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Yale Law School Legal Scholarship Repository
Faculty Scholarship Series
Yale Law School Faculty Scholarship
1-1-1990
Theories of Constitutional Interpretation
Robert C. Post
Yale Law School
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ROBERT
POST
Theories of Constitutional
Interpretation
Moderndemocracy
invitesus toreplacethenotionofa regime
foundeduponlaws,ofa
legitimate
power,bythenotionofa regime
foundeduponthe legitimacyof a debate
as to whatis legitimateand whatis illegitimate-a debatewhichis necessarily
anyguarantorand without
anyend.
without
-Claude Lefort'
IN 1979 ERNEST CHAMBERS was a barber who had for nine years rep-
resented a predominantlyblack districtof Omaha in the Nebraska Unicameral
in the fundaLegislature. He had been broughtup in "a religiousstrait-jacket"
mentalistChurch of God and Christ,but as he had grownolder he had come to
renounce Christianityand all beliefin God. Consequentlyhe was uncomfortable
when the chaplain hired by the legislatureopened each session withprayer.In
facthe feltcompelled to leave the legislativechamber,so thathe and the chaplain
were "almostin a race to see whether"thechaplain could "getto the frontbefore"
Chambers could "get out the back door."2
The chaplain of the Nebraska Legislature during that time was Robert E.
Palmer, a Presbyterianclergymanwho had ministeredto the legislatorssince
1965. His prayerswere short,almost perfunctory.
He stroveto make them nonsectarian,to reflect'just civilreligionin America,"whichhe understoodto consist
of "the Judeo-Christiantradition,"the "kind of religious expressions that are
common to the vast,overwhelmingmajorityof most all Americans."He viewed
the purpose of his prayersto be the provisionof "an opportunityforSenators to
be drawn closer to theirunderstandingof God as theyunderstandGod, in order
thatthe divinewisdommightbe theirsas theyconducttheirbusinessforthe day."
And so he would, for example, pray "in the name of Jesus-our Friend, our
Saviour,our Example, our Guide," and he would "ask" thatthe Senators come to
realize that"theyare part of the team workingtogetherto win the game forthe
benefitof the people of thisstate."3
Chambers attemptedto convince his colleagues to end the practiceof legislativeprayer.When theyrefused,he took the characteristically
American step of
filingsuit in federal court. His claim was elegantlysimple: the paymentof a state
salary to the ministerof a single Christiandenominationfor fourteenyears for
the purpose of offeringofficialprayersto the statelegislaturewas a violationof
the EstablishmentClause of the FirstAmendment to the United States Constitution.That clause provides: "Congress shall make no law respectingan establishmentof religion."4
REPRESENTATIONS
30 * Spring 1990 (?
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
13
The trialcourt held thatwhile the paymentof the chaplain's salaryviolated
the EstablishmentClause, the observance of legislativeprayer did not.5 The
appellate court wenteven furtherand declared thatthe whole "prayerpractice"
was unconstitutional. The case was then accepted for decision by the United
States Supreme Court, bywhichtimethe concreteconcernsof ErnestChambers
and Robert Palmer had dwindled to littleor no moment.Chambers'slawsuithad
become merely a medium through which the Court could ponder the legal
meaning for the entire nation of the EstablishmentClause. The methods by
which the Court ascertainsthis constitutionalmeaning are of the utmostlegal
and politicalimportance.Ernest Chambers'slawsuitwould prove to be the occasion foran unusuallyclear and dramaticdisplayof these methods.
I
Sometimes,although rarely,the words of the Constitutionappear to
speak for themselves.In such circumstancesthe Constitutiondoes not seem to
require interpretation.Article I, Section 3, Clause 1 of the Constitution,for
example, states that "the Senate of the United States shall be composed of two
Senators fromeach State." If a thirdCaliforniaSenator should one day present
herselfforaccreditationin Washington,D.C., no courtin thecountrywould think
twicebefore disapprovingof the application.From a phenomenologicalpoint of
view,there would be no question of "interpreting"the constitutionallanguage,
forits meaning and applicationwould appear clear and obvious.7
The most famous expression of the experience of this clarityis byJustice
Owen Roberts,who in 1936 wrote that the "judicial branch of the government
has onlyone duty,-to lay the articleof the Constitutionwhichis involvedbeside
the statutewhichis challenged and to decide whetherthe lattersquares withthe
former."8In legal circles,this approach is sometimescharacterizedas a "plain
meaning" or "textualist"theory of interpretation.Yet, strictlyspeaking, the
approach is not a theoryat all; it is instead a descriptionof what happens when
constitutionalmeaning is not problematic.
But if for any reason thatmeaning has become questionable,it is no help at
all to instructa judge to followthe "plain meaning" of the constitutionaltext.A
meaning thathas ceased to be plain cannot be made so by sheer forceof will.9In
Chambers'slawsuit,forexample, eitherthe meaningof the EstablishmentClause
withrespect to the issue of legislativeprayeris "plain,"or it is not. If the latter,
the question of constitutionalmeaning cannot be resolved by staringharder at
the ten words of the clause. What is required instead is a means of interpreting
the textso as to mediate betweenthe clause and itsapplication.'0
Because judges mustbe able tojustifytheirdecisions,theymustalso be able
tojustifythe means of interpretationthattheyemployto reach those decisions,
14
REPRESENTATIONS
particularlyif their choice affectsthe ultimateresult or significanceof a case.
Judges mustbe able to explain whytheyhave decided to interpretthe Constitution throughone set of inquiries ratherthan another. In legal (although not in
philosophical or literary)parlance,judges require and mustbe able to articulate
a "theory"of constitutionalinterpretation.
however,mustaccommodate itselfto the
Any such theoryof interpretation,
role of judicial reviewwithinAmerican democracy.When a court sets aside a
statuteas unconstitutional,it in essence deems the statuteinvalidin the name of
the Constitution.Courts have claimed the powerto do thisbecause, in the famous
words of John Marshall in Marburyv. Madison,the decision that establishedthe
institutionofjudicial review,"itis emphaticallythe provinceand dutyof thejudicial departmentto saywhatthe law is.""l The implicitpremiseof thisclaim is that
the Constitutionis a formof "law,"just like the law whichcourtsordinarilyinterpret and apply. Fidelityto law is a preeminentvalue in a nation that,as Marshall
prides itselfin being "a governmentof laws,and not of men."'2
put it in Marbury,
of Marshall's argument in Marburyalso required him to
the
force
But, as
acknowledge, the Constitutionis somethingmore than ordinarylaw; it is "the
fundamental and paramount law of the nation." The Constitutionis "fundamental"because itis thevehiclethroughwhich"thepeople . .. establish,fortheir
futuregovernment,such principlesas, in theiropinion, shall most conduce to
theirown happiness."The Constitutionis therefore"thebasis on whichthewhole
American fabric has been erected."'3 The question arises, therefore,why it
should be the provinceand dutyof the federaljudiciaryto discernin that"American fabric"the "principles"and "opinion"of "the people," when thatjudiciary is
not elected by and hence structurallyresponsibleto the people. Why shouldn't
that task be allocated instead to the democraticallyelected branches of government,whichare presumptivelyin closer contactwiththe popular mind?
diffiThis question, which is sometimestermed the "counter-majoritarian"
culty,'4has proved durable enough to sustain the work of generationsof constitutionalscholars. The question makes a powerfulpoliticalpoint.Judicial denullifythe actions of democraticallyelected
terminationsof unconstitutionality
branchesof government.Such determinationsare forall practicalpurposes final;
often the only formal recourse is the cumbersome and impracticalprocess of
constitutionalamendment. "Who are these nine Justices,"one may well have
to instruct
asked the Court in 1857 aftertheDred Scottdecision,'5"so definitively
the nation about the 'Americanfabric'?"
II
The United States Supreme Court voted 6 to 3 against Ernest Chambers. If one were simplyto view the Constitutionas ordinarylaw, thisoutcome
Interpretation
TheoriesofConstitutional
15
would have been somethingof a surprise.The relevantprecedentsof the Court
of the practice of legislative
pointed unambiguouslyto the unconstitutionality
prayer.As JusticeWilliamJ. Brennan pointed out in his dissent,it is "obvious
that,if the Court were tojudge legislativeprayerthroughthe unsentimentaleye
of our settleddoctrine,it would have to strikeit down as a clear violationof the
EstablishmentClause."''6
In ordinaryadjudication, courtsfollowthe principleof staredecisis,which is
to say that theyfollowthe doctrinalrules laid down in controllingprecedents.'7
In American law, the principleconstitutesa fundamentalaspect of "the rule of
law,"'8 forit requires courtsto decide cases on the basis of public and predictable
rules, applied in an even-handed manner,upon which persons can rely in the
conduct of theirlives.'9In constitutionaladjudication,"adherence to precedent
can contributeto the importantnotion that the law is impersonal in character,
thatthe Court believes itselfto be followinga 'law whichbinds [it] as well as the
litigants.'"20 The principleof staredecisishelps to ensure thatour constitutional
order retainsthe kind of stabilityand continuitythatare prerequisitefor institutionallegitimacy.
If the Court in Ernest Chambers's case had followed the principle of stare
decisis,itwould have deemed controlling,as did the Court of Appeals below,2'the
three-partdoctrinaltestlaid down in Lemonv. Kurtzman:22
Everyanalysisin thisarea mustbegin withconsiderationof the cumulativecriteriadeveloped bythe Court over manyyears.Three such testsmaybe gleaned fromour cases. First,
the statutemust have a secular legislativepurpose; second, its principalor primaryeffect
the statutemustnot foster
mustbe one thatneitheradvances nor inhibitsreligion;finally,
an excessivegovernmententanglementwithreligion."
The primarypurpose of religious prayer cannot reasonably be deemed to be
secular; nor can its principal effectbe understood as anythingother than enhancing religion. As for the potentialfor "excessivegovernmententanglement
withreligion,"it is apparent thatofficialsponsorshipof prayernecessarilyentangles the state in decisions about whichformsof prayerare appropriate or inappropriate. The word was passed to Reverend Palmer,for example, thatJewish
senators in the Nebraska Legislature were offendedby his many referencesto
Christ.23Eighty years before, when a state senator conveyed a similar message to
the legislativechaplain of the State Senate of California,a local clergymanthundered thatthe senator's"wordswere thoseof an irreverentand godless man" and
that his offensewas a "crowninginfamy."24The point of the "entanglements"
prong of the Lemonrule is to ensure thatthe statenot be embroiled in religious
quarrels of thiskind.
