Significance: The Supreme Court has traditionally had the last word on constitutional interpretation, which can change the powers of government and alter the degree of protection that individuals have from government action. In turn, the permissible scope of interpretation has been determined by what the Court did as it decided cases through its existence.
Chief Justice John Marshall noted, in Marbury v. Madison (1803), that the U.S. Constitution requires extensive interpretation. Although it was written and put into effect in the eighteenth century, its creators expected it to last for a long time and assumed that the three branches of the federal government it established would do different things at different times. Although the Constitution purports to control government action, the limits it creates are phrased in broad, general terms and are often vague. Therefore, questions about what each branch is constitutionally allowed to do and the rights of individuals are constantly recurring.
The Need for Finality
Of necessity, all three branches of the federal government, as well as state governments, must sometimes interpret the Constitution. A tacit part of the creation of any law is the assertion that the legislature has the power to pass it. Before the Civil War (1861-1865), when government exercised only traditional and well- explored functions, these interpretations were rarely controversial. After the war, however, because of national expansion and the Industrial Revolution, governments began to legislate in new areas, to impose new taxes, and in general to be more energetic. These new actions often raised questions over whether legislatures or the president had the constitutional power to make them. In the twentieth century, large businesses, political pressure groups, and litigious cranks often have incentives (and money) to file lawsuits to challenge interpretations with which they disagree. If there is a question over what the Constitution means and it is properly raised in a federal lawsuit, usually the Supreme Court's interpretation prevails. As part of its power, the Court can declare that an action of another branch of government violates some limit on the power of that branch and is therefore void, or unconstitutional. This power of judicial review is the most important of the Court's powers. The Court thus serves as the “umpire” of the political game, telling the various elected “players” Congress, the president, and the states what they can and cannot do. Through the late 1990's, the Court declared more than two hundred acts of Congress unconstitutional and invalidated a much larger number of state laws. It is also the guarantor of individual rights, determining how much protection Americans enjoy from government action. The Constitution does not explicitly grant the Court this interpretive finality, and it is by no means clear why the Court should have it. Marshall himself argued that if interpretation is needed, courts are best suited to the task because they have extensive experience interpreting written documents and because they are sworn to give the Constitution priority over ordinary legislation. Scholars have argued that because federal judges have lifetime appointments and are insulated from political pressure, they can interpret the Constitution relatively free of ambition and political bias. Further, because judges are trained in the law, they are more likely to base their interpretations on legal or moral principles than Congress or the president (who are more likely to be swayed by transitory political concerns). Finally, because courts are weaker than Congress or the president, they pose less danger of becoming tyrannical. If nothing else, a final arbiter is needed in a government with a separation of powers, and public opinion seems comfortable with the Court serving as that arbiter.
However, the actions of elected presidents and legislators who presumably try to do what the public wants in order to be reelected can be set aside by the undemocratic decisions of nonelected judges. For this reason, most Court justices believe that they must restrain themselves to avoid coming into conflict with the elected branches too often. Justice Felix Frankfurter argued for this philosophy of judicial selfrestraint in numerous texts between 1939 and 1962. He pointed out that courts have no financial or military power and depend on broad support from the public to persuade the other branches to enforce court decisions. If they set aside the democratic decisions of legislatures or presidents too often, this public support will evaporate. Moreover, judges typically have less education in the details of policy and taxation than legislators do.
Justices who follow the philosophy of restraint try to avoid or at least delay interpreting the Constitution. They raise procedural obstacles to prevent lawsuits from being brought or decide cases on nonconstitutional grounds. If interpretation cannot be avoided, they try to make their interpretations as narrow and case-bound as possible. Above all, they presume that the actions of other branches are valid and do not declare them unconstitutional unless absolutely necessary.
