Efficient Causes of Constitutional Interpretation

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 173

As noted at ß 1.2.1, in Aristotle's example of a silver bowl, the efficient cause of the silver bowl is the "hammering of the silversmith" to make the material cause, silver, into the shape of a bowl. Likewise, this Chapter deals with the efficient causes of the form of constitutional decisionmaking. This involves the techniques used by judges in dealing with the materials of text, context, history, practice, precedent, and prudential considerations in order to "hammer out" decisions on constitutional law. Discussed with specific reference to constitutional law, these techniques are the approach to judicial reasoning as predominantly deductive or inductive, discussed at ß 7.1; the adoption of legal doctrine as categorical rules or balancing tests, as elements to meet or factors to weigh, as rules or standards, and as questions of law versus questions of fact, discussed at ß 7.2; the treatment of precedent in a narrow or broad fashion or as having a gloss on meaning or not, discussed at ß 7.3; and aspects of the judicial process, including the nomination and confirmation process for Supreme Court Justices; the process by which cases get decided, including the rules regarding Supreme Court adoption of cases through grants of petitions for certiorari, mechanism of Supreme Court consideration of cases in judicial conference, the process of selecting a Justice to write the Court's opinion, and the possible writing of concurring and dissenting opinions; and rules of judicial recusal, discussed at ß 7.4.

ß 7 1 Deductive versus Inductive Reasoning

As noted at ß 4.1 nn.1-6, judicial reasoning in common-law, statutory interpretation, or constitutional law cases can adopt either a deductive or an inductive mode of reasoning. Regarding constitutional adjudication, judicial reasoning tends to be more deductive in areas where the constitutional provision is phrased in relatively detailed, specific terms, and thus where adjudication is more like statutory interpretation. In contrast, for constitutional provisions phrased more generally, like the First Amendment's provision that "Congress shall make no law . . . abridging the freedom of speech" or the 14th Amendment's provision that "no State shall . . . deny to any person equal protection of the laws," judicial elaboration has tended to be more inductive in form.

As noted at ß nn.13-18, the "Enlightenment rationalist" mode of interpretation follows a more deductive mode of analysis. This "Enlightenment rationalist" approach provided the intellectual basis for the French Revolution and the adoption of the Napoleonic Code, the first great code of the modern era in civil-law countries. The premise of this approach was that the people make the law, place it in codes, and then the judges by deductive logic merely follow the law that the people have laid down. This approach underlays not only the French Revolution, but also the analytic positivism of Jeremy Bentham and John Austin in the late 18th century and early 19th century England. Although this formalist, deductive model of interpretation predominated on the courts in America in the context of the conservative ideology of the formalist era of 1873-1937, as discussed at ßß 13.1 & 14.2.2, the fact that the same approach toward judicial decisionmaking was adopted by the reformists of the French Revolution and by Bentham in England underscores that the approach can also be consistent with progressive ideology. This approach can be particularly attractive to progressives where judges are perceived as adjuncts to a conservative executive branch, as in 18th-century France and England, rather than an independent third branch of government. Page 174

From the perspective of constitutional interpretation, the most salient feature of this "deductive" methodology is the more willing embrace of the "specific interpretive tasks" listed in Table 6.4.1, rather than resort to "general interpretive reasoning." Specific interpretive tasks, like those involving the plain meaning of text, verbal maxims, specific historical intent, legislative or executive practice, or the core holdings of precedent, are more amenable to being applied through deductive logic. In contrast, more general interpretive tasks, like those involving determining purposes behind text, resort to background structural arguments, use of concepts which emerge from general historical intent, determination of social practice from various sources, general reasoned elaboration of the law, or prudential consideration of background principles or policies embedded in the law, involve greater use of the inferential logic of inductive reasoning.

For instance, the examples of "mainstream normative" prudential considerations in cases like Planned Parenthood v. Casey, Plyler v. Doe, BMW v. Gore, and Griswold v. Connecticut, discussed at ß 5.4.2 nn.117-29, all involved various amounts of inductive reasoning that was used to determine the content of the background moral principles involved in the case. Cases focused more on literal text and specific historical evidence, such as the focus on the literal text of the Bicameralism and Presentment Clauses used in INS v. Chadha, discussed at ß 6.3.1 n.113, involved more elements of deductive reasoning. As noted at ß 4.1 n.13, the formalist style of interpretation is the style most comfortable with deductive modes of reasoning. The formalist style of interpretation is thus the most comfortable with placing greater reliance on specific interpretive tasks, as noted in Table 6.4.

Of the framing and ratifying generation, the most prominent individual to have adopted a theory of constitutional interpretation similar to a formalist, deductive model of interpretation was Thomas Jefferson. As noted by Professor David Mayer, in The Constitutional Thought of Thomas Jefferson, Jefferson adopted this approach, as did Bentham in England, in order to limit the discretion of judges, whom Jefferson viewed with suspicion. He was concerned that judges, particularly those "weaned on the 'honeyed Mansfieldism' of Blackstone," would use any broader style of reasoning to frustrate the legitimate will of the people.1 For example, as noted at ß 3.4 n.91, the natural law style of interpretation embraces the "Rule of Heydon's Case" regarding equitable interpretation of a statute in light of its "mischief to be remedied." Blackstone and Mansfield warmly embraced this style of interpretation.2 In contrast, reflecting a more formalist style of interpretation, Jefferson wrote, "Relieve the judges from the rigour of text law, and permit them, with pretorian discretion, to wander into it's [sic] equity, and the whole legal system becomes uncertain."3 A few other Page 175

Jeffersonians of the same era shared in Jefferson's theories of interpretation.4

A classic debate during the first two years of our Nation's founding occurred over whether the Constitution, as a whole, and specifically its provisions dealing with the commerce and spending powers, should be dealt with in a deductive or inductive fashion. Specifically, this debate involved the constitutionality of Congress creating a national bank. Jefferson's views to President Washington in 1791 on this issue are instructive of Jefferson's approach to constitutional interpretation. Professor David Mayer noted that in deciding that Congress did not have such a power Jefferson focused on: the words of Article I, the enumerations of congressional power, construed (as Jefferson would later put it) "according to the plain and ordinary meaning of its language, to the common intendment of the time and those who framed it." "The incorporation of a bank, and other powers assumed by this bill, have not . . . been delegated to the U.S. by the Constitution," Jefferson concluded, arguing that they were neither "among the powers specifically enumerated" nor "within either of the general phrases" of Article I [ß 8].5

Regarding the "specifically enumerated" powers, Jefferson noted that the bill to create the national bank laid no taxes, borrowed...

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