters, bringing the Constitution up to date with society’s constant flux by rendering judgments on cases brought before them. The judiciary determines how we understand what the phrases in the constitution mean and how to apply them to daily life. In my view, a judge can't help but be activist--that is, by the act of rendering a decision, a judge inevitably molds and changes the law.

My main thought on all this is that the whole idea of strict construction folds in on itself (a la "this sentence is false"). The mere act of choosing to interpret law narrowly and allocating the "policy" decisions to congress is in itself a policy decision. In Burnham v. Superior Court, for example, Scalia chafes at the concurrence's standard of "contemporary notions of due process" and favors an historical analysis. But his choosing that route nevertheless imposes a contemporary notion of due process, an interpretation based on the historical pedigree. In other words, choosing to interpret the constitution narrowly is, in itself, a activist choice imposing its own changing set of values on the document.


At 1/10/2006 02:32:00 AM,

There is a great exchange between Justices Scalia and Breyer from C-SPAN a year ago. The video is in RealPlayer format. Blogger won't allow me to activate the link, but here is the URL that you can put into RealPlayer: rtsp://

Particularly, listen to the bit from 28:50 to 35:45 where Scalia explains how he interprets law and what the other options might be.  

Posted by Bradley Ross

At 1/11/2006 07:32:00 PM,

Our dear Prof. Molot has a forthcoming article on textualism, to be published in the Columbia Law Review. You can see the premise of the article at:

At 1/11/2006 07:38:00 PM,

Also check out a debate/conversation he moderated, about statutory interpretation.

At 1/12/2006 08:27:00 PM,

Interesting thoughts, Chris, but I think your "philosophy roots" are showing through. Perhaps textualism and historical-based approaches to interpretation have other, more pragmatic but less philosophically-satisfying rationales? More to come...

At 1/16/2006 12:06:00 PM,

K, Chris, it's out...

My thoughts on interpretation.

My response to your thoughts.




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