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September 02, 2004

Comments

A pot-pourri of responses:

Ultimately the judge is supposed to tie his decision closely to the rules adopted by the legislature.

That strikes me as incorrect. The judge (I assume we're talking SCOTUS here?) is supposed to tie his decision to the rules established by the Constitution; only secondarily is his concern to adhere to the rules adopted by the legislature. This is the very essence of the Constitutional system.

[I know that you're only discussing this in the abstract but, as I argue below, I don't think you can divorce these notions from their instantiations with much utility.]

Please note that I specifically do not say that the judiciary is empowered to protect minority interests. It is empowered to enforce Constitutional boundaries on lawmaking. Many of those are written by the Constitution writers or amenders to protect minority interests. Many are not. The protection of minority interests as a general concept is not within the legitimate power of judges.

I agree with you that, in the abstract, the judiciary is purely interpretative with no particular minoritarian/majoritarian leanings. However, as currently constituted, the judiciary is the protector of minority rights: the executive and the legislature are both fundamentally majoritarian in their elections and the legislature even more so given the nature of Congressional resolutions and bills. The judiciary, by contrast, is small, not elected and therefore not accountable to the popular will (certainly not to the level of the legislature or the executive), has no turn-over save retirement or death, and has the systemic power to hold back majoritarian decisions from infringing upon the rights of the minority. Indeed, those features are inherently necessary in any minoritarian branch of the government, so regardless of how you change the system you're going to have to preserve at least some of them if you want to systemically preserve our civil liberties.

Note that I'm not saying that the legislature would inevitably trample upon the rights of the few at the whims of the many, just that when there is a conflict the legislature will naturally (i.e. systemically) be drawn to the latter, whereas the judiciary is obligated (and, systemically, freed) to protect the former. AFAICT this is by design and is part of the separation of powers/checks and balances philosophy of the Framers, nor is it a terrible solution to the problem of balancing majoritarian rule with minoritarian protections; but, as I mentioned to Moe, it does so at the cost of inducing a new problem.

That problem is that the institution empowered with interpreting the Constitution (i.e. deciding what it means) is also enjoined to protect minority rights (i.e. counterbalancing the majority towards the minority). This isn't a necessary consequence of our triune legislative-executive-judicial division of (civil) government -- at least, I've never seen a proof that it is -- but it is a necessary, indeed almost explicit, consequence of the way our particular system has been chartered. I'm afraid you cannot avoid addressing that if you want to make your discussion relevant to the American system.

There is a weakness in the system. The weakness is in the word 'interpret'. I am not going to outline my exact understanding of how interpretation ought to work until a later post in a day or two. But I want to point out the weakness.

Indeed. This, as I noted previously, is the Achilles' Heel of any explicit Constitution such as ours.

The other key weakness, as I'll note in your future thread on interpretation, is that our Constitution is, contrary to everyone's impression, badly written. Very badly written. Some of that's by design, I think, much of it isn't; some of it has to do with changes over history, some of it that the authors clearly didn't think everything through when they wrote it; regardless, the result is that "interpretation" doesn't just become an issue on the fringes of law-making, it's front and central in almost every consideration. The primacy of the judiciary is an illusion fostered by the need to reconcile the vagaries of the Constitution.

And that, I submit, is the real problem here, against which everything else (including my vaunted notion of a "systemic check") stumbles in vain.

This, incidentally, raises the truly important question that I've grappled with since coming to this conclusion over a decade ago: what is the proper role of the judiciary when the Constitution itself -- the document that charters them, that establishes the system under which we all live, and which they are enjoined and empowered to interpret -- is broken?

Theories of interpretation may be difficult to enforce in our system, though I believe that allowing impeachment to follow almost completely into disuse is part of the enforcement problem.

Let's get personal: which judges would you have impeached in the last century, and why? And, though I suspect this will have to wait until your next thread, by what metric should a theory of interpretation be judged?

