Introduction to the Study of Constitutional Law
The Issues: What is a constitution? What purposes does the Constitution
of the United States serve?
Introduction
I find the study of constitutional law to be
immensely interesting. It concerns some of
the most fundamental questions about the
nature of our government and our society. In
its text and caselaw, constitutional law
reveals the path of our history, from the
drafting of the Constitution in 1787 through
the adoption of the important 13th, 14th, and
15th amendments following the Civil War,
through the desegregation battles of the
1950s and 1960s, to our confrontation of the
perplexing issues of today such as regulation
of the Internet and euthanasia. Constitutional
law, it its baffling complexity, is a reflection of
our deepest values, our political conflict, and
our nation's moral trajectory.
I understand, however, from years of teaching
that constitutional law is not every student's
cup of tea. Some students become frustrated
with its "fuzziness." Yes, it is fuzzy--and one
cannot take a clear picture of a fuzzy object.
There are relatively few clear answers in
constitutional law (and those that are clear-e.g., "Can a 27-year-old be elected
President?"--tend not to be very significant to
lawyers). The indefiniteness of constitutional
law is a function of many things, including: (1)
a text that is the product of long gone eras, (2)
a text that in many cases (e.g, "due process of
law," "equal protection of the laws") was
intentionally vague to accomodate the needs
of a changing society, and (3) important (and
often emotional) issues that tend to bring the
values and politics of judges into play more
than in other areas of law, where judges are
more likely to think of their judging as an
intellectual exercise or puzzle.
To students looking for clear rules, I say,
"Stop looking." What is important is to
understand is not so much answers as it is
approaches and questions. Learn the
sources that judges might rely upon to guide
their constitutional interpretation (text of
Constitution of the United States
Assignment:
Read the Constitution of the United
States. As you read it, identify those
provisions which perform each of the
following functions: (1) set up the
machinery of the national government;
(2) confer power on one of the three
branches of the national government;
(3) confer power on state governments;
(4) limit the power of the national
government; (5) limit the power of state
governments; (6) limit the power of
private individuals.
1. Did you find provisions that fit into
each of the six categories listed above?
2. What seem to be the predominant
purposes of the United States
Constitution?
Additional Questions for Class
Constitution, intentions of framers, case
precedent, policy consequences of alternative
interpretations). Learn how judges are likely
to weigh these various guides in various
contexts. Understand historical trends and
understand that judges are ultimately affected
by the same economic and social forces as
society as a whole. With a solid knowledge of
these things, students will be able to make
intelligent and potentially convincing
arguments--and make reasonable predictions
about the likelihood of their arguments being
successful in an actual case involving the
same issues.
History of the Constitution
Discussion
1. What is a constitution? How many
constitutions are there in the United
States? Does every country have a
constitution? Do cities and counties have
constitutions? Do private organizations
sometimes have constitutions?
2. How is constitutional law different from
statutory law, administrative law, and
common law? (Think about differences in
how each form of law is made, how it is
interpreted, how it might be changed, and
what subject matter it is likely to cover.)
A
3. What benefits come from a nation
having a written constitution? A
4. Are there disadvantages in having a
written constitution such as ours? If so,
what might they be? A
Supreme Court
No person played a greater role in that history
than the man pictured above, James
Madison. Madison not only prepared the
draft that set the framework for debate at the
1787 Constitutional Convention in
Philadelphia, but also became the principal
drafter of the Bill of Rights. To read about
the Constitution's early history, jump to:
History.
Soon you will begin reading decisions of the
United States Supreme Court. If you wish to
begin familiarizing yourself with the
operation of this remarkable (and sometimes
controversial) institution and the justices who
have sat on it, jump to: Supreme Court.
Exploring Constitutional Conflicts Homepage
The Supreme Court in the American System of
Government
The Issues: What is the function of the Supreme Court? What sort of
justices best serve the Court's high purposes? How does the Court decide
which cases to review, and how does it decide the cases that it does
review?
Introduction
The Supreme Court takes its powers
from Article III of the Constitution.
Article III, §1 provides that "the judicial
power of the United States, shall be
vested in one supreme Court, and in
such inferior Courts as the Congress
may from time to time ordain and
establish." In accordance with this
provision, the Suprem Court of the
United States was created by the
authority of the Judiciary Act of 1789.
The Court met for the first time on
February 2, 1790.
The Court currently consists of a chief
justice and eight associate justices,
each with equal voting power to the
chief's. (The number of justices has
varied, beginning with six, then
increasing to seven in 1801, and finally
to nine in 1869.) Each justice is
nominated by the President, confirmed
by the Senate, and serves for life. The
Senate confirmation process begins with
hearings before the Judiciary Committee
and ends with a vote of the full Senate.
A simple majority is required for
confirmation. Justices who commit
"high crimes or misdemeanors" are
subject to impeachment and removal
from office.
The Term of the Court begins, by law, on
the first Monday and October. In a
typical year, decisions are announced in
all the argued cases by the end of June.
An average of about 7,000 to 8,000
petitions are filed with the Court over the
course of a single Term; of those only
about 100 or so are set for full briefing
and oral argument. In addition to the
petitions, another 1,200 or so
applications (e.g., a request for an
immediate stay of a decision below) are
filed each year. These applications can
be acted upon by a single justice.
Top row: Justices Ginsburg, Souter, Thomas, and
Breyer
Bottom row: Justices Scalia, Stevens, Rehnquist (C. J.),
O'Connor, and Kennedy
Assignment
Let's take a case through from its initial Supreme
Court decision to final decision. The case is the
landmark 1969 home privacy decision, Stanley v
Georgia. Examine the documents and records
below sufficiently to understand the purpose of
each document and there potential significance
as to the outcome of the case:
(1) Jurisdictional Statement for Robert Stanley
Note: A Jurisdictional statement is virtually identical in
purpose and substance to a petitition for certiorari.
(2) Motion to Dismiss the Appeal and Affirm the
Judgment
(3) Brief of Appellant on the Merits
(4) Transcript of Oral Argument in Stanley v
Georgia (1/14/69)
(5) Notes of Supreme Court Conference
(1/17/69)
(6) Opinion of the Court in Stanley v Georgia
(4/7/69)
(7) Concurring Opinion of Justice Stewart in
Stanley (4/7/69)
Justice Thurgood Marshall, author of the Court's
opinion in Stanley
Consider these questions about Stanley v
Georgia:
The Court and Constitutional
Interpretation
"The republic endures and this is the
symbol of its faith."