"In sum," as JusticeBrennan remarked,"I have no doubt that,if any group
of law studentswere asked to apply the principlesof Lemonto the question of
legislativeprayer,theywould nearlyunanimouslyfindthe practiceto be uncon16
REPRESENTATIONS
A fascinatingaspect of the Chambers
decision, however,is that the
stitutional."25
majorityneitherdisagreed withthisassessment,nor attemptedto altertheLemon
doctrine.In factitignoredLemonaltogether,makingno effortwhatevertojustify
itsdecision by referenceto past precedents.
Instead the Court,in an opinion writtenbyChiefJusticeWarrenBurger and
joined by fiveotherJustices,focused itsanalysison the factthatthe "opening of
sessions of legislative and other deliberative bodies with prayer is deeply
embedded in the historyand traditionof this country."The Court noted that
most States of the Union have traditionallyopened theirlegislativesessionswith
prayer,and that Congress has continuouslyemployed chaplains to offerlegislative prayer since the eighteenthcentury.Indeed, on 22 September 1789, three
days before Congress approved the language of the FirstAmendment (and the
Congress enacted
EstablishmentClause) and sent it to the States forratification,
a statuteprovidingforthe paymentof congressionalchaplains.26
Althoughthe Court conceded that"standingalone, historicalpatternscannot
justifycontemporaryviolationsof constitutionalguarantees,"it concluded that
the evidence in Chambers's case was different,for it definitelyestablished"not
only ... whatthe draftsmenintendedthe EstablishmentClause to mean, but also
... how theythoughtthatClause applied to the practiceauthorized by the First
Congress-their actionsreveal theirintent.""Clearly,"the Court concluded, "the
men who wrote the FirstAmendmentReligion Clauses did not view paid legislativechaplains and opening prayersas a violationof thatAmendment."27
The premise of the majority'sopinion is thus thatthe meaning of the Constitutionis betterascertainedthroughstrongevidence of the intentof the Framers than through fidelityto past precedents and doctrine. The reason is
apparentlythatthe intentof the Framersbest embodies those "principles"which
the "people" desired to instantiatein their Constitution.In the eyes of the
majority,therefore,it is more importantthatthe Constitutionbe interpretedin
a manner whichaccuratelyexpresses these principlesthan thatit be interpreted
in a manner whichremainsfaithfulto the principleof staredecisis.28
The principleof staredecisis,moreover,is inconsistentwitha quite different
method of constitutionalinterpretation.WilliamBrennan, in a dissentjoined by
one otherJustice,also gave only cursoryattentionto the rules of Lemon.In fact
he appeared to agree withthe majoritythat"the path of formaldoctrine. . . can
only imperfectlycapture the nature and importanceof the issues at stake in this
case."29But rather than focusingon the intentionsof the Framers of the First
Amendment,Brennan offeredinstead an "account"of "the underlyingfunction
of the EstablishmentClause" and of the relationshipbetween thatfunctionand
the practiceof legislativeprayer.
According to Brennan, the EstablishmentClause embodies the twinprincias betweendiverse
ples of "separationbetweenchurchand state"and "neutrality"
religions.These twoprinciples,in turn,servefourpurposes. They guarantee"the
Interpretation
TheoriesofConstitutional
17
individual rightto conscience"by ensuringthatpersons are not coerced to support (through taxes or otherwise)religious practiceswithwhich theydisagree;
they"keep the statefrominterferingin the essentialautonomyof religiouslife";
"theypreventthe trivializationand degradationof religionbytoo close an attachment to the organs of government";and they"help assure that essentiallyrelinot become the
gious issues,preciselybecause of theirimportanceand sensitivity,
occasion forbattlein the politicalarena."30
Brennan convincinglydemonstratedthat Nebraska's authorizationof legislative prayer was inconsistentwith each of these four purposes. Indeed, as
Brennan noted, the majoritysaid "almost nothingcontraryto" this functional
analysis,relyinginstead almostentirelyon evidence of the historicalintentof the
Framers.The majorityultimatelydifferedfromthedissent,therefore,neitheron
the application of doctrine nor on the functionof the EstablishmentClause,
but rather on the relevance of evidence of original intent for constitutional
interpretation.
Brennan explicitlyrejected such evidence as definitiveof constitutional
meaning,arguing that"the Constitutionis not a staticdocumentwhose meaning
on every detail is fixed for all time by the life experience of the Framers."He
contended that the Constitutionmust be understood instead as "a document
meant to last forthe ages," thebearer of an "inherentadaptability"thatcould not
be cabined by any "staticand lifeless"meaning. His proposed analysis of the
EstablishmentClause's "underlyingfunction"was meant to illustratehow courts
could discernthe contemporary
significanceof "the majesticgeneralitiesof the Bill
of Rights."'3'His dissent pictured the Constitutionas a living,evolving entity,
whose full meaning could be ascertained neitherby doctrinalprecedent nor by
evidence of original intent.The dissent,therefore,was predicated upon yet a
thirdformof constitutionalinterpretation.
The outcome of ErnestChambers'slawsuitthusappears as a triangularstructure,in whichthreedistincttheoriesof interpretationcompete forcontrolof the
Constitution.In one corner is a formof interpretationthatstrivesto implement
the Constitutionthroughthe articulationof explicitdoctrinalrules. In a second
corner is a formof interpretationthatattemptsto construethe Constitutionto
reflectthe originalintentof its Framers.In yeta thirdcorner is a formof interpretationthatreads the Constitutionin a mannerdesigned to expressthe deepest
contemporarypurposes of the people. Each of these three theoriesis immediatelyrecognizableand familiarto thosewho practiceconstitutionaladjudication.
III
The purpose of constitutionaladjudication is to assess the constitutional validityof stateactions,like the hiringof legislativechaplains. But courts
18
REPRESENTATIONS
can achieve thispurpose onlyto the extenttheyhave the authorityto evaluate, in
thename of theConstitution,thevalidityof otherwiseperfectlylegal stateactions.
Every act of constitutionalinterpretationinvokes and depends upon this authority,and for thisreason "constitutionalinterpretationis essentiallyabout the
sources of authorityin American politicallife."32What in factdistinguishesthe
three theories of interpretationdisplayed in Chambers-theoriesthat I shall
respectivelycall "doctrinal,""historical,"and "responsive"interpretation-is that
each appeals to a differentconceptionof constitutionalauthority.
The authority
of law. There is, first,the authorityof the Constitutionas law.
The Constitutioncontrols state actions because the Constitutionis the highest
The concept of the "constitutionas
law,above all merelyquotidian stateactivity.
hard law, law writtenin virtuallycapital letters(LAW), law as meaning reliable
law," has been termed "by far the most importantidea of the Constitution."33
Because "courtsare the mere instrumentsof the law,"34theyare peculiarlyfitted
to interpreta Constitutionwhose authoritylies in itscharacteras law. It is therefore no accident that in MarburyMarshall appealed preciselyto this image of
constitutionalauthorityin establishingthe institutionofjudicial review.
If the Constitutionpredominatesbecause it is law,itsinterpretationmustbe
constrainedby the values of the rule of law,which means thatcourts must construeitthrougha processof reasoningthatis replicable,thatremainsfairlystable,
and thatis consistentlyapplied.35In Americanadjudication the principleof stare
decisishas been an essential component of the rule of law.36The principleis of
particular importance on those occasions when constitutionaladjudication involvesvague textualreferents(like "equal protectionof the laws,"or "due process
of law"), withregard to which there is "onlylimitedevidence of exactlyhow the
Framersintended the [text]to apply."37On these occasions the principleof stare
decisisholds courtsto a consistentand stableinterpretationof Constitution.
itwould be difficult
to understandthe
Withoutsuch consistencyand stability,
Constitutionas having any existence as law. Suppose, for example, that the
Supreme Court were to decide one day in decision A thatthe practiceof legislative prayer was constitutional,perhaps because in its view the Framers had so
intended. Imagine that a month later the Court were to decide in decision B,
without any reference to A, that the practice was unconstitutional,perhaps
because the Court's view of the Framers'intenthad changed. And assume that
one monthlatertheCourt were to determinein decisionC, withoutanyreference
to A or B, that the practice was partiallyconstitutional,perhaps because its
reading of the historicalevidence had once again altered. In such circumstances
state legislatorswould simplynot know what to do; theywould have no rule of
hire legislative
law bywhich to decide whetheror not theycould constitutionally
chaplains.38
TheoriesofConstitutional
Interpretation
19
It is of course implausible to suppose that the Court would so swiftlyand
radically change its assessment of the historicalevidence. But the question is
whetherthis implausibilityderives from the unequivocal state of the historical
record,or ratherfromthe Court'simplicitobligationto remainfaithfulto itsown
prior determinations.Since historicalevidence is often equivocal, particularly
with respect to mattersof contemporaryconstitutionalmoment,it is the latter
obligation, I would suggest,that plays an importantrole in enabling courts to
create stable and predictablerules upon whichpersons can relyin the arrangeThis obligation receives formalacknowlment of their lives and institutions.39
decisis.
of
stare
in
the
principle
edgement
This means that the principleof staredecisisoftenunderlies the capacityof
constitutionaladjudication to generate a systemof constitutionallaw. Thus the
decision creates a rule of constitutionallaw onlybecause of the implicit
Chambers
commitmentof the Court to act in the futurein waysthatare consistentwiththe
Chambersholding. Put another way,the legal implicationsof Chambersdepend
upon the implicitand necessaryexpectationthatthe Court willin the futuretreat
to treatLemon.40
in a way thatit declined in Chambers
Chambers
Of course the principle of staredecisisis an immenselyflexibleinstrument,
allowingcourtsto treatprecedentson the one hand as the source of specificand
binding formalrules,4'or on the other as an amorphous mass of materialto be
What everyapplicationof
rendered consistentthroughthevirtueof "integrity."42
the principlerequires, however,is thata court focus its analysison the doctrine
which has emerged fromrelevantpriorcases. The principleof staredecisisthereforecreates a chain of cases, in whicheach decision is an interpretationof immediatelyprior decisions.
