Citizen as lawyer, lawyer as citizen.

AuthorTushnet, Mark V.
  1. ORDINARY PEOPLE AND CONSTITUTIONAL INTERPRETATION

    Ordinary people engage in constitutional analysis. (1) How do they do so? How should they do so? What can lawyers contribute to their engagement? In this brief Essay I offer some anecdote-based speculations on the first question, which lead to some reflections on the second and third. (2)

    Most lawyers have some experience with popular constitutional interpretation. Most of us have read something about extreme constitutional interpretations, of the sort associated with tax protesters who believe that the income tax is unconstitutional. (3) But, popular constitutional interpretation is more widespread and, by a large margin, much more sensible. Ordinary people think about the Constitution when they discuss antigay protests at military funerals, considering whether such protests are forms of political expression protected by the First Amendment or are instead forms of hate speech that governments can permissibly regulate. (4) They think about the Constitution when they discuss abortion rights, with prochoice people defending their positions by referring to a woman's liberty and equality interests, and prolife people arguing that fetuses (or unborn children, as they see it) are "persons" within the meaning of the Fourteenth Amendment and therefore entitled to the state's protection. (5)

    My own experience with popular constitutional interpretation comes from two areas. I recently published a book on the Second Amendment, which is perhaps the constitutional provision about which the largest number of nonlawyers have reasonably firm interpretive positions. (6) In writing the book and in discussions with ordinary people--that is, nonlawyers--about the Second Amendment after the book was published, I found that firmly held positions split sharply on what the Second Amendment means, but were basically united in interpretive approach: ordinary people are straightforward textualists. (7) Gun-rights proponents observe that the Amendment's second clause, sometimes in lawyers' discourse called the "operative" clause, uses the phrase "right to keep and bear arms," and assert that the phrase must refer to the same kind of right that other Bill of Rights provisions create. (8) Gun-control proponents, in contrast, focus on the Amendment's first clause, its "preamble," which refers to "a well-regulated militia," and assert that whatever right the Amendment creates has to have something to do with membership in a militia, an organized and collective body, and that the right is not a purely individual right like the others in the Bill of Rights. (9)

    A second example of popular textualism comes from my study of African American civil rights lawyers in the first half of the twentieth century. When one reads biographies of those lawyers, or their autobiographies, one finds a striking number of occasions in which textualism is said to have propelled the subject toward becoming a civil rights lawyer. (10) The structure of the events is similar: the young person obtains a copy of the Constitution--sometimes from a favorite relative, sometimes while sitting in a school room--and reads it. On reaching the Fourteenth Amendment, the subject reads the phrase "[n]o state shall ... deny to any person ... the equal protection of the laws," (11) and is struck by the fact that "equal protection of the laws" would be an extremely desirable state of affairs, but is at odds with the subject's experience in a segregated society. (12) Reading the Constitution's text leads the subject to become a lawyer who will eventually take it as his or her duty to make reality reflect the text. (13)

    Textualism is the nonlawyer's first interpretive principle, but it is not the only one. Nonlawyers are also purposivists in interpretation. They supplement their textualism with explanations to the effect that the text read as they would read it makes good policy sense. (14) So, for example, limiting the Second Amendment right to persons and weapons with some connection to a state-organized militia makes sense because it allows the people acting through their representatives to respond to outbreaks of gun-based violence. (15) Or, on the other side, the individual-rights interpretation makes sense because it allows people to defend themselves against criminal predators when the government has not been able to provide an adequate collective defense. (16) It also serves as an essential check on the possibility that the government will become tyrannical, not so much because an armed people will be able to resist a modern army (although such a people operating as a guerilla force can make a soldier's life miserable), but more because a people confident in its ability to defend itself against an oppressive government will be alert to incursions on their rights and will not elect representatives who might become tyrants. (17)

    In addition, nonlawyers are weak traditionalists. In popular culture the fact that a practice has been regulated extensively for a long time counts against a claim that people have a constitutional right to engage in the practice, and the fact that a practice has gone on without regulation for a long time counts in favor of a claim that people have a constitutional right to engage the practice. The traditionalist interpretive principle is weak, though. Traditions are only occasionally robust enough to support any conclusions. More important, as against a tradition of regulation, people can say that we have only recently become alert to the ways in which regulation impinges on our rights, and, as against a tradition of non-regulation, people can say that the practice has only recently become widespread enough to justify regulatory intervention.

    Nonlawyers almost never rely on precedents to explain their preferred interpretations. That is hardly surprising, of course, because nonlawyers are rarely familiar with the precedents, particularly when the precedents are thick on the ground. The exceptions are cases like Brown v. Board of Education (18) and Roe v. Wade, (19) which enter into popular understanding not so much as precedents in the lawyer's sense of the term, but rather as references that capture some deeper principle to which people are committed or opposed. (20)

    Finally, ordinary people are not really originalists in constitutional interpretation. Sometimes people will refer to something like original understandings, but such references are almost always ways of referring to text or tradition. Originalism comes into popular discussions largely because originalism has been widely disseminated as the preferred interpretive method, and people think that they should somehow be originalists even if they are not quite sure what originalism really is, or, perhaps more important, even if they lack a good handle on what a constitutional provision's adopters understood the provision to mean. (21)

    In some sense, of course, no one should be surprised that textualism and purposivism are the people's interpretive methods. Text and purpose are the only things to which ordinary people have ready--and unmediated--access. Everything else--legal doctrine and precedents most obviously, but even original understandings--are the province of legal specialists. At the same time, though, lawyers know that textualism, purposivism, and weak traditionalism cannot adequately support constitutional interpretation. And indeed, if ordinary people were able to reflect on the role of textualism and purposivism in the Second Amendment context, they would come to the same understanding: the text speaks in one way to gun-rights proponents, in another to gun-control proponents. (22)

    The inadequacy (23) of the interpretive theories ordinary people use when they think about the Constitution means that lawyers can make a valuable contribution to popular constitutionalism. I confine my attention to a specific but important phenomenon: popular understanding of particular constitutional rights in ordinary political discussions. (24) Questions of public policy often implicate constitutional questions as well, and sometimes popular discussions of the policy issues include some explicit attention to the constitutional questions. What can lawyers contribute to such discussions?

    Perhaps relatively little. Consider here an argument derived from one made by James Madison. (25) Addressing the concern that legislators motivated by desire for re-election and for their private interests would not adopt laws that advanced the...

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