|Justifications of Judicial Review and Recommendations for its Proper Practice
Paul Bullen (1988)
The emphasis of my discussion of the Constitution is not in deciding the meaning of particular provisions. I do not discuss, for example, to what extent the takings clause prohibits uncompensated transfers of wealth or whether the 14th amendment is more compatible with Plessy or Brown. I do not discuss whether wearing T-shirts displaying the words "F-- the draft" can constitutionally be prohibited from public places. I do not discuss whether the separation of powers structure presented in the Constitution is sufficiently clear to make it proper for the Court to invalidate the independent counsel legislation. These are all difficult questions of constitutional interpretation. The concern of this paper, rather, is with the relationship between a written constitutional text as such and the function of judicial review as such and the relation between these two and a democratic society. An obvious preliminary question is: Does it make sense to discuss these matters in a way that does not take into account the actual content of the Constitution (not to mention the country to which is attached)? Is a purely "formal" investigation potentially fruitful? I ask this not because I offer an answer here, but in order to clarify the nature of this paper. This paper does assume that such an enterprise is worthwhile (possibly because we all harbor much substantive awareness as we talk--we are thinking of the US Constitution, not the Soviet or Ugandan and we are thinking about the factual situation of the United States, not that of Lebanon or Cambodia).
The problems in this paper arise because 1) there actually are disagreements about what it means to construe the Constitutionor what it is justices should do in constitutional cases; and 2) there is a problematic aspect of the relation between constitutional judicial review and democracy, namely the countermajoritarian problem. The difficulty or dilemma is that in creating safeguards against majoritarian excess the possibility of minority excess is created. A subtheme of this paper is how various thinkers have justified judicial review in the light of this difficulty. These are problems that exist or can exist under constitutions of varying content, and in democracies in any part of the world. How one applies abstract resolutions of these problems will vary with the particular constitution and particular society; but there is a generic element to the problem.
Although I do not discuss in depth those at the end of the spectrum opposing judicial review, their views are important and interesting, and awareness of them puts our topic in a proper perspective. In 1893 the famous jurist James Bradley Thayer gave republican reasons to oppose judicial review:
Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence,--the power of the judiciary to disregard unconstitutional legislation,--it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way . . . .
Some who accepted constitutional judicial review had envisioned a much more modest scope for it than is now taken for granted. Thomas Jefferson, for example, wrote that "the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and executive also, in their spheres, would make the judiciary a despotic branch."4
Between the poles of rejecting judicial review altogether and of allowing the Supreme Court quasi-legislative powers is the position that judicial review is good but that it must be limited by what the peoples representatives in the several states originally agreed to, viz., the faithful interpretation of the constitutional text according to what the ratifiers could reasonably have been expected to have understood the document to mean at the time of ratification. That is the position I advocate in the conclusion of this paper.
A. The People: The Constitution of the United States of America
The Constitution of the United States of America does not explicitly call for Judicial Review: "Neither the words of the Constitution nor the provable intent of those who framed and ratified it justified in 1790 any certitude about the scope or finality of the Courts power to superintend either the states or Congress."5 It was not, however, explicitly ruled out by the Constitution either; and it was anticipated by the Privy Council, colonial charters, the practice of some of the states during the confederation, the comments of at least some of the framers and ratifiers, as well as by Hamiltons words in Federalist 78.6 All this could mean that judicial review was either (1) contrary to what people agreed to, (2) so obvious that it did not need spelling out, (3) or had not really been thought about.
B. Alexander Hamilton: Federalist 78
But even as Hamilton understands it, the Constitution calls for a division of labor between the Courts and the political branches. The main responsibility for creating law ("will") is with Congress. The Courts responsibility is interpreting pre-existing law ("judgement"). In that the president is primarily responsible to "take care that the laws be faithfully executed" (Art. II, sec. 3) ("force"), but also has an important hand in legislation (through the veto power, etc.), he is in an intermediary position between the Court and Congress, from this perspective.
C. John Marshall: Marbury v. Madison
1st. Has the applicant a right to the commission he demands?
The answers he gave were yes, yes, and no. Once a commission is sealed, the office (in this case, of justice of the peace) becomes the property of the appointee (in this case, Mr. Marbury). In the process of nominating, confirming, appointing, commissioning (via signing), sealing, delivering, and swearing in, it is the act of sealing which is the magic point of no return. All legal systems must develop conventions on these matters,10 although Marshalls line of demarcation was an innovation.
To the second question Marshall says that although James Madison is the Secretary of State in the cabinet of the President, on this particular issue the judicial systems offering a remedy would not be meddling in his wide discretionary political responsibilities.
The third issue involves a larger problem since the power of the Supreme Court to issue writs of mandamus to officers of the government is authorized by a statute, the Judiciary Act of 1789, that gives the Court a power not allowed by the Constitution, according to Marshall. This, then, raises the question "whether an act, repugnant to the constitution, can become the law of the land" (p. 23).
But of course that was not the question. The question was whether it was to be Court which is to decide when there is a conflict and whether the Court should use that opinion as the basis to veto legislation. "It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it" (p. 23). But what exactly is the plain proposition? The statement that the Constitution controls repugnant legislative acts is really a normative proposition: the Constitution should be taken to control repugnant legislative acts. This could mean that legislators should abide by the Constitution in making law. But what if they do not? Or what if there are differing interpretations of whether they have? Marshall seems to make a metaphysical claim: "a legislative act contrary to the constitution is not law;" "This theory . . . is . . . to be considered, by this court, as one of the fundamental principles of our society" (pp. 23-4). Why then is it not spelled out in the Constitution itself?
As the Supreme Court cannot enforce laws that violate the Constitution, it cannot act on the authority of the Judiciary Act of 1789 and cannot therefore issue a writ of mandamus. By giving the government the outcome it wanted and by not forcing any immediate confrontation with the executive, the Court produced a pseudo-precedent, which for one reason or another people acquiesced in. By "rejecting and assuming power in a single breath," the "decision is a masterwork of indirection, a brilliant example of Marshalls capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another" (pp. 42, 40).
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of the judicial duty. [p. 24]
Marshall announces that the essence of judicial duty is to decide between law and the constitution, despite the fact that in 1803 it was not the duty of judges in any other country, including England. But if the essence of judicial duty is to decide whether to follow the Constitution or ordinary statutes, it sounds as though Marshall is suggesting it is a case by case matter. On what basis does a judge make such a decision? Well, since the Constitution is "superior to any ordinary act of the legislature, the constitution, and not such an ordinary act, must govern the case to which they both apply" (p. 24). The essence of judicial duty turns out to be no duty at all--there is no determination to be made: all conflicts must be resolved in favor of the Constitution.
The critical question is still being avoided: Who decides that a conflict exists? What are the reasons it should be the courts? There may be many good reasonsbut Marshall does not explicitly supply them. He does suggest a policy reason why the decisions should not be made by the Congress: "It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits" (p. 24). It should be remembered, however, that the president does have the veto power, congressmen are elected (and can lose elections), and England, a fairly civilized country, does have parliamentary supremacy. Even if the Court treats the Constitution as law, its decisions could be only binding on the parties in the cases brought to the court (which was Jeffersons position).11
The argument from oath (the Constitution requires that all government officers, including judges, pledge to uphold the Constitution) (p. 25),12 presupposes the conclusion it is advocating. If the Constitution says that the legislature has the power to unreviewably interpret the Constitution a judge does not violate the Constitution by eschewing judicial review.
Marshall refers to the supremacy clause in Article VI:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land . . .
But that paragraph (not actually quoted by Marshall) proceeds to specify: " . . . and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding." This paragraph is less than transparent and Marshall makes no attempt to clarify it, except to say that the Constitution is mentioned first and that the laws are to be made "in pursuance thereof." David Currie points out that the wording is "this," not "the," Constitution, the point being to distinguish the new Constitution from the Articles of Confederation.13 It is this constitution and the new legal regime based on it that shall be supreme--leaving behind the Articles regime. Furthermore, state laws should not conflict with the new Constitution.
But all this arguing with Marshall is in an important sense beside the point, since he was deciding things ultra vires. Which is not to say that his actions were immoral or even illegalthey were just not within accepted judicial practice. So his opinion does not have the same status as, say, Gideon v. Wainwright or Youngstown Sheet and Tube Co. v. Sawyer. Marbury v. Madison is the one Supreme Court opinion that cannot be considered law--at least not because of the fact that it was decided by the Supreme Court. It was because the opinion later gained acceptance that later acts of judicial review can be considered to establish the law. The fact that judicial review is not unequivocally called for by the Constitution does not mean that it is therefore unconstitutional. But it does mean that it is not legally based on Marbury v. Madison. If in 1803 the validity of judicial review was an open question it is meaningless for the Supreme Court to rule on the matter. Either judicial review of some sort was with the country ab initio--and Marbury v. Madison is but a reasoned self-interpretation by the Court--or the issue was as yet not clarified, in which case the court simply asserted a position and claimed for itself a new degree of power and authority; and the other branches of government and the country as a whole acquiesced to this new role. Judicial review arose out of convention not law.
H. L. A. Hart says that a legal system is the union of primary and secondary rules. Primary rules specify obligations. Secondary rules specify how we know what the primary rules are (rule of recognition), what the procedure is for making and changing the primary rules (rule of change), and how violations of the primary rules are certified and punished (rule of adjudication).
The rule of recognition providing the criteria by which the validity of other rules of the system is assessed is in an important sense . . . an ultimate rule: and where, as is usual, there are several criteria ranked in order of relative subordination and primacy one of them is supreme . . . .
From this perspective, the memorable part of Marbury v. Madison is a sui generis opinion because it is not concerned with obligations (primary rules), but with secondary rules of recognition, change, and adjudication. It is asserting, in the absence of a preexisting rule on the matter, that the Supreme Court can end a law (rule of change), can decide with finality whether the Constitution has been violated (rule of adjudication), and is a source of legally binding precedent in constitutional controversies for other courts (rule of recognition) and that the Constitution is fundamental law (is the supreme criterion in the rule of recognition). The current debate about judicial review, judicial activism, original intent, evolving constitutions, etc. is part of a struggle to shape the secondary rules of the United States. The secondary rules of the legal system would have been specified in the Constitution itself.15
Article III of the Constitution could have declared in so many words that "The Constitution is fundamental law, preeminent over federal and state statutes. Ordinary laws are not valid if they conflict with the Constitution [hierarchical rule of recognition]. The determination of inconsistency is the duty of the courts, in the context of controversies between litigants with standing [rule of adjudication and change]" If these words had been in the Constitution, judicial review would have flowed directly from the constituting of the regime and the legality of judicial review would arise in the same way as did the legality of the lawmaking procedure by Congress. That is, to whatever extent the latter could be considered legal, so could the former. That would have made the origins of judicial review qualitatively different from its actual origins.
I will now consider several jurists justifications for judicial review and their recommendation for its proper scope and limits. But I should clarify one point before I proceed. The standpoint I defend is close to that propounded by Robert Bork and others. On occasion I will defend "originalism" or "jurisprudence of the original intent" as though its proponents are of one mind and as though I have no disagreements with them. In the final analysis I am defending my own arguments, not theirs. I make this point in part to avoid the following kind of situation. Some people have said that the position of Bork et al is based on a radical moral skepticism or moral relativism. I do not think this is true and I explain why later. But even if it were shown that Bork and others secretly deny we can know right from wrong (or at least deny that striving to make the differentiation is a meaningful activity), my response would be "so much the worse for them."
added later in 1988:
Even if the secondary rules announced by Marbury v. Madison had been explicitly in the Constitution, they would not have been secondary rules until practiced as a tradition (see Hart, Concept of Law, pp. 108, 148, 150). This is because of the very nature and definition of secondary rules. The text of the Constitution cannot make rules of change, etc. valid. Rather it is the actual practice of secondary rules which makes the Constitution a living document. Once the secondary rules become established in practice we have a basis for making sense of the claims of legal validity. Thus judicial review is not discredited because of my comments about the ultra vires actions of Marshall or because of the fallacies of his reasoning. The point is just that Marbury v. Madison was not an opinion like any other. It was not a legally valid opinion because the background for such validity (the appropriate secondary rules were not there--and it logically could not have been since they were the very topic of the opinion).
Other decisions affect secondary rules--apportionment, one man/one vote (rule of change)--but now as legally binding decisions. Secondary rules are the constitution in the older sense of that term.
II. Alexander M. Bickel
to rest the edifice on the foundation Marshall supplied is ultimately to weaken it . . . There are sounder justifications of judicial review . . . . Not only are the props weak, and hence dangerous; they also support a structure that is not quite the one we see today . . . . Marbury v. Madison in essence begs the question. What is more, it begs the wrong question.17
He nonetheless supports the institution for his own reasons. One justification for it lies in what Bickel calls "the Courts symbolic--or, if you will, mystic--function." (p. 32) Like the English crown, the US Constitution is "the symbol of nationhood, of continuity, of unity and common purpose," and "it has in large part been left to the Supreme Court to concretize the symbol of the Constitution." (p. 31) The fact that the court is never changed at one stroke, that it transcends particular administrations, is an aid in this function. But the Court "could scarcely personify the Constitution unless it had the authority finally to speak of it" (p. 32).