CHIEF JUSTICE CHARLES EVANS
HUGHES, Cornerstone Address—
Supreme Court Building
EQUAL JUSTICE UNDER LAW —
These words, written above the main
entrance to the Supreme Court Building,
express the ultimate responsibility of the
Supreme Court of the United States.
The Court is the highest tribunal in the
Nation for all cases and controversies
arising under the Constitution or the
laws of the United States. As the final
arbiter of the law, the Court is charged
with ensuring the American people the
promise of equal justice under law and,
thereby, also functions as guardian and
interpreter of the Constitution.
1. What questions did Stanley's lawyer initially see as the
most promising, and did they turn out to be the decisive
issues in the majority's opinion?
2. How important were the facts of this case, and what
facts seemed to be of greatest interest to justices during
oral argument?
3. Did any justice express a different view in conference
about the case than the view reflected in the opinion he
either wrote or joined?
4. What is the holding of Stanley?
5. Would the case have come out differently if Stanley had
been caught showing the films to his dinner guests?
6. Would it have been decided the same if the films had
been discovered on his person while he was walking down
a street?
7. What is the significance of the concurring opinion?
8. Does Stanley tell us exactly what sort of materials an
individual has a constitutional right to use in his own
home?
9. Would the result have been different if Stanley
possessed child pornography?
10. Could one argue that Stanley offers protection for the
private possession of illegal drugs? (Tha Alaska Supreme
Court thought so. See its decision extending Stanley to
find constitutional protection for the private possession of
marijuana for personal use: Ravin v State (1975).)
Familiarize yourself further with the process
used by the Supreme Court by reading the
following short essay: A History of the Supreme
Court (FindLaw)
The Supreme Court is "distinctly
American in concept and function," as
Chief Justice Charles Evans Hughes
observed. Few other courts in the world
General Questions for Class Discussion
have the same authority of
constitutional interpretation and none
1. How does the Supreme Court compare in its power to
have exercised it for as long or with as the other two branches of government? Is it the most
much influence. A century and a half
ago, the French political observer Alexis
de Tocqueville noted the unique
position of the Supreme Court in the
history of nations and of jurisprudence.
"The representative system of
government has been adopted in several
states of Europe," he remarked, "but I
am unaware that any nation of the globe
has hitherto organized a judicial power
in the same manner as the Americans . .
. . A more imposing judicial power was
never constituted by any people."
The unique position of the Supreme
Court stems, in large part, from the deep
commitment of the American people to
the Rule of Law and to constitutional
government. The United States has
demonstrated an unprecedented
determination to preserve and protect its
written Constitution, thereby providing
the American "experiment in
democracy" with the oldest written
Constitution still in force.
The Constitution of the United States is
a carefully balanced document. It is
designed to provide for a national
government sufficiently strong and
flexible to meet the needs of the
republic, yet sufficiently limited and just
to protect the guaranteed rights of
citizens; it permits a balance between
society’s need for order and the
individual’s right to freedom.
To assure these ends, the Framers of the
Constitution created three independent
and coequal branches of government.
That this Constitution has provided
continuous democratic government
through the periodic stresses of more
than two centuries illustrates the genius
of the American system of government.
The complex role of the Supreme Court
in this system derives from its authority
powerful because it has the last word as to the meaning of
the Constitution and can order other branches to comply
with its dictates? Is it the weakest branch because it has
only a few marshals to enforce its orders? Is it "the least
dangerous branch"?
2. What factors should be most important in the
determination of the Court whether or not to review a
decision below? How wrong the decision below is? How
badly split the courts below are on the issue? How
important to the country clarification of the law at issue
might be?
3. What steps in the process of deciding cases are most
critical to the final outcome? The framing of the specific
questions for determination? The briefs? The oral
argument? Discussion at conference? At one stages along
the way are minds most likely to change?
4. Can law clerks influence the outcomes of cases?
Newspapers? How true is the statement, "The Supreme
Court reads the election returns"?
5. What would the membership of an ideal Supreme
Court look like? Would it include male and female
members of diverse racial and religious backgrounds?
Should it include younger members as well as older
members, gay members as well as straight members,
conservatives as well as liberals? What would be the
disadvantage of having nine like-minded justices (so long
as you agreed with their approaches to judging)?
Senator Roman Hruska of Nebraska once said, when
Richard Nixon nominated for the position of justice a
lawyer, Harold Carswell, who was criticized for having an
undistinguished record: "Even if he was mediocre, there are
a lot of mediocre judges and people and lawyers. They are
entitled to a little representation, aren't they, and a little
chance? We can't have all Brandeises and Cardozos and
Frankfurters and stuff like that there." What do you think of
Hruska's point?
6. If you were president and had the opportunity to make
an appointment to the Supreme Court, how would you
choose your nominee?
7. If the President is free to nominate someone for the
Supreme Court because he likes his or her judicial
philosophy, should the Senate equally be free to reject the
nominee because they dislike his or her judicial
philosophy, or ought the President be given some
deference?
The Supreme Court of the
United States: Selected Links
Official Site of the Supreme Court
Brief Overview of Court
Current Justices (Biographical Data)
Past Justices (Biographical Data)
Virtual Tour of Supreme Court Building (Oyez
Project, Northwestern Univ.)
Supreme Court News and Information from JURIST
On the Docket (Northwestern)
Current Term Calendar (Legal Information Institute)
Topical List of Supreme Court Decisions (Legal
to invalidate legislation or executive
actions which, in the Court’s considered
judgment, conflict with the Constitution.
This power of "judicial review" has
given the Court a crucial responsibility
in assuring individual rights, as well as
in maintaining a "living Constitution"
whose broad provisions are continually
applied to complicated new situations.
While the function of judicial review is
not explicitly provided in the
Constitution, it had been anticipated
before the adoption of that document.
Prior to 1789, state courts had already
overturned legislative acts which
conflicted with state constitutions.
Moreover, many of the Founding
Fathers expected the Supreme Court to
assume this role in regard to the
Constitution; Alexander Hamilton and
James Madison, for example, had
underlined the importance of judicial
review in the Federalist Papers, which
urged adoption of the Constitution.
Hamilton had written that through the
practice of judicial review the Court
ensured that the will of the whole
people, as expressed in their
Constitution, would be supreme over the
will of a legislature, whose statutes
might express only the temporary will
of part of the people. And Madison had
written that constitutional interpretation
must be left to the reasoned judgment of
independent judges, rather than to the
tumult and conflict of the political
process. If every constitutional question
were to be decided by public political
bargaining, Madison argued, the
Constitution would be reduced to a
battleground of com-peting factions,
political passion and partisan spirit.
