BRACTON'S WARNING AND HAMILTON'S REASSURANCE.

AuthorKelsey, D. Arthur

We gather today to celebrate what we call "Law Day"--which I take simply to mean a day to honor the law. The highest law of the land, of course, is the United States Constitution, the American Magna Carta. In honor of our Constitution, I would like to discuss a jurisprudential debate that began in thirteenth-century England and has continued to this day. The debate centers on a single question: What is a judge's role in the interpretation of our Constitution?

Thomas Jefferson once famously said: "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." (1) What did Jefferson mean by that? How could judges construe the Constitution in a way that renders it a blank piece of paper?

You probably wouldn't think that the definitive answer to that question would come from Obi-Wan Kenobi. But he made the point as well as anyone when he said to Luke Skywalker, "Luke, you're going to find that many of the truths we cling to depend greatly on our own point of view." (2) If that is true, and I believe it is, I would invite you to examine your own point of view on this subject and question how it fits within the spectrum of competing views.

Let me begin with a point of agreement. Interpreting the Constitution is easy when its text is irrefutably clear. Article I, Section 2, Clause 2, for example, states that "[n]o person shall be a Representative who shall not have attained to the Age of twenty five Years." I assume that no one--whether liberal, conservative, libertarian, or none of the above--would read that clause to mean that a 14-year-old could be elected to the House of Representatives if he had the maturity of a 60-year-old. I also assume the inverse would be somewhat regrettably true as well--that no one would interpret the clause to forbid a 60-year-old from holding office merely because he had the maturity of a 14-year-old.

Needless to say, not every clause of the Constitution is that clear. In fact, very few are. The trial judges as well as the lawyers practicing in our criminal courts will remember Crawford v. Washington. (3) That case completely changed the way that we apply the Sixth Amendment's Confrontation Clause to hearsay offered in criminal cases. At the very beginning of the analysis section of the opinion is this unadorned admission: "The Constitution's text does not alone resolve this case." (4)

  1. THEN, WHAT DOES?

    I will never forget the first time I read that provocative sentence. It raised the obvious next question: If the text alone does not resolve the case, then what does? I think there are four judicial models that best describe how judges answer this question.

    The Oracle Model. Under this highly egocentric approach, the constitutional text means what the judge personally thinks it ought to mean. This kind of judge will see himself either as a mystical Oracle of Delphi, or, if Social Darwinism appeals to him instead of mythology, he will simply conclude that he won the survival-of-the-fittest competition and has somehow earned the right to have the last word on the Constitution's meaning. The decision-making style of this type of judge, as Jefferson might say, is often sprinkled with "metaphysical subtleties, which may make anything mean everything or nothing," depending on the sophistic skills of the judge. (5)

    In Democracy and Distrust, John Hart Ely's seminal work on modern constitutional theory, Ely argues that the Oracle Model is often employed but "seldom endorsed in so many words." (6) It only became intellectually acceptable in some circles, Ely wryly observes, when modern legal realists "'discovered' that judges were human and therefore were likely in a variety of legal contexts consciously or unconsciously to slip their personal values into their legal reasonings. From that earth-shattering insight it has seemed to some an easy inference that that is what judges ought to be doing." (7)

    The Platonic Guardian Model. This less egocentric approach invites the judge to look to the consensus of elites--what today's favored opinion makers think the constitutional text ought to mean. I grant that there is an ancient tradition for this view. Plato's Republic was governed by guardians. These philosopher-kings reigned not individually but collectively as a self-appointed ruling class. They believed, not without cause, that their enlightened wisdom was far superior to the less-informed views of those in the lower social castes. In modern times, the guardian class includes judges with a progressive, historicist bent who see the law as a means of hastening what they believe to be the inevitable trajectory of social evolution.

    The Popular Culture Model. This approach allows the judge to interpret the Constitution in light of the meaning that most people today, employing modern moral standards and sensibilities, think the text ought to mean. This approach has a tincture of democratic value, but it is actually a highly condescending form of democracy. In a true democracy, the voters speak for themselves. They do not authorize judges to act as their proxies in casting votes. Even so, there are many examples in which this judicialized demos plays a role and a few examples (such as modern Eighth Amendment cases) where it presently reigns supreme.

    The Historical Tradition Model. This approach requires the judge to look at the text of the Constitution, and if it is unclear, the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law. In a democratic republic, words become law only when the true sovereign elevates them to that status. The first line of the Constitution declares that "We the People of the United States, in Order to form a more perfect Union," created the federal government and granted it limited delegable powers. (8) The creator is always greater than the creation. "We the People" are sovereign--not the government.

    In the Historical Tradition Model, law retains its democratic legitimacy only when judges interpret the words as they were understood at the moment of their elevation by the collective sovereign, "We the People." The constitutional text, James Madison explained, should be interpreted as "it had been understood by its friends and its foes" at the time of its adoption and ratification (9) because "[i]n that sense alone it is the legitimate Constitution." (10)

    In Federalist No. 40, Madison reinforced this point by reminding us that the work of the Framers at the Philadelphia Constitutional Convention was "merely advisory and recommendatory" (11) because they were "mere scriveners or attorneys appointed to draw up an instrument; the instrument's true makers were the people of the United States assembled in state conventions." (12) Only when the people adopted and ratified the Constitution did the words become law.

    Whatever you think of the Historical Tradition Model, let me remind you of Winston Churchill's famous quip that "democracy is the worst form of Government except all those other forms that have been tried from time to time." (13) A similar sentiment, I believe, applies here to lift the Historical Tradition Model above its three competitors. Each of them, to one degree or another, involves interpolating meaning into a legal text instead of interpreting meaning from the text. As a result, the first three models simply liberate judges to construe an ambiguous constitutional text so that it means what it ought to mean, what it should mean, what it would mean if they--the judges--had written it.

    How is it possible to follow any of these other three models without, consciously or not, injecting politics into law? No matter which way you answer that, this much is sure: Many Americans today are deeply suspicious about the role of politics and its influence on the courts. Sometimes this suspicion is terribly unfair; at other times, it is entirely understandable.

  2. DRED SCOTT: LAW AND POLITICS CONVERGE

    Before I survey the evolution of this debate, I want to remind you of one of the most infamous moments in our history when the merger of law and politics caused catastrophic damage to the nation. Everyone knows the case, its very name--Dred Scott--has an appalling stench to it. In that case, Chief Justice Taney, on behalf of a majority of other pro-slavery justices, discovered a constitutional right for a slave owner to own slaves, even in free states and territories, and on that basis, struck down the Missouri Compromise. (14)

    After you read the majority opinion, go to the dissent of Justice Benjamin Curtis. He clearly summed up the problem of the majority opinion and accurately...

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