Bickels main argument in favor of judicial review, however, is that through it the Court introduces into the national polity a comparatively pure form of "principle," (see pp. 58, 59) by which is meant "general propositions . . . deeming their formation the chief end of man . . . . organizing ideas of universal validity in the given universe of a culture and a place, ideas that are often grounded in ethical and moral presuppositions" (p. 199).18 "The role of the Court and its raison d être are to evolve to preserve, protect, and defend principle" (sic, p. 188) because the Court is
an institution which stands altogether aside from the current clash of interests, and which, insofar as is humanly possible, is concerned only with principle. We cannot know whether, as Thayer believed, our legislatures are what they are because we have judicial review, or whether we have judicial review and consider it necessary because legislatures are what they are . . . . Courts have certain capacities for dealing with matters of principle that legislatures and executives do not possess. Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society . . . . Another advantage of the courts is that questions of principle never carry the same aspect for them as they did for the legislature or the executive . . . . The courts are concerned with the flesh and blood of an actual case.
Bickel is vague on the source of these principles. It seems to be some combination of widely held moral beliefs of the culture (p. 199), the wisdom of the judges, and the text of the Constitution.
The function of the Justices . . . is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law, and . . . in the thought and the vision of the philosophers and the poets. The justices will then be fit to extract "fundamental presuppositions" from their deepest selves, but in fact from the evolving morality of our tradition. No doubt . . . "the man himself is a part of what he decides." But . . . if "law is the will of the Justices," it is "the will of the Justices to do that which is right."
The Court is to lead the country forward; but it should be just slightly "ahead" of the country morally.
The Court should declare as law only such principles as will--in time, but in a rather immediate foreseeable future--gain general assent . . . . The Court is a leader of opinion, not merely a register of it, but it must lead opinion, not merely impose its own.
The reconciliation of this practice with democracy is found in the fact that if the people strongly oppose the Courts direction it is the people who will win out.
The Supreme Courts law . . . could not in our system prevail--not merely in the very long run, but within a decade--if it ran counter to deeply felt popular needs or convictions, or even if it was opposed by a determined and substantial minority and received with indifference by the rest of the country. This, in the end, is how and why judicial review is consistent with the theory and practice of political democracy. This is why the Supreme Court is a court of last resort presumptively only. [p. 258]
Furthermore, by being circumspect in their pronouncements the justices are in less tension with democracy. This can be done by using the "passive" devices discussed below.
Bickel distinguishes himself both from those, like Thayer, Wechsler, and Hand, who distrust judicial review and advocate legislative deference, as well as from the "activists," whether of the literalist variety of Justice Hugo Black (pp. 84-110) or the cynical, nihilistic "neo-realists" variety of John P. Frank, Thurmond Arnold, Alpheus T. Mason (pp. 75-84). Bickel accepts Herbert Wechslers claim of the need for judicial review to be based on "neutral principles," but he adds that the Court must not be doctrinaire and blind to consequences. In his "Toward Neutral Principles of Constitutional Law," Wechsler says that when an argument is given for a judicial decision it must be framed in terms of a principle that can be applied in all like cases.19 A "neutral principle" means that the reasons given for a decision, although for a specific case, must be general. And it must not be a pseudo-generality. The principle should be constitutional and fair when applied to all non-distinguishable cases which come along.20 Bickel, however, wants a combination of neutral principles and expediency, with the principles giving the tendency to the expediency (pp. 64-72).21 It must be a principled "evolving" and contemporary applying of the Constitution--understood as general "charter for the governance of generations to come," in which the framers "prescribed a very general allocation of competences among the several institutions, and they handed on certain broad convictions" (emphases added) which those to come later are to make sense of in new circumstances. (pp. 103-4; see also pp. 105ff.) Bickel argues against worrying about the "specific intent" of the framers (pp. 98-110).22
The Courts role of representing principle does not mean it should be unconcerned with the effects of its actions. It is not to be a voice crying out in the wilderness or an ineffectual do-gooder. It is prudently to lead the country forward. It does not have the power to force an unwilling country. In any case, it must reconcile the "morality of government by consent" with the ideal of "moral self-government" (p.199).
Principled government by the consent of the governed often means the definition of principled goals, and the practice of the art of the possible in striving to attain them. The hard fact of an existing evil institution such as slavery and the hard practical difficulties that stood in the way of its sudden abolition justified myriad compromises short of abandoning the goal. The goal itself--the principle--made sense only as an absolute, and as such it exerted its crucial influence on the tendency of prudential policy. But expedient compromises remained necessary also . . . .
But "how does the Court, charged with the function of enunciating principle, produce or permit the necessary compromises?"(p. 69; see also p. 95).24 The answer is by exercising the third part of its "triune function" of checking, validating, and staying its hand (p. 200; see also pp. 201-3, 129ff, 29-31, 69-70).25 The latter comprises the "passive virtues," by which the Court can run away in order to fight another day. Although the Court generally represents principle in the American division of governmental labor--with the political branches (federal and state) representing expediency, the Court itself must be expedient on occasion by staying its hand in recognition of the fact that excessive burdening of the country with principle could undermine the Courts capacity to be accepted as a source of principle over the long run.
In the main, there are three courses of conduct that can erode and would finally defeat the rather miraculous American phenomenon of the rule of judicial principle. One is the attempt to push its dominion past natural limits. Another is manipulation . . . of principles that are not tenable for their own sakes. A third is to call the name of principle in vain, until even its genuine invocation ceases to produce the reflex of acceptance. [p. 204]
The Courts expediency is in the service of principle, not re-election.
Some of these passive devices are more passive than others. Among the more passive are types of lack of ripeness: denial or certiorari, summary dismissal on appeal, dismissal of a case for other reasons. Among the less passive are vagueness, delegation, statutory construction, and procedure. (pp. 200-1) The idea of a passive device is that it allows the Court to avoid making a decision on constitutional grounds. Together with nonconstitutional devices there are other "lesser doctrines"(p. 240) that do involve constitutional bases for making a decision but which are nonetheless very limited in their reach and which can also be used when prudence dictates that it is not the right time to make fundamental shocks in the body politic. Constitutional grounds for deciding can be put on continuum from minor to major. This to some extent correlates with whether the decision could be called procedural or substantive (p. 233).26
The case does not exist in which the power of judicial review has been exercised without some such misgivings ["the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from"] being applicable in some degree. But the differences of degree can on occasion be satisfyingly conclusive. [p. 184]
C. Notes on Various Passive Devices
1. (Pure and impure) standing (pp. 113-23)
"If there is no injury, either material or to a right independently created by law, and if the Constitution itself does not create the right . . . it is in my opinion extremely difficult to contend that the general law of remedies, by allowing a suit to test constitutionality, can make a case. This, in my judgement, is no more nor less than the advisory-opinion situation. It arises when a plaintiff . . . baldly sues in his capacity as a citizen merely to have the law straightened out, so to speak." (p. 121)
"For the Court to entertain such a suit as Frothingham and to adjudicate the constitutional issue tendered would, in my judgement, materially alter the function of judicial review and seriously undermine any acceptable justification for it" (p. 122).
2. Ripeness (pp. 123-5, 133-56)
3. Political Question (pp. 125-33, 183-98)
4. Delegation doctrine (159ff) and delegation-as-applied (pp. 182-83)
5. Special rules of procedure (pp. 175-83)
6. Techniques of statutory construction (pp. 175-83, esp. 175)
Robert Bork accepts judicial review as a way of protecting minority rights, but says the judges should decide cases on the basis of principles that are neutrally derived, defined, and applied (NP 7ff.),28 adding to Herbert Wechslers call for principles capable of neutral application.29 Judges should try to make "principles," that is, general propositions of law. The principles should be "neutral," that is, they should not allow the personal views of the judge to play a role in adjudication. They are principles which keep the judge neutral: "Any defensible theory of constitutional interpretation must demonstrate that it has the capacity to control judges" (ER 825). Neutral principles can do this because they are derived from values outside him, they have boundaries that are not based on his personal preferences, and they are applied to friend and foe alike.
Borks position contrasts starkly with Dworkins. Dworkin claims that judges posItively should use their own views of justice and fairness in adjudication.34 He also claims that interpretation means improving what is being interpreted. The differences between Bork and Dworkin can be elucidated by considering the "principle of charity." Originally this was a value-neutral idea. In trying to understand someone by using the principle of charity, one is neither being charitable nor is one seeing what the other person is saying in the best light that it could bear.35 There is no kindness or desire to improve what is said involved. The only thing one wants is to know what actually is being said. Bork would (presumably) accept that in interpreting the Constitution the principle of charity is essential. Dworkins idea of interpretation and of the principle of charity are quite different, however. Beginning with reference to the second of his three kinds of interpretation (conversational) discussed below, Dworkin writes: "Understanding a persons conversation requires using devices and presumptions, like the so-called principle of charity, that have the effect in normal circumstances of making of what he says the best performance of communication it can be . . . . All interpretation strives to make an object the best it can be."36 This is a mistaken understanding of the principle of charity, and contrary to Dworkin, interpretation does not require a normative dimension.37
Dworkin (as we shall see) asks whether are we bound by the concrete or abstract intentions of the framers. Borks implicit answer to this is that "the problem of levels of generality may be solved by choosing no level of generality higher than that which interpretation of the words, structure, and history of the Constitution fairly support" (ER 828; see ER 827-28).
all an intentionalist requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a major premise. That premise states a core value that the Framers intended to protect. The intentionalist judge must then supply the minor premise in order to protect the constitutional freedom in circumstances the Framers could not foresee.38
Bork talks of the text, history, and structure of the Constitution as the sources for neutrally derived principles (NP 8, 17-18; WR 695; ER 826, 828; JR 7). By "text" he means the words, sentences, and paragraphs of the written Constitutional document. By "history" he means the historical background of the provisions in question, including records giving evidence of the intentions of "those who framed, proposed, and ratified" it (ER 823, 826).39 According to Bork interpretation based on the "original intent is the only legitimate basis for constitutional decisionmaking" (ER 823). Judges should "interpret the documents words according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments" (ER 826). Exactly what the relationship between, and relative weight of, these three overlapping groups (framers, proposers, and ratifiers) is not clarified. I pursue the matter in the conclusion of this paper.
By "structure" Bork means seeing the Constitution--both words and intentions--and the governmental system it envisions as organic wholes, in which various ends and means are balanced and in the context of which particular provisions must fit and at times be qualified.40 This, for example, allows Bork to conclude that the first amendment clause, "Congress shall make no law . . . abridging the freedom of speech," does not offer protection for speech advocating the subversion of the government by violence (NP 33). It is in this realm that Bork and Dworkin almost meet. For Dworkin, however, it is not just the structure of the Constitution (or its words and the framers intentions) that matters, but also all of "legal practice," and political history preceding and proceeding from the ratification of the provisions in question. In addition, Dworkin encourages the judge to use his own sense of justice and fairnessby interpreting all the above "in its best possible light." Although Bork also decries cramped interpreting, he would probably see Dworkins approach as allowing so much play as to put very little constraint on anyone with a bit of imagination.
One example of structure is Borks notion of secondary or derivative rights. According to Bork there are two proper methods of deriving rights from the Constitution.41 One is from rights actually mentioned in the constitution (to the extent they are capable of being made into neutrally defined principles). These are "inherent rights" and can be found in the "text" with the aid of "history." The other is from governmental processes--"structures"--established in the Constitution. These "derivative rights" are
located in the individual for the sake of a governmental process that the Constitution outlines and the Court should preserve. They are given to the individual because his enjoyment of them will lead him to defend them in court and thereby preserve the governmental process from legislative or executive deformation . . . .
The derivation of rights from governmental processes is not an easy task, and I do not suggest that a shift in focus will make anything approaching a mechanical jurisprudence possible. [NP 17-18]42
As we shall see, it is derivative rights that John Hart Ely considers the only kind appropriate for a democratically legitimate judicial review, although he and Bork disagree as to what can be read into the Constitution along these lines.
By neutrally derived, defined, and applied principles Bork means propositions of law that are derived from the original intent of the Constitution, formulated with precision, and applied to all like cases. These principles have the effect of neutralizing judges biases or values.
D. Amorality, Relativism
Unless we can distinguish forms of gratification, the only course for a principled Court is to let the majority have its way in both cases [one involving some Connecticut residents desire for sexual relations without fear of unwanted children versus a majoritys desire to prevent immoral practices, and the other involving stockholders desire for money versus the majoritys desire for clean air]. It is clear that the Court cannot make the necessary distinction. There is no principled way to decide that one mans gratifications are more deserving of respect than anothers or that one form of gratification is more worthy than another. [Borks footnote: The impossibility is related to that of making interpersonal comparisons of utilities. See L. ROBBINS, THE NATURE AND SIGNIFICANCE OF ECONOMIC SCIENCE, ch. 4 (2d ed. 1969); P. SAMUELSON, FOUNDATIONS OF ECONOMIC ANALYSIS 243-52 (1965).] Why is sexual gratification more worthy than moral gratification? Why is sexual gratification nobler than economic gratification? There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ. Where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute. That, by definition, is an inadequate basis for judicial supremacy. The issue of the communitys moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question . . .