Despite this background the Court’ s
power of judicial review was not
confirmed until 1803, when it was
invoked by Chief Justice John Marshall
Information Institute)
Supreme Court Authority & Rules
Supreme Court Satire & Cartoons
Politics and the Supreme Court
Few would deny that the political values of justices, as
well as theories of constitutional interpretation, play a
role in their decisions in specific cases. The conservative
wing of the Court, for example, generally favors a
restrictive interpretation of the federal commerce power
(and therefore a broad view of states' rights), favors an
expansive interpretation of the 11th Amendment, and
rarely votes to overturn criminal convictions. The
conservatives also take a skeptical view of affirmative
action, are likely to reject most substantive due process,
procedural due process, and establishment clause
claims, and are generally reluctant to expand the
fundamental rights strand of equal protection law
(unless the plaintiff is George Bush, cynics would say).
The moderate-liberal wing of the Court is likely to take
the opposite side on all of the above-mentioned issues.
Another way of dividing Supreme Court justices is
between "judicial activists" (those who are relatively
willing to invalidate acts of federal and state legislatures
and executive branches) and "advocates of judicial
restraint" (those who are more reluctant to use their
judicial power to invalidate). There are both
conservative and liberal judicial activists. Justices
Scalia and Thomas, for example, are conservative
activists while Justice William O. Douglas was a liberal
judicial activist. Current thinking suggests that Chief
Justice Roberts is likely to prove to be a conservative
advocate of judicial restraint, possibly in the mold of
John Marshall Harlan. There also have been liberals
on the Court who advocated judicial restraint, including
Felix Frankfurter.
THE POLITICAL MAKE-UP OF THE CURRENT
COURT
Chief Justice John Roberts
Seven members of the current Supreme Court were
appointed by Republican presidents. Two justices
in Marbury v. Madison. In this decision,
the Chief Justice asserted that the
Supreme Court’ s responsibility to
overturn unconstitutional legislation
was a necessary consequence of its
sworn duty to uphold the Constitution.
That oath could not be fulfilled any
other way. "It is emphatically the province of the judicial department to say
what the law is," he declared.
In retrospect, it is evident that
constitutional interpretation and
application were made necessary by the
very nature of the Constitution. The
Founding Fathers had wisely worded
that document in rather general terms
leaving it open to future elaboration to
meet changing conditions. As Chief
Justice Marshall noted in McCulloch v.
Maryland, a consti-tution that attempted
to detail every aspect of its own
application "would partake of the
prolixity of a legal code, and could
scarcely be embraced by the human
mind . . . . Its nature, therefore, requires
that only its great outlines should be
marked, its important objects
designated, and the minor ingredients
which compose those objects be
deduced from the nature of the objects
themselves."
The Constitution limits the Court to
dealing with "Cases" and
"Controversies." John Jay, the first
Chief Justice, clarified this restraint
early in the Court’ s history by
decliningto advise President George
Washington on the constitutional
implications of a proposed foreign
policy decision. The Court does not give
advisory opinions; rather, its function is
limited only to deciding specific cases.
The Justices must exercise considerable
discretion in deciding which cases to
hear, since more than 7,000 civil and
criminal cases are filed in the Supreme
(Ginsburg and Breyer) were nominated by a
Democratic president.
THE ULTRA-CONSERVATIVES: Scalia (appointed by
Reagan) and Thomas (appointed by George Bush, Sr.)
CONSERVATIVES: C. J. Roberts (appointed by
George W. Bush), O'Connor (appointed by Reagan--and
to soon be replaced), and Kennedy (appointed by
Reagan).
MODERATES: Stevens (appointed by Ford), Souter
(appointed by George Bush, Sr.), Ginsburg (appointed
by Clinton) and Breyer (appointed by Clinton).
LIBERALS: There are no current members of the
Court that are properly considered "liberal." Recent
members of the Court who might be called liberals
include Republican (Eisenhower) appointees Brennan
and Warren, Republican appointee (Nixon) Blackmun,
and Johnson appointees Marshall, Fortas, and
Goldberg. The last "ultra-liberal" on the Court was
William O. Douglas, a Roosevelt appointee.
Court each year from the various state
and federal courts. The Supreme Court
also has "original jurisdiction" in a very
small number of cases arising out of
disputes between States or between a
State and the Federal Government.
When the Supreme Court rules on a
constitutional issue, that judgment is
virtually final; its decisions can be
altered only by the rarely used
procedure of constitutional amendment
or by a new ruling of the Court.
However, when the Court interprets a
statute, new legislative action can be
taken.
Chief Justice Marshall expressed the
challenge which the Supreme Court
faces in maintaining free government by
noting: "We must never forget that it is
a constitution we are expounding . . .
intended to endure for ages to come, and
consequently, to be adapted to the
various crises of human affairs."
From the U.S. Supreme Court web site
(www.supremecourtus.gov)
Exploring Constitutional Conflicts Homepage
The Constitutional Convention of 1787
The Issues: Why was the Convention called? Did it do what it was
expected to do? Who were the major players at the Convention? What
were the key compromises that were made in Philadelphia?
Introduction
By 1786, Americans recognized that the
Articles of Confederation, the foundation
document for the new United States adopted
in 1777, had to be substantially modified.
The Articles gave Congress virtually no
THE CONSTITUTION AS PROPOSED IN
PHILADELPHIA
power to regulate domestic affairs--no
power to tax, no power to regulate
commerce. Without coercive power,
Congress had to depend on financial
contributions from the states, and they often
time turned down requests. Congress had
neither the money to pay soldiers for their
service in the Revolutionary War or to repay
foreign loans granted to support the war
effort. In 1786, the United States was
bankrupt. Moreover, the young nation faced
many other challenges and threats. States
engaged in an endless war of economic
discrimination against commerce from other
states. Southern states battled northern
states for economic advantage. The country
was ill-equipped to fight a war--and other
nations wondered whether treaties with the
United States were worth the paper they
were written on. On top of all else,
Americans suffered from injured pride, as
European nations dismissed the United
States as "a third-rate republic."
America's creditor class had other worries.
In Rhode Island (called by elites "Rogue
Island"), a state legislature dominated by the
debtor class passed legislation essentially
forgiving all debts as it considered a
measure that would redistribute property
every thirteen years. The final straw for
many came in western Massachusetts where
angry farmers, led by Daniel Shays, took up
arms and engaged in active rebellion in an
effort to gain debt relief.