To anticipate your future post on interpretation: I think describing different schools as "broad" and "narrow" is slightly misleading, especially as you apply them in this post. For instance, construing 'search' to refer only to those sorts of searches known to the fathers isn't a 'narrow' interpretation; it's a bad one. Consider, as a somewhat clearer case, a law prohibiting dumping 'carcinogens' in reservoirs. The legislature that wrote this law could, had it chosen to do so, have prohibited the dumping of all and only those substances it knew to cause cancer, simply by substituting a list of those substances for the word 'carcinogen'. But, in my example, it did not do so. Instead, it used the word 'carcinogen', which means: something that causes cancer. Suppose that after this law was passed we discover that some substance which was previously thought to be harmless actually does cause cancer. Had the legislature written the law to prohibit dumping any of a list of carcinogens known at the time, then dumping this substance would not be illegal; to make it so, we would have to change the law. But if the legislature prohibited the dumping of 'carcinogens', then once we discover that this substance is a carcinogen, we have discovered that it is among the substances that it is illegal to dump in reservoirs. And not only have we not had to change the law at all; there's evidence (in the form of the legislature not having passed the 'list' version of the law) that they did not intend the law to apply only to substances they knew to be carcinogens. Had they meant this, they could have said so. Instead, they passed a law prohibiting the dumping of carcinogens, period; and it is not 'broad' or loose', but simply accurate, to take this law to prohibit the dumping of substances that the legislature did not know were carcinogens, but that in fact were. Likewise with searches: the founders could have prohibited 'those acts we presently believe to constitute searches'. But they didn't. In so doing they deliberately allowed for the possibility that new sorts of searches might develop, by choosing a word whose meaning is not exhausted by the list of things they took it to refer to.

Note that taking 'search' in this way does not imply that anything goes, or that the Supreme Court could if it wanted to define waving hello to your friends as a search. It just proposes that 'search' does not mean 'the list of things I currently take to be a search', which seems plainly true. This is consistent with its having a different clear meaning.

Possibly slightly off-topic previous to the 19th century there was no well-formed tradition of judicial review (determination of the Constitutionality of acts of the legislature). I can't identify any 18th century examples.

The idea grew at least in part as a response to the impeachment of judges particularly Pickering in 1803 whose main crime was lese-Congress.

Sebastian,

Another thing occurred to me after I posted, which may both clarify my post and anticipate some of your objections. You've implicitly assumed, throughout, that the legislative-executive-judiciary division is somehow innate. It isn't, in my view, it's just our particular way of splitting up the conceptual space that we consider to be the functions of government.

Now there are some merits to this formulation, enumerated at length both here and elsewhere -- I'm impressed by your temporal trichotomy approach, although I must admit I don't find it particularly convincing -- but that doesn't change the fact that this division is an arbitrary subdivision of something much bigger and more nebulous. [The same is true of almost any instantiation of a truly abstract concept, incidentally.] As such, you cannot simply talk about the legislature, the executive or the judiciary as abstract entities, divorced from their particular instantiations (in this case, as chartered in the Constitution), as they simply do not exist in the abstract.

That is, as with everything I seem to say, something of an oversimplification, but I think that provides a decent grounding for my previous arguments. The triune division exists only insofar as it's licensed by the Constitution (or insofar as we would like it to be so licensed, depending on the degree of hypothetical); you cannot separate the one from the other without the referents of your argument dissolving into oblivion.

Your Mileage May, and most certainly Will, Vary.

I'm glad that Anarch is pointing out that these issues cannot be looked at independently in a vaccuum because they don't exist nor were they intended to exist in such a state.

We have brakes in our democratic system because the fear of pure democracy is justified by the predictable outcomes of majority rule. Legislators are elected by majority rule.

"The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities."
Lord Acton

I don't agree with your minority protection analysis at all. The characteristics that you describe (not elected, turnover by death or retirement, empowered to enforce the Constitution) only protect minority interests insofar as different sections of the Constitution judges are enforcing protect minority interests. What you are describing is a relative political insularity.

Judges are systemically insulated from the gusting winds of temporary political whim (though of course they may be personally convinced). This insulation exists so that they may maintain the Constitutional order against unauthorized change. This has an anti-majoritarian flavor because the legislature needs a majority to act. But the power of judges is to preserve the old Constitutional order against the will of a legislative majority until that majority can muster up the will to go through the amendment process to change the Constitution. That is why I call the judicial power 'the power that preserves'. It is empowered to protect non-majority interests against attacks on Constitutional rights by resisting illegal changes in the Constitution, not out of an innate power to protect minority interests against the will of the majority.

