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Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter*

Published online by Cambridge University Press:  05 August 2009

Walter F. Murphy
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Abstract

The question of WHO is the ultimate constitutional interpreter poses one of the fundamental problems with which a coherent constitutional theory must come to grips. Any answer will be closely connected to other basic theoretical interrogatives, such as WHAT is the constitution and HOW should it be interpreted. Three principal theories compete here: Judicial supremacy, legislative supremacy, and departmentalism. This paper suggests a sort of analysis that transforms the question of WHO from one that yields a universally applicable response into a more complex set of queries about degrees of deference one institution owes another under varying circumstances. What emerges is a modified version of departmentalism.

Type
Research Article
Information
The Review of Politics , Volume 48 , Issue 3 , Summer 1986 , pp. 401 - 423
Copyright
Copyright © University of Notre Dame 1986

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References

Notes

1 Especially: Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984)Google Scholar; Barber, Sotirios A., On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984)Google Scholar; Bobbitt, Philip, Constitutional Fate (New York: Oxford University Press, 1982)Google Scholar; Brigham, John, Constitutional Language (Westport, Conn: Greenwood Press, 1978)Google Scholar; Choper, Jesse H., Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980)Google Scholar; Carter, Lief H., Contemporary Constitutional Lawmaking (New York: Pergamon Press, 1985)Google Scholar; Dahl, Robert A., Dilemmas of Pluralist Democracy (New Haven: Yale University Press, 1982)Google Scholar; Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977)Google Scholar; Dworkin, , A Matter of Principle (Cambridge: Harvard University Press, 1985)Google Scholar; Dworkin, , Law's Empire (Cambridge: Harvard University Press, 1986)Google Scholar; Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1980)Google Scholar; Jacobsohn, Gary J., The Supreme Court and the Decline of Constitutional Aspiration (Totowa, N.J.: Rowman & Littlefield, 1986)Google Scholar; Lusky, Louis, By What Right? (Charlottesville: Michie, 1975)Google Scholar; Miller, Arthur Selwyn, Constitutional Dictatorship (Westport, Conn.: Greenwood Press, 1981)Google Scholar; Perry, Michael J., The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982)Google Scholar; Smith, Rogers M., Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985)Google Scholar; Tribe, Laurence H., Constitutional Choices (Cambridge: Harvard University Press, 1985).Google Scholar

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6 Murphy, Walter F., Fleming, James E., and Harris, William F. II, American Constitutional Interpretation (Mineola, N.Y.: Foundation Press, 1986).Google Scholar

7 See esp. Agresto, , The Supreme Court and Constitutional DemocracyGoogle Scholar; Barber, , On What the Constitution MeansGoogle Scholar; Levinson, , “The Constitution in American Civil Religion”Google Scholar; and Monaghan, , “Constitutional Adjudication: The Who and When.”Google Scholar

8 There is, of course, no single, monolithic democratic theory any more than there is a single monolithic constitutional theory.

9 For a more detailed discussion, see Murphy, , Fleming, , and Harris, , American Constitutional Interpretation, chap. 2.Google Scholar

10 See Galston, William, “Defending Liberalism,” American Political Science Review, 76 (1982), 621CrossRefGoogle Scholar; and Macedo, Stephen J., “Liberal Virtues” (Ph. D. dissertation, Princeton, 1986).Google Scholar

11 See Barber, , What the Constitution Means, esp. chaps. 5–6Google Scholar; Jacobsohn, , The Supreme Court and the Decline of Constitutional Aspiration. Jacobson v. Massachusetts, 197 U.S. 11 (1905)Google Scholar, denying the Preamble as a source of judicially enforceable rights, does not address the basic issue here.

12 It might be useful were interpreters to adopt the Canadian distinction between the constitutional document and the constitution. See Dawson, R. MacGregor, The Government of Canada, 4th ed., rev. Norman Ward (Toronto: University of Toronto Press, 1963), chap. 11.Google Scholar

13 “The Battle for the Constitution,” Policy Review, No. 35 (Winter 1986), pp. 32–35Google Scholar; “The Attorney General's View of the Supreme Court: Toward a Jurisprudence of Original Intention,” Public Administration Review, 45 (1985), 701.Google Scholar

14 Supra note 3.

15 Supra note 2.

16 McCulloch v. Maryland, 4 Wh. 316, 415 (1819).Google Scholar

17 Legal Tender Cases, 12 Wall. 457, dis. op., 649 (1871).

18 Most of the recent literature on constitutional interpretation deals — though usually in an unselfconscious fashion — with the question of HOW. For a general analysis of the range of possibilities here, see Murphy, , Fleming, , and Harris, , American Constitutional Interpretation, chap. 8Google Scholar. See also Symposium on “Interpretation,” supra note 4; Bobbitt, , Constitutional Fate, chaps. 1–7Google Scholar; Ducat, Craig R., Modes of Constitutional Interpretation (St. Paul: West, 1978)Google Scholar; and Murphy, , “The Art of Constitutional Interpretation,”Google Scholar in Harmon, , Essays.Google Scholar

19 See Crosskey, William W., Politics and the Constitution, 3 vols. (Chicago: University of Chicago Press, 1953–1980)Google Scholar. (Vol. 3 was coauthored by William J. Jeffrey, Jr.)