Construingthe Constitutionin a mannerthatis faithfulto itsauthorityas law
thus leads to what I shall call "doctrinal"interpretation.The implicationof doctrinalinterpretationis thatthe actual textof the Constitutionis remittedto one
end of a growing line of precedents. Even if the veryfirstjudicial decision to
interpretthe EstablishmentClause had concentrateditsattentionon the specific
words of the Clause or the intentionsof its Framers,the practice of doctrinal
interpretationwould require the second decision to focuschieflyon the meaning
of the firstdecision, the thirddecision chieflyon the meaning of the second, and
so forth.In thisprocess the textof the Constitutionrecedes until,as one prominent commentatorhas put it,it comes to seem "ratherlike ... a remoteancestor
who came over on the Mayflower."43
The vast majorityof constitutionaldecisions rely primarilyupon doctrinal
interpretation.Novices are often quite struck by the relative absence of the
Constitutionfromconstitutionalopinions, which seem oriented instead toward
specificdoctrinal "tests,"like the Lemontests,derived from priorjudicial decisions. But this should be no surprise if the most powerfuljustificationfor the
Constitution'sauthorityis thatit is law, and the most defensiblejustificationfor
20
REPRESENTATIONS
judicial review is that it is the peculiar province and duty of the courts to expound the law.
The authority
of consent.If doctrinal interpretationrests on the equation of
constitutionalauthoritywithlaw,what I shall call "historicalinterpretation"rests
instead on the equation of constitutionalauthoritywith consent. The storyis
simpleand familiar.The Framersof theConstitutionproposed a compactto limit
the power of government;the people signifiedtheiragreementto thatcompact
by their ratificationof the Constitution,and that agreement is what gives the
Constitutionits authority.The interpretationof the Constitutionshould thereforebe designed to give effectto the termsof thatoriginalact of agreement.
The storybehind historicalinterpretationhas enormous resonance in a liberal societylike our own. It conceivesof the Constitutionas binding in the same
way thata promise is binding,as a singlevoluntaryact of willfulself-regulation.
In interpretingsuch a Constitutioncourtscan portraythemselvesas merelythe
passive enforcersof the democraticwillthat"ordained and established"the Constitution.Thus, as formerAttorneyGeneral Edwin Meese III could observe,"A
Jurisprudenceof Original Intention... reflectsa deeply rooted commitmentto
the idea of democracy.The Constitutionrepresentsthe consentof the governed
to the structuresand powers of the government.The Constitutionis the fundamentalwillof the people; thatis whyit is the fundamentallaw."44
Differentvariantsof historicalinterpretationemphasize differentformsof
evidence as probativeof that original exercise of "fundamentalwill."Thus for
some commentatorsthe constitutional"text"is a privileged form of evidence,
whereas for
because "the textis the intentionof the authorsor of the framers";45
others the "relevantinquirymust focus on the publicunderstandingof the language when the Constitutionwas developed."46By farthe mostcommon formof
historicalinterpretation,and the one used by ChiefJusticeBurger in Chambers,
regards the intentionsof the Framersas the best evidence of the agreementrepresentedby the Constitution.47
This form of historicalinterpretationhas become quite controversialin
recent years, in part because some members of the resurgentRight have attemptedto use historicalinterpretationas a means of constrictingthe discretion
of supposedly liberaljudges. The notion is thatjudges will have less room to
maneuver if theyare bound to the specificfactualintentionsof the Framers.But
of the principlesof historicalinterprethis notion is a vulgar misinterpretation
tation,as is elegantlyillustratedbyan example suggestedbyPaul Freund. Article
I, Section 8, Clause 14 of the Constitutiongives to Congress the power "to make
Rules for the Governmentand Regulation of the land and naval forces."It can
be said with complete certaintythat no one in the eighteenthcenturyhad the
intentto endow Congress withthe power to make rules for the regulationof an
TheoriesofConstitutional
Interpretation
21
air force. But no reasonable person would conclude fromthis undisputed fact
thatCongress does not now have thispower.48This is because the intentbehind
the Clause would naturallybe understood as givingCongress the power to regulate the "military"or the "armed forces,"or some other such general concept.
The point of Freund's example is that the intentof the Framerscannot be
understood as the kindof simplehistoricalfactthatresistsinterpretation.It must
instead be conceived as a purpose which can be characterizedin termsthat are
more or less general.49Once thismove is taken,however,historicalinterpretation
inimicalto the politicalpurposes of the Right.
assumes a flexibility
Historicalinterpretationis a ratheruncommonphenomenon in modern constitutionaladjudication. In part this may be due to the logical and evidentiary
difficultiesinvolved in the effortto unearth historicalintentions.It is hard
enough to ascertainthe intentionsof a livingindividual.It is harder stillto determine the intentionof a group of livingindividuals,like a legislatureor a Congress. The difficultyis compounded when the group of individuals is two
centuriesremotein timeand the evidence of theirthoughtsand purposes is scattered, fragmentary,ambiguous, and conflicting.And the task is made almost
impossiblewhen the relevantintentionspertainto questions whichin all probabilitynever occurred to thatgroup of individualsand whichare meaningfulonly
in lightof circumstancesthatwould to thembe inconceivable.
seems to presentstrongevidence
It is the rare case indeed that,like Chambers,
of original intentionon the precise question to be adjudicated. Even in such a
case, as Brennan pointsout in his dissent,thelogicof democraticconsentrequires
that the intentionsof those who ratifiedthe Constitutionbe controlling,rather
than the intentionsof those who merelyproposed constitutionallanguage for
popular adoption.50And, as Brennan cheerfullynotes, "'We know practically
nothingabout what went on in the statelegislatures'during the process of ratifyingthe Bill of Rights."'5'
It is importantto understand,however,thattheseobstaclesto historicalinterpretation,while formidable,are not necessarilyfatal.First,in any given case the
available historicalevidence of intentmay be more or less compelling. Second,
the nature of the evidence that will count as probativeof intentmay itselfbe
and hence shaped in a
entirelya matterof "generallyaccepted conventions,"52
manner designed to ease the course of historicalinquiry.For example, historical
interpretationnow focuses on the intentof the Constitution'sframers,rather
than of its ratifiers,because the formerare by common conventiontaken to be
Papersare bycommon convention
conclusiveof the latter.Similarly,TheFederalist
now presumed to constituteauthoritative(and convenient)evidence of the intent
of the Framers,although any historiancould easily demonstratethe empirical
inadequacy of the presumption.This tension between the kind of evidence of
intentnecessaryto legitimatepoliticalauthorityand thekindof evidence of intent
necessary to persuade professionalhistoricaljudgment illustratesthe truthof
22
REPRESENTATIONS
Nietzsche's remark that "history,so far as it serves life, serves an unhistorical
power."53Third, historicalinterpretationneed not focuson the intentionsof the
Framersor Ratifiersat all, but may attemptinstead to ascertainconsent through
inquiriesaimed at altogetherdifferentkindsof evidence.54
Ultimately,therefore,the infrequencyof historicalinterpretationin contemporary constitutionalinterpretationmay stem less fromevidentiarydifficulties
than fromthe intrinsiclimitationsof any theoryof interpretationrestingon the
authorityof consent.If thatauthorityis understoodto arise at the momentof the
Constitution'sratification,then in fact no livingperson has "consented" to the
FirstAmendment,or indeed to most of the Constitution.Why,it may be asked,
should theconsentof our predecessorshave authorityoverus?55When faced with
consenttheoristsoftenresortto notionsof "implied"or "tacit"conthisdifficulty,
notions
that
rapidlydrain the concept of consentof itsabilityto legitimate
sent,
authority.These notions have a stopgap,jerry-builtquality that renders them
In fact Hanna Pitkinhas demonstratedthat princiultimatelyunsatisfactory.56
pled consenttheoristslike Locke orJosephTussman,when seriouslypressed with
the absence of actual consent,transformthe issue intoa question of hypothetical
consent. "True authority"thus "emergesas being one to which[persons] oughtto
quite apart fromwhethertheyhave done so."57
consent,
A similartransformationis visiblein the arena of constitutionalinterpretation. Thus it is-said thateven if the "legitimacy"of the Constitutioncannot rest
upon a prior act of consent,it mayneverthelessbe founded on the factthatpersons now ought to view it as "a good Constitutionand thereforeone worthyof
continuing support."58This is essentiallythe form of constitutionalauthority
Because interpretation
appealed to byJusticeBrennan in his dissentin Chambers.
founded on thisformof authoritymustultimatelybe accountable to contemporaryconcepts of value, I shall call it "responsiveinterpretation."
ofethos.The classic statementof responsiveinterpretationis by
Theauthority
Oliver Wendell Holmes:
When we are dealing withwords thatare also a constitutentact, like the Constitutionof
the United States,we mustrealize thattheyhave called into lifea being the development
of which could not have been foreseencompletelyby the most giftedof its begetters.It
was enough forthemto realize or to hope thattheyhad created an organism;it has taken
a centuryand has cost theirsuccessorsmuch sweatand blood to prove thattheycreated a
nation. The case before us mustbe considered in the lightof our whole experience and
not merelyof whatwas said a hundred yearsago.59
For Holmes the authorityof the Constitutionis not exhausted in a singlecreative
act of consent,but continuesto inhere in the national "being" thatthe Constitution has "called into life." Hence the nature of that authoritycan be captured
neitherbyrules laid down injudicial precedents,nor bynotionsof originalintenTheories of ConstitutionalInterpretation
23
tion. The authoritymust rather be conceived as flowingfrom the "whole experience" of nationhood. That experience legitimatelyclaims our allegiance
because we are necessarilyincluded withinit,and hence responsiblebothforwhat
it has been and what it mightbecome. What is authoritativeis thus neithermore
nor less than our common commitmentto the flourishingof the mutual enterprise of nationhood.