Troubles with the existing Confederation of
States finally convinced the Continental
Congress, in February 1787, to call for a
convention of delegates to meet in May in
Philadelphia "to devise such further
provisions as shall appear to them
necessary to render the constitution of the
Federal Government adequate to the
exigencies of the Union."
Across the country, the cry "Liberty!" filled
the air. But what liberty? Few people claim
to be anti-liberty, but the word "liberty" has
many meanings. Should the delegates be
most concerned with protected liberty of
conscience, liberty of contract (meaning, for
many at the time, the right of creditors to
collect debts owed under their contracts), or
the liberty to hold property (debtors
complained that this liberty was being taken
by banks and other creditors)? Moreover,
the cry for liberty could mean two very
different things with respect to the slave
George Washington presides over the Constitutional
Convention
Assignment:
Read
The 200th Reunion of Delegates to the
Constitutional Convention
(Or, "All Things Considered We'd Really
Rather Be in Philadelphia")
(An essay by Doug Linder)
Who were the the 55 Delegates to the
Convention?
The delegates to the Constitutional Convention did not
represent a cross-section of 1787 America. The
Convention included no women, no slaves, no Native
Americans or racial minorites, no laborers. As one
historian noted, it was a "Convention of the well-bred,
the well-fed, the well-read, and the well-wed." The
delegates included some very well-known figures
from American history, such as George Washington,
James Madison, Benjamin Franklin, and Alexander
Hamilton. Other prominent Americans of the time,
who might be expected to have been in Philadelphia,
did not attend for various reasons. Prominent nonattendees include John Adams and Thomas Jefferson.
The links below offer more information on the
delegates.
•
•
Founding Fathers (National Archives
Biographies and Images)
If you're looking to get hitched up, jump
to: Who Wants to Marry a Founding
Father?
issue--for some, the liberty to own slaves
needed protection, while for others (those
more able to see through black eyes), liberty
meant ending the slavery.
The Theory Behind Madison's Plan
Convention in Philadelphia
The room in Independence Hall (formerly the
State House) in Philadelphia
where debates over the proposed Constitution
took place (photo by Doug Linder)
On May 25, 1787, a week later than
scheduled, delegates from the various
states met in the Pennsylvania State House
in Philadelphia. Among the first orders of
business was electing George Washington
president of the Convention and
establishing the rules--including complete
secrecy concerning its deliberations--that
would guide the proceedings. (Several
delegates, most notably James Madison,
took extensive notes, but these were not
published until decades later.)
The main business of the Convention began
four days later when Governor Edmund
Randolph of Virginia presented and
defended a plan for new structure of
government (called the "Virginia Plan") that
had been chiefly drafted by fellow Virginia
delegate, James Madison. The Virginia Plan
called for a strong national government with
both branches of the legislative branch
apportioned by population. The plan gave
the national government the power to
legislate "in all cases in which the separate
States are incompetent" and even gave a
proposed national Council of Revision a
James Madison
James Madison believed that protection for liberty lay
in the structure of government, not in a listing of
"parchment" guarantees. As he saw it, the primary
threat to liberty in the past had come from oppressive
majorities capturing the reigns of power. Madison's
solution, as he proposed it in Philadelphia, was to
"enlarge the sphere" by transferring much power to
the federal government. Because the nation is
comprised of many more and more diverse
communities of interests than are individual states, it
becomes much more difficult for any one interest
group to become a majority and capture control of
power. Rather than see competing factions as a
danger, Madison saw the saving multiplicity of
interests as a protection for liberty: "Ambition must be
made to counteract ambition." Madison further aimed
to block the ability of an oppressive majority from
working its will against minorities by dividing power
within the national government into three relatively
co-equal branches, each of which would be given
weapons to fight the other. Even if a majority were to
capture one branch, Madison reasoned, it could only
do limited harm if the other branches remained out of
its domination.
Map of Philadelphia
in 1787
Philadelphia in 1787
(TeachingAmericanHistory.org
)
Visit the above map and
explore the Philadelphia of the
delegates. Click on the
images of Independence Hall,
Mary House's Boarding
House, and the Indian Queen
Tavern.
Questions for Class Discussion
1. Did the Convention exceed its authority?
How to you begin to answer such a question?
2. If the Convention did exceed its authority,
should it have anyway? Does it matter whether
the Convention acted beyond the powers given
Delegates from smaller states, and states
to it?
less sympathetic to broad federal powers,
3. Would the United States have been better off
opposed many of the provisions in the
if the Virginia Plan had been adopted as
Virginia Plan. Charles Pinckney of South
presented? If the New Jersey Plan had been
Carolina asked whether proponents of the
plan "meant to abolish the State
adopted?
Governments altogether." On June 14, a
4. Has our constitutional system worked more
competing plan, called the "New Jersey
or less as Madison hoped it would? In what
Plan," was presented by delegate William
respects, if any, do you think Madison would be
Paterson of New Jersey. The New Jersey
Plan kept federal powers rather limited and disappointed?
created no new Congress. Instead, the plan 5. What was the greatest failing of the
enlarged some of the powers then held by
Constitutional Convention? Why?
veto power over state legislatures.
the Continental Congress. Paterson made
plain the adamant opposition of delegates
from many of the smaller states to any new
plan that would deprive them of equal voting
power ("equal suffrage") in the legislative
branch.
Over the course of the next three months,
delegates worked out a series of
compromises between the competing
plans. New powers were granted to
Congress to regulate the economy,
currency, and the national defense, but
provisions which would give the national
government a veto power over new state
laws was rejected. At the insistence of
delegates from southern states, Congress
was denied the power to limit the slave trade
for a minimum of twenty years and slaves-although denied the vote and not recognized
as citizens by those states--were allowed to
be counted as 3/5 persons for the purpose
of apportioning representatives and
determining electoral votes. Most
importantly, perhaps, delegates
compromised on the thorny issue of
apportioning members of Congress, an
issue that had bitterly divided the larger and
smaller states. Under a plan put forward by
delegate Roger Sherman of Connecticut
("the Connecticut Compromise"),
representation in the House of
Representatives would be based on
population while each state would be
guaranteed an equal two senators in the
new Senate.