20 See Black, Charles L., Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969)Google Scholar; and Harris, , “Bonding Word and Polity.”Google Scholar

21 Ely, , Democracy and Distrust;Google Scholar and “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal, 82 (1973), 920.Google Scholar

22 See, however, his joining Laurence H. Tribe to attack bills to modify Roe v. Wade, 410 U.S. 113 (1973) — a ruling that he had, as his constitutional theory required, sharply criticized in “The Wages of Crying Wolf.” “Let There Be Life,” New York Times, 17 03 1981, p. A17Google Scholar; reprinted in U.S. Senate, Committee on the Judiciary, Subcommittee on Separation of Powers, The Human Life Bill: Hearings on S. 158, 97th Cong., 1st Sess., II, 860 (1982).Google Scholar

23 The entire speech is reprinted in Basler, Roy P., ed., The Collected Works of Abraham Lincoln (New Brunswick: Rutgers University Press, 1953), 4:262–71.Google Scholar

24 To Justice William Johnson, 12 June 1823; Lipscomb, Andrew A., ed., Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association, 1903), 15:451.Google Scholar

25 For Madison's critique of an earlier version of Jefferson's idea of “recurrence to the people,” see Federalist, No. 49.

26 The Court announced its decision in West Coast Hotel v. Parrish, 300 U. S. 379 (1937)Google Scholar on 29 March 1937; but the justices decided the case — and Roberts switched his vote — in December 1936.

27 Roberts, Owen J., The Court and the Constitution (Cambridge: Harvard University Press, 1951), p. 61.CrossRefGoogle Scholar

28 There are two other obvious competitors, presidential supremacy and what might be termed nullification or “confederational departmentalism.” No president has seriously pushed presidential supremacy, though one might argue that such a theory underlay much of Lincoln's actions during the Civil War. Nullification held the states to be the final interpreters. Jefferson advocated this theory in the Kentucky Resolutions; John C. Calhoun amplified it; and the Southern states applied it in their acts of secession. Because the Civil War effectively invalidated such claims, I shall not discuss them here, nor for reasons of space other problems of federalism. For a fuller explanation and a reprinting of some of the basic documents, see Murphy, , Fleming, and Harris, , American Constitutional Interpretation, chap. 7.Google Scholar

29 1 Cr. 137.

30 Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, 1933)Google Scholar, I, Bk III, §383.

31 Ibid., §385.

32 “The constitution of our country,” Marshall wrote, “in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked by that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful sense responsibility involved in its decision. But it must be decided peacefully … and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty.” McCulloch v. Maryland, 4 Wh. 316, 400–401 (1819).Google Scholar

33 Commentaries, §385.

34 See Madison's remarks to the First Congress, quoted infra in the text at note 58.

35 See the sharp criticism of congressional interpretation by Circuit Judge (and former Congressman) Mikva, Abner J., “How Well Does Congress Support and Defend the Constitution?” North Carolina Law Review, 61 (1983), 587Google Scholar, and the defense of congressional interpretation by Fisher, Louis, “Constitutional Interpretation by Members of Congress,”Google Scholaribid., 63 (1985), 707. See, more generally, Morgan, Donald G., Congress and the Constitution (Cambridge: Harvard University Press, 1966).CrossRefGoogle Scholar

36 Quoted in Swisher, Carl Brent, American Constitutional Development (Boston: Houghton Mifflin, 1943), p. 773.Google Scholar

37 See for instance, the provision in the Gramm-Rudman or Zero Deficit Act, P. L. 99–117, that resolved disputes within Congress over an array of constitutional questions by conferring standing to sue on “any Member of Congress” who wished to challenge a presidential order, issued pursuant to the Act, to cut spending. In effect, Congress passed the buck to the courts.

38 See Murphy, Walter F., Congress and the Court (Chicago: University of Chicago Press, 1962), chaps. 9–10.Google Scholar

39 50 U.S.C. §§1541–48.