Although Bork does not bend over backward to avoid being misunderstood, his point here is mainly, if not completely, legal rather than metaethical. His claims are that the main place where moral decisionmaking and the balancing of interests should take place is in the legislature, that a judge is bound to uphold its will as embodied in law, and that there are times that within his restricted mandate he has no way of preferring one kind of "gratification" over another.44 The passage quoted above continues as follows:
To be perfectly clear on the subject, I repeat that the principle is not applicable to legislatures. Legislation requires value choice and cannot be principled in the sense under discussion. Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution . . . . In Lochner, Justice Peckham, defending liberty from what he conceived as a mere meddlesome interference, asked "[A]re we all . . . at the mercy of legislative majorities?" The correct answer, where the Constitution does not speak, must be "yes." [NP 10-11]
Moreover, in "Tradition and Morality in Constitutional Law," Bork opens with unfavorable words about the "moral relativism" that he claims dominate law schools and closes by saying:
In a constitutional democracy the moral content of law must be given by the morality of the framer or the legislator, never by the morality of the judge. The sole task of the latterand it is a task quite large enough for anyones wisdom, skill, and virtueis to translate the framers or the legislators morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist. [TM 214]45
Borks contempt for non-originalists and his occasional tendency to indulge in anti-intellectual rhetoric have possibly been the causes of his having written fairly little of a constitutional-theoretical nature and of his not having made an effort to respond in depth to his opponents. Hopefully his upcoming book will change this, but probably not. As my position is a variant of Borks, discussion of Bork will be implicit in the conclusion of this paper, where I state my own views.
IV. John Hart Ely
Elys theory is an attempt to solve the countermajoritarian difficulty, the Madisonian dilemma, a dilemma he feels is exacerbated by typical nonoriginalism but which, although diminished by originalism, is still left unresolved:
The tricky task has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule: in law as in logical theory, anything can be inferred from a contradiction, and it will not do simply to say "the majority rules but the majority does not rule." [p. 8]
Even strict constructionism violates democracy because it is not exclusively concerned with process. Elys solution is not to eliminate judicial review, but to recast it. The problem is how to look out for minorities but not violate majority rule by empowering another, unelected minority which will--beyond defending minority rights--imposes its values on the majority. His solution of having judicial review be only concerned with procedural matters is twofold: one is to ensure that majority rule mechanisms are functioning properly (along the lines of one man, one vote) and second is to look out for the democratically legitimate rights of electoral minorities to virtual representation. Judicial representation is thus concerned with democratic mechanisms and with fighting discrimination based on "prejudice."
The internal limits of judicial review should be to apply the Constitution in a common sense way based broadly on original intent, but with a recognition of the fact that several provisions require judges to look beyond the provisions themselves. Ely says that "clause-bound interpretivism"48 is fatally flawed by the fact that "the constitutional document itself . . . contains several provisions whose invitation to look beyond their four corners . . . cannot be construed away," (p. 13) such as the privileges or immunities and equal protection clauses of the 14th Amendment and privileges or immunities and republican guarantee clauses of Article IV. Ely is willing to have his position considered a kind of broad originalism (possibly "the ultimate interpretivism "), as opposed to clause-bound originalism or nonoriginalism (pp. 12, 88). He reviews all the possible sources a nonoriginalist judge might have for introducing substantive values not explicitly mentioned in the Constitution: personal convictions, natural law, neutral principles (a vulgarization of Wechslers idea), moral philosophy ("We like Rawls, you like Nozick. We win, 6-3. Statute invalidated." [p. 58]49), tradition, present-day societal consensus, and sensing the trends toward a future consensus (chap. 3). Ely finds all these lacking. "[P]reserving fundamental values is not an appropriate constitutional task" (p. 88).
Ely does not really confront head on the issue of whether interpretation should be based on original intent since by good fortune his ideal of judicial review happens to be embodied in the U. S. Constitution (as he sees it). His view would probably be that if substantive values are in a constitution, judges must defer to them (probably based, at least loosely, on original intent), but where the constitution is procedural and vague, his (Elys) standards should be operative. His theory implies that the people should not embody substantive values in the constitution, but if they do, presumably judges could not just ignore them. As it is, according to Ely, the US Constitution is almost completely concerned with process and representation. The original intent of the Constitution was, it so happens, a broad commitment to setting up a system of democratic representation: "the original [i.e., unamended] Constitution was principally, indeed I would say overwhelmingly, dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values"(p. 92).
The only values beyond democracy and formal equality protected by the Constitution are the forbidding of "corruption of blood" (based on the unfairness of penalizing children for adults behavior), free trade (embodied in the prohibition against taxing articles exported from any state), and slavery (pp. 92-3). All other ostensibly substantive provisions can be reduced to a concern with democratic procedure. For example, the privileges or immunities clause of Article IV "guarantees virtual representation to the politically powerless" (pp. 90-1). The amendments seem to be more concerned with substance, but in the end not importantly so. The Constitution is concerned with the substantive value, liberty--but via process (p. 100):
The general strategy has therefore not been to root in the document a set of substantive rights entitled to permanent protection. The Constitution has instead proceeded from the quite sensible assumption that an effective majority will not inordinately threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itselfby structuring decision processes at all levels to try to ensure, first, that everyones interests will be actually or virtually represented (usually both) at the point of substantive decision, and second, that the processes of individual application will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory. We have noted a few provisions that do not comfortably conform to this pattern. But theyre an odd assortment, the understandable products of particular circumstancesguns, religion, contract, and so onand in any event they are few and far between. To represent them as a dominant theme of our constitutional document one would have to concentrate quite single-mindedly on hopping from stone to stone and averting ones eyes from the mainstream.
In those important areas of the Constitution that delegate discretion to them, judges should be concerned only with ensuring fair democratic procedures so that the majoritys will is done and that powerless are represented virtually.50 Reapportionment, eliminating poll taxes, ensuring due process, overcoming the effects of prejudice, and ensuring freedom of public debate are all in the proper domain of the courts. Deciding whether people should have access to abortions or contraceptives is not.
Ely says judicial review can be reconciled with democracy by understanding democracy as more than majority rule: the political ideal is that everyone be represented.
what are sometimes characterized as two conflicting American ideals--the protection of popular government on the one hand, and the protection of minorities from denials of equal concern and respect on the other--in fact can be understood as arising from a common duty of representation. [pp. 86-7]
Judicial review allows for more than just the majority to be represented. An elected representative should represent the minority "virtually"--but since he may have no incentive to do so, the Court is there to supplement this duty. According to Ely, the 14th Amendment, especially the equal protection clause, requires this.
For this view it is important that the politically accountable people be the ones responsible for deciding public policy. This is why Ely argues for reviving the nondelegation doctrine.
There can be little point in worrying about the distribution of the franchise and other personal political rights unless the important policy choices are being made by elected officials. Courts thus should ensure not only that administrators follow those legislative policy directions that do exist . . . but also that such directions are given . . . . The non delegation doctrine never insisted either on more detail than was feasible or that matters be settled with more permanence than the subject matter would allow. Policy direction is all that was ever required, and policy direction is what is lacking in much contemporary legislation. [p. 133; see pp. 131-4, 177]
With politicians in control, it then remains for the Courts to "police the process," to be the "referee" (chap. 4 title), making sure that laws are not passed which illegitimately harm those who did not vote for the those elected, and who might be left out of consideration in policy-making or consciously exploited.
Official acts should be invalidated if they can be shown to have unconstitutional motives (pp. 136-45). Representative democracy is concerned that generally speaking one person have one vote and that the majority not use its power to exploit the minority--laws should affect everyone unless there are good reasons to single out certain groups. Laws should not single out the political losers just because they are the losers. Minorities sometimes need special protection to be represented, especially those who are chronically underrepresented. The "pluralist" model which claims that minorities can consistently get access to the system through compromise and coalition is inadequate. One solution is that if laws are passed to penalize people for their race or political beliefs, those laws can be held to violate the Constitution even if under other circumstances, with different motives, the same law would be constitutional. For example, Louisiana under governor Huey Long passed a law to tax all newspapers below a certain circulation. This would have affected almost only papers critical of him and it was well documented that that the law was passed precisely for that purpose (pp. 143-4). Outcomes that are not constitutionally prohibited can nonetheless be unconstitutional if the means of achieving them were unconstitutional (by circumventing due process or by being aimed toward an end that is inconsistent with equal protection). Hence the concern with fair voting setups (apportionment)51 and with official motivation. This is a proper concern of the court. But since it is difficult to verify official motivation other ways of ensuring minority representation are necessary.
Suspect classification is, in particular, a useful "handmaiden of motivational analysis" (p. 145). The basis for this is the 14th amendments "equal protection of the laws" clause. The purpose of this amendment was to restrict the Southern states ability invidiously to discriminate against former slaves. From this intent race became a category that got "heightened scrutiny." Since the actual language of the amendment is general, intermediate scrutiny has been given to other race-like classificationssuch as national origin, alienage, illegitimacy, poverty, and discrete and insular minorities in general, and "rational-basis" analysis (i.e., a minimally plausible good explanation) to other cases (e.g., homosexuality, femaleness) of ostensible unequal protection. Suspect classifications are, according to Ely, a way of flushing out unconstitutional motivation (p.146): "The whole point of the approach is to identify those groups in society to whose needs and wishes elected officials have no apparent interest in attending. If the approach makes sense, it would not make sense to assign its enforcement to anyone by the courts" (p. 151).
Laws based on stereotypes "involving a generalization whose incidence of counterexample is significantly higher than the legislative authority appears to have thought it was" (p. 157) should be seriously considered for invalidation by the Court. This is "second-order prejudice," that is, one based on erroneous factual assumptions, in which a more discerning approach would with insignificant cost not disadvantage many wrongly stereotyped people (e.g., drinking age, drug tests). First-order prejudice is that based on popular hostility or dislike.
Of course this variety of prejudice is not the same as the sort of "first degree" prejudice discussed earlier, but it implicates equal protection concerns in a related way. To disadvantage a group essentially out of dislike is surely to deny its members equal concern and respect, specifically by valuing their welfare negatively. However, to disadvantage--in the perceived service of some overriding social goal--a thousand persons that a more individualized (but more costly) test or procedure would exclude, under the impression that only five hundred fit that description, is to deny the five hundred to whose existence you are oblivious their right to equal concern and respect, by valuing their welfare at zero. [p. 157]
The Court should examine the process by which a stereotyping law was passed.
Where a law is suspect because of . . . first-degree prejudice, or indeed where it has been infected by a subtler form of stereotyping under conditions where the negatively affected group was barred from effective access at the time of passage and still is, the only appropriate remedy is to void the classification and insist--if the legislature wishes to continue to classify--on a different, generally more finely tuned, test of qualification. [p. 168]
Discriminatory laws that were passed when access was blocked to those discriminated against (such as some laws affecting women passed before 1920) should be remanded to the political process for a second look on the basis of a violation of "due process of lawmaking" (p. 169).
According to Ely, judicial review is good because the political realm has blind spots for which the court can take responsibility. Because substantive judicial review is in tension with democracy, judicial review should be limited to matters of process: strengthening the democratic-ness of the process. In this way there is not only no tension, but judicial review is representation reinforcing--it makes the system more democratic.
Elys is a theory about an ideal form of judicial review; unfortunately it may not be the one the United States is constitutionally committed to. His theory of judicial review is not just an "interpretation of American legal practice," as Dworkin might phrase it. Even if it is not compatible with the actual Constitution we have, Elys is at the very least a thought-provoking ideal. A person needing to write a constitution could profit from studying his book.
|V. Ronald Dworkin
To understand Ronald Dworkins views on judicial review, we must first understand his conception of interpretation. Like originalists, Dworkin says that judges must interpret the Constitution; but he means something special by "interpret."
Dworkin distinguishes three kinds of interpretation: scientific, conversational, and creative. Scientific interpretation is concerned with causation (as in the interpreting of experimental data).53 Conversational interpretation is not concerned with the biological or other cause of an utterance but rather with what the utterance "means." It is concerned with the intentions of the utterer. By contrast, creative interpretation of art, for example, although concerned with meanings and purposes, they are not primarily those of the artist. Dworkins is a "constructive" view of creative interpretation: "Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong . . . . . Creative interpretation, on the constructive view, is a matter of interaction between purpose and object" (p. 52). (Dworkin suggests that "the constructive account might be elaborated to fit the other two contexts of interpretation I mentioned, and thus show a deep connection among all forms of interpretation" [p. 53].)
Dworkin is interested in the interpretation of social practices, which he considers a kind of constructive, creative interpretation. Interpreting social practices has an inherently normative dimension: one is not concerned with the sociological cause of a social practice (Dworkin uses courtesy an opening -example) or with the actual intentions of the practitioners. One is interested is in making moral sense of it: What valid social function does it perform? And in the light of an understanding of this, How can the practice be stretched, altered, improved, and adapted to new circumstances?
