Citizens, Unite! Part Two of Your Constitutional Primer

 
 

“Constitutional law” is not the exclusive domain of the courts, or even of government officials. Faithful interpretation is the duty and responsibility of faithful citizens.

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Yesterday, I began my two-day mini-review of every essential principle of constitutional interpretation. If you’re a first-year law student, desperately cramming for the final exam, I hope this hasn’t arrived too late to save you! If you’re a regular old non-lawyer real person, I hope this is a useful window into what is really going on in the unnecessarily mystical field of “Constitutional Law.”

To review, there are basically five techniques of constitutional interpretation that courts and commentators employ: (1) arguments from the straightforward, natural, original linguistic meaning of the text; (2) arguments from the structure, logic, and relationships created by the document as a whole; (3) arguments from history, original intention, or purposes behind an enacted text; (4) arguments from precedent; and (5) arguments from policy.

Draw the Curve, Then Plot the Data

We had just completed discussion of the first four methods, and have now arrived at the fifth technique: policy, pragmatism, or considerations of “substantive justice.”

As a technique of constitutional interpretation—of actual textual exegesis—of trying faithfully to ascertain the meanings of the Constitution’s words—policy-driven “interpretation” is, of course, completely illegitimate. Think about it: If you were really trying to figure out what the words of a written text actually mean, you wouldn’t start with the lawyers-joke question: “Well, what do you want them to mean?”  Would you?

Policy-driven “interpretation” ignores a fairly obvious reality. The Constitution does not necessarily mean all good things. It countenanced slavery, originally, didn’t it? Did the words not mean what they meant just because they meant bad things? That’s just plain silly.

Moreover, what one person thinks is good “substantive justice,” another will think a wrongheaded atrocity. Did you notice, dear student, how so many so-called “Constitutional Law” classes tended to degenerate into simple political shouting matches over preferred policies on abortion, gay rights, affirmative action, war, the death penalty, and many other things? Did it ever occur to you that policy differences not actually addressed by the Constitution are to be resolved by democracy—by the institutions of representative government?

The outcomes-oriented method of constitutional “interpretation” reminds me of the way my high school chemistry lab partner—let’s call him “Cal” —and I used to write our lab reports. Cal, who is now a lawyer of course, would loudly and proudly proclaim our methodology to anyone who would listen: “First, draw the desired curve. Then, plot the data. If time permits … do the experiment!”

Alas, this is how the Supreme Court often plays the constitutional interpretation game. They are skilled practitioners of “The Cal-and-Mike-High-School-Chemistry-Lab-Experiment-Method of Constitutional Interpretation.”  The justices begin with their desired conclusion, marshal the right arguments, and if time permits read the Constitution. Any number of Supreme Court cases read this way; they’re just dressed up outcome-driven policy decisions, clothed in legal language. All the Court’s abortion cases fit this description. So do all the gay rights cases. Watch for it to reappear in the Court’s pending same-sex marriage decisions.

How Do Various Interpretive Methods Relate to Each Other?

So how do these different and often conflicting methods of constitutional interpretation fit together?

Almost the entire constitutional law course can be deciphered by figuring out which of these techniques the Supreme Court is using at a particular time. A good course includes thinking about which of these techniques might be legitimate, which ones are illegitimate, and which ones properly have priority over others. A bad course fails to consider any of these things and simply brushes past these fundamental questions, presenting baffled students with an endless succession of Supreme Court decisions and no coherent rubric for evaluating or making sense of them.

Please take my advice: Use these techniques in the order in which I have listed them, in a fairly strict hierarchy, proceeding down the list only to resolve uncertainties that remain at any given level, and never getting down so low as “policy.” Thus, text and structure have priority and primacy; evidence of intention has its limited place; precedent is dangerous and slippery and should never trump the written constitutional text, but might be useful for seeing what someone else has thought about an issue; and policy-driven interpretation is simply a bad joke.

Sadly, this is nearly the exact opposite of the order in which the modern Supreme Court uses these methods. The justices frequently start with policy, discuss endless precedents, and on rare occasions—when these prove unsatisfying—actually get to the text.

Who Interprets the Constitution?

Armed with this understanding of the various techniques of constitutional interpretation, you are now fully prepared to engage and decipher any constitutional text and any Supreme Court case. There are just two clean-up issues that clutter the constitutional law course.

First, who gets to interpret the Constitution? The law-school-course answer is “Well, the Supreme Court, of course! They’re supreme, after all!”

This is clearly the wrong answer.  The right answer is that the Constitution does not specify a single authoritative constitutional interpreter, and that this is a singular, defining feature of its text and structure. In this respect, the American Constitution contrasts rather sharply with the approach of some nations that have a designated “Constitutional Court” with explicit textual authority to resolve all questions of constitutional interpretation. The structure of the US Constitution—separation of powers, with each branch independent in the exercise of its authority and with no branch literally bound by the actions or judgments of any other branch—refutes the notion that anything the courts say goes.