40 See, for example, Snepp v. United States, 444 U.S. 507 (1980)Google Scholar, in which six justices joined in what C. Herman Pritchett has termed an “astonishingly vindictive per curiam opinion” (Constitutional Civil Liberties [Englewood Cliffs, NJ.: Prentice-Hall, 1984], p. 66n.Google Scholar), holding that a former CIA agent who published a book without clearing it, as his contract required, with the Agency, must surrender future as well as past proceeds from the book and upheld an injunction requiring prior submission to the CIA of future writings — all in the face of the fact that the government did not claim that Snepp's writing contained classified information of any sort. The Court, moreover, arrived at its decision without hearing oral argument or even receiving briefs on the merits. Nor did the majority discuss the enormous problems raised by the CIA's contract of silence even where nonclassified information is concerned. The dissenters included only one scant paragraph about these difficulties in their ten-page opinion.

41 Annals of Congress, 7th Cong., 1st sess., pp. 178–79.Google Scholar

42 Ibid., pp. 180–81. Much of this debate is reprinted in Murphy, , Fleming, , and Harris, , American Constitutional Interpretation, pp. 202–211.Google Scholar

43 Edward S. Corwin asserted that “once we accept the doctrine of judicial review as part of the Constitution, the acquiescence of the political departments in the judicial view of the Constitution is required by the Constitution itself” (“Marbury v. Madison and the Doctrine of Judicial Review,” Michigan Law Review, 12 [1914], 538, 551Google Scholar). I think Corwin was wrong. The constitutional document is silent on the matter. And there is no logical incompatibility between accepting, as Jefferson and Madison did, the authority of judges to refuse to enforce laws they believe unconstitutional and denying, as Jefferson habitually and Madison sometimes did, that the Supreme Court's decision on a constitutional issue forecloses independent congressional or presidential judgment.

44 For a collection of their comments, see Murphy, , Fleming, , and Harris, , American Constitutional InterpretationGoogle Scholar, chap. 6. See also Agresto, , The Supreme Court and Constitutional Democracy, pp. 78–95Google Scholar. For Lincoln, see Jaffa, Harry V., Crisis of the House Divided (Chicago: University of Chicago Press, 1982).Google Scholar

45 See text infra at note 58. The documents are reprinted in Murphy, Fleming, and Harris, American Constitutional Interpretation, at p p. 198–201.

46 21 How. 506, 525.

47 Veto Message of 10 July 1832; Richardson, James D., ed., A Compilation of the Messages and Papers of the Presidents (Washington, D.C.: Bureau of National Literature and Art, 1908), II, 581–82Google Scholar. Cf. Justice William O. Douglas's views about stare decisis: “A judge … remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.” (“Stare Decisis,” Record of the Association of the Bar of the City of New York, 4 [1949], 152, 154.)Google Scholar

48 358 U.S. 1.

49 369 U.S. 186, 211.

50 395 U.S. 486

51 481 U.S. 683

52 INS v. Chadha, 462 U.S. 919.

53 Powell v. Hart, 396 U. S. 1055 (1970).Google Scholar

54 See, for example, Fisher, Louis: “Judicial Misjudgments about the Lawmaking Process: The Legislative Veto Case,” Public Administration Review, 45 (1985), 705CrossRefGoogle Scholar; “Legislative Vetoes, Phoenix Style,” Extensions (Spring, 1984)Google Scholar; “One Year After INS v. Chadha: Congressional and Judicial Developments,” Congressional Research Service, Library of Congress (1984); “Legislative Vetoes Enacted after Chadha,” Congressional Research Service, Library of Congress (1985). Cf. Brubaker, Stanley, “Slouching Toward Constitutional Duty: The Legislative Veto and the Delegation of Authority,” Constitutional Commentary, 1 (1984), 81.Google Scholar

55 Quoted in Warren, Charles, The Supreme Court in United States History, rev. ed. (Boston: Little, Brown, 1926), I:228–29.Google Scholar

56 Quoted in Beveridge, Albert J., The Life of John Marshall (Boston: Houghton Mifflin, 1919), III:177.Google Scholar

57 Eakin v. Raub, 12 Sergeant & Rawle 330 (dis. op.) (1825).Google Scholar

58 Annals of Congress (1789), I:520.Google Scholar

59 Lipscomb, , Writings of Thomas Jefferson, 11:50–51.Google Scholar

60 28 September 1820; Ford, Paul L., ed., The Works of Thomas Jefferson (New York: Putnam's, 1905), 12:161–64Google Scholar; see also Jefferson, 's letter to Torrance, , 11 06 1815Google Scholar; Lipscomb, , Writings of Thomas Jefferson, 14:303–306.Google Scholar

61 2 Dall. 419.