Of course, the particular social practice that Dworkin wants to offer a constructive, creative interpretation of is legal adjudication. Dworkin offers the following as the commonly held "concept" (general idea) of law:
Law insists that force not be used or withheld . . . except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. [p. 93]
Dworkin presents what he takes to be the two main extant "conceptions" (specifications)54 of this concept: "conventionalism" (an interpretive reformulation of positivism) and "pragmatism" (an interpretive reformulation of legal realism). He presents a third conception, "law as integrity," as his own. As "law is an interpretive concept" (p. 410), each conception must attempt to show that it best fits and justifies actual practice.
Conventionalism holds that the law is that which is uncontroversially taken to be law by convention. This is true for the sources of law as well as their means of interpretation. For example, it is universally accepted in the United States that statutes passed by the Congress and the state legislatures, together with past judicial decisions are law. Convention also holds that these laws are to be interpreted to mean only what they obviously mean, without any attempt to extend their reach. If it is not clear what the law is on a certain matter, there is no law at all. At that point the judge must make new law. One justification for this approach is "the ideal of protected expectations, that collective force should be used only in accordance with standards chosen and read through procedures the community as a whole knows will be used for that purpose, procedures so widely acknowledged that they are matters of general or professional convention" (pp. 139-40; see also p. 117). People should be given fair warning about what the laws are that they are being held accountable to obey. There should be a minimum of surprise in judicial outcomes. Conventionalism holds that present force can only be used when it is clearly sanctioned by past political decisions or by their "explicit extension."
Legal pragmatism, on the other hand, feels no intrinsic commitment to past political decisions (pp. 94-5, 151). It is present and future justice or efficiency (etc.) that counts. For strategic reasons conventionalistic behavior may be adopted, but whenever there are good and not too costly reasons for ignoring precedent or the clear meaning of statutes, judges should do so. Although Dworkin introduces this as one to the two main conceptions of what he describes as his "uncontroversial" (p. 94) definition of the concept of law, it is obviously inconsistent with that concept. Although he acknowledges this (p. 95), it is not clear to me how he resolves the contradiction of having a conception at odds with the concept.
In law as integrity (Dworkins position) creative interpretation is not just used to determine the proper conception of law, it is also used to determine the meaning of specific laws.
Law as integrity is more relentlessly interpretive than either conventionalism or pragmatism. These latter theories offer themselves as interpretations . . . . But the programs they recommend are not themselves programs of interpretation: they do not ask judges deciding hard cases to carry out any further, essentially interpretive study of legal doctrine. [p. 2256
Dworkins conception of law is explicitly related to his concept of law as follows:
[Law as integrity] argues that rights and responsibilities flow from past decisions and so count as legal, not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification. [p. 96]
As a creative interpreter, a judge must decide what the law is by choosing among those interpretations which "fit" the texts, precedents, legal practices, the law as a whole, and political history, that one which best "justifies" their practice, that interpretation which makes the law the "best it can be."
There are four political ideals that legislators should consider when making laws and that judges should use in interpreting laws. The first three are
the ideals of a fair political structure, a just distribution of resources and opportunities, and an equitable process of enforcing the rules and regulations that establish these[:] . . . the virtues of fairness, justice, and procedural due process . . . . Fairness in politics is a matter of finding political procedures--methods of electing officials and making their decisions responsive to the electorate--that distribute political power in the right way. That is now generally understood, in the United States and Britain at least, to mean procedures and practices that give all citizens more or less equal influence in the decisions that govern them. Justice, on the contrary, is concerned with the decisions that the standing political institutions, whether or not they have been chosen fairly, ought to make. If we accept justice as a political virtue we want our legislators and other officials to distribute material resources and protect civil liberties so as to secure a morally defensible outcome. Procedural due process is a matter of the right procedures for judging whether some citizen has violated laws laid down by the political procedures; if we accept it as a virtue, we want courts and similar institutions to use procedures of evidence, discovery, and review that promise the right level of accuracy and otherwise treat people accused of violation as people in the positions ought to be treated.
The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author--the community personified--expressing a coherent conception of justice and fairness. [p. 224]
According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the communitys legal practice. [p. 224]
Integrity demands that the public standards of the community be both made and seen, so far as is possible, to express a single, coherent scheme of justice and fairness in the right relation. [p. 219]
Unlike John Rawls, Dworkin sees fairness as an ideal separate from justice, and he claims that integrity must also be treated as a value in its own right. Integrity is related to the political slogan, "fraternity," which represents the ideal that our society be a "community" of principle.55
B. Judicial Review
If we want judicial review at all . . . then we must accept that the Supreme Court must make important political decisions . . . . . the Court should make decisions of principle rather than policy--decisions about what rights people have under our constitutional system rather than decisions about how the general welfare is best promoted--and that it should make these decisions by elaborating and applying the substantive theory of representation taken from the root principle that the government must treat people as equals. [FP 69]
Judicial review insures that the most fundamental issues of political morality will finally be set out and debated as issues of principle and not political power alone, a transformation that cannot succeed, in any case not fully, within the legislature itself. [FP 70]57
John Marshalls arguments in Marbury v. Madison appear to be question-begging (as Bickels claims)58 only, Dworkin says, if one holds the mistaken "plain-fact view" of law.59 Law as integrity, however,
supports Marshalls argument. He was right to think that the most plausible interpretation of the developing legal practices of the young country, as well as of its colonial and British roots, supposed that an important part of the point of law was to supply standards for the decision of courts. History has vindicated the substantive dimension of that interpretation. The United States is a more just society than it would have been had its constitutional rights been left to the conscience of majoritarian institutions. [p. 378-79]60
In any case, "almost two centuries of practice have put his position beyond challenge as a proposition of law, and the constitutional wars are now fought on the terrain it defines" (p. 357).
Although judges must accept the Constitution as law and as part of what is to be interpreted when reviewing judicially, they should distinguish between the "concepts" embodied in the Constitution and particular "conceptions" of those concepts. For example, the equal protection clause could be taken to allow separate education facilities as long as they are equal, on the grounds that the conception of equality that most ratifiers of the 14th Amendment entertained included segregation. But if we are not concerned about the particular conception of equality intended, only the abstract notion of equality with respect to fundamental interests, then it is up to the judges to decide which conception best serves the concept (and what counts as fundamental interests). According to Dworkin, judges should be bound by the concepts and not the conceptions of the framers. It is up to the judge to decide for himself what are the best (on the basis of fairness, justice, due process, and integrity) conceptions of those concepts.
C. Problems with this approach
In "The Forum of Principle," Dworkin takes the approach that if the original intentions of interest are not the "concrete" ones, that is equivalent to opting for the concepts over the conceptions. The result is that moral theorizing is necessarily delegated to judges. I am not sure exactly which passages in the Constitution Dworkin has a problem with, but due process has a very straightforward meaning, which is neither concrete nor abstract, and has nothing to do with either concepts or conceptions. If by concrete intentions one means that if the ratifiers knew only hanging as a means depriving life then due process does not apply to the electric chair, nobody holds that view. The intentions of interest are abstract compared to that. But one does not need to jump from complete contingency to sifting transcendent values out of the concern for lawfulness on the part of officials. Due process could on that extreme view be said to be an expression of compassion or the recognition of the dignity of the individual--or justice. Let us say we happen to agree with Justinian that "justice is an unswerving and perpetual will to accord each person that which is rightfully his."61 We end up with judges with a mandate to decide what each persons due is. If we could be sure that they could see all the answers at the back of the book of life, that might be a good set up. When Jesus returns he might arrange such a system. But the general idea behind a democracy, for me anyway, is a doubt about the possibility of finding people quite so gifted and, if they were to be found, doubts about them remaining uncorrupted and passing their gifts on to those who come later. Allowing everyone to vote does not recommend itself because of the wide dispersion of virtue and intelligence. Its just that the alternative systems seem to have more problems. So between complete abstraction and complete contingency, some kind of useable guidelines for judges--constitutional provisions--are possible and desirable.
Dworkin criticizes originalism (what he calls "historicism" in Laws Empire, adding one more use of this word62).
the idea of a legislative or constitutional intention has no natural fixed interpretation that makes the content of the Framers intention just a matter of historical, psychological, or other fact. The idea calls for a construction which different lawyers and judges will build differently. Any justification for one construction, and therefore for one view of what the Framers intended, must be found not in history or semantic or conceptual analysis, but in political theory. It must be found, for example, in an argument that one conception fits better with the most compelling theory of representative government. But then the idea with which we began, that judges can make apolitical constitutional decisions by discovering and enforcing the intention of the Framers, is a promise that cannot be redeemed. For judges cannot discover that intention without building or adopting one conception of constitutional intention rather than another, without, that is, making the decisions of political morality they were meant to avoid. [FP 55-56]
What Dworkin says here is generally true, but one approach to construing the Constitution will require an initial political decision which allows all the rest to be (comparatively) neutral, while the other political decision will require that decisions in every Constitutional case will have to be political as well. Original intent seeks only to eliminate the politics from these little (and most numerous) decisions. A new judge must make any number of important moral decisions that only he can make based on his own conscience, such as whether he is going to accept bribes or favor litigants of his own race and sex; whether to appear on the bench drunk or stay up all night before an important case. Another decision a judge must make is whether to implement the intentions of those who made the laws, and at what level of generality. Once he decides to opt for the original intent at the original level of generality, he can be comparatively neutral in his later decisions in actual cases. The fact that he must make one political decision does not mean that all his decisions must be political.
The position that the Supreme court should defer to the legislatures except when there is a clear violation of the Constitution, Dworkin calls passivism, which he distinguishes from historicism.
Passivism says the Court must exercise that power [to decide what Constitution requires] by adopting the legislatures answer [to a controversial constitutional matter] as its own, but that advice is sound only if it follows from the right answer to the third, legal question [What does the present Constitution . . . actually require?]. If the right answer to that question is that the Constitution does forbid states to [,say,] make abortion criminal, then deferring to a legislatures contrary opinion would be amending the Constitution in just the way passivism thinks appalling.
An originalist would of course agree that if the Constitution says X, then the Supreme Court has a duty, ceteris paribus, to enforce X. The problem the "passivist" is trying to deal with arises where the Constitution is unclear, unknowable, or subject to a number of equally plausible interpretations. The reason these areas are a problem is because if putting constraints on present-day majorities on the basis of what past majorities decided is problematic for democratic theory, it is especially problematic for matters about which it is doubtful that anything at all was clearly decided by past majorities. There is an additional problem because if an area is murky it becomes especially easy for justices simply to impose (consciously or unconsciously) their policy and moral convictions on the majority, using some loose connection with constitutional text as the basis. Unless one is happy about being ruled by judges, democratic impulses should lead, a passivist would say, to a rule whereby invalidating statute should be seen as exceptional and in any case only appropriate where the Constitutional violation is fairly clear. As usual, what counts as clear will itself be unclear, but in the long run having this attitude or convention will surely make a difference. So even if Dworkins interpretive approach to deciding what the law is valid, the epistemological problem of getting agreement on what the objective law is leads to legislative deference as a practical matter.63
And even if Dworkins is a valid approach to determining common or statutory law, Constitutional review is sufficiently special to allow for original intent and legislative deference to play a strong role. Says Bickel:
There are crucial differences . . . between the role of the Supreme Court in constitutional cases and the function of courts of general jurisdiction. The latter sit as primary agencies for the peaceful settlement of disputes and, in a more restricted sphere, as primary agencies for the vindication and evolution of the legal order. They must, indeed, resolve all controversies within their jurisdiction, because the alternative is chaos. The Supreme Court in constitutional cases sits to render an additional, principled judgement on what has already been authoritatively ordered. Its interventions are by hypothesis exceptional and limited, and they occur, not to forestall chaos, but to revise a pre-existing order that is otherwise viable and was itself arrived at by more normal processes.64
Consider the following imaginary constitutional amendment: "Anyone upset because a law is restricting him from doing what he wants may challenge the law in court and have a judge decide whether to invalidate the law on the basis of the judges own sense of whether it is fair and just, as long as his views are not completely outside of the mainstream of American political culture." A judge would be comparatively neutral if he then did exactly what he was asked. He would be following the original intent. But such a delegation of power, even if intended, is not desirable, and I discuss other responses in the conclusion of the paper. The US Constitution does not have such language and we should be grateful for that.
It is certainly conceivable for a democracy to decide that it wants judges to intercede in public policy on the basis of abstract concepts of primary values. Canada seems to be backing into such a situation.65 The 1982 Canadian Charter of Rights and Freedoms seems to lend itself more to such an approach: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." For those who like preambles, consider this:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
I hope the US ratifiers did not think they were doing this.
D. Dworkin in Action: New York Review of Books
It is not clear whether Dworkin is mainly concerned with clarifying the correct (or as he might put it, the best) interpretation of the Bork episode or whether he is interested in ensuring that the "interpretation" he finds appealing because of its politically beneficial consequences gain popularity for whatever, possibly irrational, reasons. It is not clear, in other words, if his interest is intellectual or practical.