The radical and paradoxical implicationof thisperspectiveis thatthe Constitution explicitlyloses its character as a specificdocument or a discrete text. It
becomes instead, as Karl Llewellyn bluntlyput it, a "going Constitution,"a
"workingConstitution"which has a contentthat "is in good part utterlyextraframework"of "the govDocumentary,"and which representsthe 'fundamental
ernmentalmachine."60In thiswaytheConstitutionis transformedintowhat Kant
mightcall the "regulative"idea of the enterpriseof constitutionaladjudication,
the "imaginaryfocus fromwhich the concepts"of thatenterprise"seem to proceed, even though thereis nothingknowableat thatfocus."'6'
The Constitutionas a regulativeidea definesthe telosand shape of constitutional interpretation:it demands a continualeffortto articulatethe authorityof
our "fundamentalnature as a people" and hence concomitantlyto summon "us
in the fullknowledge
to our powers as co-foundersand to our responsibilities,"
that "how we are able to constituteourselves is profoundlytied to how we are
In this sense responsive
already constitutedby our own distinctivehistory."62
interpretationrequiresjudges to viewthe Constitutionas a formof whatPhilippe
Nonet and Philip Selznick have called "responsivelaw,"law thatsubmitsto "the
sovereigntyof purpose" byfunctioning"as a facilitatorof response to social needs
and aspirations."63
There is a tension,however,betweenusing law to implementa successionof
merelypresentpurposes, and using law to sustainthe "general ends"64constitutiveof our "fundamentalframework"of governance.The authorityof constitutional law inheres only in the latter,for it alone claims fidelityto the "whole
experience" that has comprised "our distinctivehistory."To maintainits legitimacy,therefore,responsiveinterpretationmustbe oriented toward the kind of
general ends that have been closely linked over the long run to an historical
instantiationof national identity.But such ends can providethe basis foradjudication only if theycan also "be made objectiveenough and authoritativeenough
to control adaptive rule making."65In this regard JusticeBrennan's dissent in
Chambersis paradigmatic.His effortto inquire into "the underlyingfunctionof
the EstablishmentClause" is specificenough to engender legal consequences, but
general enough to express a deep vision of the secular nature of the American
state.
Although the theoryof responsiveinterpretationsounds exotic,responsive
interpretationis in factrathercommon injudicial opinions (certainlymuch more
so than historicalinterpretation).In thearea of the FirstAmendment'sguarantee
24
REPRESENTATIONS
of freedomof speech, forexample, the outcome of cases depends upon whether
judges perceivethe purpose of thatfreedomto be thatof assuringan "unfettered
interchangeof ideas forthebringingabout of politicaland social changes desired
In
bythe people,"66or instead thatof fostering"individuallibertyand dignity."67
the area of the constitutionalrightto privacy,the outcome of cases depends upon
whetherjudges conceive the purpose of the Due Process Clause to be that of
safeguardingthose "libertiesthatare 'deeply rooted in thisNation's historyand
tradition,"68 or insteadthatof protectingintimatedecisionsof a kindthat"define
one's identity."69
Responsive interpretationis in fact a vast umbrella shelteringa myriadof
differentapproaches to the Constitution.It need not have the specificallyliberal
cast that is visiblein Brennan's dissentin Chambers.It can be used by those who
stressthe constitutionalpriorityof democraticdecision making and hence who
emphasizejudicial caution and prudence, as well as bythose who stressthe constitutionalprimacyof individualrights.It has commonlybeen used byjudges and
scholarsof both the Rightand the Left.
It
Responsive interpretationdoes, however,have an importantvulnerability.
containswithinitno particularlypersuasiveresponse to thecounter-majoritarian
If doctrinalinterpretationportrayscourtsas merelythe instrumentsof
difficulty.
the law, if historicalinterpretationportrayscourtsas merelythe instrumentsof
an original democraticwill,responsiveinterpretationportrayscourtsinstead as
arbitersof the fundamentalcharacterand objectivesof the nation. And why,it
maybe asked, should courtsbe entrustedto act in thatcapacity,particularlywhen
in doing so theyset aside alternativevisionsof the nationalcharacterand objectivespropounded by the democraticallyelected branchesof government?
One possible response to this question, which is increasinglyvisible in the
literature,is to stressHans-Georg Gadamer's theorythatall interpretationnecessarilyinvolves a conversationbetween a reader and a text,and so effectsa
mergerbetweena textand a reader's own purposes and perspectives.Even ifthis
theoryis accepted, however,it does not repair the vulnerabilityof responsive
interpretation.This is because the theory'sthrustis entirelyto describe the conditions that make reading possible, and hence it can offerno guidance to the
judge who, having determinedthe original intentof the Framersto the best of
his ability(and thereforein a manner necessarilyinfluencedbyhis own perspective),mustdecide whetherto be bound by thatdetermination(like ChiefJustice
or instead to set it aside in favorof a more self-consciously
Burger in Chambers),
The implicationsof herresponsiveapproach (likeJusticeBrennan in Chambers).
meneutic insights for theories of constitutionalinterpretationare thus quite
modest,a factthatis recognizedbyitsmore sophisticatedproponents.
The acknowledgmentof these limitationsis, forexample, the point of David
Hoy's distinctionbetween the "application"of a text,whichis "a prior cognitive
operation where we firstfind the text to be saying somethingto us," and the
TheoriesofConstitutional
Interpretation
25
"appropriation"of a text,which is "a willful,self-consciousact": "Applicationis
not an option and is not subjective.But appropriation(e.g., makingthe textseem
such thatit can be used or
more ratherthan less relevant)is an optional strategy,
avoided."70Responsive interpretationis a matterof appropriation,and as such
cannot be defended bythe hermeneuticturn.
IV
We are thus in a positionto connecteach of the three theoriesof conto a differentconceptionof constitutionalinterpretationdisplayed in Chambers
whichfollowsthe principleof stare
stitutionalauthority.Doctrinalinterpretation,
decisis,invokesthe authorityof the Constitutionas law. Historicalinterpretation,
whichimplementsan originalact of will,is validatedbythe authorityof the Conwhichengages in an ongoing prostitutionas consent.Responsiveinterpretation,
cess of national self-definition,
appeals to the authorityof the Constitutionas, for
lack of a betterword, ethos.
I will not make the strongclaim thatthese are the only possible conceptions
of constitutionalauthority(and hence the onlypossible theoriesof constitutional
but I willmake themore modestdescriptiveclaimthatthesethree
interpretation),
conceptions dominate the actual practiceof constitutionaladjudication. All the
manymethods of constitutionalinterpretationthathave proliferatedin the legal
literatureof the past decade, rangingfromthose thatstressthe values of democraticparticipationto those thatstressthevalues of autonomous individualism,7'
ultimatelyrestupon one or another of these threeconceptionsof constitutional
authority.
Each of these formsof authorityis byitselfincompleteand incapable of sustainingthe enterpriseof constitutionaladjudication. The authorityof the Constitutionas law,forexample, requires the authorityof eitherconsentor ethos in
order to initiatea chain of precedents.The authorityof consentand thatof ethos,
on the other hand, each require doctrinalelaboration in order to findembodimentas law.The authorityof consentanchorsconstitutionalinterpretationin the
democratic principles that are necessary and desirable in a country like the
in
United States, while the authorityof ethos offersan indispensable flexibility
the interpretationof a document designed to last for the lifetimeof the nation.
interdeYet if these three formsof authorityare on one level systematically
As
pendent,theyare at a differentlevel potentiallydivergentand incompatible.72
the Chambersdecision illustrates,a court in a constitutionalcase may be called
and itsdecision
upon to decide whichformof authorityshould governitsefforts,
may determine the outcome of the case. Because this decision is most often
understood to depend upon an antecedentcharacterizationof the Constitution
26
REPRESENTATIONS
(as, e.g., "law,""compact,"or "ethos"),argumentsabout theoriesof interpretation
commonlymodulate into argumentsabout the inherent"nature" of the Constitution.To the extentthatthe three theoriesof constitutionalinterpretationare
perceived as incompatible,it is due to the factthattheyare seen as flowingfrom
incompatiblenotionsof the Constitutionitself.
But thisvisionof constitutionalauthorityis fundamentallyflawed,forit postulates a formof constitutionalauthoritythat is externalto the processes of its
own interpretation.It imaginesthatthe nature of the Constitutioncan somehow
be determinedin a mannerwhichis independentof the practiceof constitutional
interpretation,and thatthe practiceis thereforelogicallycontrolledbythisanteBut a betteraccount of the
cedent determinationof constitutionalauthority.73
practice of constitutionalinterpretationwould situate constitutionalauthority
instead in the relationship
obtainingbetweenparticipantsin thatpracticeand the
Constitution. Paradoxically, then, constitutionalinterpretationis not merely
about the Constitutionbut about the more radical and profoundquestion of how
we stand in connectionto the Constitution.
Thenatureoftheauthority
oflaw. If we ask, forexample, whatit means to defer
to the authorityof the Constitutionas law, the answer is that this authority
and reliance which are necessary
embodies the values of stability,
predictability,
to thelegitimacyof any modernlegal system.Not onlyare thesevalues themselves
important,but theyare also the means bywhichthe law orders behavior so as to
achievejustice and otherdesired objectives.The authorityof the Constitutionas
law flowspreciselyfromthe acknowledgmentof these values.
Once thispoint is made clear,however,it is also evidentthatthese values, no
matterhow important,mayor maynotbe compellingin particularcircumstances.
The values of the rule of law are mostpressingwhen thereis agreementthatthe
itsproper purposes. In such circumlaw is generallyjust and otherwisefulfilling
stances doctrinal interpretationand the principle of staredecisishold the law
steadyon its course. But if thereis disagreementabout thejustice of the law,or
about its purposes, or about its effectivenessin achievingthose purposes, then
the balance can begin to tip away fromthe values of stabilityand predictability.74
At a certain point, when dissatisfactionwiththe statusquo reaches a sufficient
magnitude,we can expect to see the doctrinalchain snapped.75
This means, however,thatthe authorityof the Constitutionas law does not
stand outside the processes of constitutionalinterpretation,like an axiom in a
geometricalproof,but is ratherimplicatedwithinthatveryprocess. In any specificcase we may question whetherthatauthorityis compellingenough to mandate a particularresult.Thus itis not theantecedent"nature"of the Constitution
thatrequiresdoctrinalinterpretation,
but ratherthedecision to recognizeand be
TheoriesofConstitutional
Interpretation
27
bound by the values embodied in the authorityof the Constitutionas law. By
acknowledgingthese values we create a certainrelationshipto the Constitution,
one in whichthe authorityof the rule of law becomes visibleand pressing.
In the American legal systemthisauthorityappears both flexibleand inevitable. It is not disabled even ifin particularcases we deny itsmandate and break
with the principle of staredecisis.That is because when the chain of doctrine is
overruled,a new decision
broken and precedent is eitherexplicitlyor effectively
must be announced, and for that decision itselfto have any effect,it must be
craftedin the formof a rule of law thatwillbe respectedaccording to the prinis presupposed even
ciple of staredecisis.This means thatdoctrinalinterpretation
in the momentsof its repudiation. Thus although the practiceof constitutional
adjudication at timesmay and sometimesmust depart fromdoctrinalinterpretation, it is a form of interpretationto which the practice will also inevitably
return.
and theauthority
natureoftheauthority
ofethos.If docofconsent
Thesymmetrical
trinalinterpretationviewsthe Constitutiononly dimlyat one end of a long corridor of precedents,historicaland responsiveinterpretationeach confrontthe
Constitution,so to speak, face to face. The directnessof this inquiryliberates
courtsfromthe chains of doctrine,and empowersthemto alterand amend precedents. It also empowers them to uncover and articulatesubstantiveconstitutional values. For historicalinterpretation,thispower restson a court'sclaim to
speak withthe authorityof an originalact of consent.For responsiveinterpretation,thispower restson a court'sclaim to speak withthe authorityof our deepest
national identityand commitments.Although these claims appear on theirsurface to be verydifferent,as differentas Burger's majorityopinion in Chambers
from Brennan's dissent, in fact they each share an underlying structural
similarity.
