Nonjudicial constitutional interpretation, authoritative settlement, and a new agenda for research.

• Author: Peabody, Bruce G.

During the past decade,(1) a lively debate has been percolating in an area of legal scholarship that has examined what has been variously described as departmentalism, constitutional Protestantism, coordinate construction, and nonjudicial constitutional interpretation.(2) While exploring a wide range of theoretical issues and analyzing disparate circumstances and phenomena, this work is loosely unified by its general skepticism regarding claims that the federal judiciary has exclusive authority in interpreting the Constitution, and its focus on what for many years has been an underdeveloped research topic: constitutional interpretation occurring outside the courts.

The proliferation of this scholarship has produced two unsurprising consequences. First, the suggestion by numerous scholars that we should give greater attention to nonjudicial constitutional interpretation has provoked something of a normative backlash by defenders of judicial supremacy--the doctrine that the Supreme Court has the ultimate say in interpreting the Constitution. Perhaps most prominent in these critiques is the claim that recognizing the interpretive authority of nonjudicial actors would jeopardize the authoritative settlement function of law.(3) Second, while the swell of interest in interpretation outside the courts has generated a growing body of sophisticated scholarship and the evaluation of an increasingly wide ambit of legal and political problems, it has also tended to obscure precisely what is being analyzed, and has led to numerous scholars needlessly talking past one another instead of attempting to build upon and integrate their diverse research projects.

Two recent articles, On Extrajudicial Constitutional Interpretation by Larry Alexander and Frederick Schauer(4) and Ducking Dred Scott: A Response to Alexander and Schauer by Emily Sherwin,(5) reflect these two developments and serve as useful entry points for considering the strengths and weaknesses of the burgeoning body of scholarship examining alternatives to judicial supremacy. On the one hand, several flaws in these authors' analyses can be attributed to their mistaken and undeveloped assumptions about the meaning and implications of a normative commitment to nonjudicial constitutional interpretation. But a second set of shortcomings in these two essays points not only to problems inherent in these texts, but to difficulties that tend to afflict the entire body of work examining nonjudicial interpretation, whether critical or supportive; thus, some of the weaknesses in Alexander, Schauer, and Sherwin's analyses mirror defects in the relevant legal literature as a whole.

This essay begins by examining the arguments presented in On Extrajudicial Constitutional Interpretation and Ducking Dred Scott to illustrate a general set of misconceptions that permeate work criticizing calls for a greater diffusion of interpretive responsibility, misconceptions that could be corrected by a closer review of existing scholarship and a greater appreciation for the ways in which scholars sympathetic to nonjudicial interpretation could respond to many of the objections leveled against their research. On the basis of this preliminary analysis, one might well conclude that research generally supportive of constitutional interpretation outside the courts is in a healthy, robust state, and deserves more nuanced treatment in future scholarly exchanges. But in reviewing a second set of defects that run through Alexander, Schauer, and Sherwin's analyses, this essay suggests that much important work remains to be done for both those advocating and those resisting a movement away from an interpretive system dominated by the courts.

1. LEGAL SETTLEMENT, CONSTITUTIONAL INTERPRETATION, AND THE SUPREME COURT

   On Extrajudicial Constitutional Interpretation makes a case against the position "that judges should not be the exclusive and authoritative interpreters of the Constitution."(6) According to the authors, the nature and function of law requires authoritative constitutional interpretation by the federal judiciary overseen by the Supreme Court, an arrangement that will best safeguard the values of "settlement and stability."(7) Accordingly, Alexander and Schauer embrace "judicial primacy without qualification,"(8) and urge nonjudicial officials to demonstrate interpretive "deference" in the face of this primacy. Even if an official deems a Supreme Court decision mistaken, he or she should give the Court wide latitude(9) to ensure that the law remains stable and determinate.(10) As the authors put it, "at times good institutional design requires norms that compel decisionmakers to defer to the judgments of others with which they disagree."(11)

   Alexander and Schauer's argument rests on three central claims, each of which can be distinguished and criticized on its own terms. First, their analysis suggests that the benefits yielded by authoritative settlement--stability, reliability, and coordination--are preeminent constitutional and legal values. Second, they assert that these values can only be secured through a single authoritative interpreter. Finally, they make a case that this role is best served by the Court.