If his concern is intellectual, it is just bad social science: I suspect very few people who got agitated about Bork had a position on "jurisprudence." Even Dworkin himself a year or so earlier wrote that "popular opinion about judges and judging is a sad affair of empty slogans, and I include the opinions of many working lawyers and judges when they are writing or talking about what they do" (p. 11). In any case "we" (as Dworkin likes to refer to all true Americans) are not homogeneous. Some people still like Bork for nonjurisprudential reasons, some dislike him for such reasons. Some did and still do like his hermeneutics; some did not and do not. And even if as a result of the Bork hearings millions of minds assessed traditional judicial review and found it lacking--so what? Unless one considers it some kind of Hegelian historical moment. Or is there a new, democratic theory of truth at work here?
If, on the other hand, Dworkins concern is practical, the problem is that this kind of interpretation as spin is less euphemistically called deception. His distinction between explanation and interpretation seems to be a distinction between explanation and fictive explanation. His notion has a Sorelian element to it. It does not matter whether a particular theory is true, the question is whether it is a "myth" useful for achieving a given social end. Dworkins approach to "interpretation" has something in common with Napoleon (who said that history is what the winners say it is), and with the Ingsoc party slogan in 1984, "Who controls the past controls the future; who controls the present controls the past."70
[1999 note: During a November 1998 event at New York University sponsored by one of the readers of this paper, Stephen Holmes, original intent made a return to fashion, including for Ronald Dworkin. As one of the many famous speakers, Dworkin said that those who wanted to impeach President Clinton were acting inconsistently with what the framers had in mind by the impeachment clause. He characterized their motivation as 'wickedness'. Cass Sunstein, also a reader of this paper, testified to the Congress against impeachment. When I raised the apparent inconsistency of Dworkin with him, he said Dworkin could be forgiven hypocrisy since he cause was righteous. Noticing how profound his contempt was for those who advocated impeachment, I pointed out how much each side seemed to be disgusted with the other side's motives. Mistakenly thinking I had insulted him, he threatened to call the police if I did not stop talking to him. This after knowing each other amicably for over 10 years. He made a brief apology of sorts a few weeks later.]
A. Justification of Constitutionalism with Judicial Review
Substantive constitutional judicial review could be seen as democratic on higher level: it represents democratic self-doubt; it is a way of the countys restraining itself beforehand, like the addict who warns a friend not to listen to his pleas for heroin during withdrawal. The higher self precommits itself to constraints upon later resurgences of the lower self. In this vein, McCloskey wrote: "An impulsive nation like ours, much given to short-run fads, enthusiasms and rages, can little afford to dispense with the one governmental element [judicial review] that is disposed by its nature to take the long-run into account."72 In Fletcher v. Peck (1810), the first case in which the Supreme Court denied force to a state law, John Marshall wrote that
it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on legislative power of the states are obviously founded in this sentiment.73
It is possible to have ones will thwarted by the Supreme Court in a particular case and still affirm the general value of the practice of judicial review.
B. Recommendations for Standards to Be Used in its Practice
In court a lawyer may object to testimony, saying, "I object to any attempt to vary the terms of a written contract by parol evidence." In making the objection, the lawyer refers to the rule that written contracts ordinarily speak for themselves, and the parties are not permitted to give verbal testimony to show that a different meaning was intended. There are, however, exceptions to this rule. Parol evidence may be admitted (1) to establish the meaning of ambiguous provisions of the contract or (2) to prove facts rendering the agreement void because of illegality, fraud, duress, mistake, or insufficiency of consideration.74
Although "it is a Constitution we are expounding,"75 not a contract, these elementary guidelines are useful. Assuming the Constitution is a legitimate document, its enforcement allows for more "parol evidence" than, say, an apartment lease, because the Constitution was written in more general language and is hence less able to speak for itself. The purpose of parol evidence in constitutional interpretation is to clarify the meaning of ambiguous language and language whose usage was different at the times of ratification. It is in this context that "original intention" plays a part in interpretation.76
The word "intention" can be misleading, however. It is appropriate in the sense in which one might ask the questions, Why was this constitution or amendment created and ratified? What was the country (or the supporters) trying to be achieve by it? What was senator so-and-so intending to bring about through introducing and voting for this amendment? In these cases certain things were intended and some of the intentions are relevant in interpreting the meaning of provisions of a constitution or of a constitution as a whole. But "intentions" refers to mental events that are always related to action and therefore the term is too restricted for our purposes.77 A broader and more apt term is "understanding."78 One of the benefits of this word is that it links the relevant persons mental states to the actual wording of the law. It thus suggests which mental states are relevant and which are not.
But whose understanding counts and what kind of understanding? Answers: The person whose understanding counts is the reasonably informed, reasonably diligent, and reasonably intelligent ratifier--the average ratifier. The kind of understanding that counts is the average ratifiers understanding of the text he is asked to ratify. It is the ratifiers who count, not the framers. It is the ratifiers understanding of the actual words in the Constitution that counts, not other thoughts. In the case of a contract, what counts is what those who do the actual contracting agreed to, not what the lawyers drawing it up the documents had in mind. Likewise, it is what the ratifiers agreed to that counts, not what the framers hoped for. For legal purposes, our interest in the ratifiers is not based on their exceptional wisdom or others virtues.80 As they are the ones who signed the contract, so to speak, we should be bound by their understanding.81
The relevance of the average ratifiers understanding of what he was committing himself to is qualified by the fact that his signature is put to a document with specific words. So what is law is a reasonable reading, by a moderately informed ratifier, of the actual wording. In principle, the document embodies the compromises of the various framers (as opposed to the ratifiers). And it is, roughly, those intended compromises (or compromised intentions) that the ratifiers agreed to. The difference arises when it can be pointed out that some knowledge or some background assumptions of the framers was not shared by the ratifiers. On the other hand, if a ratifier did not read what the document says, it is still valid according to a reasonable reading. If some or all of the representatives failed to realize what they were signing, the people can then question the legitimacy of the entire affair--in which case either the whole process could begin again or, for pragmatic reasons, the document could be accepted as it stands, with reasonable contemporary inferred meaning as the standard for interpretation.82
According to Article VII of the Constitution, "The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the states so ratifying the same." The states which made the constitution into a legal document were Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire (which was the ninth state, ratifying on June 21, 1788). It is the intentions of the delegates to the ratification conventions which are directly relevant to the legal meaning of the Constitution. Then, what is the significance of the intentions of the states that came later? Not much. Virginia, New York, North Carolina, and Rhode Island joined an already existing Union based on a constitution the invariable part of whose meaning was set.83 This distinction only applies, of course, to the original Constitution, not to the Bill of Rights and later amendments.
A case could be made that the framers understanding should be accepted as a surrogate for that of the ratifiers for reasons such as (1) generally one would expect the two understandings to be quite close (the framers numbered among the ratifiers; they were the ones who explained the document to the rest of the ratifiers back in the their home states; and the Federalist Papers, written by three of the more influential framers, had wide currency at the time of the ratification debates). (2) The law needs a solid foundation and if we cannot figure out the ratifiers intent, the framers is a reasonable second best. (3) Their views might be more susceptible to a coherent reconstruction.
As another aid to interpreting the Constitution, the Federalist Papers are a privileged, although not decisive, commentary if the ratifiers and framers intentions are not independently ascertainable, because, as suggested above, it was written by framers and widely read by the ratifiers. My average, or reasonable, ratifier is a "personification" (to use Dworkins term) of all the ratifiers. As one gets further removed from the ratifiers as a whole, to the narrower group of framers and still narrower group going under the name Publius, one must justify each such removal.
People use words to say things. Their intentions give meaning to their utterances. The same series of words can mean any number of things. It is often important to know in what sense the words are being used. The words themselves limit the range of possibilities; but other signs are often needed, such as tone, emphasis, facial expression, context, the relationship of speaker and audience, and local usages. Parties use words to record their agreements. The agreement comes first and then some evidence of the intention is created.84 To discern what was intended, the words are the primary avenue. Parol evidence is the secondary avenue, to be used when the words alone leave doubts.
Crucial questions are What is it that ratifiers do when they ratify? What is the legal significance of having ratified something? It is conceivable to give the ratifiers actions a legal significance at variance with their own understanding of what they are doing, but the democratic attitude would presume in favor of having the two correspond. Whatever imperfections may have been present in the ratification process (no women, blacks, etc.), the situation is in no obvious way improved by allowing judges to mis-represent the ratifiers.
But as both Anthony Kennedy and Robert Bork intimated in their hearings, the intentions we are interested in are those related to making sense of the wording that was made law. Bork said, for example, that (with reference to statutes) the Court is not responsible to enforce winks. Kennedy said "What is important are the public acts that accompanied the ratification of [an amendment]."85 The qualified interest in intentions can be seen in the ratification of the fourteenth amendment. The Southern states were told that accepting the fourteenth amendment was a condition of full reentry into the Union. Those states did not "intend" to give equality to blacks. But they did consciously commit themselves to language that embodied that intention. They "understood" what the amendment means. They are bound by what they committed themselves to, not by what they may have been secretly thinking or hoping.
If today insufficient attention is paid to the original understanding of the Constitution, there have always been excessive and legally irrelevant invocations of the founding fathers mental states. One example is Justice Brandeiss defense of libertarian freedom of speech in his Whitney v. California (1927) concurring opinion:
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.86
Eloquent obiter dictum is perhaps acceptable as a way of letting creative energies flow; but it should be clearly understood that the personal traits of framers, ratifiers, or a fortiori "those who won our independence" (among whom numbered anti-Federalists) have very remote legal significance. What is directly legally relevant is how the words of an amendment were understood by the bulk of its ratifiers.
Inappropriate concern with original intentions can also arise when those who advocate "jurisprudence of the original intent" confuse the legal standing of the agreements made by those authorized to make them with a patriotic or other kind of desire to return to views of the founding fathers. Here I do not argue whether or not we should exalt the founders or return to the good old days. My point is strictly limited to how the Constitution should be interpreted as a legal document in the hands of the courts. For all my thesis cares, the Constitution could be turned into holy scripture and the founding fathers could be canonized in the civil religion. The legal situation should remain the same, however.
I have said that constitutions and amendments should be understood as intended by those authorized to make them. This does not mean that it is not possible for people to do the wrong thing and make constitutions or amendments that are too vague. The Court can respond to these vague enactments either by honoring them in their intended vagueness (and thereby allow power to be delegated to the courts) or by not honoring them--through either construing them to have a concreteness greater than but consistent with the actual intent; ignoring them as unusable on account of excessive vagueness, indeterminableness, or ambiguity; or rejecting them: remanding them to the people for clarification. A reason for not honoring vagueness is that the resulting transferal of power to the judiciary is undemocratic, an unintended subversion of the separation of powers. A subversion of the foundations of the Constitution should be done deliberately. Although constitutions can be badly made, I assume in this paper that the Court accepts the Constitution as it is, and gives it effect so long as the Court can make sense out of it and can translate that sense into neutral principles. In other words, the Constitution is interpreted as vaguely as intended--with the following two exceptions. The first relates to how we interpret the historical fact of Marbury v. Madison. The second relates to what we do with provisions that are not just vague, but whose meaning it is not possible to establish.
C. Influence of Questionable Origins of Judicial Review on Interpreting a Document Ratified before Its Rise87
While the original Constitution and the Bill of Rights should, where there may be a problem of excessive generality, be interpreted less vaguely than originally understood,88 the 14th Amendment should be interpreted just as vaguely as intended, since it was ratified after judicial review was already established. This differentiation is consistent with a commitment to original intent if we take into consideration that judicial review itself was not clearly intended. A compromise must be sought between the ratifiers vague understanding of the document they were ratifying, their vague expectations as to what it would be used for, and the role it came to play years later in the very concrete institution of judicial review.
D. Legislative Deference as Solution to Certain Kinds of Vague Provisions
In the event that the meaning of a sentence in the Constitution cannot be decided upon, that sentence should not then be given a new meaning that satisfies the preferences, however noble, of a judge or scholar. For practical purposes such provisions are meaningless. Constitutional provisions are not unknown gods waiting to be specified by lawyers with a mission.
So Paul, standing in the middle of the Areopagus, said: "Men of Athens, I perceive that in every way you are very religious. For as I passed along, and observed the objects of your worship, I found an altar with this inscription, To an unknown god. What therefore you worship as unknown, this I proclaim to you . . . "89
Paul shrewdly proceeds to let the Athenians know who the god is. The unknown meaning of a part of the Constitution should not be used as a basis for justices to engage in freewheeling ethical reasoning on what should count as cruel, unusual, due process, privileges, immunities, equal protection, or fundamental liberty. The ninth amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"), for example, does not mean that the judges can discover new rights. It means the legislatures can. An example of this kind of problem can be found in Justice Goldbergs concurring opinion in Griswold v. Connecticut (1965):
Although I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments, [I] do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty [embraces] the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported by numerous decisions of this Court, referred to in the Courts opinion, and by the language and history of the Ninth Amendment [which] reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from government infringement . . . . [To] hold that a right so basic and fundamental and so deep-rooted in our society as the right to privacy in marriage may be infringed upon because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever . . . . Although the Constitution does not speak in so many words of the right to privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family--a relation as old and fundamental as our entire civilization--surely does not show that the Government was meant to have the power to do so . . .90
This is reasoning on the basis of incredulity ("I cannot believe"), missing words ("not mentioned explicitly"), and unknown and unspecified beliefs ("the Framers of the Constitution believed that there are additional fundamental rights"). It is doubtful, even it were relevant, that whatever rights these framers may (or may not) have had in mind had been specified that they would have produced legal rights to use contraceptives, kill fetuses, and engage in sodomy. At least the use of substantive due process in the protection of property and contract had some textual basis in other parts of the Constitution. There are other ways to vindicate human rights beside strained Constitutional interpretation: rights can be created statutorily. Neither should the due process clauses91 be used as a pretext for judicial creativity. The more this is done the more the countermajoritarian difficulty is aggravated.