The authorityof consentrestson the capacityof the individualvoluntarilyto
assume obligations.Absent special circumstancesto the contrary,a person'scontractsare viewed as binding and authoritative.This fact has importantconsequences forconstitutionalinterpretation.Imagine thedismayyou would feel,for
example, if you were to have worked for and achieved the ratificationof a constitutionalamendment,say the Equal RightsAmendment,only to have it interpreted by a court in a manner flatlycontraryto your intentand to the intentof
the amendment'ssupportersand ratifiers.In such circumstancesyou would want
to implementthe
ajudge to subordinateher personal perspectivesand faithfully
act of consentbyvirtueof whichthe amendmenthad become authoritative.You
would no doubt experience ajudge's departure fromthisdutyas a betrayal.
The appeal of historicalinterpretationtradeson thisexperience of betrayal.
It is importantto understand, however,that this experience does not depend
28
REPRESENTATIONS
upon anythingso simple as the physicalcastingof a vote. Constitutionalamendmentsare ratified,notbygeneralelections,but bystatelegislaturesor special state
conventions.Your experience of betrayalwould depend, not upon whetheryou
personally were a member of one of these special ratifyingbodies, but rather
upon your identificationwiththose who had physicallysignifiedtheirconsent.
What would count is your sense that the members of the state legislaturesor
conventionswho had actuallyassented to the Equal RightsAmendment spoke
"for"you.
This same identificationcan extend in time as well as in space. Thus when
confrontedwithconstitutionalprovisionsthatare a centuryor more old, histora comical interpretationcan be understood implicitlyto assertan identification,
munityof interest,with the framersor ratifiersof those provisions. "Their"
consent,so the implicitassertionwould go, is "our" consent; theyspoke "for"us.
willin significantmeasure
It followsthatthe authorityof historicalinterpretation
Chief
is whyin Chambers
of
assertion.
That
depend upon the persuasiveness that
JusticeBurger offersan extended discussionof "theunambiguousand unbroken
historyof more than two hundred years,"which he claims establishes"that the
practiceof opening legislativesessionswithprayerhas become part of the fabric
The power of Burger'sopinion restsin the end upon a claimed
of our society."76
continuityof identificationwiththose who had proposed and ratifiedthe First
Amendment.
This claim, however,is neithermore nor less than a characterizationof the
national ethos. It is a claim about our national identityand history.Thus while
can at one level be seen as
the debate between majorityand dissentin Chambers
itcan at a deeper level
strugglebetween historicaland responsiveinterpretation,
be understood as a disagreementabout whetherwe can now identifywithour
ancestors,or whetherwe have over the centuriesbecome so differentfromthem,
so much more secular or diverse,thatwe have lost any persuasive identification
withthe consentof those who ratifiedthe FirstAmendment.77
This deep symmetrybetween historicaland responsiveinterpretationstems
fromthe factthatboth ultimatelyflowfromthe authorityof a willthataffirmsits
own identity.78
Responsive interpretationmakes thisauthorityexplicit,because it
forthe natureof our nationalethos.While historical
openly affirmsresponsibility
interpretationseeminglypresentsitselfas a self-denyingsubmissionto the identityof past ratifiers,closer analysisreveals thatthatidentityis authoritativeonly
insofar as we can be persuaded to adopt it as our own.79In either case, the
authorityof the Constitutionceases to stand apart fromthe processesof itsinterpretation.That authoritydoes not flowfromthe antecedentnature of the Constitution,but rather from the particularrelationshipwe have forged with the
Constitution.
In this regard, however,responsive interpretationis unique, for it alone
explicitlythematizesthis relationalnature of constitutionalauthority.Both hisInterpretation
TheoriesofConstitutional
29
torical and doctrinal interpretationpurport to submitto a Constitutionwhose
authorityis independent and fixed,eitherin the preexistingconsentof the ratifiersor in the preexistingrules of controllingprecedents. Although this submission is illusory,it is an illusion capable of disarmingdissent. Responsive interpretation,however,disavows this illusion,and franklylocates constitutional
authorityin the relationshipbetween the Constitutionand its interpreters.As a
consequence responsiveinterpretationgeneratesan intenseand singularkind of
politicaldynamics.
A good example is Brown v. Board ofEducation.80The decision did not turnon
what the ratifiersof the FourteenthAmendment thought,8'nor on what the
Instead theideal of racialequality
Court had previouslyheld inPlessyv.Ferguson.82
was
no alternativebut to interpret
that
there
to
the
Court
become
so
pressing
had
the Equal ProtectionClause in lightof itsimperatives.But preciselybecause this
interpretationrestedupon an open avowal of a nationalideal, Brownrepresented
a courageous gamble. The Court's embrace of the value of racial equalitycould
have been a misreading of the national ethos; indeed the Court's gamble was
intenselycontroversialand came close to failingpreciselybecause thatethos was
in factso divided.83
By refusingto interpretthe Constitutionas if it were a source of external
compulsion,eitherof past precedentor of past consent,responsiveinterpretation
always places a court in such an exposed position,purportingto speak for the
butjustifiedin the end only
fundamentalethos of the contemporarycommunity,
of
conditions
culturaldivision,thatposibythe wisdom of itsown insight.Under
tion can be the platformfor a special formof leadership (as in Brown),or it can
be the cause of the mostunhappy formof vulnerability(as in Roe v. Wade).
Roe, which at the time of its decision stood withoutsignificanthistoricalor
of responsiveinterprecedentialsupport,84illustratesthe structuralvulnerability
pretationto thecharge thatitarticulatesvalues thatare merelylocal and partisan,
ratherthan general and trulyconstitutiveof the nation.The charge is unlikelyto
surfacewhen thereis culturalconsensus,because theinvocationof contemporary
values will under such circumstancesbe unobtrusiveand perhaps even unnoticed. But in the absence of consensus the frankambitionof responsiveinterpretationto "speak for"the characterof the nation,while expressiveof the outlook
of some, will necessarilyconstitutea hegemonicimpositionupon others.85Thus
the enterprise of responsive interpretationcan become the locus of an overt
strugglefor the definitionof national identity.In the legal academy responsive
interpretationhas been profoundlycontroversialbecause of the unease generated by perceivedjudicial participationin such a struggle.
Paradoxically,however,the root cause of thisunease is preciselyresponsive
interpretation'sexplicitthematizationof the relational nature of constitutional
authority,a formof authoritythatit in factshares withboth historicaland doctrinal interpretation.
30
REPRESENTATIONS
Responsive interpretation is in some
The inevitability
ofresponsiveinterpretation.
respectssimilarto what in the contemporarylegal literatureis called "noninterwhich can roughlybe defined as that formof constitutionalinterpretivism,"86
pretation which seeks "the principal stuffof constitutionaljudgment in one's
renditionof society'sfundamentalvalues ratherthan in the document'sbroader
is freand byextensionresponsiveinterpretation,
themes."87Noninterpretivism,
quentlyattackedas breakingfaithwitha judge's obligationto interpretthe Constitutionratherthan to enact her own desires.
Understood in a psychologicalsense, the attackis clearlyjustified.If a judge
believes thatthe Constitutionmeans X, but thejudge decides Y because she prefersY, thejudge's decision is presumptivelyillegitimate.But thisframingof the
issue is ultimatelytrivial,for it proceeds on an assumptionof bad faith,and it
prejudges the criticalquestion,whichis the nature of thatConstitutionto which
is defined as rendering
thejudge should maintainfidelity.If noninterpretivism
factors,then it will of course be
judgment upon the basis of extraconstitutional
vulnerable,but only in an uninterestingand merelystipulativesense. Properly
understood, however, responsive interpretationavoids this vulnerabilityby
includingthe additional claim thatour "fundamentalnature as a people" is part
of the legitimateauthorityof the Constitution.
One objection to responsiveinterpretation,therefore,is thatit mistakesthe
whichis "thatthe Supreme Court,
"root premise"of Americanconstitutionalism,
constrained
constituby the written
like the other branches of government,is
whichexplicitlydissolvesthe
tion."88The point is thatresponsiveinterpretation,
Constitutionas a specificwrittentext,restson an unacceptable notionof the Constitution.The forceof thisobjection,whichis considerable,derives fromthe circumstance in whichthe words of the Constitutionappear to speak plainlyto us.
Recall the case of the thirdCaliforniasenator,whicha courtcould settlemerely
by reading the textof the document. In such a case it seems as if the document
itselfwere authoritative,as if meaning flowednaturallyfromthat handwritten,
hand-signed parchment kept under glass in the National Archives.89It would
whichabandons thatdocument
appear to followthatany theoryof interpretation
is illegitimate.
This reasoning,however,proves far too much. It is true thatwhen the document'smeaning is unproblematicwe feel constrainedto regard its language as
authoritativewithoutfurtherinquiry.But when for whateverreason the document'smeaningdoes seem problematic,we are necessarilyforcedoutside the text
in search of some authorityto guide our interpretationof the text.Thus every
is at some levelinconsistentwiththenotion
theoryof constitutionalinterpretation
of a narrowfidelityto a writtendocument.Doctrinalinterpretation,
forexample,
which is the sinequa non of constitutionaladjudication,applies not the words of
the document, but legal rules thatjudges have subsequentlycreated. Most constitutionalcases are decided on the basis of doctrinal"tests"thathave verylittle
Theories of ConstitutionalInterpretation
31
to do withthe textof the parchmentwhichresidesin the National Archives.Even
historicalinterpretationlooks for authoritynot to the textof the writtendocument,but ratherto theconsentof thosewho agreed to it.The charge thatresponsive interpretationabandons the writtendocument, therefore,is an accusation
thatwould disqualifyvirtuallyall formsof constitutionalinterpretation.
however,is thatit abandons
A second objectionto responsiveinterpretation,
the document in a particularlyunacceptable way. Historical interpretation
focuses on an original act of consent because that consent "points toward" the
it might
document and illuminatesitsspecificmeaning.Doctrinalinterpretation,
the
toward"
"point
also
rules
such
because
precedent
rules
of
on
be said, focuses
document and are attemptsto elucidate its meaning. Responsive interpretation,
on the other hand, turns away from the document altogetherin an effortto
uncover presentvalues.
