Interpretivism

• Author: Robert W. Bennett
• Pages: 1393-1396

Page 1393

The rationale that JOHN MARSHALL provided for constitutional review in MARBURY V. MADISON (1803) declared that the Constitution is law and that the courts as courts of law are obliged to apply its dictates, even when the consequence is invalidation of a duly enacted statute. JUDICIAL REVIEW has, of course, evolved into a major pillar of the American governmental system, but exercise of the power has never ceased to arouse controversy. Marshall used several examples of clear violations of explicit constitutional language to bolster the case for judicial review, but such easy cases seldom get to court. In cases that typically do get to court, the constitutional language leaves room for doubt and debate, and the consequent clash between democratic decision making and judicial choice has been a focal point of an ongoing national concern about judicial review.

The contemporary phase of the national soul-searching about judicial review can be traced to a period of JUDICIAL ACTIVISM that began with the Supreme Court's 1954 decision in BROWN V. BOARD OF EDUCATION, holding that racial SEGREGATION in public schools is a violation of the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT. Starting with Brown, the Supreme Court, under the leadership of EARL WARREN, tackled a broad range of controversial social issues in the name of the Constitution. Much legislation was struck down, and Warren himself and the WARREN COURT became familiar targets in political debate in 1950s and 1960s. Despite the controversy, the Court did not really approach center stage of the nation's politics until 1973, when, under the leadership of WARREN E. BURGER, it held in ROE V. WADE that a woman's interest in decisions about ABORTION was constitutionally protected from most state criminal laws and many forms of state regulation. Brown had led the way to a rough social consensus in opposition to racial segregation, but Roe's resolution of the abortion issue proved much less prescient. Abortion became the most divisive public issue in the United States in the late twentieth century, and the Supreme Court found itself the object of a great deal of attention in the ensuing political controversy.

Before Roe, opponents of the Court's activism had not found much common theoretical ground for their concern. Roe, like Brown, was decided under the Fourteenth Amendment, but the abortion issue, unlike the racial segregation issue in Brown, was rather remote from the problems that had originally inspired the amendment. This fact helped stimulate an academic literature questioning the Court's activism on the ground of its disregard of the ORIGINAL INTENT behind constitutional provisions. These critics urged that constitutional language and original intentions were the preeminent sources on which courts were permitted to draw for guidance in CONSTITUTIONAL INTERPRETATION. This general approach was dubbed "interpretivism," and the neologism stuck, as did the even uglier NONINTERPRETIVISM to mean an insistence that the courts could legitimately be guided in constitutional decisions by values of the culture not fairly traceable to constitutional language or to original intentions.

The dispute between interpretivists and noninterpretivists found its way into political discourse, especially during the presidency of RONALD REAGAN, when Attorney General Edwin Meese railed against judicial activism and called for a return to a "jurisprudence of original intention." The dispute achieved an unusual degree of public visibility in 1987 when President Reagan nominated Robert Bork to succeed LEWIS F. POWELL for a seat on the Supreme Court. Powell had been a swing vote on a Court closely divided on a variety of issues, and the identity of his successor drew unusual attention from various interested groups. Bork had aligned himself with the interpretivist position, first in academic writings and later in speeches he gave while serving as a judge on the United States Court of Appeals for the District of Columbia Circuit. He viewed noninterpretivism as rampant among judges and scholars and as an illegitimate intrusion by the courts into both LEGISLATIVE POWER and EXECUTIVE PREROGATIVE. On that ground, Bork had expressed doubt about such...