When the House, Senate, and President enact a law, the Supreme Court should presume that law to be the legitimate "will of the people." Only when the law clearly violates the peoples higher will, the Constitution, should the Court dare strike down the statute. Potential room for judicial discretion is eliminated by deferring to the Congress or state legislatures in cases of doubt. That is to say, if the repugnancy to the Constitution is not clear, a legislature should have its way.
The one area where this approach does not work and where the Court must take a stand despite indeterminableness of original intent is federalism.92 If the dispute is over national interference in state affairs it makes no sense to defer to Congress.93 This problem parallels in part the problem of letting majorities decide the rights of minorities: this would be "to make a majority, in effect, a judge in its own cause."94 In such cases, political theory, moral reflection, and policy considerations are acceptable within the limits of the original understanding. I am not certain how my position here differs from Dworkins two tests of fit and justification, except that what I am interested in interpreting (i.e., text with intent) is more limited.
E. Pacta Sunt Servanda: Why We Are Bound by Past Decisions
A second reason to obey the intentions of the ratifiers is that the alternative leads to an intolerable situation. Once the canons of interpretation become fuzzy, the center of governmental gravity shifts strongly in the direction of the judiciary. The rule of judges divorced from clear textual mandate undercuts the democratic legitimacy of judicial power. Positively put, following the ratifiers intent supplies democratic legitimacy.
It may be objected that commitments made by one generation are not morally binding on later ones. This relates to the question whether a new regime inherits pre-revolutionary obligations. It relates more generally to whether a new generation is obligated to obey another generations law or pay their debts. Without being absolute about the matter, common sense suggests that to significantly deny any of theses obligations would make social life unacceptably unstable. If each generation started anew, as Jefferson at one point advocated, the result would be chaos. So, to ask that we obey a previous generations constitution is no more atavistic or reactionary than asking that the Civil Rights Act of 1870 be obeyed. If the response is that as the Constitution is fundamental law, its inhibiting effect is more serious and allowing judges the freedom to reinterpret it in tune with the times mollifies this effect, the question becomes: which way binds us less to the past and which way is more legitimate--allowing judges to alter and expand the meaning of the Constitution (and restrict the sphere of politics)--as nonoriginalists want, or having judges minimize the meaning of the Constitution and maximize the area in which elected representatives can bring the country up to date through statute or amendment--as originalists want? Contrary to popular notions, there is a sense in which nonoriginalists are more interested than originalists in being dominated by the words and intentions of the framers or ratifiers. Nonoriginalists want to take those original utterances and have them restrict the democratic sphere in all sorts of ways. Originalists, on the other hand, want to limit the present-day impact of those words. Originalists want evolution of the regime, and so do nonoriginalists. The difference is that originalists want a living polity run by politicians whereas nonoriginalists want a living Constitution run by judges. Nonoriginalists argument is sometimes expressed as, Why should we be constrained by the dead hand of the past? Indeed, why have a constitution? Originalists say, maybe we should not be constrained by the past, but if we are going to adapt to the times, the Court should get out of the way, except where the Constitution (according to original understanding) says it must act or until the American people want to get rid of the Constitution.96
A prior question is worth asking: Which extant provisions of the Constitution, if understood as originally intended, are so bad or are so unacceptable to a ratifyingly large number of present-day citizens that there is a need for their meanings to be changed by judges? Is a prohibition on torture outmoded? Is a ban on prior restraint no good? Is prohibiting state discrimination against blacks no longer helpful? Is it old-fashioned to require that government officials follow the law when putting people in jail or confiscating their property? The reason some scholars and activists want a change is not because of anything constraining or anachronistic in the Constitution; it is because they think the Constitution does not have enough in it. They want to amend it the easy way.
Even if time did weaken our obligation to obey laws, it certainly does not follow that the solution is to allow unelected and unaccountable judges to determine public policy. The democratic problems raised by laws of past generations are heightened under a system of judge-made law. If I can claim to have no obligation to obey laws duly enacted by my great grandfather I would certainly have none toward the ex cathedra proclamations of my brother. The philosophical objection to transgenerational commitments would argue in favor of a minimalist interpretation of the Constitution--like that advocated by Bork--not in favor of a view which maximizes the constraints on present day majorities. It may even argue against Constitutions (that go beyond democratic procedure) altogether. If one is convinced that the legal commitments made by the ratifiers in 1789 have lost their binding force, then the American people should now be able to introduce cruel and unusual punishment, if they so choose. With the original understanding approach, the law will evolve in a valid, unintended way. But it will evolve because of the variable surface of the law; the invariable core will not change, or at least no one should try to make it change.97
The background for this position is an acceptance of the fact that in the United States there is a separation of powers, in which, by and large, legislatures make the laws, executives enforce them, and the judiciary interprets their application in justiciable controversies. This separation is not absolute: the executive can veto legislation, a negative legislative act. But the president is elected and it has always been the United States tradition that the courts legislate only interstitially in the common law, and they do so subject to statutory override. The fact that judges must resolve unclarity of legal meaning (interpret) is no basis for borrowing debatable notions from literary criticism in order to alter the substance of laws, especially in constitutional cases which establish principles outside political control. It is the role of the legislatures to change laws.
United States law can evolve though legislation, amendment, application, and scholarly reconsideration. It does not need to "evolve" through judicial fiat. Should we consider the meaning of treaties as capable of evolution as well? If the original understanding of the ABM treaty was narrow can it now be broad?98 If the meaning of the Constitution can evolve, what about the meaning of Supreme Court precedents? Perhaps Roe v. Wade no longer means that abortions cannot be illegalized. The Bork hearings should lead one to believe that the "mainstream" position is now that precedents are more sacred than the Constitution itself. Borks desire to take the Constitution seriously was evidence of a cramped mind; his unwillingness to completely rule out the possibility of overturning past Supreme Court decisions was taken as evidence of his contempt for tradition and the American way of life.
If constitutional "meaning" could evolve according to the progressive enlightenment of the nation and the refining of its conscience, no one could object in principle. But there is a problem in specifying what that entails practically and who it is that will decide that this is what is really happening. If Jesus, Buddha, or the 12th Immam were to decide this I would gladly have them be on the Supreme Court, where they could creatively reinterpret the Constitution as they saw fit. In fact, as far as I am concerned, they could dispense with the Constitution altogether and simply invalidate all laws at variance with divine justice and mercy. If men were angels we would not need judicial restraint. It is certainly true that the majority can pass stupid and unfair legislation. But why does it follow that the situation is improved by giving veto power to judges? They too can be stupid and unfair. The problem is not how fully to embody justice in every corner of society; it is how to minimize the probability, given human frailties, of the occurrences injustice and stupidity through the least imperfect set of mechanisms that can be thought of as appropriate to a particular country.
A constitution which includes some rights can offer the advantage of protecting minorities and individuals against prejudiced and hasty legislation. Its disadvantage lies in its potential for transferring too much power to an unaccountable branch of government. The optimum of benefits of judicial review is achieved when judges interpret the constitution based on the understanding of the average ratifier, and when, in the case of serious indeterminacy of meaning, the courts defer to the legislatures. If the ratifiers will is no longer acceptable, "we the people" should change the Constitution, not the judges.
1. I have added some comments I had penciled in the margins a few months after this paper was finished in 1988. I cannot guarantee that they fit well into their contexts --PB, 1996.
3. "The Origin and Scope of the American Doctrine of Constitutional Law" (Harvard Law Review, vol. 7, p. 129, cited in Wolfe, Rise of Modern Judicial Review, p. 177. See also Bickel, Least Dangerous Branch, pp. 35-44 for a discussion of Thayers position.
5. McCloskey, American Supreme Court, p. 9; see also pp. 8, 10. See Abraham, Judicial Process, pp. 321-23 for an assessment of the evidence that differs sharply. Abraham says there was overwhelming support for judicial review at the constitutional convention, including from people who would number among the ratifiers. Abraham even has Madison supporting judicial review (p. 321). Back on the first hand again, however, see Gunther in n.6 below.
6. Gunther, "Judicial Review," pp. 19-20; McCloskey, American Supreme Court, p. 10; Levy, Democracy and Distrust, p. 35. There had been only a brief flirtation with a kind of judicial review (with the common law as the fundamental law) in England--under the chief justiceship of Lord Coke (1552-1634) (Plucknett, Concise History of the Common Law, pp. 336-37). Gunther says that "the practice of state courts during the years immediately following independence hardly establish a well-entrenched practice of judicial review . . . . It is not clear that many delegates at the Constitutional Convention knew about the scattered actual or alleged instances of invalidation of state laws by state judges. Nor do the statements in the Constitutional Convention and the state ratification debates provide ironclad proof that judicial review was intended by the Framers"("Judicial Review," p. 19). According to Bickel (Least Dangerous Branch, p. 9), Robert Yates and others opposed judicial review at the constitutional convention. Cf. Bickel, Least Dangerous Branch, p. 15: "the Framers of the Constitution specifically, if tacitly, expected that the federal courts would assume a power--of whatever exact dimensions--to pass on the constitutionality of actions of the Congress and the President, as well as of the several states."
10. For example, in Roman law a contract for the sale of land did not produce the basis for actions in rem until formal conveyance; see Nicholas, Introduction to Roman Law, pp. 103-5; Stein, Legal Institutions, p. 147. Jefferson actually made this point in response to Marshalls decision (see p. 88 of Wolfe, Rise of Modern Judicial Review).
12. On this same page, Marshall invokes the original intention of the "framers." But at least one framer--the defendant in the case, James Madison, did not agree. John Marshall had been a delegate to the Virginia ratification convention (not one of the first nine); see Abraham, Judicial Process, pp. 323, 330. Justice William Paterson had been a delegated from New Jersey--see quote in Abraham, Judicial Process, p. 324.
14. Hart, Concept of Law, pp. 102-5. The rule of recognition exists as a matter of fact. Primary rules exist as a matter of validity, given certain secondary criteria (see Hart, p. 107). [? The Constitution has primary rules, such as those concerning cruel and unusual punishment, freedom of speech and religion, and secondary rules, such as the presidential veto, congressional competence to enact and modify laws, Article III on judicial powers, supremacy clause.
16. The views of Robert McCloskey, in American Supreme Court, have many similarities to those of Bickel. McCloskeys evaluation of the Supreme Court is very nondoctrinal. He has little concern for what might count as valid legal casuistry. It could perhaps be called a political science perspective.
20. Cf. McCloskeys warning about premature rule making: "Critics have perennially urged the Court to abolish uncertainties by pronouncing a sweeping rule, but historical experience suggests that such advice is dubious, however well intended. The broadly generalized dogmatism has usually created more mischief than it has cured, both from the Courts own viewpoint and from the viewpoint of public policy. It is reasonable therefore to expect that the rules will emerge gradually as inferences from a multitude of decisions, and to hope that they will be well adapted to reality by the nature of their evolution" (American Supreme Court, p. 207).
25. Chief Justice John Marshall might have disagreed with Bickel. In 1821, in Cohens v. Virginia, he wrote of the Supreme Court: "We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution" (quoted in Abraham, Judicial Process, p. 185; see also, Gunther, "Judicial Review," p. 23).
26. "In conventional classification . . . delegation and vagueness are viewed as full-fledged constitutional doctrines, resting, respectively, on the principle of the separation of powers and on the due-process principle of fair warning" (p. 201). "The passive devices, producing decisions that fall short of constitutional adjudication, and constitutional doctrines properly so called are all points on a continuum of judicial power. And if, having regard to actual consequences, one views exercises of the power as ranging from the extreme of a denial of certiorari at one end to that of the judgement in the School Desegregation Cases at the other, it is evident that not all constitutional decisions have the same weight, the same reach, the same binding quality; not all encounter with equal degree of shock the countermajoritarian difficulty; some are nearer the passive end than others" (p. 207). "The methods of not doing may be classified on a scale of intrinsic significance. On this scale, the doctrines of vagueness and delegation stand high, and the related concept of desuetude is at something of an apex. It follows that there are limits to the occasions on which these doctrines and devices may be used, limits that inhere in their intellectual content and intrinsic significance. Indeed, with the possible exception of what I have called ripeness of the issue, which is merely a catch-all phrase for a certain order of consideration relating to the merits, none of these techniques totally lacks content of its own, and none is always available at will" (p. 170).
NP: "Neutral Principles and Some First Amendment Problems"
31. Bork thinks that originalists have theoretical problems of their own, e.g., clarifying the issue of how to decide the level of generality of a Constitutional principle (FM x) and how to translate intentions into legal principles usable in a judicial system (response to question from me on May 11, 1988 at the University of Chicago Law School. He says he will try to develop the matter further in his upcoming book).
