Holmesian Constitutional Interpretation

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

Page 303

ß 10 1 Introduction to Holmesian Decisionmaking

As discussed at ß 3.2, the Holmesian approach, as a positivist theory of law, shares with the formalist approach a strong belief in judicial restraint and a limited role for the judge who attempts to decide cases in light of existing positive law. However, because the Holmesian approach is a functional approach to decisionmaking, not an analytical approach, the Holmesian judge does not have a predisposed preference for rigidly mechanical application of rules. As Oliver Wendell Holmes stated in The Common Law,1 "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." Thus, as Holmes stated in New York Trust Co. v. Eisner,2 "[A] page of history is worth a volume of logic." The basic elements of this Holmesian style of constitutional interpretation are discussed at ß 10.2.

As discussed at ß 10.3, in the 20th century there have been on the Court extreme Holmesians, such as Justice Holmes himself and Justices Brandeis and Frankfurter, and moderate Holmesians, such as Justices Jackson, the first and second Harlans, and Stewart. Justices Frankfurter and Brandeis would both be described as liberal Holmesians, while Justices Holmes, Stewart, and both the first and second Harlans would be described as conservative. Justice Jackson would best be described as a centrist Holmesian. Among other Justices on the Vinson Court, Chief Justice Vinson and Justices Reed, Minton, and Clark can properly be described as moderate, conservative Holmesians. Among Justices on the Warren Court, Justice Whittaker was a moderate, conservative Holmesian. Among Justices on the Burger and Rehnquist Courts, Chief Justice Rehnquist is best categorized as an extreme, conservative Holmesian, while Justice White was an extreme, liberal Holmesian. Noteworthy Holmesians on the Courts of Appeals include Judge Learned Hand, who was never nominated to the Supreme Court, and Judge Robert Bork, who was nominated but was not confirmed. Noteworthy commentators espousing Holmesian themes include Professor James Bradley Thayer in the late 19th century, as discussed at ß n.16, and University of Texas School of Law Professor Lino Graglia today.3

Finally, as exists with respect to each style of interpretation, a judge who predominately follows one style may have an affinity for another style. As discussed at ß 10.4, moderate Holmesians Justice Harlan and Stewart occasionally demonstrated a slight affinity for natural law. Despite being an extreme Holmesian most of the time, Chief Justice Rehnquist had a slight affinity for formalism. Justice White had a slight affinity for instrumentalism. Page 304

ß 10 2 Defining the Holmesian Style of Constitutional Interpretation
ß 10 2.1 Treatment of Contemporaneous Sources of Interpretation
ß 10 2.1.1 Treatment of Text

Regarding the question of subjective versus objective interpretation of text, the Holmesian approach follows Justice Holmes, who always spoke of searching for objective meaning, not subjective intent. As Holmes noted, "[W]e ask not what this man meant, but what those words mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."4 Justice Felix Frankfurter, a follower of Holmes, similarly noted, "We are not concerned with anything subjective. We do not delve into the minds of the legislators or their draftsmen, or committee members. . . . Legislation has its aim. . . . That aim, that policy is . . . evinced in the language of the statute, as read in light of other external manifestations of purpose."5 However, as discussed at ß, despite this view both Justices Holmes and Frankfurter welcomed use of legislative history to determine the meaning of a statute, an approach more consistent with a concern about the subjective intent of the drafters, rather than a pure objective approach to the words' meaning. Thus, in practice, the Holmesian approach to interpretation follows much more closely the Landis/Breyer practical objective approach to interpretation, as discussed at ß nn.9-10, rather than the Radin/Scalia pure objective approach.

Being a functional approach to judicial decisionmaking, and not an analytic approach, the Holmesian approach tends to emphasize the functional purpose behind a constitutional or statutory provision, not merely the word's formal, literal meaning. As Justice Holmes stated in United States v. Whitridge,6 "[T]he general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down." In an article on statutory interpretation, Justice Felix Frankfurter made the same point regarding the importance of considering purpose in interpreting any document.7 Judge Learned Hand, a similar believer in the Holmesian style of judicial restraint, made a similar point about considering background purposes in constitutional interpretation in his 1958 Oliver Wendell Holmes, Jr. Lecture at Harvard. He stated there, "For centuries it has been an accepted canon in interpretation of documents to interpolate into the text such provisions, though not expressed, as are essential to prevent the defeat of the venture at hand [ut res magis valeat quam pereat]; and this applies with especial force to the interpretation of constitutions, which, since they are designed to cover a great multitude of necessarily unforseen occasions, must be cast in general Page 305 language, unless they are constantly amended."8 Columbia University School of Law Professor Louis Lusky similarly commented on use of the maxim ut res magis to ensure that judicial review is "not confined to the written text but still kept within some verifiable, 'principled' limit."9 Use of this maxim to advance the purposes behind a document is also consistent with the natural law sensitivity to purpose, as discussed at ß nn.32-38, when considering Justice Story's citing with approval the ut res magis maxim of construction. Of course, as noted at ß nn.30, 42, if the literal text of the provision is clear, both Holmesian and natural law judges will be reluctant to let a contrary meaning derived from purpose override the clear meaning of the statutory or constitutional provision.

ß 10 2.1.2 Treatment of Context

This same functional concern leads Holmesians to be sensitive to arguments of context, in addition to arguments of text and purpose, in order to effectuate the true intent of the framers and ratifiers. As noted by Holmes, "A word generally has several meanings, even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely will see that it there has a shade of significance more refined than any given in the wordbook."10 Holmesian judges are quite willing to resort to verbal or policy maxims of construction to interpret text, as long as those maxims are not used rigidly, or mechanically, but are always related back to the functional goal of determining the drafter's intent. As stated by Justice Frankfurter, "[T]hese rules of construction are not in any true sense rules of law. So far as valid, they are what Mr. Justice Holmes called them, axioms of experience. . . . Out of them may come a sharper rephrasing of the conscious factors of interpretation; new instances may make them more vivid but also disclose more clearly their limitations. Thereby we may avoid rigidities which, while they afford more precise formulas, do so at the price of cramping the life of law."11

Holmesian judges are also sensitive to arguments of related provisions, understanding that any particular text must be read against the backdrop of related provisions to get functionally its full intended meaning. As Justice Frankfurter stated:

Frequently the sense of a word cannot be got except by fashioning a mosaic of significance out of the innuendoes of disjointed bits of statute. Cardozo phrased this familiar phenomenon by stating that "the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view." And to quote Cardozo once more on this phase of our problem: "There is a need to keep in view also the structure of the statute, and the relation, physical and logical, between its several parts." The generating consideration is that legislation is more than composition. It is an active instrument of government which, for Page 306 purposes of interpretation, means that laws have ends to be achieved.12

With regard to arguments of constitutional structure, this same functional concern leads Holmesians to adopt a pragmatic, sharing of powers, checks and balances approach to issues of separation of powers, as discussed at ß,13 and to be sensitive to the functional needs of governmental power when considering federalism issues of federal versus...

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