Justices who follow the philosophy of judicial activism have strong political preferences and believe that they should use constitutional interpretation to write these preferences into law, even if the elected branches disagree. Consequently, they are much more willing to invalidate actions of the other branches. Activists who supported the economic ideology of laissez-faire controlled the Court between 1895 and 1936. Because they believed that business should be allowed to operate as free of government regulation as possible, they interpreted the commerce clause and other parts of the Constitution very narrowly. They struck down many laws designed to protect worker health and safety or to otherwise limit how businesses were allowed to operate. By 1936, neither the states nor the federal government had much economic regulatory power left; consequently, neither was able to deal with the Great Depression. Public opinion turned against the Court, and the activist position was discredited. Judicial restraint justices, who became a majority after 1936, overturned many of the activist economic rulings, leaving it to legislatures to determine how extensively they could regulate the economy. After 1936, most justices have been suspicious of activism. However, that stance enjoyed a resurgence between 1954 and 1969, when activist justices struck down state laws mandating racially segregated public schools and created new court procedures designed to protect the constitutional rights of people accused of crimes. Professor John Hart Ely argued that although elected branches usually can be trusted to operate constitutionally when they deal with economic issues, they can sometimes be perverted by improper election procedures or other structural flaws. If legislatures are malapportioned or voting registration procedures are corrupted so that some people cannot register to vote, the public may not be able to make its wishes known at elections. Majority rule and democracy will not occur. Ely argued that judicial activism is needed to correct these structural flaws when legislatures are unable or unwilling to do so. Following Baker v. Carr (1962), the Court ordered legislative reapportionment in many states to ensure that each person's vote counted equally in choosing legislators. Some justices take compromise positions between activism and restraint. Justice Harlan Fiske Stone argued that courts can defer to legislatures when economics is involved but need to be especially vigilant when legislatures act to limit freedom of speech, press, or religion because these rights are fragile and easily lost. The Court must, in his words, give these political rights a preferred position. In the 1970's the Court used Stone's view as the basis for the strict scrutiny principle: Unlike economic legislation, laws that limit basic rights or that operate to harm politically weak minorities are presumed to be invalid unless they are indispensable to achieving some extremely important government goal. Through the 1990's, the Court continued to construe legislative power very narrowly in such cases.
The dispute between judicial activists and restraintists is largely a dispute about when, or how often, the Court should interpret the Constitution. Justices are also divided over how the job should be done. Supreme Court justices have always assumed that they should function as a court of law, by applying principles of interpretation to individual cases in an objective and disinterested way and by treating like cases alike. However, the Constitution does not contain principles for its own interpretation. These have to be discovered elsewhere, and justices and scholars disagree over the method. Interpretivists, sometimes called originalists, believe that the Constitution should be interpreted as intended by the people who wrote and ratified the Constitution the Founders. Interpretivists typically believe that there are eternal political principles, such as the belief that power corrupts, which must be controlled if government is to operate fairly. The wise Founders knew these principles, embodied them in the Constitution, and expected these principles to control all constitutional interpretation. Thus, interpretivists claim that they are following the path marked out by the Founders. In addition, as Justice Clarence Thomas and many others argued, the legitimacy of the Constitution depends on its having been accepted by the people in the ratification procedure in 1789. In that “constitution-making moment,” a contract was created between the rulers and the ruled. The Constitution, which is the written part of that contract, secured the consent of the governed for the limited government it set up. However, the people accepted the Constitution as the Founders expected it to be interpreted. The interpretations of the Founders, the unwritten part of the agreement, are thus equally binding. If the Court interprets the Constitution in some other way, governments may come to exercise more powers than the people granted. When controversies arise about what the Constitution means, interpretivists try to determine what the Founders intended. Most try to learn about the values of the Founders by studying their records and papers. Others seek principles in the records of American and British common-law courts because courts discuss and apply the political values of their times. Still others study traditions and customs. For example, the practice of beginning each session of Congress with a prayer, which has existed since the first Congress wrote the First Amendment in 1790, has been cited as proof that the Founders did not intend that Amendment to forbid all ceremonial prayer in government proceedings. Finally, others, called textualists, try to discover principles embedded in the language of the Constitution by studying how its words and phrases were used in the eighteenth century. Sometimes the interpretive intent of the Founders can easily be discovered. For example, it is clear that the Founders did not intend the prohibition on cruel and unusual punishments to forbid the death penalty as such because they continued to use it. However, many parts of the Constitution remain stubbornly unclear. Sometimes the intent of the Founders cannot be discovered, and sometimes, they disagreed with one another. In more troubling cases, some values of the Founders, including their toleration of slavery, have become outdated or offensive. Professor Ronald Dworkin, for example, has observed that although the Founders overwhelmingly accepted racially segregated schools and many other governmental inequities, any constitutional interpretation that permitted these inequities to exist today would be overwhelmingly rejected by most Americans.