By September, the final compromises were
made, the final clauses polished, and it
came time to vote. In the Convention, each
state--regardless of its number of delegates- had one vote, so a state evenly split could
not register a vote for adoption. In the end,
thirty-nine of the fifty-five delegates
Signing of the Constitution, September 17, 1787
Ben Franklin's Comments on the Signing,
As Reported in the Notes of James Madison
Doctor Franklin, looking toward the President's
chair, at the back of which a rising sun happened
to be painted, observed to a few members near
him, that painters had found it difficult to
distinguish in their art a rising sun from a setting
sun. I have, said he, often in the course of this
session, and the vissitudes of my hopes and fears
as to its issue, looked at that behind the President,
without being able to tell whether it was rising or
setting; but at length I have the happiness to know
that it is a rising and not a setting sun.
Battle for Ratification: The Federalists vs
the Anti-Federalists
Ratification came only after a hard-fought battle
between those favoring adoption of the new
Constitution (the Federalists) and those opposed (the
Anti-Federalists). The Anti-Federalists had many
complaints. They argued that the national
government, and especially the president, had too
much power. They complained that the six-year terms
of senators were far too long. They demanded to
know why delegates failed to include a declaration of
individual rights. The Federalists tried to answer each
of these objections, and one such attempt to do so, The
Federalists Papers, stands as major work of political
philosophy. After easy victories in a few states, the
Federalists carried the day by winning close votes for
supported adoption of the new Constitution,
barely enough to win support from each of
the twelve attending state delegations.
(Rhode Island, which had opposed the
Convention, sent no delegation.) Following
a signing ceremony on September 17, most
of the delegates repaired to the City Tavern
on Second Street near Walnut where,
according to George Washington, they
"dined together and took cordial leave of
each other."
ratification in Massachusetts (187-168) with the able
assistance of Samuel Adams, in Virginia (88-80) over
the strenuous arguments of Patrick Henry, and in New
York (30-27).
•
•
Federalist Papers (The Avalon Project
at the Yale Law School)
• Anti-Federalist Papers
Elliot's Records of Debates in State
Legislatures
DEBATES OF THE CONVENTION
(FROM NOTES)
Madison's Notes (Avalon
Project at the Yale Law School)
• Farrand's Records of
Convention
•
LINKS
The U. S. Constitution Online: The
Constitutional Convention
Library of Congress: To Form a More
Perfect Union
IMAGES
Voting Record of the Constitutional
Convention
The Constitution (page 1)
New York City celebrates ratification of
Constitution
Exploring Constitutional Conflicts Homepage
Judicial Review
The Issue: Does the Constitution Give the Supreme Court the Power to
Invalidate the Actions of Other Branches of Government?
Introduction
In 1800 the Federalists and their candidate,
President John Adams, lost the election to
Thomas Jefferson. Early in 1801 the lameduck Federalist Congress enacted a
controversial Judiciary Act that created 58
new judgeships, including 42 justiceships of
the peace, for Adams to appoint. Jefferson
complained that the Federalists "have retired
into the judiciary as a stronghold." On the
night March 3, 1801, John Marshall, acting as
secretary of state, affixed the official seal to
the commissions for the justices of the
peace. He did not, however, deliver the
commissions. The next day, after Thomas
Jefferson was inaugurated, he directed the
new secretary of state, James Madison, to
withhold delivery of 17 of the 42
commissions, including that of William
Marbury. William Marbury sued for a writ of
mandamus to require Madison to hand over
his commission.
Chief Justice John Marshall
The Judiciary Act (Section 13):
The act to establish the judicial courts of
the United States authorizes the supreme
court "to issue writs of mandamus, in cases
warranted by the principles and usages of
law, to any courts appointed, or persons
holding office, under the authority of the
United States."
Article III of Constitution
Section. 2
The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States,
William Marbury
and Treaties made, or which shall be made,
The decision in Marbury's case, written by
under their Authority;--to all Cases affecting
Chief Justice John Marshall (the very same
Ambassadors, other public Ministers and
John Marshall who affixed the seal to
Consuls;--to all Cases of admiralty and
Marbury's commission--talk about a conflict
maritime Jurisdiction;--to Controversies to
of interest!) established and justified the
which the United States shall be a Party;--to
power of judicial review. It is the first case
Controversies between two or more States;-read by virtually every first-year law student
between a State and Citizens of another
and is generally considered the greatest of all State;--between Citizens of different States; -landmark cases. Marshall strained to reach
between Citizens of the same State claiming
his result. The plain words of Section 13 of
Lands under Grants of different States, and
the Judiciary Act indicate that Marbury went
between a State, or the Citizens thereof, and
to the wrong court or invoked the wrong
foreign States, Citizens or Subjects.
statute (or both), but Marshall proceeded as if
the suit were authorized by Section 13 and
In all Cases affecting Ambassadors, other
then declared the statute unconstitutional on public Ministers and Consuls, and those in
the grounds that it purported to expand the
which a State shall be Party, the supreme
Court's original jurisdiction in violation of
Court shall have original Jurisdiction. In all
Article III. Marbury's suit was dismissed for
the other Cases before mentioned, the
lack of jurisdiction. Marshall's decision-Supreme Court shall have appellate
brilliant in its conception--allowed the Court
Jurisdiction, both as to Law and Fact, with
to brand Jefferson a violator of civil rights
such Exceptions, and under such Regulations
without issuing an order that the President
as the Congress shall make.
could have ignored.
Case
Marbury vs. Madison (1803)
"The prime and most necessary function
of the Court has been that of validation,
Questions
1. Is judicial review a good idea? Should nine
unelected judges be able to tell our elected
representatives what they can and cannot do?
2. Are courts more likely to block an
enlightened consensus with their adherence
to outdated principles or to protect the
politically weak from oppressive majorities?
3. Are judges, protected with lifetime tenure
and drawn generally from the educated class,
more likely to be reflective and above the
passing enthusiasms that drive legislative
action?
4. Does Marbury mean that legislators or
members of the executive branch have no
responsibility to judge the constitutionality of
their own actiions?
5. Could we have a workable system of
government without judicial review?
Links
Marbury v. Madison Background & Players
(James Madison Univ.)
1800-1810 American Timeline
John Marshall - Definer of a Nation
1803 Petition, Debate & Vote of Wm. Marbury &
Others
(from Annals of Congress)
not that of invalidation. What a
government of limited powers needs, at
the beginning and forever, is some means
of satisfying the people that it has taken
all steps humanly possible to stay within
its powers."
--Professor Charles L. Black
Original Intent & Judicial Review
The Constitution does not expressly provide
for judicial review. What should be made of
this fact? Does it suggest that the framers did
not intend to give the courts such a power?
