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 decisions as griswold v. connecticut (1965), protecting access to birth control devices against state prohibition. This and other positions on constitutional law that Bork viewed as matters of interpretivist principle became points of contention in the televised hearings on his nomination and surely contributed to his defeat in the Senate.
In addition to being ugly, the terms "interpretivism" and "noninterpretivism" were never terribly apt, for both sides purported to "interpret" the constitution. Gradually the synonymous and more descriptive (though perhaps not much less ugly) terms originalism and "nonoriginalism" gained currency in the 1980s. Terminology aside, the distinction between interpretivism and noninterpretivism proved elusive under close examination. The most extreme form of interpretivism insisted that constitutional questions must be referred to an almost mechanical process of application of constitutional language and original intentions. In this strong form, interpretivism would surely defang the activist tiger, but commentators quickly exposed weaknesses in any pretense of interpretivism to answer constitutional questions by resorting to constitutional language and intention alone. Many of the criticisms suggested difficulties in softer versions of interpretivism as well.
Perhaps the most obvious problem is with the inadequacy of the historical record for so many key constitutional provisions. Lawyers and judges are not trained in historical research, and even if they were, they would find that history itself requires interpretation that necessarily draws on the cultural framework, and hence the values, of the inquirer. But those interpretive difficulties are substantially compounded by the sparseness of the historical record in the case of the original Constitution and many of the amendments. Reports of the debates in the state conventions called to ratify the original Constitution are particularly sketchy. In some cases, the official reports are virtually nonexistent, and newspaper or other informal reports that have survived are suspect or even demonstrably inaccurate.
This historical problem plays on another—the conceptual difficulty of combining intentions of the individual actors in enactment of constitutional provisions into an authoratative corporate intention. The Confederation Congress, the constitutional convention of 1787, and the several state ratifying conventions all played important roles in the original Constitution. But there is no consensus about the right way to sum the individual states of mind of the participants for any one body, let alone for all the relevant bodies combined. In the case of the original Constitution, for instance, we usually recur to the intentions of the Framers at the Constitutional Convention, who did not have a formal role in the adoption of the document, and ignore the intentions of the delegates to the state ratifying conventions, who did. This is done without any particular theoretical justification. Just suggestive of the many questions that any thoroughgoing response to the summing problem would have to address are whether the mental frameworks of persons who voted against the Constitution or some provision of it are to be counted, whether views of sponsors of language count more than views of others with equal votes, and whether ratifying conventions after the required nine initial ratifications matter.
In practice, of course, we do rely comfortably on explanations by participants expressed contemporaneously with the enactment process. The dominant source in the case of the original Constitution is the federalist. The essays of The Federalist are attractive for a variety of reasons, but most especially because of james madison's authorship of so many of them and because they represent an intellectual tour de force that provides a compelling rationale for the Constitution. But those are hardly answers to the historical difficulty or to the summing problem. Indeed, The Federalist was produced after the Convention and as advocacy, rather than as a faithful reflection of the contemporaneous intentions of the Constitution's draftsmen. As such, The Federalist may well have been influential for members of the ratifying conventions in ways it could not have been for members of the Constitutional Convention. Ironically, The Federalist may thus provide evidence of intention—albeit strictly circumstantial evidence—for a group that is largely ignored in the literature about original intentions, while not providing much evidence at all for the group with which, because of Madison's central role at the Convention, they are more commonly associated.
It is interesting that the summing and historical problems have caused so little anguish. We have not seemed disabled by the lack of a summing algorithm or by the lack of historical evidence. This is probably so because we appreciate intuitively that all those states of mind were important as inputs to the real product of the constitutional process, the language of the document itself, about which there is no doubt at all. Intentions, in contrast, are suggestive guides to interpretation, helpful because language does not apply itself, because the views of those involved in the process are likely to provide useful perspectives, and because we have come to learn that the views of some—Madison and alexander hamilton in particular—contain special insight and special wisdom about the American constitutional system. The usefulness of what can be learned about original intentions is surely not unrelated to their historic association with the enactment of the Constitution, but their usefulness is not logically bound up with that association. And we need neither summing formulas nor definitive evidence to make use of the ideas those intentions provide.