For these reasons, noninterpretivists argue that the intent of the Founders should be given little weight in contemporary constitutional interpretation. Most noninterpretivists either deny that there are political principles of eternal validity or else believe that the few such principles that do exist are of such generality that they offer little guidance to dealing with concrete problems. As Chief Justice Earl Warren observed, the rule to “treat people equally except in exceptional cases” does not help a justice trying to decide whether segregated schools should constitute such an exception. Nor, as Justice William J. Brennan, Jr., has noted, does the Constitution depend for its binding effect on the consent of people in 1789. Instead, he argues, the people must constantly accept the Constitution as it exists today. They do so tacitly, by obeying its requirements. They will continue to do so as long as the Constitution meets their expectations about what it should be like. If there is any conflict between what the law says the Constitution is and what the people want it to be at any moment, then the job of the Court is to sit as a “permanent constitutional convention” and, by interpretation, to revise the Constitution to fit the public expectations. This is what the Court did in Brown v. Board of Education (1954), when it struck down the segregated schools that had long been legally accepted. Significantly, in Brown, the Court ignored the history urged on it by interpretivists, saying only that it could not “turn back the clock” to the Civil War or the colonial period. Instead, Chief Justice Warren emphasized sociology, stressing the importance of contemporary education to the ability of individuals to achieve their goals and function as citizens. As compared with interpretivists, noninterpretivists assume that change is more rapid and cuts deeper into political values and beliefs. Though they insist that the values of contemporary citizens should be given priority, they offer little guidance on how to discover these values. Nor do they explain how to tell the difference between basic principles and values, which should govern views on many political issues over time, and short-term political principles specific to an issue. Finally, noninterpretivists do not explain the source of the power they claim to continually revise the Constitution. Though that document contains procedures for formal amendment, it nowhere gives the Court the right to serve as a “permanent amending convention.”
In an influential 1959 article, Professor Herbert Wechsler argued that any constitutional interpretation, to be fair, must be made on the basis of a neutral principle, a rule capable of being applied uniformly to all similar cases without creating an advantage for any particular political force. Neutral principles may be those of the Founders or may be discovered later. His examples are derived from moral principles and relate to controversies of the period: A state cannot escape limits on public action by transferring some government function (such as holding primary elections) to private control, and racial segregation (a denial of equality per se) may constitute a denial of freedom of association. Presumably, the neutrality of such principles can be tested by philosophers who study critical cases. Neutrality has long been an important consideration in constitutional law. Therefore, the holding that the First Amendment guarantees the right to hold peaceable public parades cannot be considered fair unless it is applied impartially to Republicans and Democrats and civil rights activists and members of the Ku Klux Klan. Professor Wechsler suggests that interpretive principles can be similarly neutral and should not be used by the Court unless they are. The neutral principles approach seems intuitively fair. In legal proceedings, neutrality seems achievable. Thus, courts insist that laws be knowable in advance, for example, and that lawyers for both sides in a lawsuit have adequate time to prepare their cases. However, it may not be possible to find nontrivial principles that are truly neutral. Wechsler suggests that equality may be such a principle, but others have disagreed. Most of the individual rights guaranteed by the Constitution are not meant to be absolute. The public is protected, for example, against only unreasonable searches and seizures; the privilege of habeas corpus must not be suspended “unless the public safety requires.” However, some parts of the Constitution are phrased to suggest that they allow no