That is why I strongly disagree with you when you make this statement:

"That problem is that the institution empowered with interpreting the Constitution (i.e. deciding what it means) is also enjoined to protect minority rights (i.e. counterbalancing the majority towards the minority)."

The clause following your 'also' is not part of what judges are enjoined to do. Judges may act to counterbalance the majority ONLY when the legislature transgresses against the Constitution. Counterbalancing the majority is not a separate power of the judiciary which ought be balanced against any other responsibility of the judiciary. It exists only as a part of the judges responsibility to enforce the Constitution's parameters on the legislature. Any counter-majoritarian effect is only a result of Constitutional interpretation.

Hilzoy, you may be right that 'broad' and 'narrow' aren't the very best possible descriptors for various types of constitutional interpretation. But I can't think of what the proper phrases would be.

As for the rest of your example, I think you are right that 'search' has a clear meaning that isn't a list. But the beginning of the analysis which you use is an attempt to talk about the meaning of the the 'search and seizure' clause as it was actually understood by those who wrote it. It is an attempt to understand what 'search' means and then apply it to similar things that weren't known at the time. That is a dramtically more narrow version of interpretation than is currently used by many judges.

Anarch, I am responding to your second post separately:

Another thing occurred to me after I posted, which may both clarify my post and anticipate some of your objections. You've implicitly assumed, throughout, that the legislative-executive-judiciary division is somehow innate. It isn't, in my view, it's just our particular way of splitting up the conceptual space that we consider to be the functions of government.

I'm not analyzing the branches as truly separate from the Constitution. I know full well that they exist because it sets them up. The reason I analyze their general functions is because a huge percentage of the time they operate entirely within Constitutional bounds, and the Constitution doesn't affect their operation in such cases. The judiciary existed before the concept of judicial review became cemented in our nation. And its day-to-day activities are exactly as I outlined.

I wanted to explain what judges did outside of Constitutional review because their function in judicial review of Constitutional questions is supposed to be exactly like their interpretation of normal legislative acts. That is why judicial review was so easily accpeted--it is a direct extension of a judges' normal duties with the text of the Constitution serving in the exact same place as the the law being interpreted in all other cases. The rules of interpretation for laws was well understood at the time, so the extension of those rules to Constitutional interpretation was not seen as a huge threat.

This is why your objection when I say "Ultimately the judge is supposed to tie his decision closely to the rules adopted by the legislature." is not really on point. When I was describing the non-judicial-review concept, this was wholly correct. The judicial review concept is merely an extension of that, with the Constitution analytically substituted in the place of 'rules adopted by the legislature'. And that is exactly how it came up historically. Judges were understood to be capable of legislative interpretation, and judicial review of laws for Constitutionality was an extension of that--with the Constitution being the law being interpreted as strictures on the legislative power.

My point is that they are not separate powers and do not require separate systems of analysis.

Isn't contemporary interpretation part of what makes the Constitution and the judiciary so wedded? And isn't some of the bareness and "vagueness" of the Constitution intended to allow for a changing society and thus changing interpretations?

Many issues weren't known at the time or weren't addressed but "All men" is now interpreted as men and women and all races because of the courts and/or civil disobedience initially. The legislation followed.


A fine post. A few small quibbles:

There is federal common law, restricted to particular topics, like, for example, government contracts.

Common law, generally, plays a much more important role than your scheme alots. Much of the common law is not codified -- look at the tort field for example. This is why tort reform legislation, especially at the federal level, is such a departure from tradition. And some codifications are of the common law -- I'm thinking here of contract law, and the Statute of Frauds, for example -- and function like the common law. Sure we have the UCC, but the fact that legislatures enacted a version of the Law Merchant really only means that certain choices that judges had under the traditional common law are now made, conclusively. There is still plenty of room for interpreting the language of the provisions, as applied to particular situations. And, of course, these interpretations form a body of precedent, which grows and evolves -- just like the common law.

I'm not sure the Constitution gives the executive nearly as much plenary power over foreign affairs as you imply: regulation of international commerce is relegated to Congress, as is the power to declare war. Obviously the power to appropriate carries power to control what the money is spent on, and the power to confirm ambassadors includes a power to engage in some degree of policy review. It is true that the courts have largely supported executive powers in this connection -- IIRC, though, some powers the SC has found the executive to possess derive not from the constitution, but is inherent. (I'll re-read Curtiss-Wright, and suggest you do the same). Federal common law, I'd say.

