The Material of Judicial Decisionmaking

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

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ß 1 1 Introduction to the Path of Constitutional Law Decisionmaking

It is a commonplace observation that real learning implies a "deep understanding" of a conceptual framework along with "detailed knowledge" of a rich factual base.1 This book provides such a framework and base - in metaphorical terms, a detailed atlas or roadmap - for studying the path of American constitutional law. The book covers United States Supreme Court decisions from the Constitution's ratification in 1789 through October, 2006 (the start of the 2006 Term of the Court), with a 2007 Supplement covering significant cases decided since October 2006, and a New Justices Addendum on the possible longer-term impacts of Chief Justice John G. Roberts, Jr.'s replacement of Chief Justice William H. Rehnquist prior to the 2005 Term, and Justice Samuel A. Alito Jr.'s replacement of Justice Sandra Day O'Connor on January 31, 2006.

Inspiration for the book traces to Justice Oliver Wendell Holmes, Jr., who in 1881 opened his great book, The Common Law, by saying, "The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternatively consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage."2

The new products today in constitutional law embody a combination unique in Court history. This is the gradual transformation from precedents and law designed by Justices who adhered to one style of constitutional interpretation - the instrumentalist, result-oriented, judicially-activist, situation- sense perspective that flourished on the Supreme Court in the 1960s, and predominated generally on the Court from 1954-86 - to law designed by a contemporary group of non-instrumentalist Justices. The instrumentalist approach toward law generally is discussed in this book at ß 3.3, with detailed discussion of the instrumentalist approach to constitutional law discussed at Chapter 11.

In contrast to the instrumentalist approach, popular usage is that a non-instrumentalist judge rejects judicial activism and will not legislate from the bench. Instead, the judge adheres to a policy of "strict construction" of the "plain meaning of text" consistent with the "original intent" of a doctrine's framers and ratifiers. A more precise formulation of this usage would note that there are three different concepts used in the preceding sentence - plain meaning of text, strict construction, and original intent - and thus at least three different kinds of non-instrumentalist judges.3 Page 12

One kind of non-instrumentalist judge focuses on a doctrine's text, whether in terms of the literal text of prior judicial decisions for common-law decisionmaking, the plain meaning of a statute for statutory construction, or the plain meaning of the text of the Constitution for constitutional interpretation. Since the text of the Constitution does not change absent formal constitutional amendment, this "textualist" approach concludes that the meaning of any provision is fixed at the time of ratification. Because the meaning is fixed, the term "originalism" has also been used to describe this approach. However, since this approach does not likely reflect the "original intent" of the framers and ratifiers, the term "originalism" is not so used in this book, as explained at ß 8.4. This approach has also been called a "formalist" approach, and was most popular on the Supreme Court from 1873-1937. The term "formalism" is used in this book, not "textualism," since each approach to constitutional interpretation discussed in this book starts with the constitutional text, and thus is "textualist" to that extent. The various approaches differ on what sources in addition to "text" are used to complete the process of constitutional interpretation, and how much weight to give those sources. The formalist approach toward law generally is discussed at ß 3.1, with detailed discussion of the formalist approach to constitutional interpretation discussed at Chapter 9.

A second kind of non-instrumentalist judge focuses on "strict construction" of doctrine. With respect to the Constitution, the emphasis of "strict construction" is on a presumption of constitutionality given to legislative and executive actions, and thus deference to such legislative and executive actions, as they reflect society's "dominant forces." A judge following this approach will find governmental action unconstitutional only if the action is clearly unconstitutional. In this book, this approach is called a Holmesian approach, after Justice Oliver Wendell Holmes, Jr., who popularized this approach while on the Supreme Court from 1902-32. This approach is also associated with Professor James Bradley Thayer, as noted at ß This approach was most popular among a majority of Supreme Court Justices from 1937-54. The Holmesian approach to law generally is discussed at ß 3.2, with detailed discussion of the Holmesian approach to constitutional interpretation discussed at Chapter 10. As noted at ß 3.2, the Holmesian approach is a "strict construction" approach only for cases involving individual rights challenges to the constitutionality of governmental action. For structural issues of federalism or separation of powers, the Holmesian deference-to-government approach does not call for "strict construction" of governmental powers, but rather for deference to governmental powers. Aspects of the relationship between the Holmesian approach and "strict construction" of statutes and the common law are also discussed at ß 3.2.

A third kind of non-instrumentalist judge focuses attention on the "original intent" of a doctrine's framers and ratifiers, and therefore asks in the context of the constitutional law how the framers and ratifiers would have gone about interpreting the provision in question. In this book, this approach will be called a natural law approach to interpretation, since the Constitution's framers and ratifiers, at least from the Constitution's drafting through the Civil War Amendments, were guided by 18th-and 19th-century theories of natural law. This natural law approach is discussed more generally at ß 3.4, with detailed discussion of the natural law approach to constitutional law discussed at Chapter 12. Under this approach, which predominated on the Supreme...

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