The Purposes or Ends of Constitutional Interpretation

Author:Charles D. Kelso; R. Randall Kelso
Profession:Professors of Law
Pages:241-276
SUMMARY

§ 8.1 Allocating Government Power: Forming a More Perfect Union. § 8.1.1 Judicial Review. § 8.1.2 Federalism. § 8.1.3 Separation of Powers. § 8.1.4 Checks and Balances. § 8.2 Producing Well-Formed Doctrine that Treats Constitutional Text and Precedents in a Principled Manner: Establishing Justice. § 8.3 Reconciling Government Power and Individual Rights: Securing the Blessings of Liberty to... (see full summary)

 
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Page 241

As noted at ß 1.2.1, the final cause or end of Aristotle's silver bowl is the purpose for which the bowl is intended. From an Aristotelian perspective, the purpose of constitutional interpretation is to produce an array of judicial decisions that create and apply constitutional doctrine in a manner that embodies the purposes or ends of constitutional law. Fuller treatment of these ends is included in Part IV, at Chapters 17-32, as part of discussion on the details of the various constitutional doctrines. This Chapter will provide an overview, or summary, of these various constitutional ends.

It might be supposed that constitutional decisions would contain evaluations of consequences in terms of the goals stated in the preamble to the Constitution. That preamble states: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."1

Opinions of the Justices, however, have not dealt with this language as if it were operative text. Instead, to find intended ends, they have looked to the specific details of constitutional text, context, history, practice, precedent, and prudential considerations. Among the goals discovered there are: government efficiency, advanced by the twin ends of competent decisionmaking and uniformity of results; the prevention of tyranny; certainty and predictability in law; fundamental fairness in each case; the protection, either directly or indirectly, of individual rights or group rights; the protection, either directly or indirectly, of autonomy rights or rights to substantially equal results; civil peace; material prosperity through economic growth; scientific progress; and rational liberty.

Although the Court has not organized its consideration of ends in this way, they can be organized consistent with the preamble to the Constitution, and consistent with an Aristotelian analysis of causes, to provide a structured account of the various ends of constitutional adjudication. So organized, these ends can be viewed as falling under one of the following four general categories:

(1) Allocating government power (material causes).

(2) Producing well-formed doctrine that gives principled treatment to constitutional text and precedent (formal causes).

(3) Reconciling government power and individual rights (efficient causes).

(4) Conducting a search for original or non-original intent (final causes).

Decisions whose primary ends involve the structure, or material base, of government include relations among government and the people, among the federal government and state governments, and among the branches of government. These cases are dealt with in Chapters 17-20. A summary of the ends involved in these cases, particularly balancing the ends of government efficiency versus the prevention of tyranny, is discussed at ß 8.1. These ends primarily reflect those aspects of the preamble that focus on forming "a more perfect Union, . . . insure domestic Tranquility, provide for the common defence, [and] promote the general Welfare." Page 242

References in opinions to ends that relate to producing well-formed doctrine, including the Court's treatment of constitutional text and precedent, are discussed at ß 8.2. These ends, which particularly involve balancing the goals of certainty and predictability in law versus the goal of fundamental fairness in each case, relate to the language in the preamble regarding the goal to "establish Justice." Chapters 21-24 deal with the development of those constitutional doctrines that are principally connected to "establish Justice."

The efficient causes of the ends of constitutional law, that is, what causes the form or shape of the ends to change, is reflected most in the changing perspectives, particularly since 1937, on how to accommodate the need for adequate governmental power with the need to protect individual rights, particularly in fast-changing areas of the law like due process, equal protection, the freedom of speech, and the religion clauses. In a broad sense, all of these issues are related to the language in the preamble regarding the need to "secure the Blessings of Liberty to ourselves and our Posterity." These cases particularly involve the protection, either directly or indirectly, of individual or group rights, and the protection, either directly or indirectly, of autonomy rights or rights to equal results, as discussed at ß 8.3. Treatment of these issues in the context of the Civil War Amendments and their protection of individual rights, including due process and equal protection, is discussed in Chapters 25-28. Treatment of these issues in the context of the various protections of the First Amendment, including freedom of speech and the religion clauses, is discussed in Chapters 29-32.

The final cause of the ends of constitutional law involves the purpose of constitutional interpretation, that is, whether the judge adopts an originalist or non-originalist decisionmaking approach. An originalist approach aims at arriving at interpretations of the Constitution that comport with what the framers and ratifiers intended. A non-originalist approach believes that constitutional decisionmaking should also reflect concepts of justice and social policy that are not necessarily part of what the framers and ratifiers intended. In this view, permissible ends of judicial interpretation are decisions that make certain desirable consequences more likely or make certain undesirable consequences less likely. This issue is related to how one should interpret that part of the preamble which states, "We the People of the United States . . . do ordain and establish this Constitution for the United States of America." As noted at ß 8.4.1, from an originalist perspective, four goals of the framing and ratifying generation were critical: civil peace; material prosperity through economic growth; scientific progress; and rational liberty. These ends are reflected in the specific goals stated in the preamble to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

Whether the Court has succeeded in the effort to advance appropriate constitutional ends depends in part on the eye of the beholder because it depends on the beholder's views about the process of constitutional interpretation. As discussed in Chapters 5, 6, and 7, within the ambit of American jurisprudence a number of different views are possible, and can be found in Supreme Court opinions on such things as what material is relevant in the process of constitutional interpretation, how to weigh the various kinds of relevant materials, and what techniques of reasoning to employ in deciding constitutional cases, given the proper ends of constitutional interpretation.

The Justices, speaking for themselves, a plurality, or a majority, often identify in their opinions some value or end judged to be a desirable consequence of the decision or an undesirable consequence of deciding otherwise. Sometimes such consequences are acknowledged to be influential in the Page 243 interpretation process, typically by relating them to purposes of the framers and ratifiers or to some constitutional text. Other times, however, the reference is not identified as a factor that influenced interpretation or application. Even so, the consequence can be regarded as a final cause of decisionmaking because it is presented as something toward which or away from which the decision tends. A practical impact of this fact is that it behooves advocates before the Court always to consider the value of identifying what consequences or values may hinge on the decision, regardless of how well that can be worked into the advocate's formal argumentation on constitutional meaning.

No attempt has been made in this Chapter to present an exhaustive list of consequences referred to as ends by the Justices. That is dealt with more completely in consideration of individual cases in Part IV. On the other hand, there are enough references in Chapter 8 to make clear the considerable extent to which constitutional decisionmaking has included reference to values or consequences, some of which are not explicit in constitutional text, context, or history, but which derive from practice, precedent, or prudential considerations. In total, the Court's constitutional decisionmaking, considering all of its various causes, forms a philosophy or jurisprudence that reflects the Court's view on the principles or ends that our democratic society embodies, or, as discussed at ß 8.4.2, from a non-originalist perspective should embody, in its culture, as reflected in its legal system.

ß 8 1 Allocating Government Power:...

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