I agree completely that there is no general Article III mandate to protect minority rights,* and that such powers as the judiciary has to do so derives either from statute (e.g., corporate laws protecting minority shareholders, Title VII, ADEA, ) or other provisions of the Constitution: Bill of Rights, XIV amend., full faith & credit, republican form of government, privileges and immunities, etc.

* A court of equity has power over certain kinds of protected persons: orphans, beneficiaries of trusts, stockholders, etc. I know that this is not what you mean, but it's too simplistic to say that courts exist only to interpret statutes, without reference to the consequences of doing so. Indeed, I think one could fairly say that your scheme ignores Equity altogether, concentrating only on Law. Even after the merger in the 30s, the distinction still has importance at the federal level -- and obviously in unmerged states it's even more critical. I'd like to see your thoughts on the role of Equity in your taxonomy.

I personally think that claims that interpretetive schemes that are too loose deprive the constitution of all meaning are way way overblown. Sure there is a level at which this is so as a matter of logic. Nothing we've seen in the last 100 years comes even close to this. You might not think that particular activities come within the liberty interest protected by the XIV, but you can't say that a disagreement about this makes the phrase completely meaningless. Calling the side that disagrees with you unprincipled, or driven by whim, is an easy dodge.

Of course, if the system is going to have whims, I'd be much more comfortable with judges protecting the rights of individuals against the power of the state, based on whims, that the state oppressing individuals based on whims of either the executive or the legislature. The judiciary has very limited powers to harm citizens -- except in the psychic sense -- while the executive actually kills people. (We don't have to worry about judicial oppression by whim, because the executive chooses which citizens to target, and what for).

I have to say that I'm shocked to find myself in near total agreement with Sebastian's of 11:58.

Except the following:

"That is a dramtically more narrow version of interpretation than is currently used by many judges."

I'd like to see some examples where judges intentionally disregard what they think the legislature intended to accomplish (or wrote). Or constitution drafters. I'm not saying there aren't any. I suspect, though, that a great many of the judicial decisions of which you disapprove derive from a difference of opinion about what the words fairly mean, rather than from a stubborn refusal to apply what they plainly mean.

That problem is that the institution empowered with interpreting the Constitution (i.e. deciding what it means) is also enjoined to protect minority rights (i.e. counterbalancing the majority towards the minority).

There's another problem with this formulation other than those that Sebastian has noted. The power to interpret implicit in the Constitutional role of the judiciary was significantly weaker than it has become. The judiciary was never "empowered" to strike down the acts of the legislature. And, as I pointed out above, there was no tradition of such power either.

As Anarch has correctly pointed out, the powers of government do not exist in a vacuum. So where did the judiciary receive the power to strike down legislation? They usurped it from the people (in whom that power had traditionally resided). And as the power of judicial review has increased the rights of the people have decreased.

Before everyone jumps all over me for saying this, consider that whether this is true is completely distinct from whether it's a good thing. I'm not entirely sure of my own feelings as to whether it's a good thing. Mixed bag, I think.

Dave
If the judiciary usurped the powers of the people to strike down legislation, what was the people's mechanism for such an action?

You need to rethink you starting point if you are going to talk about the problem areas of judicial interpretation.

In 99% or so of cases, your structural concept is adhered to by the courts. The only real problem is getting not so bright judges to actually follow the law, or use proper legal doctrines of interpretation to apply the law. Even if the highest judges go nuts and misinterpret legislation, the legislature can readily fix it by passing another law that trashes the improper interpretation.

The remaining cases where trouble exists are always constitutional cases involving judicial review. I assume you are aggrieved by constitutional decisions such as abortion or gay marriage that cannot be undone by legislatures. And your error is assuming that this type of legal question is no different from the remaining 99% of cases.

Judicial review does not fit into your structural scheme. It is a device invented by Marshall in Marbury v. Madison to address a basic flaw in the drafting of the constitution -- how is it to be enforced? By its very nature, judicial review tends to be legislative in function, and pretending that it is not is simply foolish. Judical review is the art of rewriting the constitution to address what the document failed to address (unless you are lucky and it did address it fairly clearly, but then there is no problem).