This objectioncaptureswhatI taketo be a major animusof thecontemporary
debate, and forthatreason it needs to be carefullyparsed. It is true thatbecause
historicalinterpretationlooks to the consentof the ratifiers,the historicaldocument actually ratifiedis central to the interpretativeenterprise.But doctrinal
interpretationcan be said to "pointtoward"thatdocumentonlyin the mostattenuated metaphoricalsense, a sense in whichitis equally trueto saythatresponsive
interpretation"pointstoward"the document.
Responsiveinterpretationrestson theclaimthattheConstitutionis not"static
and lifeless,"to use Brennan's words in Chambers.Instead, as Holmes put it, the
Constitutionis understood as having "called into life a being" that, like any
"organism,"must grow and develop on the basis of its "experience."90Thus the
is to determinewhichaspects
ambitionand challengeof responsiveinterpretation
of our contemporaryethos maybe regarded as legitimate"growthfromthe seeds
which the fathersplanted,"and hence as bearing "the essentialcontentand the
spiritof the Constitution."9'Only these aspects of the national ethos are geneticallyrelatedto thedocumentand thusmayproperlyformthebasis forresponsive
interpretation.In thissense responsiveinterpretationdoes indeed "point (backward) toward" the document, in at least as stronga metaphoricsense as does
doctrinalinterpretation.
Admittedlythe organic metaphor that underlies thisaccount of responsive
interpretationis highlyproblematic.It is importantto understand,however,that
responsive interpretationcould equally well restupon other and perhaps more
convincingmetaphors. It could invoke, for example, the image of an evolving
"tradition"thatis constitutiveof culturalmeaning.92Or it could adopt the sociological language of communitarianism,as in this passage fromPhilip Selznick:
is tocreatea politicalcommunity
by
Itsfunction
contract.
is a constitutive
A socialcontract
on theconsentof thegoverned.Once thecomof government
foundingthelegitimacy
obligations
ofitsown.Eventhefundamental
is formedithasa logicand a dynamic
munity
and care-flow from
of loyalty,
self-restraint,
and citizenry-obligations
of government
32
REPRESENTATIONS
the nature of the communityand of its historicalpremises,not from the terms of an
agreement.93
Each of these metaphors can be used to describe a national ethos that both
changes over timeand yetalso manages to retaina distinctiveidentity.Each portraysa national ethos in whichwe are implicated,and to whichwe are therefore
responsible.Each is thereforecapable of sustainingthe enterpriseof responsive
interpretation.
In these heady days of postmodernism,of course, it is easy enough to deny
the truthof all these metaphors,and to repudiate the veryexistenceof any overarchingnational ethos. The politicalconsequences of such a denial, however,are
articulatedby Thomas Hobbes, and
grim. They were in factfirstsystematically
today the premisesof his workremain visiblein the writingsof those influenced
byeconomics and public choice theory.A clear example can be found in the views
of a constitutionalscholarlikeRobertBork,who argues thatthereis no such thing
as a distinctivenational ethos, but only a vast collection of individual preferences.94It followsfromthisperspectivethatany attemptto interpretthe Constitutionon the basis of the authorityof a nationalethoswillnecessarilydegenerate
into an unwarrantedimpositionof privatejudicial preferences.95
Two preliminarypoints should be made about this perspective.First,it is
withwhichit is sometimesassociated.
inconsistentwithhistoricalinterpretation,
Historical interpretationrests on the implicitassertion that the national ethos
supports an identificationwiththe ratifiersof the Constitution.But if there are
onlydiscreteindividualpreferences,and ifthe nationdoes not have any national
ethos, there is no reason whateverwhy the consent of those long dead should
hold any particularauthorityforthe presentgeneration.Second, as the example
offeringa plausible account
of Hobbes illustrates,this perspectivehas difficulty
of political authorityas anythingother than a collectiveneed for forcefuland
clear rules of conduct to save individualsfromthe destructiveconsequences of
their own egoism. But this formof authority,stressingas it does the values of
is compatibleonlywiththe authorityof the Consticontinuityand predictability,
tutionas law,whichis to say withdoctrinalinterpretation.The actual implication
of thisperspective,therefore,is thatthe principleof staredecisisshould hold until
interruptedbycontemporaneousprocessesof constitutionalamendment.
The consequences of denyingthe existenceof a national ethos are thus dramatic,far-reaching,and singularlyunattractive.It transformstheoverridingconcern of constitutionaladjudication into the maintenanceof rules (any rules), for
only such rules stand between us and a chaos of individualdesires. Because the
primaryobjectiveof these rules willbe the preservationof order,those subjectto
constitutionalrules will necessarilybe reduced "to mere objects of the administered life."96The Constitutionis thusultimatelyconvertedintoa formof "repressive law" that"givesshortshriftto the interestsof the governed."97
TheoriesofConstitutional
Interpretation
33
This transformationis relevantto an assessmentof the position of scholars
like Bork. Although the existenceor absence of a national ethos appears at first
blush to be an empiricalquestion thatis independentof theperspectiveof a court,
in fact mattersare not so simple. As the example of Brownv. Board ofEducation
illustrates,a courtcan, throughthe eloquent articulationof public ideals, actually
help to solidifya nationalethos.The nationalethos to whichresponsiveinterpretation appeals, in other words, may in significantways be affectedby the very
practice of responsiveinterpretation.The question facinga court,therefore,is
whetherit should interpretthe Constitutionin waysthatmayexpressor establish
a national ethos,or whetherit should do so in waysthatmayconfirmitsabsence.
I thinkthisquestion answersitself,whichis whyconstitutionalinterpretationhas
never at any timeproceeded on Hobbesian premises.
There is, however,yet a fourthobjection to responsiveinterpretation,one
whichexertsconsiderablymore influencethanthe Hobbesian perspective.It does
not deny that the nation has an ethos which formsan importantcomponent of
its public life,but it contends thatit is inappropriateforjudges to appeal to that
ethos as a formof constitutionalauthority,because the conservationand articulation of thatethos should be placed in the hands of democraticallyelected officials ratherthanjudges. The objection,in other words,restson an institutional
analysisof how courts ought to functionin a democracy.It is of course on preis
difficulty
ciselysuch institutionalconsiderationsthatthe counter-majoritarian
suggeststhe presultimatelyfounded. The stubbornpersistenceof the difficulty
ence of powerfultruthsthatcannot be brushed aside.
They are, however,only partial truths.If the Constitutionis not to degenerate into merelyrepressivelaw,authoritativeonlybecause of the need forclear
and predictable rules, courts interpretingthe Constitutionmust be allowed to
speak fromthe authorityof a national ethos, in the formof eitherhistoricalor
responsiveinterpretation.Taken to itslogical conclusion,therefore,the counterleads to exactlythe same unacceptable vision of constitumajoritariandifficulty
tional law as that which flowsfromovertlyHobbesian premises.98But thisconfor
difficulty,
sequence is unacceptable to proponentsof thecounter-majoritarian
the institutionalconsiderationsbywhichtheyseek to circumscribejudicial power
are themselvesbased on a particularaccount of the nationalethos,one thatcharacteristicallystressesthe importanceof majoritywillin the formof government
Proponentsof the counter-majoritariandifficulty
created by the Constitution.99
are thus torn between theiraccount of appropriate institutionalprinciplesand
the factthatthese principles,if fullyimplemented,would precludejudges from
appealing to the verynational ethos fromwhichthe principlesflow.
Institutionalobjections to responsiveinterpretationare consequentlyriven
by internaltensions.For thisveryreason, however,institutionalobjectionshave
rarelyif ever implied a simple repudiationof responsiveinterpretation.Instead
generated counsels of caution,urgentrecommendatheyhave characteristically
34
REPRESENTATIONS
tionsthatresponsiveinterpretationbe used onlysparinglyand in waysconsonant
withthe underlyingconceptionof the nationalethosupon whichthe institutional
objections are themselvesbased. They have led, in other words, to forms of
responsiveinterpretationbased upon a particularunderstandingof the national
ethos as founded upon majoritarianprinciples.'00
V
The factthat identicaljudges use differenttheoriesof constitutional
interpretationin differentcases is often used as evidence of the unprincipled
theory
natureof constitutionallaw.And, indeed, ifthechoice of an interpretative
depended on the natureof the Constitution,and ifthatnaturewere antecedently
and externallygiven,it would be difficultto condone the ways in whichjudges
actuallyuse interpretativetheories.But if,as I have argued, constitutionalinterpretationdepends instead upon a relationalconcept of constitutionalauthority,
judges can legitimatelyselect a specificinterpretativetheoryin lightof the circumstancesof a particularcase.
Thus a court can justifiablyuse historicalinterpretationwith respect to an
issue in a case ifit believes thatthe nationalethos supportsan identificationwith
a past act of consent relevantto that issue. But it can justifiablyuse responsive
interpretationifitcan discernwithrespectto thatissue the presence of a national
embodies the essentialcontentand spirit
ethos thatin a pertinentwayhistorically
withany past act of consent.
of the Constitution,and thatprecludes identification
Hence the choice between historicaland responsiveinterpretationcan turn on
an appraisal of the national ethos.
The selectionof doctrinalinterpretationentailsa differentkindof appraisal,
one thatrequires a court to determinewhetherthe values of the rule of law outweigh the inadequacy of controllingprecedents.An importantreason whyprecedents maybe inadequate is thattheyare inconsistentwiththe interpretationof
the Constitutionrequired by the national ethos, eitherin the formof historical
or responsiveinterpretation.The strikingof thisbalance betweenthe rule of law
and the national ethos is both necessaryand legitimate.
Thus the selectionof a specifictheoryof constitutionalinterpretationfor a
particular case can be justified in the same way that any legal decision can be
flowsnot fromlogicalcompulsionbut ratherfromthe prinjustified.Justification
cipled application of pertinentconsiderations.Constitutionaladjudication, like
all law,is in thisway revealed as balanced on the human facultyofjudgment. As
in all human endeavor,pertinentconsiderationsmaybe more or less compelling,
and consequentlythe abilityto exercisejudgment more or less sustained.
