Politics, constitutional interpretation, and media ecology: an argument against judicial minimalism.

• Author: Ohlendorf, John David

INTRODUCTION

There is a venerable tradition of judicial humility in American constitutional law. The modern conception of judicial restraint (1) can be traced back to an article written by Professor James Bradley Thayer in 1893. (2) Thayer's argument that the Court should give all possible deference to Congress's interpretation of the Constitution (3) influenced Justice Holmes, who employed it in his battle against economic due process doctrine and the perceived excesses of a conservative Court. (4) But it was Justice Holmes's friend and colleague Justice Brandeis who distilled minimalism to a specific set of doctrines in his 1936 concurrence in Ashwander v. Tennessee Valley Authority. (5)

In 1962, Professor Alexander Bickel picked up and expanded the argument for restraint. He added the term "passive virtues" to the vocabulary of judicial restraint, (6) building on Justice Brandeis's 1936 opinion. (7) According to Professor Bickel, judicial restraint is necessary because of the tenuous legitimacy of judicial review in a democratic system. The unelected, insulated nature of our courts means that "it would be intolerable for the Court finally to govern all that it touches, for that would turn us into a Platonic kingdom contrary to the morality of self-government." (8)

Modern judicial minimalism has found a new home in conservative constitutional theory. The specter of substantive due process has been reborn, (9) and like Justices Holmes and Brandeis a century earlier, conservative legal scholars have found in the doctrine of restraint an effective weapon against judicial excess--excess spawned, this time, from the Left. (10) Indeed, the new Chief Justice, widely identified as a conservative, has spoken in favor of restraint, (11) making an exploration of the doctrine a timely enterprise. This Note attempts such an exploration from a broadly originalist vantage point, assuming for present purposes that the Framers' understanding of the Constitution is relevant to our own understanding of that document.

Parts I and II examine the doctrine of judicial minimalism in light of a familiar approach to original understanding: Would the Framers have been comfortable with Chief Justice Roberts's assertion that "[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more"; (12) or would they have opposed such a notion? Part III introduces the academic discipline of media ecology, the study of how changes in media technology affect institutions. Media ecology asks questions such as, "how do television and the Internet affect the type of political discourse that Americans engage in?" This line of inquiry reveals ways in which the modern media environment has affected the institutional strengths of the political framework envisioned by the Framers. Finally, Part IV contends that the advocates of judicial minimalism are mistaken both about the Framers' vision and the ways in which our political institutions have developed.

1. THE FRAMERS AND CONSTITUTIONAL INTERPRETATION

   1. The Constitutional Conversation

      Some proponents of judicial minimalism describe the Court's role in constitutional interpretation in terms of "dialogue." (13) Indeed, Bickel idealized judicial review as a "colloquy with the other institutions of government." (14) Referring to constitutional interpretation as a colloquy rather than a monologue highlights an important aspect of judicial minimalism: by taking a more subdued role in interpreting the constitutional text, the Court invites the other two branches of government to engage more actively in the enterprise. (15)

      Although the Framers may not have couched their vision in terms of dialogue, they would have been comfortable with the idea that the two political branches had a role to play in constitutional interpretation. The records of the 1787 Convention show that the Framers hoped the President would play a role in interpreting the Constitution. In the early days of the Convention, the delegates from Virginia set forth their proposal for what the new government should look like. (16) The eighth article of this Virginia Plan proposed "that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate." (17)

      Less than a month later, the Virginia Plan's Council of Revision ran into trouble. Several delegates seemed to worry that combining the executive and the judiciary in this way improperly mixed the two powers. (18) The objections carried the debate. (19) But scarcely a month later, delegates again proposed combining the judiciary with the executive in a revisionary council and Madison spoke vigorously in its favor. (20) The separation of powers objection was raised once again: if the judiciary was to have the power to declare laws unconstitutional it would be improper for them to "be influenced by the part they had taken, in framing the laws." (21) The objections proved insuperable, and the proposal failed for the final time.

      By rejecting the Council of Revision, however, the Convention was by no means denying the executive a role in constitutional interpretation. Instead, the Convention determined that this role would be embodied in the veto power. On the same day that the delegates first decided against the Council of Revision, they agreed to place the power to veto the laws of the legislature solely in the hands of the executive. (22) The only debate over the veto power was whether it was to be absolute or qualified. With the memory of an abusive monarch fresh in their minds, the Convention would agree only to the negative power if it could be overruled by two-thirds of the legislature. (23) The Framers thus invited the President to participate in the constitutional conversation, but assured that his voice would not drown out all others.

      One of the motivations behind the veto power was dearly to give the President a role in constitutional interpretation. Writing in 1788, Alexander Hamilton expected that the President would use his veto power both to protect himself from legislative encroachments and to curb "the enaction of improper laws." (24) In his Commentaries, written four decades later, Joseph Story echoed Hamilton's dual justification for the veto power: not only was there a "constitutional necessity of arming [the Executive] with powers for its own defence," but such a power would be "important, as an additional security against the enactment of ... improper laws." (25) Thus the veto power was intended to protect the Constitution in two ways: (1) by giving the President the ability to defend his office and protect the separation of powers, and (2) by causing the legislative enactments to pass under another pair of eyes, providing a check against unconstitutional laws.

      The legislative branch was also intended to have a role in the enterprise of constitutional interpretation. Both houses of Congress would implicitly engage in interpretation of the constitutional text as they authored and passed legislation, (26) but the Framers looked especially to the Senate to "seasonably interpose [against] impetuous counsels" (27) and to provide an "additional impediment ... against improper acts of legislation." (28) The point is illustrated by an oft-quoted anecdote. Upon returning from France, Thomas Jefferson is said to have asked George Washington, at the breakfast table, why he agreed to a second legislative chamber. "Why," Washington replied, "did you pour that coffee into your saucer?" "To cool it," said Jefferson. "Even so," Washington returned, "we pour legislation into the senatorial saucer to cool it." (29)

      Indeed, Professor Vikram Amar has argued that providing a check against unconstitutional legislation was "a primary reason the Senate was created." (30) Professor Amar notes that the Senate has an important role in "four constitutional processes: legislation, impeachment, appointment, and amendment." (31) Each one of these processes requires the Senate to interpret the constitutional text. The Senate, House, President, and Judiciary all have to agree on the constitutionality of each law before it is effectively applied, and the Senate and the House interpret the "high crimes and misdemeanors" Clause (32) when considering impeachment and jointly engage in "constitutional interpretation of a sort" when considering amendments. (33) Finally, when considering appointments, each Senator, along with the President, "must not only consider his own substantive visions of constitutional provisions, he must also consider and compare those of the nominees." (34) From this analysis, Professor Amar argues, "an interesting pattern begins to appear. The federal judiciary interprets the Constitution in only one, the President in two, the House in three, and the Senate in all four of these constitutional processes." (35)

      As we have seen, the Framers never considered the judiciary to be the sole interpreter of the Constitution. They intended both the President and the Senate to play significant roles. Although advocates of judicial minimalism are right to recognize the importance of non-judicial actors, close examination reveals that judicial minimalists are right for all the wrong reasons.

   2. The Majoritarian Difficulty?

      "The root difficulty," according to Professor Bickel, "is that judicial review is a counter-majoritarian force in our system." (36) The hard reality, said Bickel, is "that when the Supreme Court declares unconstitutional a legislative act.., it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it." (37) Bickel assigned a more humble role to the judiciary because of its lack of democratic legitimacy, and urged deference to the constitutional judgment of the other branches when possible because he saw them as more...