The Courts have known this fact for 200 years, and have a long tradition of using the power sparingly precisely because it runs contrary to the basic constitutional scheme and separation of powers. When they do use the power, it has the effect of a papal bull.

A poster above referred to the Constitutiuon as poorly drafted. Put another way, it was a compromise document that was not intended to comprehensively address all of the angles. The intent was to create something that got the basic ideas down on paper and that would hopefully work. The vagueness may have in part been intentional -- or it may have been politic. One of the oldest tricks of legal draftmanship is to leave something vague hoping that the words are latter given the spin you want rather than you adversary's desire. Lawyers are taught to try to get things as precise as possible, but crafty lawyers know to write things vaguely when they cannot get what they want in clear language, and hope to exploit that vagueness later. Also, no one at the time even considered the question of "judicial review" -- the doctrine was created more than 12 years later.

The "original intent" doctrine is one example of trying to make judicial review more judicial-like rather than legislative-like. It does not work all that well, and is abandoned when it is convenient to do so by its own adherents.

So the key is to stress a proper philosophy for exercising judicial review -- this is not a practical problem of "too loose" a standard for review.
"Looseness" implies that other than the vague words of the document, there is another standard for proper interpretation. But there isn't.

The court has gotten away with judicial review for so long because of the tradition of using the power sparingly -- but that is simply a political standard of expediency when to use it.

By the way, you are also wrong about commmon law as it existed at the time of the American Revolution. It is true that it was referred to as unchanging and immutable, and that courts simply applied it rather than creating it. This was known to be doggerel at the time. Long before the Constitution was written, English courts had invented numerous loopholes or circumventions of the common law that had the practical effect of making new law while pretending not to.

One common method was the "legal fiction," which is well-defined here. Put is shorter form, the English courts willingly permitted falsehoods so that they could change the common law while simultaneously pretending not to. When the Constittuion was written, the framers were fully aware of the ability of courts to use "interpretation" to create new law. The problem that exists now existed then, and has never been "solved."

Criticizing interpretations as "too loose" ends up being another type of political statement about when the court should exercise its power -- not a criticism of methodolgy.

"Of course, if the system is going to have whims, I'd be much more comfortable with judges protecting the rights of individuals against the power of the state, based on whims, that the state oppressing individuals based on whims of either the executive or the legislature. The judiciary has very limited powers to harm citizens -- except in the psychic sense -- while the executive actually kills people."

The executive branch has force to attack people, the judiciary branch has the ability to harm faith in the system. The problem with judiciary excess is that attacks trust in the whole system of laws. Most of the more serious abuses of a bad executive are easily detected and can be remedied by an election. The excesses of a legislature (especially the House of Representatives) can be corrected every two years. Because of the political insularity of the judiciary (which has positive effects as well) it is difficult to correct abuses of the judiciary. And since the judiciary can strike down democratically enacted laws, if the judiciary is seen as doing so capriciously, it attacks the stabilty of the system. It does so because the natural reaction of to such a perception is to either believe the Constitution is not meaningful or to try to dramatically reduce the power of judges (which has deleterious effects when the checks from the judiciary are needed). A President or Representative can be replaced. Judges generally aren't.

Judicial review does not fit into your structural scheme. It is a device invented by Marshall in Marbury v. Madison to address a basic flaw in the drafting of the constitution -- how is it to be enforced? By its very nature, judicial review tends to be legislative in function, and pretending that it is not is simply foolish. Judical review is the art of rewriting the constitution to address what the document failed to address (unless you are lucky and it did address it fairly clearly, but then there is no problem).

I don't understand you here. Judicial review does fit into my structural scheme. I discuss it in paragraphs 9-16 of my original post. I claim (with history supporting the assertion) that judicial review is an extension of legal interpretation of legislatively enacted laws. In judicial review cases, the judiciary interprets the Constitution (exactly as it normally would interpret regular laws) and examines the law at hand to see if it transgress the boundaries set by the Constitution.

"Judical review is the art of rewriting the constitution to address what the document failed to address"

I can't agree with that at all. I'm willing to go along with hilzoy's concept of meaning when dealing with Constitutional analysis. You are suggesting something different. Rewriting is the province of amendments. That is why there is an amendment procedure. Things that are truly not addressed in the Constitution are simply not addressed.