Nevertheless,the patternofjudgment in constitutionallaw can reveal a good
deal about the nature of fundamentalauthorityin our democraticstate. It sugTheoriesofConstitutional
Interpretation
35
gests,for example, that visionsof the national ethos, and hence of a "humanly
meaningfulauthority,'' are at the core of our practiceof constitutionaladjudication. This is encouraging news to set againstthe viewof those who, likeJurgen
Habermas and others,perceivethe tidalcurrentof thiscenturyas flowingtoward
"undeviating organization,"'102 with its concomitantconditions of bureaucracy,
But itis also cause forconalienation,deracination,and instrumentalrationality.
cern if,as appears increasinglylikelyto be the case formanyof us, the vision of
enacted by the Supreme Court is contraryto our
national ethos authoritatively
own. Our consolation in such circumstancesis the strengththat Claude Lefort
identifieswithmodern democracy: the ever-presentpossibilitythatour protests
willcreate a reconstitutedpoliticalperspectivethatwillin turnalterthe character
of futurejudicial appointments.
of course,simplypulls ErnestChambersround fullcircle,
But thatpossibility,
back to his original effortsto convincehis fellowlegislatorsof the deep impertinence of legislativeprayer.
Notes
trans.David Macey (Minneapolis, 1988),
andPoliticalTheory,
1. Claude Lefort,Democracy
39.
2. Testimony of Ernest Chambers, Marsh v. Chambers, 463 U.S.
3.
4.
5.
6.
7.
783 (1983), joint
appendix at 20, 23-24, 27.
Testimonyof RobertE. Palmer,ibid. at 40-41, 45, 51, 83, 89; exhibit1, 1975 Prayer
Book, 4 April 1975, ibid. at 96; exhibit2, 1977-78 PrayerBook, 7 February 1977,
ibid. at 98.
Although the clause speaks only of Congress, it has been held to be binding on the
statesbyvirtueof the FourteenthAmendment.
504 F. Supp. 585 (D. Neb. 1980).
675 F. 2nd 228 (8th Cir. 1982).
I stressthe phenomenological characterof thispoint. It is of course quite plausible
But not
to contend thatall reading is necessarilyactive,and hence "interpretative."
to inquire into the meaning of a text.
all reading requires a reader self-consciously
From a phenomenological point of view,therefore,some reading does not require
thatthe process of interpretinga textbe thematized.
8. United States v. Butler, 297 U.S. 1, 62 (1936).
9. It is necessaryat thispoint to distinguishbetween textualismas a putative"theory"
of interpretation,designed to reveal the meaning of an uncertain text,and textualism as a rule of evidence or priority,which is designed either to exclude from
considerationdata frombeyond the four cornersof the document or else to assign
to the language of the textpriorityover such data. Textualismas a rule of evidence
or prioritywould followfrom,and presumablybe justifiedby,an anteriortheoryof
interpretation.
10. On the relationship between interpretationand situations where "meaning is
36
REPRESENTATIONS
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
28.
29.
31.
doubtful,"see Marcelo Dascal and JerzyWroblewski,"Transparencyand Doubt:
7
Understandingand Interpretationin Pragmaticsand in Law,"Law and Philosophy
(1988): 203-24. It is clear, as Dascal and Wroblewskipoint out, thatthe distinction
between meaning that is plain, that "fitsthe case under considerationdirectlyand
as a glove to a hand," and meaningthatis questionable is not one
unproblematically,
thatturnson the "inherentqualityof a legal text"but is rather"pragmatic"in nature,
turningon all the factorsinvolved"in a givencommunicativesituation"(215, 221).
Marburyv. Madison,5 U.S. (1 Cranch) 137, 176 (1803).
Ibid. at 163. The phrase was made famous in America byJohn Adams, who had
Marshallwickedlyused itto pinionJohn
appointed Marshallto thebench; in Marbury
Adams's archenemy,Thomas Jefferson.For the derivationof the phrase, see Frank
Michelman, "Foreword: Traces of Self-Government,"Harvard Law Review 100
(1986): 4, n. 2; 40-41. For a discussionof other strangecircumstancessurrounding
Marbury,see John A. Garraty,"The Case of the MissingCommissions,"in Garraty,
(New York, 1964).
ed., QuarrelsThatHave ShapedtheConstitution
Marburyv.Madison,5 U.S. at 163, 175.
Alexander Bickel,TheLeastDangerousBranch(Indianapolis, 1962), 16-17.
60 U.S. (19 How.) 393 (1857).
Dred Scottv. Sandford,
463 U.S. at 796 (Brennan,J.,dissenting).
Marshv. Chambers,
ofLegalJustification
Decision:Towarda Theory
See Richard A. Wasserstrom,TheJudicial
(Stanford,Calif., 1961), 39-83.
For a discussion of the nature of the rule of law, see Joseph Raz, "The Rule of Law
and Its Virtue,"in TheAuthority
ofLaw (Oxford, 1979), 210-19.
For furtherdiscussion, see Melvin Aron Eisenberg, The Natureof theCommonLaw
(Cambridge, Mass., 1988), 47-49.
Henry Paul Monaghan, "Stare Decisis and ConstitutionalAdjudication," Columbia
Law Review88 (1988): 752 (quoting Archibald Cox, TheRole oftheSupremeCourtin
AmericanGovernment
[New York, 1976], 50). See Vasquezv.Hillery,474 U.S. 254, 265Law Review10 (1941): 2.
66 (1986); Roscoe Pound, "Whatof Stare Decisis?"Fordham
675 F. 2nd at 233.
forPublicEducationand
Lemonv. Kurtzman,403 U.S. 602, 612-13 (1971). See Comm.
v. Nyquist,
413 U.S. 756, 773 (1973).
ReligiousLiberty
Marshv. Chambers,
joint appendix at 49.
37th sess. (1907), 171-73, 307-8, 805-6, 808, 818-2 1.
CaliforniaSenateJournal,
Marshv. Chambers,
63 U.S. at 801.
27. Ibid. at 788, 790.
Ibid. at 786-88.
This was essentiallythe positionadvocated bythe solicitorgeneral in his briefforthe
"analysis
United Statesas amicuscuriae.The solicitorgeneral argued thatin Chambers
of the legislativechaplaincypracticeunder the Lemontestseems pointless"because
"historicalanalysis . . . should alone sufficeto demonstratethatthe Nebraska chaplaincy"was consistentwith"the intended meaning and scope of the Establishment
Clause"; ibid., Briefforthe United States,at 21-22.
Ibid. at 801.
30. Ibid. at 802-5.
Ibid at 816-17. As Brennan has subsequentlyexplained: "I franklyconcede that I
approach myresponsibilityas a justice, as a 20th centuryAmerican not confinedto
[the] framers'vision in 1787. The ultimatequestion must be, I think,what do the
words of the Constitutionand Bill of Rightsmean to us in our time"; address by
WilliamBrennan at Hyde Park,New York,TheRecorder,
8 November 1989, 8.
Theories of ConstitutionalInterpretation
37
32. Paul W. Kahn, "Reason and Will in the Origins of American Constitutionalism," Yale
Law Journal 98 (1989): 504.
33. William W. Van Alstyne, "The Idea of the Constitution as Hard Law,"Journal ofLegal
Education 37 (1987): 179. For a useful symposium on the subject, see Constitutional
Commentary6 (1989): 19-113.
34. Osborne v. Bank of the United States,22 U.S. (9 Wheat.) 326, 381 (1824).
35. Eisenberg, Nature of CommonLaw, 158-59.
36. See J. M. Balkin, "Constitutional Interpretation and the Problem of History," New
YorkUniversityLaw Review 63 (1988): 928.
37. Minneapolis Star and Tribune Co. v. Minnesota Commissionerof Revenue, 460 U.S. 575,
583, n. 6 (1983).
38. Lest this analysis seem too hypothetical, it should be noted that from 1967 until 1973
the Supreme Court decided thirty-one obscenity cases without opinion because it
was unable to agree on a rule of law to distinguish obscene from nonobscene speech.
See Frederick F. Schauer, The Law of Obscenity(Washington, D.C., 1976), 44.
39. For a similar argument in the context of statutoryinterpretation, see Edward H. Levi,
An Introductionto Legal Reasoning (Chicago, 1949), 30-33.
40. In speaking of "legal implications," of course, I am excluding the immediate impact
of the decision on the parties to the case. The effectof the Chambersdecision on the
Nebraska state legislature is, at least for purposes of Chambers's specific lawsuit,
independent of the principle of staredecisis.That principle only determines the effect
of the decision on other, similarly situated legislatures.
41. Frederick F. Schauer, "Formalism," Yale LawJournal 97 (1988): 509-48.
42. See Ronald Dworkin, Law's Empire (Cambridge, Mass., 1986).
43. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston UniversityLaw Review 60 (1980): 234.
44. Speech of Attorney General Edwin Meese III before the American Bar Association,
9 July 1985, Washington, D.C., in The GreatDebate: InterpretingOur WrittenConstitution
(Washington, D.C., 1986), 9.
45. Charles Fried, "Sonnett LXV and the 'Black Ink' of the Framers' Intention," Harvard
Law Review 100 (1987): 759. See H. Jefferson Powell, "The Original Understanding
of Original Intent," Harvard Law Review 98 (1985): 895-98. This version of historical
interpretation might, for example, justify textualism as a rule of evidentiary exclusion. See note 9 above.
46. Monaghan, "Stare Decisis," 725.
47. See Raoul Berger, Federalism: The Founders'Design (Norman, Okla., 1987), 13-20.
48. The undeniable force of this conclusion also illustrates the ease with which constitutional interpretation escapes from the specific and plain words of the constitutional
text.
49. For an elaboration of this argument, see Ronald Dworkin, A MatterofPrinciple (Cambridge, Mass., 1985), 33-57.
50. This was also James Madison's position; see The WritingsofJamesMadison, ed. Gaillard
Hunt, vol. 6 (New York, 1900), 272; Powell, "Original Understanding," 937-38.
51. Marsh v. Chambers,463 U.S. at 815, n. 32; quoting Bernard Schwartz, The Bill offRights:
A DocumentaryHistory,vol. 2 (New York, 1971), 1171.
52. Gerald C. MacCallum, Jr., "Legislative Intent," Yale Law Journal 75 (1966): 766-69.
53. Friedrich Nietzsche, The Use and Abuse ofHistory,trans. Adrian Collins (Indianapolis,
1957), 11. Hence the notorious "illicit love affair" between "Clio and the Court";
38
REPRESENTATIONS
54.
