Instrumentalist Constitutional Interpretation

Author:Charles D. Kelso; R. Randall Kelso
Profession:Professors of Law
Pages:325-352

Page 325

ß 11 1 Introduction to Instrumentalist Decisionmaking

As discussed at ß 3.3, under an instrumentalist approach the judge must test the formulation of each rule by its purpose or policy. As a functional approach, where the reason for the rule stops, there stops the rule. As a normative approach, the judge should take into account principles of justice or social policy where leeways exist in the law. These leeways can be created because no law exactly covers the particular situation, ambiguities exist in a particular law which does apply, or two or more conflicting rules each arguably apply. The instrumentalist approach to law generally is perhaps best summed up in the classic works of Justice Benjamin Cardozo and Professor Karl Llewellyn.1

As discussed at ßß 5.4.1 & 5.4.2, an instrumentalist judge could follow an interpretive approach to deciding constitutional cases and take into account only those background principles of justice or social policy embedded in the Constitution or existing legislative, executive, or social practice, or judicial precedents. However, as noted at ßß 5.4.3 & 6.4.1, as an historical matter the instrumentalist approach has always been accused of a willingness to embrace non-interpretive review. As Professor Michael Perry has said, "The decisions in virtually all modern constitutional cases of consequence . . . cannot plausibly be explained except in terms of noninterpretive review, because in virtually no such case can it plausibly be maintained that the Framers constitutionalized the determinative value judgment."2 The basic elements of the instrumentalist approach are discussed at ß 11.2.

As discussed at ß 11.3, in the 20th century there have been on the Court extreme, liberal instrumentalists, such as Justices Murphy and Rutledge during the 1940s; and Chief Justice Warren, and Justices Douglas, Brennan, Goldberg, Fortas, and Marshall, during the Warren Court in the 1960s. There have also been moderate, liberal instrumentalists, such as Justice Byrnes during the 1940s; and Justices Blackmun, Stevens, Ginsburg, and Breyer during the Burger and Rehnquist Courts. There have also been moderate, centrist instrumentalists, such as Chief Justice Stone and Justice Cardozo during the 1930s. Some conservative instrumentalists, such as Judge Richard Posner, have served on the Courts of Appeals. Among the commentators, a number of variations of instrumentalism can be found, including those espousing "non-critical" approaches, such as pragmatism, utilitarianism, or Kantian ideals, and those espousing "critical" approaches, such as Critical Legal Studies, feminist theory, or critical race theory.

As exists with respect to each style of interpretation, a judge who predominately follows one style of interpretation may have an affinity for another style. Thus, as discussed at ß 11.4, Justice Page 326 Blackmun occasionally demonstrated an affinity for natural law interpretation, as do Justice Ginsburg and Justice Breyer today. Justice Breyer also occasionally has demonstrated an affinity for the Holmesian decisionmaking style. Legal philosopher H.L.A. Hart, while typically advocating an instrumentalist approach, sometimes appeared to support a formalist mode of interpretation.

ß 11 2 Defining the Instrumentalist Style of Constitutional Interpretation
ß 11 2.1 Treatment of Contemporaneous Sources of Interpretation
ß 11 2.1.1 Treatment of Text

The instrumentalist approach typically adopts an objective theory of interpretation, rather than a subjective approach. This reflects that instrumentalism is a 20th-century style of interpretation, and the predominance in the 20th century of objective theories of interpretation, as discussed at ß 6.2.1.1 nn.18-22. As Justice Brennan observed about the subjective approach, "Indeed, it is far from clear whose intention is relevant - that of the drafters, the congressional disputants, or the ratifiers in the states - or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states."3 Justice Brennan also noted the practical difficulty of determining subjective intent, stating, "Apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. . . . It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions."4

Despite this rejection of subjective interpretation, the instrumentalist approach is tempered by a willingness to consider all elements of context and history, including legislative history, and subsequent practice and precedent. As Justice Brennan stated, "Current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to history of the time of framing and to the intervening history of interpretation."5 Thus, similar to the Holmesian approach, the typical instrumentalist approach to interpretation follows more closely the practical objective approach of Landis/Breyer, discussed at ß 6.2.1.1, rather than the pure objective approach of Radin/Scalia. As Justice Brennan remarked, "Thus, if I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate 'the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century . . . .'"6 As discussed at ß 10.3.2, Justice Jackson was a moderate Holmesian on the Court. Page 327

With regard to literal versus purposive interpretation of texts, the instrumentalist approach states that the judge must test the formulation and application of each rule by its purpose. As stated by Professor Karl Llewellyn in Jurisprudence: Realism in Theory and Practice, and Professor Grant Gilmore in The Ages of American Law,7 where the reason for the rule stops, there stops the rule. Rules are not tested merely by literalness or logical symmetry; rather, rules must be interpreted functionally in light of social ends to which they are the means. Placing greater weight on the purpose of text, rather than literal meaning, Justice Brennan cautioned:

Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War amendments - abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote - we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of the slave caste. . . . For the Constitution is . . . a bold commitment by a people to the ideal of libertarian dignity protected through law. . . . As augmented by the Bill of Rights and the Civil War amendments, this text is a sparkling vision of the supremacy of the human dignity of every individual."8

Given this similarity in the instrumentalist and Holmesian functional emphasis on purpose, rather than literal text, some authors have used the phrase "pragmatic instrumentalism" to include the functional pragmatism of Holmes and the instrumental pragmatism of modern-day instrumentalism, when distinguishing these two approaches from formalist reasoning.9 However, there are clear differences between instrumentalist and Holmesian interpretation. The differences among Holmesian Justices Frankfurter, White, and Rehnquist and instrumentalist Justices Douglas, Brennan, and Marshall underscore this fact.

The main difference between these two approaches is the instrumentalist's lack of strong Holmesian deference to legislative and executive practice, and the instrumentalist willingness to engage in prudential consideration of background principles of justice and social policy so as to keep the Constitution, in Holmesian Justice Harlan's prejorative phrase in his concurrence in Griswold v. Connecticut,10 in supposed "tune with the times." With regard to legislative and executive practice, Justice Brennan has stated: Page 328

Faith in democracy is one thing, blind faith quite another. Those who drafted our Constitution understood the difference. One cannot read the text without admitting that it embodies substantive value choices; it places certain values beyond the power of any legislature. Obvious are the separation of powers; the privilege of the writ of habeas corpus; prohibition of bills of attainder and ex post facto laws; prohibition of cruel and unusual punishments; the requirement of just compensation for official...

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