Speaking strictly for myself, I'd rather be disappointed by a legal usurpation like Bush v. Gore than sitting in a prison cell, like Hamdi, wondering whether I can get an absentee ballot to vote the bums out.

Didn't the Supreme Court rule on the Hamdi case?

It did rule on the Hamdi case. (Link in the Constitution post; too lazy to look it up again.) But he was, last time I checked, still in prison working out a deal for his release.

Still in prison. Not the point, of course.

The point is that the consequence to him of what now seems clearly to be an executive overreach is sure greater than the consequences to me of Bush v Gore or to you of the Mass Sup Ct finding that gender restrictions in the state marriage laws unlawfully violate state constitutional equal protection. We're pissed off, and our faith in the judicial system is shaken, but we're not in jail, for chrissakes. For 2 years before we get any kind of recognition of our basic civil rights.

Here's the excerpt from Curtiss-Wright I was thinking of upthread. I don't agree with this, but then there are plenty of things our SC has said over the years that I don't agree with:

The broad statement that the federal government can exercise no powers except [299 U.S. 304, 316] those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. Carter v. Carter Coal Co., 298 U.S. 238, 294 , 56 S.Ct. 855, 865. That this doctrine applies only to powers which the states had is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. During the Colonial period, those powers were possessed exclusively by and were entirely under the control of the Crown. By the Declaration of Independence, 'the Representatives of the United States of America' declared the United (not the several) Colonies to be free and independent states, and as such to have 'full Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do.'

The Union existed before the Constitution, which was ordained and established among other things to form 'a more perfect Union.' Prior to that event, it is clear that the Union, declared by the Articles of Confederation to be 'perpetual,' was the sole possessor of external sovereignty, and in the Union it remained without change save in so far as the Constitution in express terms qualified its exercise. The Framers' Convention was called and exerted its powers upon the irrefutable postulate that though the states were several their people in respect of foreign affairs were one. Compare The Chinese Exclusion Case, 130 U.S. 581, 604 , 606 S., 9 S.Ct. 623. In that convention, the entire absence of state power to deal with those affairs was thus forcefully stated by Rufus King:

'The states were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty,-they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war.' 5 Elliot's Debates, 212.1 [299 U.S. 304, 318] It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens (see American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 , 29 S.Ct. 511, 16 Ann.Cas. 1047); and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. The power to acquire territory by discovery and occupation ( Jones v. United States, 137 U.S. 202, 212 , 11 S.Ct. 80), the power to expel undesirable aliens (Fong Yue Ting v. United States, 149 U.S. 698 , 705 et seq., 13 S.Ct. 1016), the power to make such international agreements as do not constitute treaties in the constitutional sense (Altman & Co. v. United States, 224 U.S. 583, 600 , 601 S., 32 S.Ct. 593; Crandall, Treaties, Their Making and Enforcement (2d Ed.) p. 102 and note 1), none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nationality. This the court recognized, and in each of the cases cited found the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations.

In Burnet v. Brooks, 288 U.S. 378, 396 , 53 S.Ct. 457, 461, 86 A.L.R. 747, we said, 'As a nation with all the attributes of sovereignty, the United States is vested with all the powers of government necessary to maintain an effective control of international relations.' Cf. Carter v. Carter Coal Co., supra, 298 U.S. 238 , at page 295, 56 S.Ct. 855, 865. [299 U.S. 304, 319] Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613.

Sebastian:

I am not suggesting "rewriting," nor am I advocating a particular judicial approach. I am just urging you to be realistic about what is actually going on. It does not make sense to critique judicial review of constitutional issues under the idea that judges should simply confine their role to "interpreting" existing text. The judicial role regarding the constitution creates a paradox that no one has logically resolved, and judicial review has worked so far only because judges have been very political about when they use it.

I am pointing out that a great deal of judicial review by its nature cannot be confined to "interpretation" of the existing text because that text is often so vague or incomplete that it provides no meaningful guidance in a particular case.