32. In the debate with Macedo included at the back of Macedo, New Right v. The Constitution, Gary McDowell says: "The due process clause is not a judicial wild card to be used to smuggle moral theory into the Constitution" (p. 109).
35. Donald Davidson has said that the term is unfortunate since there really is no charity involved (and could thus be misleading) (lecture for course, "Philosophy of Action," University of California, Berkeley, spring quarter, 1984).
36. Dworkin, Laws Empire, p. 53. Dworkin cites W. V. O. Quine, Word and Object (Cambridge, Mass.: MIT Press, 1960). For discussions of the principle of charity, see Davidson, Inquiries into Truth and Interpretation, passim (see the index) and Essays on Actions and Events, pp. 221, 290; Elster, Sour Grapes, p. 11.
38. The quotation continues as follows: "Courts perform this function all of the time. Indeed, it is the same function they perform when they apply a statute, a contract, a will or, indeed a Supreme Court opinion to a situation the Framers of those documents did not foresee. Thus we are usually able to understand the liberties that were intended to be protected. We are able to apply the first amendments Free Press Clause to the electronic media; we are able to apply the fourth amendments prohibition on unreasonable searches and seizures to electronic surveillance; we apply the Commerce Clause to state regulations of interstate trucking. Does this version of intentionalism mean that judges will invariably decide cases the way the Framers would if they were here today? Of course not. But many cases will be decided that way and, at the very least, judges will confine themselves to the principles the Framers put into the Constitution. Entire ranges of problems will be placed off-limits to judges, thus preserving democracy in those areas where the Framers intended democratic government. That is better than any non-intentionalist theory of constitutional adjudication can do. If it is not good enough, judicial review under the Constitution cannot be legitimate. I think it is good enough. [ER 826-7]
39. In his questions and answers at the University of Chicago Law School (May 11, 1988), Bork first spoke only of ratifiers. Later he added framers. This seems to be an area of some semi-conscious vacillation among intentionalists. The issue has not been directly addressed in the readings I have done.
40. In his questions and answers at the University of Chicago Law School on May 11, 1988, Bork reiterated the importance of the structure of the Constitution as a basis for interpretation, thus once again disqualifying himself from being one of Elys "clause-bound interpretivists." He said that an area that intentionalists need to do work on is specifying the special problems that are involved when an intention is deflected into the judicial system, with its special needs: how to transform an intention into a judicially enforceable legal principle, which presumably is neutrally defined.
41. Neither of these is romantic: "Unfortunately, the rhetoric of constitutional adjudication is increasingly a rhetoric about fundamental rights that inhere in humans" (NP 17). Elsewhere (SR 1138) he writes, probably not fully seriously, that "There may be a natural law, but we are not agreed upon what it is."
42. "To approach these cases as involving rights derived from the requirements of our form of government is, of course, to say that they involve guarantee clause claims" (NP 19). Here Bork is referring to Art. IV, sec. 4 of the Constitution, which reads in the relevant part: "The United States shall guarantee to every State in this Union a republican form of government." He does not pursue the matter and I am unclear what he has in mind.
43. This includes one Chicago area professor of law (whose name I forget) who appeared on John Calloways Chicago Tonight, channel 11, Chicago, Macedo (The New Right v. The Constitution, esp. pp. 4,5, 39-48), and Barber ("The New Right Assault on Moral Inquiry in Law," pp. 254-66, 275ff.).
45. See Max Webers similar requirements of abstinence by university professors in "The Meaning of Ethical Neutrality in Sociology and Economics" and in "Science as a Vocation." Marxists naturally find such a secular Calvinism alienating.
46. Ely, Democracy and Distrust, p. 87. On p. 101 he refers to his as a "representation-reinforcing orientation." Numbers in the text refer to this book.
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47. Parts of Bickel Bickel (Least Dangerous Branch) support Elys procedural preference: "Structure and method and the turning of square corners are what procedural due process is generally all about also. A distinction is commonly taken in constitutional law between procedural and substantive decisions, as they are called; and it is generally valid, because procedural decisions for the most part point to infirmities that are curable. They deal with the "how" of governmental action, whereas substantive decisions go to ends, dealing with "what." At one extreme, the narrowest kind of procedural decision, such as that in the Garner [v. Louisiana (1961)] case [in which the Court avoided deciding whether lunch counter discrimination is "private" by reversing the convictions of protesters arrested for disturbing the peace "on the procedural ground that the state had introduced no evidence at the defendants trials to show that the public was being unreasonably disturbed or alarmed"(p. 178)], can scarcely be deemed a constitutional adjudication; it is a passive voice device of avoidance. When there is nothing to avoid, procedural decisions, like other ones, just stand on their own feet and are inadequate if not principled. But having regard to their consequences . . . they are generally found nearer the passive sector of the continuum of judicial power than so-called substantive ones. And they are, therefore, less affected by rules of limitation drawn from the premise of distrust of judicial review" (p. 233).
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48. I am using the word "originalism" to mean roughly the same thing as Elys "interpretivism."
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49. "The Constitution may have to follow the flag, but is it really supposed to keep up with the New York Review of Books?" (p.58).
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50. Bickel, Least Dangerous Branch, p. 58: "Our own point of departure, like Mr. Wechslers, has bee that judicial review is the principled process of enunciating and applying certain enduring values of our society. These values must, of course, have general significance and even-handed application. When values conflict--as they often will--the Court must proclaim one as overriding, or find an accommodation among them. The result is a principle, or new value, if you will, an amalgam of values, or a compromise of values; it must in any event have general significance and even-handed application."
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51. See Bickels good critique of the one man, one vote principle in The Least Dangerous Branch, pp. 192-94. See also Ackerman, "Beyond Carolene Products; "Low-Beer, "The Constitutional Imperative of Proportional Representation."
52. See Low-Beer, "The Constitutional Imperative of Proportional Representation," criticizing judicially invented principle of one man, one vote, proclaimed by the Court in the 1960s as the quintessence of democracy.
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53. Dworkin, Laws Empire, p. 50; further references to this book in this section will appear with page numbers only. Reference to "Forum of Principle" will be preceded by FP.
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54. "A conception of law is a general, abstract interpretation of legal practice as a whole" (p. 139).
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55. Will a multitude of judges each according to his own moral lights seeing the law as authored by one person and as the best it can be result in a more coherent community of principle than if each judge would adjudicate on the basis of original intent? In other words, would a multitude of individually coherent minds add up to actually coherent legal system? Would it be more coherent than the alternative? And why do we want to impose that kind of coherence when there is not moral unanimity or even consensus in the country anyway? These question are in a footnote since I suspect Dworkin has answered them somewhere.
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56. In "Forum as Principle", Dworkin seems more willing to suggest that it is better to have judicial review: "American public officials . . . . are, as a group, extraordinarily sensitive to the issues of political and moral principle latent in these controversies; more so, I think, than even the brilliantly educated and articulate officials of Britain, for example" (FP 70).
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57. This appears to be an intellectuals ideal. It also appears less than fully democratic. Possibly sensitive to this, a few paragraphs later Dworkin rather unconvincingly adds: "Rule by academic priests guarding the myth of some canonical original intention is no better than the rule by Platonic guardians in different robes" (FP 71).
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58. See Bickel, Least Dangerous Branch, pp. 2, 3, 13.
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59. The plain-fact view includes the claims that law is simply a matter of what law makers decided on in the past, which theoretically can be figured out to everyones satisfaction by an intelligent and knowledgeable lawyer. Law is not influenced by what ought to be (pp. 6-11).
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60. Would anyone disagree "that an important part of the point of law was to supply standards for the decision of courts"? Dworkin seems to be saying that Marshall decided correctly because he, Dworkin, thinks Marbury is a good "interpretation" of U. S. legal practices as of 1803, regardless of the actual reasons Marshall gives. Bickel, however, takes Marshalls arguments seriously and finds them lacking. He too supports judicial review--but that does not mean that anything said in its defense is correct or as good as anything else. One does not have to be an opponent of judicial review or under the influence of the maya of the plain-fact view of law to see questions being begged or avoided.
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61. "Iustitia est constans et perpetua voluntas ius suum cuique tribuens." Tribonian, Theophilus, and Dorotheus, Institutes or Elements of Our Lord Justinian, Perpetual Augustus, pp. 36-37. I have modified the translation to make it sound less with it.
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62. Wood ("Fundamentalists and the Constitution," p. 40), by way of terminological contrast, criticizes original intenters for not being historicists. He calls them fundamentalists, unconcerned with historical understanding. See the cacophony of uses of historicism: Karl Popper, The Poverty of Historicism; Reinhard Bendix, Force, Fate, and Freedom; Leszek Kolakowski, Main Currents of Marxism; Leo Strauss, "What is Political Philosophy;" George C. Mansfield, "Leo Strauss, Alan Bloom and Democracy II."
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63. By way of analogy: many people may agree that God has only one will, but be quite quick to acknowledge that any opinions about what it is should not be held with excessive confidence. This appreciation of the epistemological difficulty of determining what is agreed to be an objective and unique matter leads to less of a willingness to impose ones viewpoint on others. If we could know Gods will for sure, there would be no need for tolerance. Tolerance would then be weakness.
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64. Bickel, Least Dangerous Branch, p. 173. All page numbers in the text refer to this book.
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65. But it at least has a provision for legislative override of Supreme Court decisions, the "notwithstanding clause:" "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter" (Canadian Charter of Rights and Freedoms, Sec. 33 (1); available in Canadian World Almanac & Book of Facts: 1988, p. 13). Such laws must be renewed every five years, however (Sec. 33 , ).
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66. Canadian World Almanac & Book of Facts: 1988, p. 11.
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67. Dworkin, "From Bork to Kennedy," p. 36. Seven of the essays in A Matter of Principle first appeared, like this one, in New York Review of Books.
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68. Dworkin, "From Bork to Kennedy," p. 37. Further references will be in the text preceded by BK.
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69. See the many problems he sets forth in "Forum of Principle."
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70. George Orwell, 1984, p. 204.
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71. "This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments" (John Marshall in Marbury v. Madison, available in Stone et al., Constitutional Law, p. 23).
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72. McCloskey, American Supreme Court, pp. 228-29. See also Bickel, Least Dangerous Branch, pp. 24-26, 41, 58 (e.g., on p. 26: "appeal to mens better natures").
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73. Cited in Wolfe, Rise of Modern Judicial Review, p. 49.
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74. Coughlin, Law for the Layman, pp. 46-47.
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75. John Marshall in McCulloch v. Maryland (1819), available in Stone et al, Constitutional Law, p. 50.
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76. Madison on behalf of the state of Virginia speaks of "the plain sense and intention of the instrument [the Constitution] constituting that compact," ("Kentucky Resolutions," November 16, 1798) and Jefferson on behalf of the state of Kentucky speaks of being "faithful to that compact according to the plain intent and meaning in which it was understood and acceded to by the several parties" ("Virginia Resolutions," December 24, 1798). Madison, in the same place, further complained of "forced constructions of the constitutional charter." Years later he wrote "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation." (1824 letter to Henry Lee, cited in McDowell, Constitution and Contemporary Constitutional Theory, p. 13). That law, including fundamental law, should be interpreted according to original meaning and understanding, is by far the most invoked standard in Supreme Court decisions since the beginning. Even Earl Warren invoked original intent.
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77. If one imagines a ratifier reading the Constitution out loud with conviction while pretending to be the god of America speaking to future generations, this reading can be considered a "directive speech act," in which case the term "intention" would be in place. "The communication intention consists simply in the intention that the hearer should recognize that the act was performed with the representation intention. Thus, my intention when I signal you by raising my hand is to get you to recognize that I am signaling that the enemy has retreated" (Searle, Intentionality, p. 168). Thus the gods intention in uttering "Congress shall make no law . . . abridging the freedom of speech" is to get Congress to recognize that it is being given specific limits by an Authority in the hope that it will obey those limits. Thus the intention behind the words is to bring about a certain state of affairs in the world, namely that Congress refrain from the temptation to make laws abridging the freedom of speech.
78. Bork made a similar point in his 1987 Senate confirmation hearings.
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79. Anthony Kennedy, in his confirmation hearings, made a similar point: "Remember that the Framers are not the sole repository for the necessary intention and the necessary purpose. In the legislature we dont ask what the staff person thought when he or she wrote the bill. We ask what the senators thought. Its what the legislatures thought they were doing and intended and said when they ratified an Amendment" (Kennedy, The New York Times, "Answers from Judge Kennedy in His Last Day before Senate Committee"). On the ratifiers, see Madisons "especially the ratifiers" in Powell, "Consensus and Objectivity in Early Constitutional Interpretation," p. 866.