exceptions. For these, absolutists argue that the Constitution should always be interpreted to forbid government action. For example, absolutists interpret the First Amendment statement that Congress shall make no law abridging freedom of speech as meaning that Congress cannot regulate sedition, the utterance of threats, or the publishing of obscene literature. Absolutists make it unnecessary to draw precise legal lines between things that may be vague and subjective. If they prevailed, it would be unnecessary, for example, for justices to distinguish between obscene material, which legislatures could ban, and nonobscene pornography, which is protected under the First Amendment. However, this would require the acceptance of extremes of behavior offensive to both Founders and contemporary Americans. In practice, absolutists tend to allow exceptions by casuistry. Uttering a threat, for example, is said to be a form of action, not speech. The publication of obscene material is seen as an incitement of violence against women, rather than as freedom of the press. Finally, in cases in which rights conflict, the Court has created legal rules, or doctrines, for handling the conflict. Sometimes rights are placed in a hierarchy. Those rights of criminally accused persons that are necessary for courts to hold fair criminal trials, for example, have been preferred to individual rights to speak or publish. The latter, in turn, have been preferred to the rights of political leaders and bureaucrats to act with “administrative efficiency.” In other cases, rights have been balanced against one another. In United States v. Nixon (1974), for example, in which the president unsuccessfully sought to keep secret audiotapes that had been requested by former aides who needed them to defend themselves against criminal charges, the Court balanced the need of the president to keep information confidential against the constitutional rights of the defendants in a criminal court.
- A good starting point for exploring how the Court influences constitutional change, see Westel Woodbury Willoughby's The Supreme Court of the United States: Its History and Influence in Our Constitutional System (Union, N.J.: Lawbook Exchange, 2001). Creating Constitutional Change: Clashes Over Power and Liberty in the Supreme Court, edited by Gregg Ivers and Kevin T. McGuire (Charlottesville: University of Virginia Press, 2004), offers a concise analysis of the process through which the justices go in making decisions that effect changes in the Constitution. Maxwell L. Stearns's Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (Ann Arbor: University of Michigan Press, 2000) and Timothy Russell Johnson's Oral Arguments and Decision Making on the United States Supreme Court (Albany: State University of New York Press, 2004) both closely examine how the Court makes its decisions. Lee Epstein and Jack Knight have also described how the Court goes about its work in The Choices Justices Make (Washington, D.C.: Congressional Quarterly, 1998). The most comprehensive presentation of the various approaches to interpretation is Craig Ducat's Constitutional Interpretation (8th ed. Belmont, Calif.: Thomson/West, 2004). Activism and restraint are examined in Supreme Court Activism and Restraint (Lexington, Mass.: Lexington Books, 1982), edited by Stephen C. Halpern and Charles M. Lamb, and Christopher Wolfe's Judicial Activism: Bulwark of Liberty or Precarious Security? (rev. ed., Lanham, Md.: Rowman & Littlefield, 1997). Leif Carter has written an accessible introduction to the problem of original intent, Contemporary Constitutional Lawmaking (New York: Pergamon, 1986). Judge Robert H. Bork argues for one form of interpretivism in The Tempting of America (New York: Simon & Schuster, 1990), and scholar Michael Perry examines noninterpretivism in The Constitution, the Courts, and Human Rights (New Haven, Conn.: Yale University Press, 1982) and interpretivism in The Constitution in the Courts: Law or Politics? (New York: Oxford University Press, 1994). Herbert Wechsler's views are best described in his own article, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959). Mark Tushnet demonstrates the difficulty of applying such an approach in practice in “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” Harvard Law Review 96 (1983): 781. Finally, the Court's traditional control of interpretation has not gone unchallenged. Tushnet takes a critical perspective in Taking the Constitution Away from the Courts (Princeton, N.J.: Princeton University Press, 1999).