Intentionalism, history, and legitimacy.

• Author: Gibbons, John J.

In 1987 the American public was witness to extended coverage, on national television, of a seminar on appropriate methods of constitutional interpretation.(1) The leading participant in that seminar was, of course, Judge Robert H. Bork, whose nomination to the Supreme Court was then the subject of hearings conducted by the Senate Judiciary Committee. With eloquence, passion, and considerable erudition, Bork espoused the view that the only legitimate interpretive posture for judges is a serach for the original intention of the constitutional draftsmen, as expressed in the language of the text. Any other approach to interpreting the document, he contended, casts judges in the role of lawmaker rather than that of neutral arbiter. Bork was particularly offended by the Supreme Court's recognition of certain individual autonomy interests as constitutionally protected against regulation by the democratically chosen branches of our federal and state governments.(2)

Other witnesses who came before the Committee, and some of the Senators themselves, with passion equal to the nominee's, though occasionally less erudition, insisted that Bork's original intent version of the judiciary's role in constitutional adjudication was deeply flawed. For these participants in the great seminar, the Constitution could have no static meaning.(3) It could only be read as Justice William J. Brennan read it, in a manner "sensitive to the balance of reason and passion that marks a given age,"(4) and with an awareness of the particular balance we strike "as Twentieth Century Americans."(5)

The positions on view in the Bork hearings represent extremes in the range of conceptions of appropriate Supreme Court jurisprudence. The outcome of their clash in 1987 was a defeat, if perhaps a temporary one, for the proponents of intentionalism. When the discussion renewed in hearings on the confirmation of Justice Anthony J. Kennedy, some of the passion had been spent, and the jurisprudential extremes were less clearly articulated.(6) By the time of Justice Souter's confirmation hearings, when a different President still spoke of the illegitimacy of any interpretive posture which would permit judges to make law binding the other branches of government,(7) the nominee was careful to avoid espousing any extreme position.(8)

One conclusion that might be drawn from the contrasting outcomes of the Bork and Souter confirmation hearings is that the issues raised by pleas for a constitutional jurisprudence of original intention are no longer of great moment. The Senate's resounding rejection of Judge Bork's nomination might be considered definitive, a once-and-for-all repudiation of intentionalism by the elected body entrusted with the authority to establish the prerequisites for admission to the Supreme Court. So considered, the Senate's action shows a surprisingly unenlightened sense of self-interest. The most frequently heard objection to interpretive approaches that permit judges to look beyond original intention is the undemocratic character of judicial review, the way it frustrates expression of the will of the people through their elected representatives.(9) Why, then, would (elected) Senators choose to reject a forceful defender of a constitutional doctrine devoted to maximizing the power of elected office holders? Our assumptions about the heady influence of power, and our knowledge of the power that comes with national office in this country,(10) lead us to expect that these happy few will not willingly surrender what they have won. Moreover, the relationship between the Supreme Court and Congress over the years has often been tense: one need only recall legislative reactions to some of the criminal procedure decisions of the Warren Court,(11) and the recurrent, though largely unsuccessful, efforts in Congress to impose various limitations on the jurisdiction and remedial authority of the federal courts.(12) It would indeed be surprising if the Senate were to decide to resolve such long-standing turf battles by abandoning the field to the judiciary.

But there are other reasons for thinking that the pronouncement of the Senate that rejected Bork was not the last word on the place of original intention in our constitutional jurisprudence. It is not cynical to observe that, had the Senate majority been of the same political party as the President, the great seminar on interpretivism would never even have occurred. It is, perhaps, cynical (but no less accurate) to suggest that behind the positions taken by Senators on overarching constitutional principles, there lurked concerns over constituents' views respecting the outcomes, however theoretically justified, of cases involving particular issues. The issues that next time arouse the interests of voters, and thus of Senators, may be something other than those of privacy and autonomy in matters of sex and reproduction which were the principal focus of attention in the Bork, Kennedy, and Souter confirmation hearings. What the opinion polls show to be the prevailing matters of public concern may well be dispositive of any future Senate's attitude regarding judicial competence to resolve the constitutional questions involved in such matters. Interpretivism may, at such a time, prove more popular with Senators than it did in 1987.(13)

Despite its apparent decisiveness for the strategy and tactics of the nomination process--a legacy of nominees who have left no such conspicuous pre-nomination paper trail as Bork's, and have come before the Senate anxious to avoid articulating anything like a philosophy of constitutional interpretation--the great seminar on methods of constitutional adjudication was, as to the merits of the case, inconclusive. That is not to say that it was unimportant: quite the contrary, it marked the continuation, in a most public arena, of contention over the proper interpretive stance of the Article III judiciary in constitutional cases, a conflict which has raged unceasingly since Marbury v. Madison(14) was decided in 1803. This conflict has, moreover, commanded more serious academic attention in recent years than at any time in the past.(15) This level of scholarly interest suggests that the debate over intentionalism will therefore continue. So long as it does, it will remain politically and intellectually significant because it calls into question, and elicits defenses of, the legitimacy of our most symbolically important political institution. An independent judiciary exercising the power of judicial review has been the unique American contribution to political science--to political philosophy, if you prefer. Thus, it is worthwhile reflecting upon the challenges raised by those who espouse intentionalism as the only true creed.

1. THE CONSTITUTION AS LAW: LESSONS OF POSITIVISM

   Intentionalism is grounded in a positivist or authoritative jurisprudential perspective on the nature and sources of law. For the positivist, all law is no more than the expressed will of some authoritative sovereign, and nothing is law that does not fit this definition. Judges, on this view, are no more than spokespersons for lawmakers external to themselves.(16)

   The element of positivism in intentionalism is evident in Bork's presentation of the role of the judge:

   If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: "Law."(17)

   What does it mean to say that a judge is bound by law? It means he is bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment.(18)

   The positivist jurisprudence espoused by Bork has the great virtue of bringing to philosophical discussions a needed splash of the cold water of reality. By reminding us that there is an element of will in law, it calls our attention to the fact that one cannot divorce law from effective sanction, and that sanction cannot be effective without a capacity and a willingness on the part of the sovereign to use its authority to impose it.(19) The authority behind the law, however, is that of the repository of contemporary sovereignty; in our system of government, this refers to the collective voice of those temporary agents whom the people periodically designate as the repositories of legislative authority. If those agents are dissatisfied with a common law rule, they will displace it by statute; no longer enforced, such a rule is no longer law. If those agents are dissatisfied with a judicial interpretation of a statute, they will change it by amendment; the old understanding loses all authority, displaced by a new one. On this view, law does indeed represent the will of an authority external to the judges, to which the judge should defer precisely because it is authoritative.

   Recognizing the claims of positivism does not necessarily commit one to an intentionalist theory of interpretation. But such an approach does sit comfortably with our American version of democratic theory. Despite renewed scholarly interest in Aristotelian republican theory, which emphasizes individual participation in self-government,(20) our system is not so much republican as it is representative. Its one essential feature is the periodicity of representation: legislators, and the chief executives who participate in the legislative process by virtue of their veto powers, are designated as the agents of the sovereign people only for defined terms, and lack power to bind their successors.(21) This is a feature of all our written constitutions, state and federal, and we would regard as illegitimate an effort by incumbent...