   The first proposition in Alexander and Schauer's overall argument is that "authoritative settlement" is an essential aspect of constitutionalism.(12) The authors defend this settlement function as a critical aspect of all law, and as especially important in a constitutional context, where a constitution's claim to supremacy over other forms of law makes it a particularly suitable basis for coordinating and stabilizing legal decisions.(13) An authoritative constitution (presided over by an authoritative interpreter) settles "what ought to be done" in a pluralistic society by providing "uniform decisions on issues as to which people have divergent substantive views and personal agendas."(14) Authoritative law, they argue, also helps coordinate atomistic, self-interested actors and promote common interests that might otherwise be hard to achieve.(15) In addition, "settlement for settlement's sake"(16) may be essential in providing a stable environment or medium particularly conducive to certain desirable social objectives--like economic growth.(17) Finally, we might value law's stability to promote a sense of "law abidingness" and reverence for the law amongst politicians and citizens.(18)

   Alexander and Schauer conclude that in order to provide the goods associated with legal settlement and stability, we must bolster the Constitution's authority, "and intrinsic to the concept of authority is that it provides content-independent reasons for action."(19) After the courts supply an authoritative resolution to a constitutional issue, other officials should defer to this ruling regardless of whether they support the outcome or its underlying justification, simply because a decision has been made. "[A]n authoritative constitution has normative force even for an agent who believes its directives to be mistaken."(20) In the eyes of Alexander and Schauer, it is more important to get things settled than to get them right, at least with respect to constitutional law and interpretation.(21)

   The difficulty at this initial stage of Alexander and Schauer's argument is not so much their contention as their emphasis. Settlement and stability are indeed critical constitutional values and their promotion should be an important consideration in thinking about who should interpret the Constitution. But the overall tenor of Alexander and Schauer's remarks suggests that instead of being one value in competition with others, legal settlement has a determinative or trumping normative force. To be fair, the authors do note that "[s]tability and coordination are not the only functions that a constitution serves,"(22) and go even further to suggest that "at times [nonjudicial] decisionmakers will, and should, conclude that reaching the morally correct result in the instant case is worth weakening the institution [the Supreme Court] that is expected to produce the morally best array of decisions in the long term."(23)

   Notwithstanding these qualifications, however, there remain "good reasons for society to compel ... officials to follow laws and interpretations that the officials believe to be mistaken."(24) At the end of the day, the settlement and coordination functions of law must weigh heavily in our political calculus and we must not forget that "an important-perhaps the important--function of law is its ability to settle authoritatively what is to be done."(25) The overall implication of their argument is that we ought to structure our system of constitutional interpretation to give the values of "stability and coordination" the highest priority.

   But emphasizing the connection between constitutional interpretation and legal stability might compromise other constitutional commitments, especially in the absence of any understanding of what institutional and political mechanisms will be used to advance and protect these ends. Consider, in this regard, the remarks of former Attorney General Edwin Meese: "[e]ach of the three coordinate branches of government created and empowered by the Constitution--the executive and legislative no less than the judicial--has a duty to interpret the Constitution in the performance of its official functions."(26) There are at least three general ways in which the fundamental operations and purposes of the three branches of government might well be compromised if constitutional interpretation were relegated solely to the courts.(27)

   First, each department must interpret the Constitution as part of the performance of enumerated duties.(28) Absent some independent constitutional interpretation, we might wonder, for example, how Senators would comprehend and apply their "Advice and Consent" responsibilities to the peculiarities of each confirmation case, or how Presidents...