Here are only some examples of judicial legislating in constitutional interpretation -- this is not "rewriting" but simply doing what is necessary to give meaning to rather vague pronouncements. Unfortunately, it amounts to judicial legislating no matter how you spin the definitions:

unreasonable search and seizure -- this term is undefined and had very little historical precedent when it was written. There are thousands of cases trying to flesh this out -- calling this federal common law an alleged result of allegedly divining the meaning of the words as "enacted" is phony. It's judges legislating what they think is appropriate with essentially no guidance from the text of the document itself.

right to privacy -- either you agree that no such right exists or you agree with the legislating by the Supreme Court to find this "penumberal" right. This philosphy has become so accepted as part of constitutional "law" that the current conservative court used the doctrine to strike down the Texas sodomy laws.

executive privilege and other separation of powers cases -- there is absolutely nothing in the Constitution on this, but it makes sense given the general idea of separation of powers that is implied in the Constitution. But the cases that have fleshed out this doctrine (the Nixon tapes case being one of the more profound) represent judicial legislation. If not, would you care to point to the language they are "construing?"

double jeopardy: there are dozens of cases creating meaning from this vague phrase, which is undefined and subject to numerous potential meanings.

interstate commerce -- classic vagueness in the Constitution subject to numerous contradictory interpretations. When a law is this vague, the court must legislate to fill in the blanks since there is absolutely nothing to go on.

due process of law/equal protection clause -- the famous interpretations of the 14th amendement, and the "incorporation" doctrine. There is next to nothing in the amendment nor the legislative history that answers these questions. Indeed, the 14th amendement was itself a product of negotiation and compromise and probably deliberately left vague because of disagreements over what it should say.

free speech/ infringement of religion and the establishment clause -- again, the text provides next to no guidance and there was little historical precedent regarding these rights. It is not "interpretation" when the court makes up rules regarding what these doctrines are.

That's why I refer to interpretation of these types of issues as follows:

"Judical review is the art of rewriting the constitution to address what the document failed to address."

I am not saying the court is free to do whatever it wants. But it frequently has so much discretion that its actions should not be understood as "interpreting" the text. The fact that a few words do appear does not mean that it is addressed in such a manner that the court is able to "interpret" the language to tell what it should mean in a particular context.

I agree that judicial restraint is very important, but I challenge your basic assumption that answering these legal questions is simply a matter of textual interpretation, which if "too loose" leads to trouble. Or that "judicial legislation" is always a bad thing, and that no historical precedence existed for it prior to writing the constitution.

DM, I think you're using a very different meaning for the word legislate than I would. For example, I'll agree that standing alone, the words "double jeopardy" are very vague. And even if we look at the context of the times, and try to figure out what the drafters were aiming at, we still find that the text doesn't give us the answer for every single situation. So, faced with an actual case, a judge has to try to decide whether a violation has occurred. She/he looks at the language, thinks about the abuses the clause is designed to prevent, and decides whether, say, a federal court trial following a tribal court trial is a violation. Reasonable minds can differ, but we can't allow the executive to make the decision (it already has, by subjecting the citizen to a second trial) or the legislature, because that would require a constitution of hundreds of volumes. Instead, we have principles that courts try to understand and apply to the situations presented before them.

What is it about this that is legislative? Teasing out a meaning from ambiguous statutory language and applying it to specific facts -- that's what judicial interpretation is.

And I'll say it again, I don't see why judicial restraint when construing the Bill of Rights is such a good thing. The Bill is designed to be a restraint upon the power of the state. That's why it's there, and for no other reason. Judges should start any question of the bill of rights (including, in my opinion, the 2d amendment) with this in mind. The same is true of the 14th amendment, enacted because states had shown that they could not be trusted to refrain from impinging on the rights of citizens.


Dave Schuler: There's another problem with this formulation other than those that Sebastian has noted. The power to interpret implicit in the Constitutional role of the judiciary was significantly weaker than it has become. The judiciary was never "empowered" to strike down the acts of the legislature. And, as I pointed out above, there was no tradition of such power either.... They usurped it from the people (in whom that power had traditionally resided).

Do you have a cite on that? What little I've been able to dig up on the matter says that a small number of the delegates to the Constitutional Convention had an official opinion on the power of judicial review, and of those the majority (9 of 11) were in favor of it. It wasn't written into the Constitution, of course -- so "empowered" is something of a misnomer, true, the judiciary more or less acquired this power of their own accord -- but given that it's a necessary function of an explicit Constitution, and given that the Constitution is deficient in not specifying wherein this power resides, it wasn't the complete usurpation you depict.