As James Madison put it in Federalist 49 (note, by the way, how we’ve looked, in succession, to text, structure, and now history to resolve this constitutional question): “the several departments, being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Alexander Hamilton said something similar in Federalist 78 and 81, emphatically denying judicial supremacy, affirming instead the supremacy of the written constitution itself, and noting the power and right of the president and Congress to check any usurpations of the Constitution by the courts – the president by declining to execute improper judicial decrees, and Congress by impeaching justices and judges who abuse their powers of constitutional interpretation.

The correct answer to the question of who gets to interpret the Constitution is “everyone.” The framers of the Constitution quite sensibly considered the power of constitutional interpretation—the power to interpret all the other powers, and all the rights of the people—to be far too important a matter to vest in a single set of hands.

The framers instead left constitutional interpretation to the pull and tug of competing interpreters and competing branches of government. The president (and the executive branch) interprets and applies the Constitution within the scope of the president’s constitutional powers. Presidents swear a unique, constitutionally prescribed oath to “preserve, protect, and defend” the Constitution. They also promise they will faithfully execute the laws, including the Constitution. How could they do that without interpreting the Constitution independently? Congress also interprets the Constitution in the course of exercising all of its powers: legislation, impeachment, proposing constitutional amendments, checking presidential appointments, treaty ratification, and more. Even officers of state governments have the sworn duty and responsibility faithfully to interpret the Constitution.

Finally, juries, voters, and citizens have the authority to interpret the Constitution. We the People retain the right to interpret, faithfully, what is after all our Constitution, and may press our views of the proper understanding of the document with the limited powers available to us: jury service, voting, and political advocacy. And we may do so—indeed, of course, must do so—independently of the views of courts and other institutions of government if we are to keep their misinterpretations in check. In so doing, we should draw on the above lessons concerning the proper method for interpreting the Constitution, emphasizing the document’s text and original meaning, structure, and history. “Constitutional law” is not the exclusive domain of the courts, or even of government officials more generally. Faithful interpretation is the duty and responsibility of faithful citizens.

What Do You Do with Ambiguity?

The second clean-up issue concerns what to do when the Constitution, faithfully interpreted, is ambiguous, vague, or otherwise “indeterminate.” The short answer is once again suggested by the Constitution’s structure and reinforced by the point just made about who interprets the Constitution. It also conforms with good old-fashioned common sense:  Where the Constitution does not supply an answer, the Constitution does not supply an answer, and We the People get to do what we want, operating through the institutions of representative government created by the Constitution’s structure.

That’s it. That’s the answer to constitutional ambiguity or indeterminacy.

Now, law professors and judges sometimes like to pounce on the document’s supposed vagueness, or lack of clarity, or range of possible meanings, as a license to expound their own preferred views. Sometimes they’re simply wrong about how vague or ambiguous the Constitution supposedly is. On a great many points, the Constitution, properly interpreted according to its original public meaning and not obfuscated by muddled doctrines and mucked-up precedents, answers most questions more clearly than the loosey-goosey interpreters would have you believe.

But sometimes the professors are actually right about the Constitution’s lack of specificity. Sometimes, even employing the correct techniques of constitutional interpretation yields a range of meaning rather than a single, clear, right answer.

Still, that is hardly a justification for the courts picking whichever meaning they most like. The whole premise of judicial review is that the courts can invalidate legislative choices only where they are actually contrary to some rule of law supplied with sufficient clarity by the document itself. The structure and logic of the Constitution thus dictate that where there exists a range of possible, legitimate right answers, the people—acting through their representatives—get to interpret the Constitution and choose the policy they think best. They can even change their minds from time to time. That’s what democracy is, and that’s what the Constitution provides.

Ambiguity, vagueness, and indeterminacy thus supply no justification for judicial activism and loose interpretation. Just the opposite: the less clearly the Constitution speaks to any issue, the less the justification for judicial invalidation of what elected branches have done and the greater the sphere of political public policy discretion.

* * * * *

So there you have it: everything you need to know about how to interpret the Constitution, who gets to interpret it, and what happens when the answers are unclear. All of this means that the “Constitutional Law” course is a good deal less mysterious and mystical than what most law students have been taught for the past thirteen weeks and what most citizens have been taught for untold years.

Law students of America, unite! Apply these principles to whatever hypothetical your law professors concoct and you have the weapons you need to defeat the test. Citizens of America take heed! Apply these principles to whatever precedents the courts concoct and you have the weapons you need for resisting tyranny in the misbegotten guise of “interpretation” of your Constitution.

Michael Stokes Paulsen is Distinguished University Chair & Professor of Law, at the University of St. Thomas, in Minneapolis. He is co-author, with Luke Paulsen, of The Constitution: An Introduction, just published by Basic Books.

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