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81. Cf. Elys quote of Thomas Cooley in Democracy and Distrust, pp. 17-18:
"Every member of [a constitutional] convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicated the purpose of a majority of a convention in adopting a particularly clause . . . And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would naturally convey. For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives." Ely proffers this quote in an argument against originalism. He precedes the quote with a wonderful case of what at least at first glance looks like question begging or point missing: "The debates (or other contemporary sources) can serve the dictionary function of resolving ambiguities . . . but that function fulfilled, the critical record of what was meant to be proposed and ratified is what was proposed and ratified." This would make more sense if he had put the words "the recorded wording of" between "is" and "what." In his speech at the University of Chicago (May 1988), Robert Bork at first only mentioned the intentions of the ratifiers, which I found interesting, but later he added the framers and seemed to be ambivalent about the matter.
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81. My references to contracts are neutral as to whether constitutions should be understood as contracts. See Hardin, "Why a Constitution?," for an argument against contractarianism.
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82. It appears that James Madison agrees: "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character . . . . The legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must not be in the opinions or intentions of the Body which planned and proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses" (cited in Wolfe, Rise of Modern Judicial Review, p. 34). The understanding of the state conventions can be sought in the resolutions and calls for amendments that that accompanied the state ratifications, as well as in the records of the debates (Wolfe, pp. 34-5).
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83. Shafritz, Dorsey Dictionary of American Government and Politics, p. 133; McDonald, E Pluribus Unum, p. 354. The Constitution can be said, I think, to have an invariable core as well as a variable part. Restriction of the relevant original understanding of the original Constitution to the first nine ratifying states may be excessively legalistic or it may be a moot point, since there may be no difference in understanding between the last four and the first nine.
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84. In Roman law contracts were made verbally, with writing used only as evidence of the verbal agreement. The essence of the contract was consensus; writing simply pointed to what was agreed to (Nicholas, Introduction to Roman Law, pp. 193ff, 171ff.; Stein, Legal Institutions, pp. 185ff.).
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85. Kennedy, The New York Times, "Answers from Judge Kennedy on His Last Day before Senate Committee."
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86. Concurrence in Whitney v. California 274 US 357 (1927); available in Stone et al, Constitutional Law, p. 962. See also Bickel, Least Dangerous Branch, pp. 99-100: "Brandeiss understanding of the mindset of the revolutionary war heroes is not only irrelevant but apparently false as well. Bickel falls into error himself on p. 103, thinking that the framers outlook on life is somehow legally binding on us: "[The participants at the constitutional convention] were strong, hopeful, men, it must be remembered, living at a time of burgeoning intellectual inquiry, when the best of men remembered change and looked for it. They did not believe in a stable world."
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87. This analysis draws on the view of Marbury v. Madison I express in the Introduction.
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88. This claim does not necessarily mean that the class of excessively vague provisions has any members. Michael McConnell, I believe, would maintain that the US Constitution does not have any provisions whose meaning are not fairly straightforward. In conversation July 1988.
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89. Acts 17: 22-25, Holy Bible, Revised Standard Version.
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90. Griswold v. Connecticut 381 U. S. 479 (1965) (emphases added); available in Stone et al, Constitutional Law, pp. 843-44.
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91. Amendment 5: "No person shall be . . . . deprived of life, liberty, or property, without due process of law." Amendment 14: "No State shall . . . deprive any person of life, liberty, or property, without due process of law."
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92. According to Abraham (Judicial Process, pp. 308-9), "judicial review . . . is not likely to be found in nonfederal states." He makes this point in more detail on other pages. See also pp. 315 (judicial review in German federalism disputes), 319, 329. He does not give reasons for this correlation.
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93. Wolfes response to this matter is the quite different (Rise of Modern Judicial Review, p. 176). He maintains his commitment to the position that where the constitution is not clear the court cannot act in opposition to the legislature, which he takes for granted to be the Congress. Elsewhere (p. 339) he comments, however, that "it seems rather clear that a chief role of the Court in the original scheme of judicial review was that of an arbiter of federalism." Ward, talking from a Canadian vantage point, agrees with me: "Judicial review in a federal system is plainly inescapable, since neither level of government could be expected to trust the other to define its own powers; and if those levels of government with elected components cannot be expected to make final interpretations of a constitution, the courts are equally plainly the most reliable institution to which to turn" (Ward, Dawsons The Government of Canada, pp. 323-24). See also Stein, Legal Institutions, pp. 110, 111 for an Englishmans general claim for federal states.
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94. Wolfe, Rise of Modern Judicial Review, p. 330 paraphrasing Dworkins position in chap. 5 of Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977). See also Bork, "Neutral Principles and Some First Amendment Problems," p. 3.
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95. Oliver Wendell Holmes: "Of course I know, and every other sensible man knows, that the Sherman law [Anti-Trust Act of 1890] is damned nonsense, but if my country wants to go to hell, I am here to help it;" cited in Abraham, Judicial Process, p. 390.
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96. It could be said that while originalists want a society constituted on the basis of disks capable of being changed in the random access memory (RAM), nonoriginalists want more of the social software built into the read only memory (ROM) (see Freiberger and McNeill, Computer Sense, pp. 162-66).
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97. I prefer the analogy of the development of folk songs to Dworkins of a chain novel (see Vaughan Williams, National Music and Other Essays, pp. 21-52).
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98. The need for stability is conceivably less strong here than in municipal law.
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Scalia, Antonin. Speech at the University of Chicago Law School, January 1988.
Sunstein, Cass R. "Interest Groups in American Public Law." Stanford Law Review. Vol. 38, no. - (November 1985), pp. 29.
. "Lochners Legacy." Columbia Law Review. Vol. 87, no. 5 (---1987), pp. 873-919.
. "Pornography and the First Amendment." Duke Law Journal. Vol. 8, no. 4 (September 1986), pp. 589-627).
Unger, Roberto Mangabeira. "The Critical Legal Studies Movement." Harvard Law Review. Vol. 96, no. 3 (January 1983), pp. 563-665.
Van der Vyver, Johan D. "The American and South African Constitutions: A Comparative Study." Pp. 111-142 in Wells, Ronald A., and Askew, Thomas A., eds. Liberty and Law: Reflections on the Constitution in American Life and Thought. Grand Rapids, Mich.: William B. Eerdmans, 1987.
Ward, Norman. "The Nature of the Constitution" in Dawsons The Government of Canada. Toronto: University of Toronto Press, 1987.
Weber, Max. "The Rational State" in General Economic History. Translated by Frank H. Knight. Introduction by Ira J. Cohen. New Brunswick, N.J.: Transaction Books, 1981.
Wechsler, Herbert. "Toward Neutral Principles of Constitutional Law." Harvard Law Review. Vol. 73, no. ?? (1959), pp. 1-35.
Wood, Gordon S. "The Fundamentalists and the Constitution: The Leo Strauss Bicentennial." The New York Review of Books. February 18 1988, pp. 33-40.
C. Popular Magazine and Newspaper Articles
Anderson, Bruce. "Advocate Questions Role of the Appellate Division." The Star. (Johannesburg) International Airmail Weekly edition. December 15, 1987, p. 5.
"Blackmun Takes Justices to Task." The New York Times. July 18, 1988. [See the next days correction, and subsequent clarifications]
Boei, William, Kim Bolan, and Mason Gary. "Pro-Choice Groups Vow Fight against B.C. Abortion Stand." Vancouver Sun. 29 January 1988, p. A1.
Burns, John F. "Canada Puts a Nazi Apologist on Trial for His Ideas, Again." The New York Times. March 30, 1988.
. "Quebec Accord Losing Support in the Rest of Canada." The New York Times. May 3, 1988.
Capel, David. "Drop Barbaric Death Penalty, Plead Experts." The Star. (Johannesburg) International Airmail Weekly edition. April 13, 1988, p. 8.
"Charter Not Retroactive, Supreme Court Decides." The Vancouver Sun. July 2, 1988.
Cohen, Tim. "Is the South African Legal System Legitimate?" The Star. (Johannesburg) International Airmail Weekly edition. May 25, 1988, p. 9.
"Extending French Rights." Macleans. (Toronto) March 7, 1988, p. 15.
Feron, James. "U.S. Judge Orders Yonkers Housing Plan by Monday." The New York Times. July 27, 1988.
. "Yonkers Desegregation Plan Likely." The New York Times. July 13, 1988.
. "Yonkers is Ruled to be in Contempt on Housing Plan; Integration is the Goal; 3 Councilmen are also Given PenaltyViolation Cost Could Bankrupt City." The New York Times. August 3, 1988.
. "Yonkers Begins Paying Contempt Fine." The New York Times. August 4, 1988.
Finder, Alan. "Despite Furor, No Critical Precedent." The New York Times. August 3, 1988. [on Yonkers]
Foderaro, Lisa W. "In Yonkers, an Angry, Fearful Mood." The New York Times. August 4, 1988.
"Foreign Attacks on SA Judiciary Scorned." The Star. (Johannesburg) International Airmail Weekly edition. April 13, 1988, p. 9.
Fraser, Graham. "Ottawa Promises to Act Quickly to Establish New Abortion Policy; Tories Not Planning to Use Constitution Escape Clause. Toronto Globe and Mail (National Edition). January 30, 1988.
Ginsburg, Douglas H. "Ginsburgs Responses to Questions on His Judicial Philosophy." The New York Times. November 5, 1987.
Gonzales, Lawrence. "The Executioners." Chicago. March 1988, pp. 91-97, 180-85.
Greenhouse, Linda. "Panel Rejects Reagan Court Nominee [Professor Bernard H. Siegan of San Diego]." The New York Times. July 15, 1988.
Greenhouse, Linda. "Senators Predict Fast Confirmation of Judge Kennedy." The New York Times. December 16, 1987, pp. 1, 16.
"Here Come the Judges. The Supreme Court Flexes its New Power. Nine Justices and their Private Lives." (Cover story) Macleans: Canadas Weekly Newsmagazine. January 11, 1988.
"International Jurists Slam SA Rule of Law." The Star. (Johannesburg) International airmail weekly edition. June 1, 1988, p. 5.
"Is South Africa Entering the Judicial Dark Ages?" The Star. (Johannesburg) International airmail weekly edition. January 19, 1988, p. 9.
"Judges Actions Grounded in Constitution." The New York Times. August 3, 1988. [on Yonkers]
Kamm, Henry. "Malaysia Suspends 5 Supreme Court Justices." The New York Times. July 7, 1988.
Kennedy, Anthony. "Answers from Judge Kennedy in His Last Day before Senate Committee." The New York Times. December 16, 1987.
Kinzer, Stephen. "O. A. S. Tribunal Finds Honduras Responsible for a Political Killing." The New York Times. July 30, 1988. (front page)
"The Libel Law on Trial." Macleans. (Toronto) March 21, 1988, p. 16.
Liberman, Lee S. "Foretaste of Presidential Responsibility." Op ed letter. The New York Times. July 15, 1988.
Loewe, Mike. "This is Little Peoples Court." The Star. (Johannesburg) International Airmail Weekly edition. January 26, 1988, pp. 12-13.
MacQueen, Ken. "Supreme Court Decision; Curbs on Abortion Struck Down." Vancouver Sun. January 28, 1988, p. A1.
"Must Judge Sand Stand Alone?" (editorial) The New York Times. August 3, 1988.
Nowosenetz, L. "Social Issues: Challenge to our Legal System." The Star. (Johannesburg) International Airmail Weekly edition. April 13, 1988, p. 9.
Palmer, Vaughn. "Judicial Activism is a Two-Edged Sword." Vancouver Sun. January 29, 1988, p. B2.
Rasky, Susan F. "Federal Judge is Impeached by House." The New York Times. August 4, 1988.
Roberts, Steven V. "Critics of Ginsburg Examine Areas Beyond His Writings." The New York Times. November 5, 1987.
"Ruing Fixed Opinions." The New York Times. 22 February 1988, p. 20. [Expressing Justices Scalias and Rhenquistss disappointments over the lack of dialogue at Supreme Court conferences, which consist only in the stating of opinions and voting in order of seniority.]
Simons, Marlise. "Brasília Journal: In Battle for a Charter, War Clubs Have A Place." The New York Times. August 4, 1988.
Taylor Jr., Stuart. "The Supreme Court: Lifting of Secrecy Reveals Earthy Side of Justices." The New York Times. 22 February 1988, p. 20.
American Booksellers Association, Inc. et al v. William H. Hudnut III et. al. Federal Reporter 2d Series Vol. 771 (1985), p. 323 . (No. 84-3147 U.S Court of Appeals, Seventh Circuit)
Hudnut v. American Booksellers Association, Inc. Supreme Court Reporter Interim Edition. Volume 106 (1986), p. 1172. [U. S. Supreme Court No. 85-1090; memorandum decision affirming American Booksellers v. Hudnut, appealed from the Seventh Court of Appeals for the Seventh Circuit]
Marbury v. Madison. 5 U.S. 1 Cranch 187 (1803).
Morgentaler v. The Queen (Jan. 28, 1988) Supreme Court of Canada, File No. 19556.
Ollman v. Evans. Federal Reporter, Second Series. Vol. 750 (1984), p. 970 [750 F.2d 970 (D. C. Cir. 1984)] [Robert Bork concurring with the majority in disallowing a libel suit on the basis of the original intent of the First Amendment; Judge Antonin Scalia dissenting on the basis of the original intent of the First Amendment]