62 See Mason, Alpheus Thomas, Beaney, William M., and Stephenson, Donald Grier Jr., American Constitutional Law, 7th ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1983), p. 34.Google Scholar

63 See Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, 6 (1957), 279.Google Scholar

64 He instructed the attorney general to follow the Court's decision in The Schooner Peggy, 1 Cr. 103 (1801)Google Scholar, a case initiated by the federal government, even though the president thought the Court had been palpably wrong. Jefferson was consistent, however, in his departmentalism. He explained that compliance here still left the executive free to use its own judgment when similar issues arose. 1 Opinions of the Attorney General 120 (1802).Google Scholar

65 I think Robert H. Jackson was suggesting such a distinction in his dis. op. in Korematsu v. United States, 323 U.S. 214 (1944).Google Scholar

66 Marbury, supra note 29, at 170, hinted at the doctrine: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Luther v. Borden, 7 How. 1 (1849)Google Scholar is the classic, if murky, case. The Court has since made several heroic, if ultimately unsuccessful efforts to distinguish “political” from “justiciable” questions. Perhaps the most useful was Brennan, Justice's in Baker v. Carr, 369 U.S. 186 (1962)Google Scholar. See Scharf, Fritz W., “Judicial Review and the Political Question,” Yale Law journal, 75 (1966), 517CrossRefGoogle Scholar, and Henkin, Louis, “Is There a ‘Political Question’ Doctrine?” Yale Law Journal, 85 (1976), 597.CrossRefGoogle Scholar

67 Gilligan v. Morgan, 413 U.S. 1, 10 (1973).Google Scholar

68 360 U.S. 45 (1969).

69 384 U.S. 641, at 650, quoting from McCulloch, supra note 16, at 421.Google Scholar

70 Ibid., dis. op., 667–68; see also his similar reasoning in Oregon v. Mitchell, 400 U.S. 112, concur, in part and dis.in part, 204–209 (1970)Google Scholar. Walter Berns has written that the true meaning of the amendment is that Congress and not the courts should decide such issues. “The Constitution as Bill of Rights,” in Goldwin, and Schambra, , How Does the Constitution Secure Rights?, pp. 67–68.Google Scholar

71 See: Cohen, William F., “Congressional Power to Interpret Due Process and Equal Protection,” Stanford Law Review, 27 (1975), 603CrossRefGoogle Scholar; and Choper, Jesse H., “Congressional Power to Expand Judicial Definitions of the Substantive Terms of the Civil War Amendments,” Minnesota Law Review, 67 (1982), 299.Google Scholar

72 Katzenbach, supra note 69, 652, n10. One might observe that “of its own force” the Fourteenth Amendment did not forbid racial segregation in public schools until the Court so ruled in Brown v. Board, 347 U.S. 483 (1954)Google Scholar, more than 85 years after the amendment was adopted. Cf. Brennan, 's comment in Shapiro v. Thompson, 394 U.S. 618, 641 (1969)Google Scholar: “Congress may not authorize the States to violate the Equal Protection Clause.”

73 S. 158, 97th Cong., 1st sess. See the material collected in Murphy, , Fleming, , and Harris, , American Constitutional Interpretation, pp. 247–54Google Scholar; and Estreicher, Samuel, “Congressional Power and Consitutional Rights,” Virginia Law Review, 68 (1982), 333.CrossRefGoogle Scholar

74 “Miranda and Title II: A Morganatic Marriage,” 1969 Supreme Court Review, 81, 83–84.Google Scholar

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76 Rome v. United States, 446 U.S. 156, dis. op., 207Google Scholar (citations omitted). Stewart joined in this opinion.

77 Oregon v. Mitchell, supra note 70, seemed to retreat from Katzenbach, though there was no opinion of the Court; but Rome (1980), supra note 76, reasserted Katzenbach's reasoning.

78 “Misguided” because the basic conflict is not between judicial review and democratic government but between the two theories of constitutionalism and democracy that underpin the American system of government. For a discussion, see Murphy, , Fleming, , and Harris, , American Constitutional Interpretation, chap. 2Google Scholar, as well as the articles by Murphy cited in note 3 and Murphy, , “Constitutional Interpretation: Text, Values, and Processes,” Revs, in Am. Hist., 9 (1981), 7.CrossRefGoogle Scholar

79 See much of the literature cited in notes 1–4, especially Ely, 's Democracy and Distrust.Google Scholar

80 This sort of approach, of course, does nothing to reduce conflict between the president and Congress.

81 Which is not, by any means, to deny the importance of interest groups in particular and the electoral process in general in shaping the behavior of the legislative and executive branches and thus perhaps, though less directly, of the judicial branch as well. See Murphy, Walter F., Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964), esp. chap. 2.Google Scholar