55.
56.
57.
Alfred H. Kelly,"Clio and the Court: An IllicitLove Affair,"SupremeCourtReview
(1965): 119-58.
See p. 21 above.
For a discussion,see Brest,"MisconceivedQuest," 225-26.
For the definitiveanalysisof thispoint,see David Hume, A TreatiseofHumanNature,
2nd ed., ed. L.A. Selby-Bigge(Oxford, 1978), 534-53.
Hanna Pitkin,"Obligation and Consent," in Peter Laslett, W.G. Runciman, and
Quentin Skinner, eds., Philosophy,Politics,and Society,4th ser. (Oxford, 1972), 62.
58. Daniel A. Farber,"The OriginalismDebate: A Guide for the Perplexed,"Ohio State
Law Journal49 (1989): 1099-1 100.
59. Missouri v. Holland, 252 U.S. 416,433
(1920).
60. Karl Llewellyn,"The Constitutionas an Institution,"ColumbiaLaw Review34 (1934):
14-15, 26.
61. J. N. Findlay, Kant and the TranscendentalObject: A HermeneuticStudy (Oxford, 1981),
241.
62. Hanna Pitkin, "The Idea of a Constitution,"Journal ofLegal Education 37 (1987): 167,
169.
63. Philippe Nonet and Philip Selznick, Law and Societyin Transition: Toward Responsive
Law (New York, 1978), 14-15, 78.
65. Ibid., 77.
64. Ibid., 79.
66. Dun and Bradstreet,Inc. v. GreenmossBuilders, Inc., 472 U.S. 749, 759 (1985) (opinion
67.
68.
69.
70.
of Powell,J.).
Ibid. at 787 (Brennan,J., dissenting).
Bowersv. Hardwick,106 S. Ct. 2841, 2844 (1986).
Ibid. at 2851 (Blackmun,J., dissenting).
David Couzens Hoy, "A HermeneuticalCritiqueof the Originalism/Nonoriginalism
Distinction," NorthernKentuckyLaw Review 15 (1988): 493, 495.
71. For a good survey,see WalterF. Murphy,James E. Fleming,and WilliamF. Harris,
Jr.,American ConstitutionalInterpretation(New York, 1986).
72. Of course theyneed not be incompatible.Each of the threeconceptionsof authority
can be understood in ways that render it functionallyindistinguishablefrom the
others. Thus an original act of consent can be construedas mandatingon the one
hand the rule of law, or on the other a continual,open sensitivityto the national
ethos. The national ethos can be interpretedto require fidelityto precedentor submissionto the founders'consent; the principleof staredecisiscan be implementedin
such a way as to express eitherthe national ethos or the imperativesof an original
act of consent.
The point,however,is thatthese potentialconvergencesare merelycontingent,
and hence not trulydispositiveof the distinctionsthatdivide the threeconceptions
of constitutionalauthority.For example, a judge who argues that constitutional
authorityresidesin an originalact of consentthatalso happens to mandate sensitivity
would
to an evolvingnationalethos is committedto the positionthatsuch sensitivity
be improperifthe contentof thatconsentwere different.Thus forsuch ajudge the
discernmentof consentwould retaina privilegedposition.
Fate:
73. For a path-breakingcritiqueof thisapproach, see Philip Bobbitt,Constitutional
Theoryof theConstitution(New York, 1982).
74. As I writethis,forexample, the survivalof a woman'sconstitutionalrightto terminate a pregnancywithinthe firsttwotrimestersdepends to no smallextentupon the
Theories of ConstitutionalInterpretation
39
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
40
v.
value assigned by the Supreme Court to the principleof staredecisis;see Webster
HealthServices,109 S. Ct. 3040, 3056-57 (1989) (opinion of Rehnquist,
Reproductive
forReproductive
C.J.); ibid. at 3078 (Blackmun,J., dissenting);Akronv. AkronCenter
Health,462 U.S. 416, 419 (1983).
For examples, see UnitedStatesv.Scott,437 U.S. 83, 86-87 (1978); Garciav.San Antonio
469 U.S. 528 (1985). It is particularlyimportantthat
TransitAuthority,
Metropolitan
past precedent not be entirelydecisive "in cases involvingthe Federal Constitution,
where correction through legislative action is practicallyimpossible,"Burnet v.
CoronadoOil and Gas Co., 285 U.S. 393, 405-8 (1932) (Brandeis,J., dissenting),and
hence where, since the practiceof constitutionalamendmentis so cumbersomeand
impractical,correctioncan in many circumstancesonly come as a practicalmatter
when the Court itselfturnsawayfromstaredecisis.For thisreason theSupreme Court
has a "considered practice not to apply staredecisisas rigidlyin constitutionalas in
nonconstitutionalcases"; GliddenCo. v. Zdanok,370 U.S. 530, 543 (1962) (opinion of
v.McLean CreditUnion,109 S. Ct. 2363, 2370-71 (1989).
Harlan, J.). See Patterson
463 U.S. at 792.
Marshv. Chambers,
This suggeststhatwe should expect to see historicalinterpretationpredominate(at
least in cases of firstimpression)in the years immediatelyfollowingthe ratification
of a constitutionalprovision.During thattimetherewillbe an obvious and perceptible identificationwith the process of consent. But as the years pass, and as the
connections to that process fade, the assumption of identificationmay become
increasinglyless plausible or persuasive. Changed circumstancesor altered cultural
conditionsmay make the consentof the ratifiersseem foreignor alien, quite unlike
our own consent. It is at such momentsthatone would anticipatea transitionfrom
historicalto responsive interpretation.Llewellynoffersa marvelous descriptionof
thisprocess in "Constitutionas Institution,"12-15.
In the words of Don Herzog, "The consentof the governedis a special case. It hangs
not on the choices made by individualsbut on the responsivenessof the stateto the
(Chicago,
people, taken as a collectivebody"; HappySlaves:A CritiqueofConsentTheory
1989), 215.
It is of course possible to argue thatwe should be bound bythe ratifiers'willeven if
it does not reflectour own. But then it must be explained whythisis the case, and
thatexplanation cannot invokethe authorityof consent.One possibleexplanationis
that the governmentcouldn't functionif decisions made according to appropriate
democratic procedures were to lose theirauthoritysimplybecause the passage of
But thisexplanation,stressing
timehad altered the relevantdemocraticconstituency.
as it does the necessityfor the Constitutionto remain in effectas law in order to
would logicallylead to a
reliance,and predictability,
sustainthe values of continuity,
formof doctrinal,ratherthan historical,interpretation.
Brownv.Board ofEducation,346 U.S. 483, 489-95 (1954).
of Brownwithany formof historicalinterpreFor a discussionof the incompatibility
tation,see Monaghan, "Stare Decisis," 728.
Plessyv.Ferguson,163 U.S. 537 (1896).
See, e.g., Cooperv.Aaron,358 U.S. 1 (1958).
and Distrust(Cambridge,Mass., 1980), 2-3. In recentyears,
John Hart Ely,Democracy
withthe advantage of hindsight,more convincingargumentshave been made that
Roe could seriouslybe justifiedas a formof doctrinalinterpretation.
For a discussion of the distinctionbetween expressiveand hegemonic functionsof
law,see RobertC. Post,"Cultural Heterogeneityand Law: Pornography,Blasphemy,
Law Review76 (1988): 299-300.
and the FirstAmendment,"California
REPRESENTATIONS
Law Review
86. See Thomas C. Grey,"Do We Have an UnwrittenConstitution?"Stanford
Ken27 (1975): 703-18; David Lyons,"A Prefaceto ConstitutionalTheory,"Northern
tuckyLawReview 15 (1988): 459-98.
87. Ely, Democracyand Distrust,88, note.
Law Review
88. Henry Paul Monaghan, "Our PerfectConstitution,"New YorkUniversity
56 (1981): 375-76 (emphasis added).
89. For the fascinatingsuggestionthatwe may have actuallyenshrined the wrong document, see Akhil Reed Amar, "Our ForgottenConstitution:A Bicentennial Comment," Yale Law Journal 97 (1987): 281-98.
90. For a briefdiscussionof the historyof "organic"metaphorsof the Constitution,see
Michael Kammen, A Machine That WouldGo ofItself:The Constitutionin AmericanCulture
(New York, 1986), 19-20.
91. The words are those of ChiefJusticeCharles Evans Hughes, in HomeBuildingand
Loan Assoc. v. Blaisdell, 290 U.S. 398, 443-44
(1934).
92. See, e.g., Hans-Georg Gadamer, Truthand Method(London, 1975); Alasdair MacIntyre,AfterVirtue(Notre Dame, Ind., 1981).
93. Philip Selznick,"The Idea of a CommunitarianMorality,"CaliforniaLaw Review75
(1987): 451.
94. On the distinctionbetween preferencesand values, see Mark Sagoff,"Values and
Preferences,"Ethics96 (1986): 301-14.
95. "Everyclash betweena minorityclaimingfreedomand a majorityclaimingpower to
of the two groups. When the
regulate involvesa choice between the gratifications
Constitutionhas not spoken, the Court will be able to findno scale, other than its
own value preferences,upon which to weigh the respectiveclaims to pleasure";
RobertH. Bork, "Neutral Principlesand Some FirstAmendmentProblems,"Indiana
Law Journal 47 (1971): 9.
trans.John
96. Theodor W. Adorno and Max Horkheimer,DialecticofEnlightenment,
Cumming (New York, 1972), 38. As Adorno and Horkheimerobserve, "so long as
with
the identityof the user of reason is disregarded,"reason acquires an "affinity"
"force"(87).
29.
97. Nonet and Selznick,Law and Society,
98. One alternativeconclusion,of course, is thattherebe no constitutionallaw at all, but
only simple majorityrule. The point in text assumes that those propounding the
counter-majoritariandifficultyare attemptingto offer a characterizationof an
appropriate,ratherthan nonexistent,formof constitutionallaw.
and Distrust;
99. For a clear example of this formof argumentation,see Ely,Democracy
fora general discussion,see Farber,"OriginalismDebate," 1097-1100.
100. See, e.g., Richard H. Fallon,Jr.,"A ConstructivistCoherence Theory of Constitutional Interpretation," Harvard Law Review 100 (1987): 1217-23.
in theModernState(New Brunswick,N.J.,
101. The phrase is fromJohn Schaar,Legitimacy
1981), 38.
102. Adorno and Horkheimer, Dialectic ofEnlightenment,87.
Theories of ConstitutionalInterpretation
41