Other critics of interpretivism have emphasized the ambiguity of what in an individual's mental framework is meant by his "intentions." Ronald Dworkin, for example, has pointed out that there may be a distinction between the hopes and the expectations of a constitutional draftsman. And these two may be different from what the draftsman fears his language may come to mean. A further difficulty of this sort is in specifying the level of generality at which the authoritative intentions are taken to be held. Lawmakers, for instance, will typically have had exemplary instances in mind of things that would be fostered or forbidden by the law. The language they enact, however, will usually be expressed generally rather than as a list of specific goals or specific evils. The framers of the Fourteenth Amendment, for instance, clearly assumed that specific discriminatory statutes of the southern states, known collectively as the black codes, would be forbidden by the amendment, while the constitutional language they chose is exceedingly general. When the language is that general, it would be strange indeed to confine the reach of the amendment to the exemplary instances, or even to matters closely analogous to those exemplary instances. Nor would it likely be faithful to any probable reconstruction of original intentions. The generality of the language suggests that many of those involved must have had more general norms in mind in addition to the exemplary instances. Thus, even if the historical evidence is plentiful and the summing problem somehow overcome, the interpreter must at a minimum mediate between levels of generality at which intentions almost surely were simultaneously held.
A further difficulty lies in the role of precedent in an interpretivist scheme. The animating force behind the interpretivist approach is a desire for stability and certainty in constitutional law that requires the taming of judicial activism. Original intentions are assumed to be an unchanging lodestar providing both stability and certainty. But what then happens if there has been an earlier decision that now appears mistaken by original-intention lights? The earlier decision will have induced reliance and will for a time at least have defined the "law" on the question. If that decision must be overruled on the basis of persuasive new historical data—to say nothing of a new judgment about the import of old data—the goals of stability and certainty are not served, but undermined. In addition, it is not clear how one would approach the role of precedent in original-intention terms. This is really part of a larger problem that Paul Brest has referred to as the problem of "interpretive intention." It is perfectly possible for someone involved in constitution making to believe that a given problem will be resolved one way under language he votes to enact but that precedential developments, a change in external circumstances, or even a change of heart by judges might appropriately lead to a different result. It is perfectly possible, that is, for constitution makers to appreciate that they are setting in motion a decisional process, grounded in a desire to eradicate certain bad things or foster certain good ones, but not inextricably tied to any list of what is forbidden or desired. In that case, the intender's substantive and interpretive intentions can well suggest opposed results. If we somehow had access to the full complexity of original intention, we might resolve the conflict, but not necessarily in any way that would provide stability and certainty in the law. This problem of interpretive intention is particularly acute in a system like the American one, where long tradition antedating the Constitution requires courts to defer significantly to prior decisions. In such a context, it seems quite likely that constitution makers took for granted that stare decisis would have its due in constitutional law.
Interpretivist responses to these criticisms were complex and varied. While some interpretivists clung to a vision of original intentions that virtually applied themselves, most acknowledged that generally stated constitutional language had to leave room for judgment and hence choice by the courts. Some interpretivists, for instance, acknowledged that the intentions the judges were to apply were appropriately conceived at a level of substantial generality. Others embraced a role for precedent in constitutional law. Still others saw room for arguments from changed circumstances or from aspects of the constitutional system that did not come neatly packaged in a clause or an amendment. But the more these extratextual and extraintentional considerations are allowed to intrude, the more blurred becomes the line between the opposed interpretivist and noninterpretivist camps.
This is not to say that either side relented or that there was no difference between the two. Noninterpretivism had no unified approach to interpretation to offer. Some noninterpretivists advanced moral and political philosophy as the appropriate source for constitutional values when constitutional language ran out. Others urged judges to search for answers in conventional morality. Some saw judges as striving for a sort of global coherence in the law, while others urged adherence to precedent in more restricted domains. They were united only in their disdain for the oversimplified view of interpretation advanced by interpretivists, but the lack of any coherent noninterpretivist program reinforced the interpretivist view that noninterpretivism invited judicial tyranny.
As the debate proceeded, it became increasingly apparent that what was really at issue was the appropriate degree of judicial activism in a constitutional democracy, that interpretivism represented an appealing if ultimately unpersuasive theoretical grounding for the position that judges are constitutionally bound to exercise the judicial veto in only the clearest of cases. Despite protestations to the contrary, the two sides differed more in how clear the case had to be than in the type of evidence that could be considered. Differences over the role of original intentions were thus really ones of attitude and degree rather than anything more fundamental. It was interesting that, aside from Robert Bork, few judges joined the fray, and when they did, they seldom did so in the language of interpretivism and noninterpretivism. As the 1980s drew to a close, it appeared that political conservatives had largely prevailed in their campaign for a constrained judiciary. After anthony m. kennedy succeeded to Lewis Powell's seat on the Court, Chief Justice william h. rehnquist presided over a Supreme Court majority that articulated a philosophy of "judicial restraint" in constitutional review, but it was not a majority that did so under the banner of interpretivism.
Robert W. Bennett
Brest, Paul 1980 The Misconceived Quest for Original Understanding. Boston University Law Review 60:204–238.
Dworkin, Ronald 1981 The Forum of Principle. New York University Law Review 56:469–518.
Monoghan, Henry P. 1981 Our Perfect Constitution. New York University Law Review 56:353–396.