Not necessarily, although that is one
explanation for its absence. It is also possible
that the framers thought the power of judicial
review was sufficiently clear from the
structure of government that it need not be
expressly stated. A third possibility is that
the framers didn't think that the issue would
ever come up, because Congress would never
pass legislation outside of its enumerated
powers.
Only 11 of the 55 delegates to the
Constitutional Convention, according to
Madison's notes, expressed an opinion on the
desirability of judicial review. Of those that
did so, nine generally supported the idea and
two opposed. One delegate, James Wilson,
argued that the courts should have the even
broader power to strike down any unjust
federal or state legislation. It may also be
worth noting that over half of the thirteen
original states gave their own judges some
power of judicial review.
Exploring Constitutional Conflicts Homepage
Theories of Constitutional Interpretation
The issue: What are appropriate sources of authority to guide interpretation
of the Constitution and what relative weight should be assigned to the
various appropriate sources?
Eight Reasons to be an
Originalist
1. Originalism reduces the
likelihood that unelected
Introduction
There are five sources that
have guided interpretation of
the Constitution: (1) the text
Eight Reasons to be a
Non-Originalist
1. The framers at the
Convention in Philadelphia
judges will seize the reigns of
power from elected
representatives.
2. Originalism in the long run
better preserves the authority
of the Court.
3. Non-originalism allows too
much room for judges to
impose their own subjective
and elitist values. Judges need
neutral, objective criteria to
make legitimate decisions.
The understanding of the
framers and ratifiers of a
constitutional clause provide
those neutral criteria.
4. Lochner vs. New York
(widely considered to be a bad
non-originalist decision).
5. Leaving it to the people to
amend their Constitution when
need be promotes serious
public debate about
government and its
limitations.
6. Originalism better respects
the notion of the Constitution
as a binding contract.
7. If a constitutional
amendment passed today, we
would expect a court five
years from now to ask what we
intended to adopt. [Can the
same be said for a court 100 or
200 years from now?]
8. Originalism more often
forces legislatures to
reconsider and possibly repeal
or amend their own bad laws,
rather than to leave it to the
courts to get rid of them.
.
.
.. Examples of Originalist
Judges
Justice Hugo Black
Justice Antonin Scalia
Justice Clarence Thomas
Judge Robert Bork
and structure of the
Constitution, (2) intentions of
those who drafted, voted to
propose, or voted to ratify the
provision in question, (3) prior
precedents (usually judicial),
(4) the social, political, and
economic consequences of
alternative interpretations, and
(5) natural law. There is
general agreement that the
first three of these sources are
appropriate guides to
interpretation, but
considerable disagreement as
to the relative weight that
should be given to the three
sources when they point in
different directions. Many
interpreters of the Constitution
have suggested that the
consequences of alternative
interpretations are never
relevant, even when all other
considerations are evenly
balanced. Natural law (higher
law, God's law) is now only
infrequently suggested as an
interpretive guide, even
though many of the framers of
the Constitution recognized its
appropriateness. Persons who
favor heavy reliance on
originalist sources (text and
intentions) are commonly
called "originalists." Persons
who favor giving a more
substantial weighting to
precedent, consequences, or
natural law are called "nonoriginalists." In practice,
disagreement between
originalists and nonoriginalists often concerns
whether to apply heightened
judicial scrutiny to certain
"fundamental rights" that are
not explicitly protected in the
text of the Constitution.
Definitions
Textualist: An originalist who
gives primary weight to the
text and structure of the
Constitution. Textualists often
are skeptical of the ability of
judges to determine collective
indicated that they did not
want their specific intentions
to control interpretation.
2. No written Constitution
can anticipate all the means
that government might in the
future use to oppress people,
so it is sometimes necessary
for judges to fill in the gaps.
3. Intentions of framers are
various, sometimes transient,
and often impossible to
determine. Text is often
ambiguous and judicial
precedents can be found to
support either side. In such
cases, why not produce the
result that will best promote
the public good? It's better
than flipping a coin.
4. Non-originalism allows
judges to head off the crises
that could result from the
inflexible interpretation of a
provision in the Constitution
that no longer serves its
original purpose. (The
amendment process is too
difficult and cannot be relied
upon to save us.)
5. Non-originalism allows the
Constitution to evolve to
match more enlightened
understandings on matters
such as the equal treatment
of blacks, women, and other
minorities.
6. Brown vs Board of
Education (on originalist
grounds, it was decided
incorrectly).
7. Originalists lose sight of
the forest because they pay
too much attention to trees.
The larger purpose--the
animating spirit--of the
Constitution was the
protection of liberty, and we
ought to focus on that.
8. Nazi Germany: Originalist
German judges did not
exercise the power they might
have to prevent or slow down
inhumane programs.
Examples of NonOriginalist Judges
Justice Harry Blackmun
Justice William Brennan
An Example of an
Originalist Opinion:
Marsh vs Chambers
Robert Bork
Robert Bork Making the
Case for Originalism:
"intent."
Intentionalist: An originalist
who gives primary weight to
the intentions of framers,
members of proposing bodies,
and ratifiers.
Pragmatist: A non-originalist
who gives substantial weight
to judicial precedent or the
consequences of alternative
interpretations, so as to
sometimes favor a decision
"wrong" on originalist terms
because it promotes stability
or in some other way promotes
the public good.
Natural Law Theorist: A person
who believes that higher moral
law ought to trump
inconsistent positive law.
If the Constitution is law, then
presumably its meaning, like
that of all other law, is the
meaning the lawmakers were
understood to have intended.
Further Reading
If the Constitution is law, then The most penetrating analysis
presumably, like all other law,
of these issues is found in
the meaning the lawmakers
Judge Richard A. Posner's
intended is as binding upon
Overcoming Law(1995).
judges as it is upon
legislatures and executives.
For another view: Strict
There is no other sense in
Constructionism and the Strike
which the Constitution can be
Zone (1987, by Doug Linder)
what article VI proclaims it to
be: "Law...." This means, of
course, that a judge, no matter
on what court he sits, may
never create new
Prof's Prerogative
constitutional rights or
Any theory of constitutional
destroy old ones. Any time he
theory that completely ignores
does so, he violates not only
consequences and focuses
the limits to his own authority
exclusively on text
but, and for that reason, also
or original intentions is wrong.
violates the rights of the
.
legislature and the
Any theory of constitutional
people....the philosophy of
interpretation that completely
original understanding is thus
ignores either text or original
a necessary inference from the
intentions and
structure of government
focuses primarily on
apparent on the face of the
consequences is wrong.
Constitution.
