1. Constitutional Interpretation, I The Mysteries of the Constitution Separation of Powers Two Models of Interpretation

2. 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.

3. 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”.

4. 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”.

5. 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.

6. 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.

7. 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.”

8. 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.

9. 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?

10. Scalia’s 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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 don’t apply to the judiciary?

18. 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?

19. 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.

20. 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 one’s liberty or reputation at risk. (5th Amendment)

21. 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)

22. 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.

23. 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.

24. 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.

25. 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.

26. 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 one’s own moral judgment in making sense of the text.

27. 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 amendment’s unclear reference to the “militia”. Intended to protect individuals, but text is ambiguous.

28. 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)

29. 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.

30. 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.

31. 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.

32. 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.

33. 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”.

34. 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.

35. Dworkin’s 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.

36. 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.

37. 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.

38. Is the Bork/Rehnquist Position Self-Defeating? B&R 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?

39. 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.

40. Charity vs. Neutrality Such a principle of charity requires the reader to employ his knowledge of the subject matter. E.g., in interpreting Euclid’s 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.

41. 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 don’t accord with the best interpretation of the whole.