Besides, I think your formulation is a little inaccurate. The power to alter acts of the legislature is, indeed, the traditional province of the people. However, the power to determine whether acts of legislature lie within the defined parameters of the Constitution (and thereby whether such legislation is legitimate) is not, AFAIK, a traditional power of the people because it didn't exist prior to the formation of an explicit Constitution. You can't meaningfully cite precedent here because there was no precedent; you can't meaningfully cite tradition because tradition didn't apply; and you can't cite the Constitution because, as I mentioned above, it doesn't specify. In that sense I regard judicial review as an unfortunately unenumerated but necessary power that devolves to the judiciary by default (despite its historical antecedents) for much the same reasons as said by Sebastian above.

Sebastian, I'm too tired right now to respond to your posts. I'll do so tomorrow or Saturday when I have the chance.

"I am not saying the court is free to do whatever it wants. But it frequently has so much discretion that its actions should not be understood as "interpreting" the text. The fact that a few words do appear does not mean that it is addressed in such a manner that the court is able to "interpret" the language to tell what it should mean in a particular context."

This is commonly suggested, but almost never are willing to identify (even in a fairly general sense) where the courts discretion ends. Without an endpoint in judicial discretion, saying that you think the court can't do whatever it wants is for any practical purpose just a wish.

As for your specific examples.

I can't believe you are using the history of interstate commerce clause interpretation in your case. It is a classic example of ridiculous judicial interpretation. And in that instance it worked hand in hand with the legislature to extend Congressional jurisdiction to almost anything--in stark counterpoint to concepts of the judiciary standing as a check on the legislature. The clause is not vague, it just doesn't include everything that Congress wants it to include. "Interstate Commerce" is not a ridiculously vague concept. The fact that you think it is tends to confirm my belief that you don't see real limit on the Court's power. So once again, why not let the court make all the rules? Why bother with amendments?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the Place to be searched, and the persons or things to be seized.

I honestly don't see what is hopelessly vague about this clause of the Constitution. You could give it to a number of reasonabley intelligent high school students and get a perfectly normal understanding of the clause that is well in line with most of its history.

The problem I see with enforcement of this clause is that the judiciary has been willing to engage in a vast number of exceptions to the rule, most of them not grounded in the history or phrasing of the clause.

Double jeopardy--"...nor shall any person be subject for the same offence to be twice put in jeopardy..." why is this so confusing? I think the answer is easy. The current doctrine is confusing not because the phrase is ambiguous, but because prosecutors and the courts have spent the last hundred years coming up with excuses for why it should not be applied in specific cases. This has created a maze of complications. Which reinforces my point, not yours.

The First Amendment is also fairly clear, especially when examined with even a slight attention to historical context. Contrary to your assertion, the phrase 'freedom of the press' was an established term of art even at the time. Once again there have been a huge number of complications--many of them as courts and legislatures try to wriggle out of the clear meaning of the text.

Right to Privacy--I defy anyone to come up with a clear explanation of what this Constitutional right is, much less why they think it is a Constitutional. This is a classic case of the Court making something up so that it can create a policy that it desires. It has been used to create a number of what I think are desireable outcomes, and a number of undesireable outcomes, but a general right to privacy does not exist in the Constitution of the United States. The fact that so many people wish it did, suggests it might be the appropriate subject of an amendment. I note in passing that many of the things studied under a 'right to privacy' rubric were actually decided on other grounds and some of the others could have been decided the same way on other grounds.

Executive privilege and other separation of powers cases--most of these cases involve the Supreme Court saying that they don't want to get further involved in Congressional-Executive squabbles. The branches are co-equal and have to defer to each other on certain issues.

Due process of law/equal protection clause: If you examine these clauses as they are actually found in the Constitution, they aren't super-mysterious either. But they aren't the infinitely flexible tools that many liberals seem to desire either. I don't think it is appropriate to label something 'ambiguous' just because it doesn't cover everything you wish it did.

In a more general comment about interpretation (to be followed up in a longer post on the topic), even real ambiguity doesn't extend indefinitely. Just because a phrase has some ambiguity doesn't mean that anything goes. I know we all know that, but it is important to keep in mind with some of the more 'creative' interpretations.

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