.
Certain times and places
are better suited to one theory of
constitutional interpretation than
are other
times and places.
Justice William O. Douglas
Judge Richard Posner
An Example of a NonOriginalist Opinion:
Griswold vs.
Connecticut
Richard A. Posner
Judge Richard Posner
on the Importance of
Judicial Gap-Filling:
A constitution that did not
invalidate so offensive,
oppressive, probably
undemocratic, and sectarian
law [as the Connecticut law
banning the use or
distribution of contraceptives]
would stand revealed as
containing major gaps.
Maybe that is the nature of
our, or perhaps any, written
Constitution; but yet, perhaps
the courts are authorized to
plug at least the most glaring
gaps. Does anyone really
believe, in his heart of hearts,
that the Constitution should
be interpreted so literally as
to authorize every
conceivable law that would
not violate a specific
constitutional clause? This
would mean that a state could
require everyone to marry, or
to have intercourse at least
once a month, or it could take
away every couple's second
child and place it in a foster
home....We find it reassuring
to think that the courts stand
between us and legislative
tyranny even if a particular
.
The Court should include
justices with different approaches
to constitutional interpretation.
A Court
without dissenters is a Court
that will not adequately inform us
of the costs of choosing
the path taken.
form of tyranny was not
foreseen and expressly
forbidden by framers of the
Constitution.
Judge Richard A. Posner on Originalism and
Pragmatism
Excerpts from Overcoming Law (1995) ("What Am I? A Potted Plant?" and "Bork
and Beethoven")
Republished with permission of the author.
From "What Am I? A Potted Plant?"
*****Politically, I feel more governed than self-governing, and this is one reason why I think
more warmly of limited government than of popular government. In considering whether to
shrink what are now understood to be constitutional safeguards to the slight dimensions
implied by a literal interpretation of the Constitution, we should be careful to have a realistic,
not an idealized, picture of the legislative and executive branches of government, which
would be even more powerful than they are today if those safeguards were reduced.
The framers of a constitution who want to make it a charter of liberties and not just a set of
constitutive rules face a difficult choice. They can write specific provisions and thereby doom
their work to rapid obsolescence, or they can write general provisions, thereby allowing
substantial discretion to the authoritative interpreters, who in our system are the judges. The
U.S. Constitution is a mixture of specific and general provisions. Many of the specific
provisions have stood the test of time well or have been amended without much fuss. This is
especially true of the rules establishing the structure and procedures of Congress. Most of the
specific provisions creating rights, however, have fared poorly. Some have proved irksomely
anachronistic-for example, the right conferred by the Seventh Amendment to a jury trial in
federal in all cases at law if the stakes exceed $20. Others have become dangerously
anachronistic, such as the right to bear arms. Some have turned topsy-turvy, such as the
provision for indictment by grand jury. The grand jury has become an instrument of
prosecutorial investigation on, rather than being the protection for the criminal suspect that
the framers of the Bill of Rights expected it to be. If the Bill of Rights had consisted entirely
of specific provisions, it would no longer be a significant constraint on the behavior of
government officials.
Many provisions of the Constitution, however, are drafted in general terms. This creates
flexibility in the face of unforeseen changes, but it creates the possibility of alternative
interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that
denies judges have any right to exercise discretion. A choice among semantically plausible
interpretations of a text, in circumstances remote from those contemplated by its drafters,
requires the exercise of discretion and the weighing of consequences. Reading is not a form of
deduction; understanding requires a consideration of consequences. If I say, "I'll eat my hat,"
one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion
is that I couldn't eat a hat if I tried. The broader principle, which applies to the Constitution as
much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement
would entail absurd or terrible results, that is a good reason to reject it.
Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial
interpretation, is not a decision that can be read directly from the text. The Constitution does
not say, "Read me broadly," or, "Read me narrowly." The decision to do one or the other must
be made as a matter of political theory and will depend on such things as one's view of the
springs of judicial legitimacy and the relative competence of courts and legislatures in dealing
with particular types of issue.
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense." Read narrowly, this just means
that the defendant can't be forbidden to retain counsel. If he cannot afford counsel, or
competent counsel, he is out of luck. Read broadly, it guarantees even the indigent the
effective assistance of counsel. It becomes not just a negative right to be allowed to hire a
lawyer but a positive right to demand the help of the government in financing one's defense if
one cannot do it oneself. Either reading is compatible with the semantics of the provision, but
the first better captures the specific intent of the framers. When the Sixth Amendment was
written, English law forbade a criminal defendant to have the assistance of counsel unless his
case presented abstruse questions of law. The framers wanted to do away with this
prohibition. But, more broadly, they wanted to give criminal defendants protection against
being railroaded. When they wrote, government could not afford, or at least did not think it
could afford, to hire lawyers for indigent criminal defendants. Moreover, criminal trials were
short and simple, so it was not completely ridiculous to expect a lay person to be able to
defend himself competently from a criminal charge without a lawyer if he couldn't afford to
hire one. Today the situation is different. Not only can the society afford to supply lawyers to
poor people charged with crimes, but modern criminal law and procedure are so complicated
that an unrepresented defendant is usually at a great disadvantage.
***** The liberal judicial activists may be imprudent and misguided in their efforts to enact
the liberal political agenda into constitutional law. But it is no use pretending that what they
are doing is not interpretation but "deconstruction," not law but politics, just because it
involves the exercise of discretion and a concern with consequences and because it reaches
results not foreseen two hundred years ago. It may be bad law because it lacks firm moorings
in constitutional text, or structure, or history, or consensus, or other legitimate sources of
constitutional law, or because it is reckless of consequences, or because it oversimplifies
difficult moral and political questions. But it is not bad law, or no law, just because it violates
the tenets of strict construction.
From "Bork and Beethoven"
The Tempting of America [by Judge Robert Bork] defends the position that "all that counts" to
a judge interpreting the Constitution "is how the words used in the Constitution would have
been understood at the time [of enactment]." But rather than produce convincing reasons why
society should want its judges to adopt originalism as their interpretive methodology in
constitutional cases, Bork seems almost to want to place the issue outside the boundaries of
rational debate. How else to explain the pervasive religious imagery? It begins with the title of
the book. Any doubt that the reference is to the temptation is dispelled by the tide of the first
chapter-"Creation and Fall"-which begins, "The Constitution was barely in place when one
Justice of the Supreme Court cast covetous glances at the apple that would eventually cause
the fall."
