Nonjudicial Interpretation of the Constitution (Update)

views updated


The Constitution of the United States demands interpretation. Its textual language is often less than clear, as is its surrounding history. As a result, ordinary citizens as well as constitutional scholars frequently debate the meaning of the Constitution's terms. Moreover, so too do government officials, legislative and executive, high and petty, in the numerous contexts in which the Constitution potentially constrains the performance of their duties. And of course judges, state and federal, and at all levels of the judicial hierarchy, must routinely engage in constitutional interpretation in applying the law to the cases before them. In all of these settings, it is uncontroversial that the Constitution is the supreme law of the land, and that all other laws must be compatible with it, but it is often controversial just what it is that the Constitution means.

In situations in which there are no Supreme Court interpretations of the Constitution, government officials, including those sitting as judges of state courts and lower federal courts, must interpret the Constitution for themselves. In these circumstances, no question arises regarding the propriety of such officials doing the best they can to interpret the Constitution that both informs and constrains their work.

When the Supreme Court has offered an interpretation of some constitutional provision, however, a new question arises, because it is controversial whether lower court judges and nonjudicial officials must obey what they believe to be erroneous interpretations of the Constitution just because those interpretations come from the Supreme Court. May such lower court judges and nonjudicial officials follow their own interpretations of the Constitution regardless of what the Supreme Court has said?

The responses to this question, both in judicial opinions and in the scholarly literature, fall into three broad categories. One response denies to Supreme Court interpretations any binding force except in the specific case in which the interpretation was offered. In support of this position, some commentators argue that Article III of the Constitution, which describes and creates the judicial power of the united states and thus the power of the Supreme Court, restricts the power of the federal courts to the decision of cases and controversies. Thus, although the Supreme Court may bind the parties and the lower courts to its interpretation in the particular case before it—a power that follows from the very idea of a supreme court—the Supreme Court has no power to bind officials or courts in other cases to its interpretation. Indeed, according to this position, the Court has no power even to bind itself, through the doctrine of stare decisis, to any constitutional interpretation that it subsequently deems to be erroneous.

This position, which denies to the Supreme Court the power to bind anyone other than the litigants and lower courts in particular cases, strikes many observers as anarchical, inevitably productive to an unworkable cacophony of conflicting constitutional interpretations. A second and less-extreme position, therefore, holds that Supreme Court interpretations of the Constitution should be accorded considerable but not absolute weight by courts other than the Supreme Court, and should be accorded moderate weight by the Supreme Court itself. Under this position, the fact of an existing Supreme Court interpretation is relevant (but not necessarily dispositive) in an authoritative and not merely persuasive way in cases other than the case in which the interpretation first arose. Especially with respect to interpretations by legislative and executive officials, the details of this position are often less than clear, since there is a great deal of room to maneuver around the question of what it is for a decision to have "considerable" but not "absolute" authoritative force. Thus, commentators who hold this second position have diverse views about when officials should act contrary to Supreme Court interpretations that those officials believe to be erroneous. All agree that some "dialogue" between the Court and other branches of government is a good thing and conducive to better constitutional interpretation, but there is disagreement about what is to happen when disagreement persists even after the most robust dialogue.

The third position, which is the one the authors endorse, accords Supreme Court interpretations of the Constitution the status of supreme law of the land, and thus the status that the Constitution declares itself to have. According to this position, a Supreme Court interpretation of the Constitution becomes part of the Constitution for all practical purposes, and to lower court judges and nonjudicial officials there should be no difference between what the Constitution says and what the Supreme Court says the Constitution says. (The most extreme version of this position would make Supreme Court interpretations authoritative for the Supreme Court itself in later cases; and at a minimum this position entails that such interpretations may not be overturned by the Court merely because the Court thinks them wrong.) Undergirding this position is a respect for the values of consistency and uniformity that support the reason for having a constitution in the first place. The virtue of a constitution is not in the fact that it takes a position on controversial issues of political morality, but that it settles controversial issues of political morality. Insofar as the meaning of the Constitution itself remains unsettled, this central function and virtue of constitutionalism remains unsatisfied. A Supreme Court interpretation of the Constitution, if given the authoritative status of the Constitution itself, can provide the settlement that the Constitution is meant to provide but often does not.

The Supreme Court itself has endorsed this third position in cooper v. aaron (1958), and again more recently in City of Boerne v. Flores (1997). That the Supreme Court itself has endorsed the position, however, is neither surprising nor dispositive, for the question of what weight others should give to Supreme Court interpretations cannot be settled by the Supreme Court itself. Thus, the question is not what the Supreme Court has said about the authoritativeness of its own interpretations, but whether this position—judicial supremacy (but not exclusivity) with respect to matters of constitutional interpretation—best serves the goals of a constitutional system. And although such a view might on occasion produce excess deference to erroneous Supreme Court interpretations, the opposing view might, on even more frequent occasions, produce an unwillingness in the executive and legislative branches to take seriously the idea that the Constitution constrains and thus invalidates even some outcomes that might be desirable, in the short run, on both policy and political grounds. The question is therefore not whether the Supreme Court is in some way a "better" interpreter than the other branches. Rather, it is whether, in light of the relevant systemic incentives and goals, a system of authoritative Supreme Court interpretation of the Constitution will produce better results, in the aggregate and in the long term, than a system in which each judge, each legislator, and each executive official may decide for himself or herself what the Constitution means.

Larry Alexander

Frederick Schauer

(see also: Religious Freedom Restoration Act.)


Alexander, Larry and Schauer, Frederick 1997 On Extrajudicial Constitutional Interpretation. Harvard Law Review 110:1359–1387.

Devins, Neal and Fisher, Louis 1998 Judicial Exclusivity and Political Instability. Virginia Law Review 84:83–106.

Nagel, Robert F. 1998 Judicial Supremacy and the Settlement Function. William and Mary Law Review 39:849–864.

Paulsen, Michael Stokes 1994 The Most Dangerous Branch: Executive Power to Say What the Law Is. Georgetown Law Journal 83:217–345.

Symposium 1987 Perspectives on the Authoritativeness of Supreme Court Opinions. Tulane Law Review 61:977–1095.

About this article

Nonjudicial Interpretation of the Constitution (Update)

Updated About content Print Article