Constitutional Interpretation.

• Author: Nichol, Gene R.

Once upon a time, there was a liberal activist U.S. Supreme Court. An ex-California Governor, a populist southern Senator, an NAACP litigator, a New Jersey Supreme Court Justice, a law professor, and some others initiated a legal revolution in America. They enforced the Bill of Rights against the states, dismantled legally imposed segregation, interpreted laws to provide protection for the poor, nixed orchestrated public school prayer, made the Fourth Amendment meaningful, discovered a right to "privacy," made Miranda a household word, and held that the guarantees of freedom of speech and the press actually limit the authority of government.

Many found the vision of law and legal institutions that the Warren Court announced both consistent and inspiring. Idealistic young lawyers entered the profession as a way of fostering human dignity and equality. Litigators searched for "impact" cases, and law professors cheered the Court in its crusade. It seemed possible to change the world without going to the trouble of getting elected to office. It was, in short, heady stuff.

But, as is usually the case, not everyone saw the Warren Court the same way. At first, southern racists and states' rights advocates assailed the Court's work, but this only enhanced the apparent justice of the Court's efforts. Eventually, however, large numbers of Americans and their leaders began to see the Supreme Court's record as one of usurpation. This, after all, is a democracy. If unelected judges dictate unalterable national social policies, we have ceased to govern ourselves; even "progressive" political rules should be subjected to the rigors of the electoral process. So presidents promised to change the direction of the judiciary - they appointed jurists who would apply the law, not make it up, and who would "strictly construe" the constitutional charter. I This political move, to be sure, was not an immediate success. Not only did the first set of new justices fail to launch an effective counterrevolution,(2) but they declared women legally equal and rather violently discarded the country's abortion laws. Nevertheless, a course was set, and after ten tries or so, conservative presidents have achieved some measure of success.

While this political-legal battle raged, an academic cottage industry was born, or perhaps reborn. Constitutional theorists appeared and chose sides. Most of them sought, quite overtly, to salvage and justify what they considered the heroic legacy of the Warren and early Burger Courts. To explain that Brown(3) and Roe(4) were correctly decided, and that Lochner(5) was not, became vital. That task alone was a full time job; but it was, no doubt, a job worth doing. For if theories could be woven with sufficient persuasiveness and sufficient power, the judicial world would listen. A majestic view of constitutionalism could thus be secured.

Of course, only part of the academic community joined in this enterprise. Others honed critical skills by attacking the activist legacy. Not only, in their view, was the Court's work illegitimate, but the academy's defense of it was even more elitist and flawed. Discretion in the hands of a social-engineering judiciary clearly amounted to an assumed authority to legislate. These critics, therefore, called for significant restraints on judicial power. When another former California Governor received the appointment power, he seemed just the fellow to put such restraints in place. In some important ways, he did so.

What both of these academic camps had in common was a belief that legal scholars were significant constitutional actors. Like editorial writers for major newspapers, their essays and critiques would temper the movement of government. Like minor oracles, they could speak directly to the U.S. Supreme Court. Not mere speculative theorists, these players' efforts would bring forth the desired fruit or the sought-after social policy.

Gradually, though, things began to change. For liberal theorists, the federal judiciary became a foreign domain. Republican presidents knew what they were doing; the new jurists had different inclinations than Earl Warren and William Brennan. At least by the mid-1980s, liberal activists could no longer realistically believe that the judiciary would be sympathetic to their suggestions. In a fundamental sense, the conservative academic critics were no better off. Their strongest successes had come in debunking the work of the Court and its defenders. Although the political winds now blew in their direction, they had a difficult time taking "yes" for an answer. If the liberal theorists seemed suddenly anachronistic, the conservative critics had lost their principal targets and the opportunity to display their talent for hurling grenades. They suddenly lacked direction.

In recent years, to oversimplify grossly, constitutional scholars have tended to react to their lost judicial audience in one of two ways. First, and always an alternative in academia, many have simply kept doing the same thing.(6) Somewhat more sophisticated and less doctrinal, frequently more "textured," and often reflecting the learning of other disciplines, these experts have continued to produce advocacy scholarship and simply ignored the fact that no one who counted was actually listening.(7) They are, as my colleague Pierre Schlag puts it, "normative" with "nowhere to go."(8)

Presumably more sophisticated commentators turned inward, crafting works designed primarily to be read by other academics. This brand of constitutional theory, or perhaps "metatheory,"(9) concerned itself little with the application of legal principles and reflected a certain detachment from law and its institutions.(10) Metatheorists deemphasized the work of judges and were decidedly less inclined to attempt to supply "correct" interpretations of the Constitution. They wasted no more time constructing doctrinal arguments that could conceivably appeal to members of the judicial elite. Their work, to generalize, looked more and more like that of the humanities and less and less like that of the legal profession. "Constitutional law as practiced in the legal academy ... cast itself adrift, whether out of desperation, disgust, or despair, and engaged itself in spinning gossamer webs of republicanism, deconstruction, dialogism, feminism, or what have you."(11)

I have little doubt that the portrait of modern constitutional scholarship described above contains a significant dose of truth. The altered audience for constitutional theory, the expanded boundaries of the scholarship itself, the increased intellectualization of the legal academy, the estrangement of the professoriate from the legal profession and its institutions, and the political chasm that has developed between academics and the bench have led to an identity crisis for American constitutional scholars. That crisis has made the work of Philip Bobbitt(12) - his struggles and false starts, his clear successes and scholarly aspirations - particularly interesting. Bobbitt's efforts may perhaps provide useful lessons about the future of constitutional scholarship.

Bobbitt's first major effort, Constitutional Fate, published in 1982, presented a morphology of constitutional arguments. Emphasizing the patterns of legal discourse or the "modalities" of justificatory argument, Bobbitt embraced an ennobling vision of judicial review. Devoting separate chapters to historical, textual, doctrinal, prudential, structural, and ethical argument, he turned away from traditional efforts to legitimize constitutional review in favor of a description of accepted conventions in a continuing dialogue about the appropriate scope of judicial authority. In some ways, then, Bobbitt presaged the metatheorists - offering a theory about interpretive theories - and he did it with a depth and an elegance too seldom revealed in legal scholarship. But like a good Warren Court apologist, his modalities tended, in virtually every instance, to sustain the work of the father - he lionized Griswold,(13) Roe,(14) Sullivan,(15) Schempp,(16) Reynolds,(17) and, of course, Brown.(18) Furthermore, Bobbitt noted that the role of the U.S. Supreme Court included the authority "to give concrete expression to the unarticulated values of a diverse nation."(19) Again, heady stuff. No wonder I liked it.(20)

1. Constitutional Interpretation - Legitimacy and

   Constraint

   Despite the clear power of Constitutional Fate, critics identified two...