*****A summons to holy war is not an argument for originalism. Bork's militance and
dogmatism will buck up his followers and sweep along some doubters, but it will not
persuade neutrals. One especially wants a better ground than piety for genuflecting to
originalism because Bork rightly if incongruously reminds us of the danger of "absolutisms"
and "abstract principles," criticizes reliance in constitutional law on "history and tradition,"
and implies in his interesting discussion of originalism's historical roots that the nonoriginalist
heresy may be part of the original 'understanding of the Constitution.
Bork thinks, originalism necessary in order to curb judicial discretion, and curbs on that
discretion necessary in order to keep the handful of unelected federal judges from seizing the
reins of power from the people's representatives. But if democracy is the end, originalism is a
clumsy means. Bork notes that in the wake of the New Deal the Supreme Court read out of
the Constitution the limitations that the commerce clause of Article I appears to place on the
regulatory powers of the federal government. By the test of originalism, the Court erred. But
by erring it transferred power to the people's representatives.
And democracy is not the end, at least not the unalloyed end. The democratic (really Bork
means the populist) principle is diluted in our system of government. Policies are made by
agents of the people rather than by the people themselves-precisely so that raw popular desire
will be buffered, civilized, guided, mediated by professionals and experts, informed through
deliberation. Even the representatives do not have a blank check. They are hemmed in by the
Constitution itself representing, to be sure, popular preferences, but those of a sliver of a tiny
population two centuries ago. As Dworkin would say, the question posed by an originalist
versus an activist or a pragmatist judiciary is not, one of democracy or no democracy, but of
the kind of democracy we want.
*****Anyway there is no evidence that the Court's authority depends on adherence to
originalism. Bork knows this, for he says (in great tension with his remark about the
destructibility of the institution) that "the Court is virtually invulnerable"; it "can do what it
wishes, and there is almost no way to stop it, provided its result has a significant political
constituency." That is a sensible observation. The Court's survival and flourishing depend on
the political acceptability of its results rather than on its adherence to an esoteric philosophy
of interpretation. The Court has never been consistently originalist, yet has survived. Maybe
the Justices know more about survival than their critics do; we economist types believe that
people generally know more about how to protect their own interests than a kibitzer does.
Bork argues that if the only criterion for evaluating the Supreme Court's decisions is their
political soundness, anyone who thinks the Court is politically wrong "is morally justified in
evading its rulings whenever he can and overthrowing it if possible in order to replace it with
a body that will produce results he likes." He adds ominously: "The man who prefers results
to processes has no reason to say that the Court is more legitimate than any other institution
capable of wielding power. If the Court will not agree with him, why not argue his case to
some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing
its decisions? No answer exists."
Actually there are plenty of answers, and one is that Bork is posing a false dichotomy: a court
committed to originalism versus a court that a "naked power organ;" blind obedience versus
rebellion. These dichotomies imply, implausibly, that the only method of justification
available to a court, the only method of channeling judicial discretion and thus of
distinguishing judges from legislators, is the originalist. No other method-one that emphasizes
natural justice, sound justice, social welfare, or neutral (but not necessarily originalist)
principles-so much as exists. "The judge who looks outside the historic Constitution always
looks inside himself and nowhere else." And it may be doubted whether the forbearance of
the Joint Chiefs of Staff to attempt a takeover of the government of the United States is
dependent to the slightest degree on the Supreme Court's adherence to originalism. If one may
judge by the evidence that Bork arrays, the Court has since the beginning strayed repeatedly
from the originalist path, yet the Joint Chiefs (or their predecessors) have never tried to take
over the government. Nor are they likely to try.
*****The idea of the Constitution as a binding contract is an incomplete theory of political
legitimacy, not an erroneous one. A contract induces, reliance that can make a strong claim
for protection; it also frees people from having continually to reexamine and revise the terms
of the relationship. These values are independent of whether the original contracting parties
are still alive. But a long-term contract is bound eventually to require, if not formal
modification (which in the case of the Constitution can be accomplished only through the
amendment, process), then flexible interpretation, to cope effectively with altered,
circumstances. Modification and interpretation are reciprocal; the more difficult it is to
modify the instrument formally, the more exigent is flexible interpretation. Bork is aware of
the practical impediments to amending the Constitution but is unwilling to draw the inference
that flexible interpretation is therefore necessary to prevent constitutional obsolescence.
*****The long-dead framers are a convenient group to whom to pass the buck. But although
judges are not immune from the all too human tendency to deny responsibility for actions that
cause pain, the significance of this fact is another matter. It is a considerable paradox to
suggest that these reasons which uncandid judges give for their actions are the only legitimate
grounds for judicial action. If the result-oriented or activist judge is queasy about the title
deeds of his rulings, the originalist is (on the evidence of The Tempting of America, at any
rate) queasy about the consequences of originalist rulings. And rightly so. A theory of
constitutional interpretation that ignores consequences is no more satisfactory than one that
ignores the political importance of building a bridge between the contemporary judge's
pronouncement and some authoritative document from the past. It is difficult to argue to
Americans that in evaluating a political theory they should ignore its practical consequences.
Bork is not prepared to make such an argument. He continually reassures the reader that
originalism does not yield ghastly results, while at the same time denouncing judges who are
"result-oriented."
*****The originalist faces backwards but steals frequent sideways glances at consequences.
The pragmatist places the consequences of his decisions in the foreground. The pragmatist
judge does not deny that his role in interpreting the Constitution is interpretive. He is not a
lawless judge. He does not, in order to do short-sighted justice between the parties, violate the
Constitution and his oath, for he is mindful of the systemic consequences of judicial
lawlessness. Like Samuel Lipman's ideal conductor, however, the pragmatist judge believes
that constitutional interpretation involves the empathic projection of the judge's mind and
talent into the creative souls of the framers rather than slavish obeisance to the framers' every
metronome marking. In the capacious, forward-looking account of interpretation that I am
calling pragmatic, the social consequences of alternative interpretations often are decisive; to
the consistent originalist, if there were such a person, they would always be irrelevant.
In a representative democracy, the fact that many (it need not be most) people do not like the
probable consequences of a judge’s judicial philosophy provides permissible, and in any event
inevitable, grounds for the people’s representatives to refuse to consent to his appointment,
even if popular antipathy to the judge is not grounded in a well-thought-out theory of
adjudication. The people are entitled to ask what the benefits to them of originalism would
be, and they will find no answers in The Tempting of America. If, to echo Samuel Lipman
again, orginalism make bad music despite or perhaps because of its scrupulous historicity,
why should the people listen to it?
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